-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FfPwFaGIt+Z5sjJedNPibvS4smNwOso2Xip2NCG4IJOriOsvtZZxs8WxslpMm0Zj MSgtd+VRVovONTYSNOqU9A== /in/edgar/work/0000891092-00-001096/0000891092-00-001096.txt : 20001116 0000891092-00-001096.hdr.sgml : 20001116 ACCESSION NUMBER: 0000891092-00-001096 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20001115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM GROUP INC CENTRAL INDEX KEY: 0000029989 STANDARD INDUSTRIAL CLASSIFICATION: [7311 ] IRS NUMBER: 131514814 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-47342 FILM NUMBER: 770075 BUSINESS ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2124153700 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: DOYLE DANE BERNBACH GROUP INC DATE OF NAME CHANGE: 19861117 FORMER COMPANY: FORMER CONFORMED NAME: DOYLE DANE BERNBACH INTERNATIONAL INC DATE OF NAME CHANGE: 19850604 FORMER COMPANY: FORMER CONFORMED NAME: DOYLE DANE BERNBACH INC DATE OF NAME CHANGE: 19781226 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM CAPITAL TRUST I CENTRAL INDEX KEY: 0001125637 STANDARD INDUSTRIAL CLASSIFICATION: [7311 ] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-47342-01 FILM NUMBER: 770076 BUSINESS ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2124153700 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM CAPITAL TRUST II CENTRAL INDEX KEY: 0001125638 STANDARD INDUSTRIAL CLASSIFICATION: [7311 ] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-47342-02 FILM NUMBER: 770077 BUSINESS ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2124153700 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM CAPITAL TRUST III CENTRAL INDEX KEY: 0001125639 STANDARD INDUSTRIAL CLASSIFICATION: [7311 ] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-47342-03 FILM NUMBER: 770078 BUSINESS ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2124153700 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 S-3/A 1 0001.txt FORM S-3/A As filed with the Securities and Exchange Commission on November 15, 2000 Registration No. 333-47342 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- OMNICOM GROUP INC. New York 13-1514814 OMNICOM CAPITAL TRUST I Delaware 13-4138375 OMNICOM CAPITAL TRUST II Delaware 13-4138377 OMNICOM CAPITAL TRUST III Delaware 13-4138379 (Name of registrant) (State of incorporation (I.R.S. Employer or organization) Identification Numbers) 437 Madison Avenue New York, New York 10022 (212) 415-3600 (Address and telephone number of registrant's principal executive offices) ---------- BARRY J. WAGNER, ESQ. Secretary and General Counsel Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 (212) 415-3600 (Agent for service) ---------- COPIES TO: LINDA E. RANSOM, ESQ. Dewey Ballantine LLP 1301 Avenue of the Americas New York, New York 10019 (212) 259-8000 ---------- Approximate date of commencement of proposed sale of the securities to the public: At such time (from time to time) after the effective date of this Registration Statement as Omnicom Group Inc. may determine in light of market conditions and other factors. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_| If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. |X| If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. |X| (continued on the following pages) CALCULATION OF REGISTRATION FEE
=================================================================================================================== Proposed Proposed Maximum Maximum Amount of Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Registration To Be Registered Registered per Unit(1) Price(2)(3) Fee(4) - ------------------------------------------------------------------------------------------------------------------- Common Stock of Omnicom Group Inc. (5) ................................ - ------------------------------------------------------------------------------------------------------------------- Preferred Stock of Omnicom Group Inc. (6) ................................ - ------------------------------------------------------------------------------------------------------------------- Depositary Shares of Omnicom Group Inc. (7) ................................ - ------------------------------------------------------------------------------------------------------------------- Senior Debt Securities, Subordinated Debt Securities and Junior Subordinated Debt Securities of Omnicom Group Inc. (8) .......... - ------------------------------------------------------------------------------------------------------------------- Warrants of Omnicom Group Inc. (9) ............... - ------------------------------------------------------------------------------------------------------------------- Trust Preferred Securities of the Trusts (10) .... - ------------------------------------------------------------------------------------------------------------------- Guarantees of Trust Preferred Securities of the Trusts and certain backup obligations of Omnicom Group Inc. (11) .................... - ------------------------------------------------------------------------------------------------------------------- Common Stock of Omnicom Group Inc. reserved for issuance upon conversion of Senior Debt Securities Subordinated Debt Securities, Junior Debt Securities Preferred Stock or Trust Preferred Securities (12) ............................... - ------------------------------------------------------------------------------------------------------------------- Total (13) ....................................... $421,400,000 $421,400,000 $118,800 ===================================================================================================================
- ---------- (1) The proposed maximum offering price per unit will be determined from time to time by the relevant Registrant in connection with the issuance by such Registrant of the securities registered hereunder. (2) The proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act of 1933, as amended. The aggregate public offering price of the Common Stock, Preferred Stock, Depositary Shares, Senior Debt Securities, Subordinated Debt Securities and Junior Subordinated Debt Securities, Warrants and guarantees and other obligations of Omnicom Group Inc. and the Trust Preferred Securities of the Trusts offered pursuant to the Prospectus forming a part of this Registration Statement will not exceed $750,000,000 or the equivalent thereof in one or more foreign currencies, foreign currency units or composite currencies. As discussed below, the Prospectus included in this Registration Statement also relates to $328,600,000 in aggregate amount of securities previously registered by Omnicom Group Inc. (3) Exclusive of accrued interest, distributions and dividends, if any. (4) A filing fee aggregating $147,500 was previously paid in connection with a registration statement filed earlier relating to the registration of $500,000,000 in aggregate amount of securities, of which $328,600,000 in aggregate amount of securities are being covered by the Prospectus included in this Registration Statement. The filing fee of $118,800 relates solely to the registration of $421,400,000 aggregate principal amount of securities not previously registered. (5) Subject to note (13) below, there is being registered hereunder an indeterminate number of shares of Common Stock of Omnicom Group Inc. as from time to time may be issued at indeterminate prices. Includes Common Stock which may be purchased by underwriters to cover over-allotments, if any. (6) Subject to note (13) below, there is being registered hereunder an indeterminate number of shares of Preferred Stock of Omnicom Group Inc. as from time to time may be issued at indeterminate prices. Includes Preferred Stock which may be purchased by underwriters to cover over-allotments, if any. (7) Subject to note (13) below, there is being registered hereunder an indeterminate number of Depositary Shares as may be issued in the event that Omnicom Group Inc. elects to offer fractional interests in the Preferred Stock registered hereby. Includes Depositary Shares which may be purchased by underwriters to cover over-allotments, if any. (8) Subject to note (13) below, there is being registered hereunder an indeterminate principal amount of Senior Debt Securities, Subordinated Debt Securities and Junior Subordinated Debt Securities as may be sold from time to time. Includes Debt Securities which may be purchased by underwriters to cover over-allotments, if any. (9) Subject to note (13) below, there is being registered hereunder an indeterminate principal amount of Warrants to purchase Preferred Stock, Common Stock or Debt Securities of Omnicom Group Inc. (10) Subject to note (13) below, there is being registered hereunder an indeterminate number of Trust Preferred Securities of Omnicom Capital Trust I, Omnicom Capital Trust II and Omnicom Capital Trust III (each a "Trust") and such indeterminate principal amount of Junior Subordinated Debt Securities of Omnicom Group Inc. as from time to time may be issued at indeterminate prices. Includes Trust Preferred Securities which may be purchased by underwriters to cover over-allotments, if any. Junior Subordinated Debt Securities may be issued and sold to any Trust, in which event such Junior Subordinated Debt Securities may later be distributed to the holders of Trust Preferred Securities upon a dissolution of such Trust and the distribution of the assets thereof. (continued on the following page) (11) Includes the rights of holders of the Trust Preferred Securities under any Guarantees and certain back-up undertakings comprised of the obligations of Omnicom Group Inc. to provide certain indemnities in respect of, and pay and be responsible for certain costs, expenses, debts and liabilities of, each Trust (other than with respect to the Trust Preferred Securities) and such obligations of Omnicom Group Inc. as set forth in the Amended Trust Agreement of each Trust and the related Junior Subordinated Debt Indenture, in each case as further described in the Prospectus forming a part of this Registration Statement. The Guarantees, when taken together with Omnicom Group Inc.'s obligations under the Junior Subordinated Debt Securities, the related Junior Subordinated Debt Indenture and the Amended Trust Agreement, will provide a full and unconditional guarantee on a subordinated basis by Omnicom Group Inc. of payments due on the Trust Preferred Securities. No separate consideration will be received for any Guarantees or such back-up obligations. (12) There is being registered hereunder an indeterminate number of shares of Common Stock as may be issued upon conversion of any Senior Debt Securities, Subordinated Debt Securities, Junior Subordinated Debt Securities, Preferred Stock or Trust Preferred Securities that provide for such conversion. No separate consideration will be received for the Common Stock issuable upon such conversion. (13) As described in notes (2) and (4) above and the paragraph below, the Prospectus included in this Registration Statement relates to the registration of $421,400,000 in aggregate amount of securities being registered hereby and an additional $328,600,000 in aggregate amount of securities previously registered. In no event will the aggregate offering price of all securities offered pursuant to the Prospectus included in this Registration Statement exceed $750,000,000 or the equivalent thereof in one or more foreign currencies, foreign currency units or composite currencies. Pursuant to Rule 429 under the Securities Act of 1933, as amended, the Prospectus and Prospectus Supplement included in this Registration Statement also relate to $328,600,000 in aggregate amount of securities previously registered by Omnicom Group Inc. under the Registration Statement on Form S-3 (No. 333-46303) of Omnicom Group Inc. A filing fee of $96,937 was paid in connection with $328,600,000 of securities that remain eligible to be sold under that Registration Statement as of November 15, 2000. The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ================================================================================ This information in this prospectus is not complete and may be changed. Neither Omnicom Group Inc. nor any of the Omnicom Capital Trusts may sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION, DATED NOVEMBER 15, 2000 PROSPECTUS $750,000,000 OMNICOM GROUP INC. Common Stock Preferred Stock Depositary Shares Debt Securities Warrants OMNICOM CAPITAL TRUST I OMNICOM CAPITAL TRUST II OMNICOM CAPITAL TRUST III Trust Preferred Securities Fully and unconditionally guaranteed, as described in this prospectus, by Omnicom Group Inc. ---------- Omnicom will provide the specific terms of these securities in supplements to this prospectus. You should read this prospectus and the accompanying prospectus supplement carefully before you invest. ---------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any accompanying prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense. , 2000 TABLE OF CONTENTS PAGE Prospectus Summary ........................................................ 3 Where You Can Find More Information ....................................... 6 Forward-Looking Information ............................................... 6 Omnicom Group Inc. ........................................................ 7 The Omnicom Capital Trusts ................................................ 7 Use of Proceeds ........................................................... 8 Ratio of Earnings to Fixed Charges ........................................ 8 Description of Common Stock ............................................... 8 Description of Preferred Stock ............................................ 9 Description of Depositary Shares .......................................... 11 Description of Debt Securities ............................................ 13 Description of Warrants ................................................... 19 Description of Trust Preferred Securities and Related Guarantees .......... 21 Book-Entry Procedures and Settlement ...................................... 36 Plan of Distribution ...................................................... 37 Legal Matters ............................................................. 38 Experts ................................................................... 39 2 - -------------------------------------------------------------------------------- PROSPECTUS SUMMARY This summary provides a brief overview of information in this prospectus and does not contain all of the information that may be important to you. This prospectus provides you with a general description of the securities Omnicom may offer. Each time Omnicom offers securities, Omnicom will provide a prospectus supplement that will contain specific information relating to the terms of the securities being offered. The prospectus supplement may also add, update or change information contained in this prospectus. To understand the terms of the securities, you should carefully read this prospectus with the applicable prospectus supplement. You should also read the documents that have been incorporated by reference in this prospectus as described below under "Where You Can Find More Information." Omnicom Group Inc. Omnicom is one of the world's leading communications services companies. The communications services offered by Omnicom include advertising in various media such as television, radio, newspaper, magazines, outdoor and the internet, as well as public relations, specialty advertising, direct response and promotional marketing, strategic media planning and buying, and internet and digital media development. Operations cover the major regions of North America, the United Kingdom, Germany, France, the remainder of Continental Europe, Latin America, the Far East, Australia, the Middle East and Africa. Omnicom's principal executive office is at 437 Madison Avenue, New York, NY 10022, and its telephone number is (212) 415-3600. The Omnicom Capital Trusts Each of Omnicom Capital Trust I, Omnicom Capital Trust II and Omnicom Capital Trust III is a statutory business trust newly formed under Delaware law by Omnicom, as sponsor of each of the trusts, and Chase Manhattan Bank USA, National Association, as trustee in the State of Delaware pursuant to the Delaware Business Trust Act. The trusts have been formed to allow for the possible offer of one or more series of trust preferred securities under this prospectus. The principal office of each of the trusts is c/o Omnicom Group Inc., 437 Madison Avenue, New York, NY 10022, and its telephone number is (212) 415-3600. The Securities This prospectus is part of a registration statement that Omnicom filed with the SEC using the so-called shelf registration process. Under this process, Omnicom may offer from time to time shares of common stock, shares of preferred stock, depositary shares, debt securities, warrants and, in conjunction with the Omnicom Capital Trusts, trust preferred securities and related guarantees, in one or more offerings up to a total dollar amount of $750,000,000. A prospectus supplement will describe the specific types, amounts, prices and detailed terms of any of the particular securities offered. Common Stock Omnicom may offer common stock, par value $.15 per share. Holders of common stock are entitled to receive dividends when declared by its board of directors. Each holder of common stock is entitled to one vote per share. The holders of common stock have no preemptive rights or cumulative voting rights. Preferred Stock Omnicom may offer preferred stock with various terms to be established by its board of directors. Each series of preferred stock will be more fully described in the prospectus supplement relating to the series' issue, including redemption provisions, rights in the event of liquidation, dissolution or winding up of Omnicom, voting rights and conversion rights. Generally, each series of preferred stock will rank on an equal basis with each other series of preferred stock and will rank prior to Omnicom's common stock. The prospectus supplement will also describe how and when dividends will be paid on the series of preferred stock. - -------------------------------------------------------------------------------- 3 - -------------------------------------------------------------------------------- Depositary Shares Omnicom may offer depositary shares representing fractional shares of preferred stock. Each particular series of depositary shares will be more fully described in the prospectus supplement relating to that series of depositary shares. Depositary shares will be evidenced by depositary receipts and issued under a depositary agreement between Omnicom and a bank or trust company. You are encouraged to read the form of the depositary agreement, which will be filed as an exhibit to one of Omnicom's future SEC reports and incorporated by reference in the registration statement to which this prospectus relates. Debt Securities Omnicom may offer debt securities, which are obligations of Omnicom in the form of senior or subordinated debt. Senior debt includes Omnicom's notes, debt and guarantees and any other debt for money borrowed that is not subordinated. Subordinated debt, so designated at the time it is issued, would not be entitled to interest and principal payments if interest and principal payments on the senior debt were not made. The senior and subordinated debt will be issued under separate indentures between Omnicom and a trustee. The indentures describe the features of the debt securities, which are summarized below under "Description of Debt Securities." You are also encouraged to read the forms of the indentures, which have been filed with the SEC and are incorporated by reference in the registration statement to which this prospectus relates. The particular terms of a series of debt securities will be described in the prospectus supplement relating to that series of debt securities. Warrants Omnicom may offer warrants to purchase debt securities, preferred stock or common stock independently or together with securities. Warrants will be issued under a warrant agreement to be entered into between Omnicom and a bank or trust company. The prospectus supplement relating to the specific warrants being offered will contain the applicable warrant agreement. You are encouraged to read each form of warrant agreement, which will be filed as an exhibit to one of Omnicom's future SEC reports and incorporated by reference as an exhibit to the registration statement to which this prospectus relates. Warrants are securities that, when properly exercised by the holder, entitle the holder to purchase from Omnicom for cash an amount of debt securities, preferred stock or common stock. The terms of each type of warrant will be described in the prospectus supplement relating to the issue of the particular warrants. Trust Preferred Securities and Related Guarantees Omnicom may offer one or more series of trust preferred securities, which would be issued by one of the Omnicom Capital Trusts. Each particular series of trust preferred securities will be more fully described in the prospectus supplement relating to the series being offered. Each series of trust preferred securities will be issued under an amended trust agreement to be entered into at the time the securities are issued. The terms of a series of trust preferred securities will include those stated in the amended trust agreement and those made a part of the amended trust agreement by the Trust Indenture Act of 1939, as amended, or the Delaware Business Trust Act. The amended trust agreement will be substantially in the form filed as an exhibit to the registration statement to which this prospectus relates, will be qualified as an indenture under the Trust Indenture Act and will be effective upon the initial issuance of the series of trust preferred securities. You are encouraged to read the form of amended trust agreement. Omnicom will enter into a guarantee with respect to each series of trust preferred securities under which it will irrevocably and unconditionally agree to make certain payments to the holders of that series of trust preferred securities, subject to certain subordination provisions, except that the guarantee will only apply to such payments when the trust has sufficient funds legally and immediately available to make those payments but has not made them. The form of guarantee is filed as an exhibit to the registration statement to which this prospectus relates. You are encouraged to read the form of guarantee. - -------------------------------------------------------------------------------- 4 - -------------------------------------------------------------------------------- The proceeds from the sale of a series of trust preferred securities will be used by the trust to purchase a series of Omnicom's junior subordinated debt securities. The terms of the series of junior subordinated debt securities will mirror the terms of that series of trust preferred securities. Each series of junior subordinated debt securities will be issued under the junior subordinated debt indenture between Omnicom and a trustee. The indenture describes the features of the junior subordinated debt securities. The features of the junior subordinated debt securities are similar to the subordinated debt securities described above under "Debt Securities," with the additional features summarized below under "Description of Trust Preferred Securities -- Description of Additional Terms of Junior Subordinated Debt Securities to be Issued to the Trusts." You are also encouraged to read the form of the junior subordinated debt indenture, which has been filed as an exhibit to the registration statement to which this prospectus relates. The particular terms of a series of junior subordinated debt securities will be described in the prospectus supplement relating to that series of junior subordinated debt securities. The series of junior subordinated debt securities purchased with the proceeds from the sale of a series of trust preferred securities and related trust common securities by a trust will be the sole assets of the trust, and Omnicom's payments under the series of junior subordinated debt securities and the Agreement as to Expenses and Liabilities between Omnicom and the trust will be the sole revenue of the trust. If Omnicom fails to make a payment on the series of junior subordinated debt securities, the trust will not have sufficient funds to make related payments, including distributions, on the series of trust preferred securities. Omnicom's guarantee, when taken together with Omnicom's obligations under the junior subordinated debt securities, the related indenture and the amended trust agreement, will provide a full and unconditional guarantee on a subordinated basis by Omnicom of payments due on the trust preferred securities. - -------------------------------------------------------------------------------- 5 WHERE YOU CAN FIND MORE INFORMATION This prospectus is a part of a registration statement filed by Omnicom and the Omnicom Capital Trusts under the Securities Act of 1933. The registration statement also includes additional information not contained in this prospectus. Omnicom files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document Omnicom files at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. You can also request copies of the documents, upon payment of a duplicating fee, by writing the Public Reference Section of the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. These SEC filings are also available to the public from the SEC's web site at http://www.sec.gov. The SEC allows Omnicom to "incorporate by reference" into this prospectus and any prospectus supplement (as well as the related registration statement) the information it files with the SEC, which means that it can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus as a legal matter. Information that Omnicom files later with the SEC will automatically update information in this prospectus. In all cases, you should rely on the later information over different information included in this prospectus or the prospectus supplement. Omnicom incorporates by reference the documents listed below and any future filings made with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934: o Annual Report on Form 10-K for the year ended December 31, 1999; o Quarterly Report on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000; and o Registration Statement filed pursuant to Section 12 of the Exchange Act describing our common stock, including any amendments or reports filed for the purpose of updating such description. All documents Omnicom files pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and before the later of (1) the completion of the offering of the securities described in this prospectus and (2) if applicable, the date the underwriters stop offering securities pursuant to this prospectus will also be incorporated by reference in this prospectus from the date of filing of such documents. You may request a copy of these filings, at no cost, by writing or telephoning Omnicom at the following address: Barry J. Wagner Secretary and General Counsel Omnicom Group Inc. 437 Madison Avenue New York, NY 10022 (212) 415-3600 You should rely only on the information provided in this prospectus and the prospectus supplement, as well as the information incorporated by reference. Omnicom has not authorized anyone to provide you with different information. You should not assume that the information in this prospectus, the prospectus supplement or any documents incorporated by reference is accurate as of any date other than the date on the front of the applicable document. FORWARD-LOOKING INFORMATION Some of the statements under "Prospectus Summary" and elsewhere in this prospectus, any accompanying prospectus supplement and any documents incorporated by reference constitute forward-looking statements. These statements relate to future events or Omnicom's future financial performance and involve known and unknown risks, uncertainties and other factors that may cause Omnicom's or its industry's actual results, levels of activity, performance or achievements to be materially different from those expressed or implied by any forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as "may," "will," "could," "would," "should," "expect," "plan," "anticipate," "intend," "believe," "estimate," "predict," "potential" or "continue" or the negative of those terms or other comparable terminology. These statements are only predictions. Actual events or results may differ materially. Moreover, Omnicom and the 6 Omnicom Capital Trusts do not, nor does any other person, assume responsibility for the accuracy and completeness of those statements. Omnicom and the Omnicom Capital Trusts have no duty to update any of the forward-looking statements after the date of this prospectus to conform them to actual results. OMNICOM GROUP INC. Omnicom is one of the world's leading communications services companies. The communications services offered by Omnicom include advertising in various media such as television, radio, newspaper, magazines, outdoor and the internet, as well as public relations, specialty advertising, direct response and promotional marketing, strategic media planning and buying, and internet and digital media development. Operations cover the major regions of North America, the United Kingdom, Germany, France, the remainder of Continental Europe, Latin America, the Far East, Australia, the Middle East and Africa. The principal office of Omnicom is located at 437 Madison Avenue, New York, NY 10022, and its telephone number is (212) 415-3600. THE OMNICOM CAPITAL TRUSTS Each of Omnicom Capital Trust I, Omnicom Capital Trust II and Omnicom Capital Trust III is a statutory business trust newly formed under Delaware law by Omnicom, as sponsor of each of the trusts, and Chase Manhattan Bank USA, National Association, as trustee in the State of Delaware pursuant to the Delaware Business Trust Act. The exclusive purposes of each trust are to: o issue two classes of trust securities, trust preferred securities and trust common securities, which together represent undivided beneficial interests in the assets of the trust; o invest the gross proceeds of the trust securities in Omnicom's junior subordinated debt securities; o make distributions; and o engage in only those other activities necessary, advisable or incidental to the purposes listed above. Each trust's business and affairs will be conducted by its trustees, which will be appointed by Omnicom. The trustees will consist of five employees of Omnicom as administrative trustees, a financial institution unaffiliated with Omnicom as property trustee and as indenture trustee for purposes of the Trust Indenture Act, and Chase Manhattan Bank USA, National Association, as trustee in the State of Delaware for purposes of complying with Delaware laws. Each trust will exist until terminated as provided in its amended trust agreement. The amended trust agreement will authorize the administrative trustees to issue, on behalf of the trust, two classes of trust securities, trust preferred securities and trust common securities, each of which will have the terms described in this prospectus and in the applicable prospectus supplement. Omnicom will own, directly or indirectly, all of the trust common securities. The trust common securities will rank equally in right of payment, and payments will be made on the trust common securities proportionately with the trust preferred securities. However, if an event of default occurs and is continuing under the amended trust agreement, the rights of the holders of the trust common securities to distributions and to payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the trust preferred securities. Omnicom will acquire, directly or indirectly, trust common securities in a total liquidation amount of approximately 3% of the total capital of each of the trusts. The proceeds from the sale of trust preferred securities will be used by a trust to purchase Omnicom's junior subordinated debt securities. Those junior subordinated debt securities will be the sole assets of the trust, and Omnicom's payments under that series of junior subordinated debt securities and under an agreement as to expenses and liabilities between Omnicom and the trust will be the sole revenue of the trust. 7 None of the trusts has any independent operations or any purpose other than as described above. Therefore, separate financial statements of each of the trusts are not included in this prospectus because they would not be material to holders of trust preferred securities. The trusts are not expected to file annual, quarterly or special reports with the SEC. The principal office of each of the trusts is c/o Omnicom Group Inc., 437 Madison Avenue, New York, NY 10022 and their telephone number is (212) 415-3600. Accounting Treatment of Each Trust Each trust will be treated as a subsidiary of Omnicom for financial reporting purposes. Accordingly, Omnicom's consolidated financial statements will include the accounts of each trust. The trust preferred securities issued by the Omnicom Capital Trusts, along with any other trust preferred securities that Omnicom may guarantee on an equivalent basis, will be presented as a separate line item in Omnicom's consolidated balance sheets, and appropriate disclosure about the trust preferred securities, the guarantee and the junior subordinated debt securities will be included in the notes to the consolidated financial statements. Omnicom will record distributions that each trust pays on the trust preferred securities as an expense in its consolidated statement of income. USE OF PROCEEDS Unless otherwise specified in an applicable prospectus supplement, Omnicom will use the proceeds it receives from the sale of the offered securities for general corporate purposes, principally to: o reduce its short-term indebtedness; o fund investments in, or extensions of credit or capital contributions to, its subsidiaries; and o fund possible acquisitions. Proceeds may also be used for other purposes as may be stated in the applicable prospectus supplement. Net proceeds may be temporarily invested prior to use. The precise amounts and timing of the application of proceeds will depend upon the funding requirements of Omnicom and its subsidiaries at the time of issuance and the availability of other funds. RATIO OF EARNINGS TO FIXED CHARGES The following table shows the ratio of earnings to fixed charges of Omnicom for the nine months ended September 30, 2000 and each of the five most recent fiscal years. Nine Months Ended September 30, Year Ended December 31, ---------------------------- 2000 1999 1998 1997 1996 1995 ---- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges ... 4.74 4.44 4.03 4.23 4.06 3.55 The ratio of earnings to fixed charges is computed by dividing fixed charges into earnings before income taxes plus fixed charges. Fixed charges consist of interest expense and that portion of net rental expense deemed representative of interest. DESCRIPTION OF COMMON STOCK The following briefly summarizes the material terms of Omnicom's common stock. You should read the more detailed provisions of Omnicom's certificate of incorporation for provisions that may be important to you. Omnicom's authorized common stock consists of 1 billion shares of common stock, par value $.15 per share, of which 176.7 million shares were outstanding as of September 30, 2000. Each holder of common stock is entitled to one vote per share for the election of directors and for all other matters to be voted on by Omnicom shareholders. Holders of common stock may not cumulate their votes in the election of directors, and are entitled to share equally in the dividends that may be declared by the board of directors, but only after payment of dividends required to be paid on any outstanding shares of preferred stock. Omnicom's shareholders elect a classified board of directors and may not remove a director except by an affirmative two-thirds vote of 8 all outstanding voting shares. A two-thirds vote ofall outstanding voting shares is also required for Omnicom's shareholders to amend Omnicom's by-laws or certain provisions of its certificate of incorporation, and to change the number of directors comprising the full board. The board of directors has power to amend the by-laws or change the number of directors comprising the full board. Upon voluntary or involuntary liquidation, dissolution or winding up of Omnicom, the holders of the common stock share ratably in the assets remaining after payments to creditors and provision for the preference of any preferred stock. There are no preemptive or other subscription rights, conversion rights or redemption or scheduled installment payment provisions relating to shares of common stock. All of the outstanding shares of common stock are fully paid and nonassessable. The transfer agent and registrar for the common stock is ChaseMellon Shareholder Services. The common stock is listed on the New York Stock Exchange under the symbol "OMC." DESCRIPTION OF PREFERRED STOCK The following briefly summarizes the material terms of Omnicom's preferred stock, other than pricing and related terms to be disclosed in a prospectus supplement. You should read the particular terms of any series of preferred stock offered by Omnicom which will be described in more detail in any prospectus supplement relating to such series, together with the more detailed provisions of Omnicom's certificate of incorporation and the certificate of designation relating to each particular series of preferred stock, for provisions that may be important to you. The certificate of incorporation is incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part. The certificate of designation relating to the particular series of preferred stock offered by a prospectus supplement relating to the series' issue will be filed as an exhibit to one of Omnicom's future current reports and incorporated by reference in the registration statement to which this prospectus relates. The prospectus supplement will also state whether any of the terms summarized below do not apply to the series of preferred stock being offered. As of the date of this prospectus, Omnicom's preferred stock consists of 7.5 million shares of preferred stock, par value $1.00 per share, none of which is outstanding. Under Omnicom's certificate of incorporation, the board of directors of Omnicom is authorized to issue, without the approval of Omnicom's shareholders, shares of preferred stock in one or more series, and to establish from time to time a series of preferred stock having such powers, preferences, rights and limitations as the board of directors so designates. Prior to the issuance of any series of preferred stock, the board of directors of Omnicom will adopt resolutions creating and designating the series as a series of preferred stock and the resolutions will be filed with the New York State Secretary of State as an amendment to the certificate of incorporation. The resolutions of the board of directors of Omnicom providing for a series of preferred stock may include the following provisions: o the title and stated value of the preferred stock; o the number of shares of the preferred stock offered, the liquidation preference per share and the purchase price of the preferred stock; o the dividend rate, period and/or payment date or method of calculation thereof applicable to the preferred stock; o whether dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall accumulate; o the provisions for a sinking fund, if any, for the preferred stock; o the provisions for redemption, if applicable, of the preferred stock; o the terms and conditions, if applicable, upon which the preferred stock will be convertible into or exchangeable for other types of securities, including the conversion price (or a manner of calculation thereof) and conversion period; o voting rights, if any, of the preferred stock; 9 o whether interests in the preferred stock will be represented by depositary shares; and o any other specific terms, preferences, rights, limitations or restrictions of the preferred stock. The rights of holders of the preferred stock offered may be affected by the rights of holders of any shares of preferred stock that may be issued in the future. Those effects could be adverse. Shares of preferred stock issued by Omnicom may have the effect of rendering more difficult or discouraging an acquisition of Omnicom deemed undesirable by the board of directors of Omnicom. The preferred stock will be, when issued, fully paid and nonassessable. Holders of preferred stock will not have any preemptive or subscription rights to acquire more stock of Omnicom. The transfer agent, registrar, dividend disbursing agent and redemption agent for shares of each series of preferred stock will be named in the prospectus supplement relating to such series. Rank Unless otherwise specified in the prospectus supplement relating to the shares of any series of preferred stock, the shares will rank on an equal basis with each other series of preferred stock and prior to the common stock as to dividends and distributions of assets. Dividends Holders of each series of preferred stock will be entitled to receive cash dividends when, as and if declared by the board of directors of Omnicom out of funds legally available for dividends. The rates and dates of payment of dividends will be set forth in the prospectus supplement relating to each series of preferred stock. Dividends will be payable to holders of record of preferred stock as they appear on the books of Omnicom or, if applicable, the records of the depositary referred to below under "Description of Depositary Shares," on the record dates fixed by the board of directors. Dividends on any series of preferred stock may be cumulative or noncumulative. Conversion and Exchange The prospectus supplement for any series of preferred stock will state the terms, if any, on which shares of that series are convertible into or exchangeable for other types of securities of Omnicom. Redemption If so specified in the applicable prospectus supplement, a series of preferred stock may be redeemable at any time, in whole or in part, at the option of Omnicom or the holder thereof and may be mandatorily redeemed. Any partial redemptions of preferred stock will be made in a way that the board of directors decides is equitable. Unless Omnicom defaults in the payment of the redemption price, dividends will cease to accrue after the redemption date on shares of preferred stock called for redemption and all rights of holders of such shares will terminate except for the right to receive the redemption price. Liquidation Preference Upon any voluntary or involuntary liquidation, dissolution or winding up of Omnicom, holders of each series of preferred stock will be entitled to receive distributions upon liquidation in the amount set forth in the prospectus supplement relating to such series of preferred stock, plus an amount equal to any accrued and unpaid dividends. Those distributions will be made before any distribution is made on any securities ranking junior relating to liquidation, including common stock. If the liquidation amounts payable relating to the preferred stock of any series and any other securities ranking on a parity regarding liquidation rights are not paid in full, the holders of the preferred stock of such series and such other securities will share in any such distribution of available assets of Omnicom on a ratable basis in proportion to the full liquidation preferences. Holders of preferred stock will not be entitled to any other amounts from Omnicom after they have received their full liquidation preference. 10 Voting Rights The holders of shares of preferred stock will have no voting rights, except: o as otherwise stated in the prospectus supplement; o as otherwise stated in the certificate of designation establishing such series; or o as required by applicable law. DESCRIPTION OF DEPOSITARY SHARES The following briefly summarizes the material provisions of the depositary shares and depositary receipts, other than pricing and related terms, which will be disclosed in a prospectus supplement. You should read the particular terms of any depositary shares and any depositary receipts that are offered by Omnicom and any depositary agreement relating to a particular series of preferred stock which will be described in more detail in a prospectus supplement. The prospectus supplement will also state whether any of the generalized provisions summarized below do not apply to the depositary shares or depositary receipts being offered. A copy of the form of depositary agreement, including the form of depositary receipt, will be filed as an exhibit to one of Omnicom's future SEC reports and incorporated by reference in the registration statement to which this prospectus relates. You should read the more detailed provisions of the depositary agreement and the form of depositary receipt for provisions that may be important to you. General Omnicom may, at its option, elect to offer fractional shares of preferred stock, rather than full shares of preferred stock. In that event, Omnicom will issue receipts for depositary shares, each of which will represent a fraction of a share of a particular series of preferred stock. The shares of any series of preferred stock represented by depositary shares will be deposited under a depositary agreement between Omnicom and a bank or trust company, as preferred stock depositary, selected by Omnicom. The preferred stock depositary must have its principal office in the United States and a combined capital and surplus of at least $150,000,000. Each owner of a depositary share will be entitled to all the rights and preferences of the underlying preferred stock, including dividend, voting, redemption, conversion and liquidation rights, in proportion to the applicable fraction of a share of preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the applicable prospectus supplement. Dividends and Other Distributions The preferred stock depositary will distribute all cash dividends or other cash distributions received in respect of the deposited preferred stock to the record holders of depositary shares in proportion to the number of the depositary shares owned by such holders. The preferred stock depositary will distribute any property received by it other than cash to the record holders of depositary shares. If the preferred stock depositary determines that it is not feasible to make such distribution, it may, with the approval of Omnicom, sell the property and distribute the net proceeds from the sale to such holders. Redemption If a series of preferred stock represented by depositary shares is to be redeemed, the depositary shares will be redeemed from the proceeds received by the preferred stock depositary resulting from the redemption, in whole or in part, of such series of preferred stock. The depositary shares will be redeemed by the preferred stock depositary at a price per depositary share equal to the applicable fraction of the redemption price per share payable in respect of the shares of preferred stock so redeemed. 11 Withdrawal Unless the related depositary shares have previously been called for redemption, any holder of depositary shares may receive the number of whole shares of the related series of preferred stock and any money or other property represented by such depositary shares after surrendering the depositary receipts evidencing such depositary shares at the corporate trust office of the preferred stock depositary. Holders of depositary shares making such withdrawals will be entitled to receive whole shares of preferred stock on the basis set forth in the related prospectus supplement for such series of preferred stock. However, holders of such whole shares of preferred stock will not be entitled to deposit such preferred stock under the depositary agreement or to receive depositary receipts for such preferred stock after such withdrawal. If the depositary shares surrendered by the holder in connection with such withdrawal exceed the number of depositary shares that represent the number of whole shares of preferred stock to be withdrawn, the preferred stock depositary will deliver to such holder at the same time a new depositary receipt evidencing such excess number of depositary shares. Voting Upon receipt of notice of any meeting at which the holders of any series of deposited preferred stock are entitled to vote, the preferred stock depositary will mail the information contained in the notice of meeting to the record holders of the depositary shares relating to the series of preferred stock. Each record holder of the depositary shares on the record date will be entitled to instruct the preferred stock depositary to vote the amount of the preferred stock represented by the holder's depositary shares. The preferred stock depositary will try to vote the amount of such series of preferred stock represented by such depositary shares in accordance with such instructions. Omnicom will agree to take all reasonable actions that the preferred stock depositary determines are necessary to enable the preferred stock depositary to vote as instructed. The preferred stock depositary will abstain from voting the shares of any series of preferred stock held by it to the extent that it does not receive specific instructions from the holders of depositary shares relating to the series of preferred stock. Amendment and Termination of the Depositary Agreement The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may at any time be amended by agreement between Omnicom and the preferred stock depositary. However, any amendment that imposes additional charges or materially and adversely alters any substantial existing right of the holders of depositary shares will not be effective unless the amendment has been approved by the holders of at least a majority of the affected depositary shares then outstanding. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective, or any transferee of such holder, shall be deemed, by continuing to hold the depositary receipt, or by reason of the acquisition of the depositary receipt, to consent and agree to the amendment and to be bound by the depositary agreement, as amended. The depositary agreement may be terminated by Omnicom or the preferred stock depositary only if: o all outstanding depositary shares have been redeemed; or o a final distribution in respect of the preferred stock has been made to the holders of depositary shares in connection with any liquidation, dissolution or winding up of Omnicom. Charges of Preferred Stock Depositary; Taxes and Other Governmental Charges No fees, charges and expenses of the preferred stock depositary or any agent of the preferred stock depositary or of any registrar shall be payable by any person other than Omnicom, except for any taxes and other governmental charges and except as provided in the depositary agreement. If the preferred stock depositary incurs fees, charges or expenses for which it is not otherwise liable hereunder at the election of a holder of a depositary receipt or other person, such holder or other person will be liable for such fees, charges and expenses. 12 Resignation and Removal of Depositary The preferred stock depositary may resign at any time by delivering to Omnicom notice of its intent to do so, and Omnicom may at any time remove the preferred stock depositary. Any resignation or removal will take effect upon the appointment of, and the acceptance of the appointment by, a successor preferred stock depositary. A successor preferred stock depositary must be appointed within 60 days after delivery of the notice of resignation or removal. Miscellaneous The preferred stock depositary will forward all reports and communications from Omnicom which are delivered to the preferred stock depositary and which Omnicom is required to furnish to the holders of the deposited preferred stock. The preferred stock depositary will also make all reports and communications it receives as holder of the preferred stock from Omnicom available for inspection by holders of depositary receipts at its principal office, or such other place as it deems advisable. Neither the preferred stock depositary nor Omnicom assumes any obligation or will be liable under the depositary agreement to holders of depositary receipts other than for its negligence or willful misconduct. Neither the preferred stock depositary nor Omnicom will be liable if it is prevented or delayed by law or any circumstances beyond its control in performing its obligations under the depositary agreement. The obligations of Omnicom and the preferred stock depositary under the depositary agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares, depositary receipts or shares of preferred stock unless satisfactory indemnity is furnished. Omnicom and the preferred stock depositary may rely upon written advice of counsel or accountants, or upon information provided by holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine. DESCRIPTION OF DEBT SECURITIES The debt securities offered by this prospectus will be unsecured obligations of Omnicom and will be either senior or subordinated debt. Senior debt will be issued under a senior debt indenture. Subordinated debt will be issued under a subordinated debt indenture. These indentures are sometimes referred to in this prospectus individually as an "indenture" and collectively as the "indentures." Forms of the indentures have been filed with the SEC and are incorporated by reference in the registration statement to which this prospectus relates. The following briefly summarizes the material provisions of the indentures and the debt securities, other than pricing and related terms disclosed in the prospectus supplement. You should read the more detailed provisions of the applicable indenture, including the defined terms, for provisions that may be important to you. You should also read the particular terms of a series of debt securities, which will be described in the applicable prospectus supplement. Copies of the indentures may be obtained from Omnicom or the applicable trustee. So that you may easily locate the more detailed provisions, the numbers in parentheses below refer to sections in the applicable indenture or, if no indenture is specified, to sections in each of the indentures. Wherever particular sections or defined terms of the applicable indenture are referred to, the sections or defined terms are incorporated into this prospectus by reference, and the statements in this prospectus are qualified by that reference. General The indentures provide that debt securities of Omnicom may be issued in one or more series, with different terms, in each case as authorized from time to time by Omnicom. Omnicom also has the right to "reopen" a previous issue of a series of debt securities by issuing additional debt securities of such series. Federal income tax consequences and other special considerations applicable to any debt securities issued by Omnicom at a discount will be described in the applicable prospectus supplement. Because Omnicom is a holding company, the claims of creditors of Omnicom's subsidiaries will have a priority over Omnicom's equity rights and the rights of Omnicom's creditors, including the holders of debt securities, to participate in the assets of the subsidiary upon the subsidiary's liquidation. 13 The applicable prospectus supplement relating to any series of debt securities will describe the following terms, where applicable: o the title of the debt securities; o whether the debt securities will be senior or subordinated debt; o the percentage of the principal amount at which the debt securities will be sold and, if applicable, the method of determining the price; o any limit on the aggregate principal amount of the debt securities; o the maturity date or dates; o the interest rate or the method of computing the interest rate; o the date or dates from which any interest will accrue, or how such date or dates will be determined, and the interest payment date or dates and any related record dates; o the location where payments on the debt securities will be made; o the terms and conditions on which the debt securities may be redeemed at the option of Omnicom; o any obligation of Omnicom to redeem or purchase the debt securities pursuant to sinking fund provisions; o any obligation of Omnicom to redeem, purchase or repay the debt securities at the option of a holder upon the happening of any event and the terms and conditions of redemption, purchase or repayment; o if other than denominations of $1,000, the denominations in which debt securities may be issued; o whether the debt securities are to trade in book-entry form and the terms and any conditions for exchanging the global security in whole or in part for paper certificates; o if other than the principal amount, the portion of the principal amount of the debt securities payable if the maturity is accelerated; o the provisions relating to any security provided for the debt securities; o any events of default not described in "Defaults" below; o the terms on which the debt securities may be exchanged or converted into common stock or preferred stock; o the terms on which the debt securities and any guarantees may be subordinated to other debt of Omnicom or any guarantor; o the form and terms of any guarantee of or security for the debt securities; o the indenture trustee; o any depositaries, interest rate calculation agents, or other agents; o any material provisions of the applicable indenture described in this prospectus that do not apply to the debt securities; and o any other specific terms of the debt securities (Section 2.2). The terms on which a series of debt securities may be convertible into or exchangeable for common stock or preferred stock of Omnicom will be set forth in the prospectus supplement relating to such series. Such terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at the option of Omnicom. The terms may include provisions pursuant to which the number of shares of common stock or other securities of Omnicom to be received by the holders of such series of debt securities may be adjusted. The debt securities will be issued only in registered form. Debt securities of a series will either be global securities registered in book-entry form, or a physical (paper) certificate issued in definitive, or certificated, registered form. Procedures relating to global securities are described below under "Book-Entry Procedures and Settlement." Unless otherwise provided in the applicable prospectus supplement, debt securities denominated in 14 United States dollars will be issued only in denominations of $1,000 and whole multiples of $1,000 (Section 2.2). The prospectus supplement relating to offered securities denominated in a foreign or composite currency will specify the denomination of the offered securities. Debt securities represented by a paper certificate may be presented for exchange or transfer at the office of the relevant Registrar. Holders will not have to pay any service charge for any registration of transfer or exchange of their certificates, but Omnicom may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with such registration of transfer (Section 2.7). The procedures relating to the exchange and transfer of global securities are described below under "Book-Entry Procedures and Settlement." Payment and Paying Agents Distributions on the debt securities other than those represented by global notes will be made in the designated currency against surrender of the debt securities at the principal office of the relevant Paying Agent. Payment will be made to the registered holder at the close of business on the record date for such payment. Interest payments will be made at the principal corporate trust office of the relevant trustee in New York City, or by a check mailed to the holder at his registered address (Exhibit A, page A-2). Payments in any other manner will be specified in the prospectus supplement. Senior Debt The senior debt securities will be issued under the senior debt indenture and will rank on an equal basis with all other unsecured debt of Omnicom except subordinated debt. Subordinated Debt The subordinated debt securities will be issued under the subordinated debt indenture and will rank subordinated and junior in right of payment, to the extent set forth in the subordinated debt indenture, to all senior indebtedness of Omnicom, as described below. If Omnicom defaults in the payment of any principal of, or premium, if any, or interest on any senior indebtedness when it becomes due and payable after any applicable grace period, then, unless and until the default is cured or waived or ceases to exist, Omnicom cannot make a payment on account of or redeem or otherwise acquire the subordinated debt securities. Nevertheless, holders of subordinated debt securities may still receive and retain: o securities of Omnicom or any other corporation provided for by a plan of reorganization or readjustment that are subordinate, at least to the same extent that the subordinated debt securities are subordinated to senior indebtedness; and o payments made from a defeasance trust as described below. If there is any insolvency, bankruptcy, liquidation or other similar proceeding relating to Omnicom, its creditors or its property, then all senior indebtedness must be paid in full before any payment may be made to any holders of subordinated debt securities. Holders of subordinated debt securities must return and deliver any payments received by them, other than in a plan of reorganization or through a defeasance trust as described below, directly to the holders of senior indebtedness until all senior indebtedness is paid in full (Subordinated Debt Indenture, Section 4.2). For purposes of the subordinated debt securities, senior indebtedness means: (1) the principal, premium, if any, and interest in respect of indebtedness of Omnicom for money borrowed; (2) the principal, premium, if any, and interest in respect of indebtedness evidenced by securities, notes, debentures, bonds or other similar instruments issued by Omnicom, including the senior debt securities; 15 (3) all capital lease obligations of Omnicom; (4) all obligations of the type referred to in clauses (1) or (2) of other persons or all lease obligations of others of the type referred to in clause (3) assumed by or guaranteed by Omnicom or in effect guaranteed by Omnicom through an agreement to purchase, contingent or otherwise; and (5) all renewals, extensions or refundings of indebtedness of the type referred in clauses (1), (2) or (4) and all renewals or extensions of leases of the type referred to in clauses (3) or (4); but senior indebtedness does not include: (a) any indebtedness or lease obligation that by its terms is subordinated to, or ranks on an equal basis with, subordinated debt securities; (b) subordinated debt securities; (c) any indebtedness or lease obligation of Omnicom to any majority-owned subsidiary; (d) Omnicom's 4 1/4% Convertible Subordinated Debentures due 2007; and (e) Omnicom's 2 1/4% Convertible Subordinated Debentures due 2013. The subordinated indenture does not limit the amount of senior indebtedness that Omnicom may issue. Covenants The senior debt indenture provides that as long as any of the senior debt securities are outstanding (unless provision has been made for the payment of all amounts due or to become due thereon in accordance with the terms of the senior debt indenture), Omnicom undertakes not to grant any security interest in any or all of its present or future assets to secure any other indebtedness of Omnicom for borrowed money represented by notes, bonds, debentures or other debt securities, ranking senior to or on a parity with the senior debt securities, issued pursuant to a distribution (1) in an underwritten public offering registered under the Securities Act or (2) in an underwritten offering to institutional investors pursuant to Rule 144A without at the same time securing all outstanding senior debt securities equally and ratably with such securities (Senior Debt Indenture, Section 4.7). The subordinated debt indenture does not contain a similar provision. Limitations on Mergers and Sales of Assets. The indentures provide that Omnicom will not merge or consolidate with another corporation or sell or lease all or substantially all its assets to another corporation, or purchase all or substantially all the assets of another corporation, unless: o either (1) Omnicom is the continuing corporation or (2) the successor corporation, if other than Omnicom, expressly assumes the obligations evidenced by the securities issued pursuant to the indenture and o immediately prior to and after the transaction, there would not be any events of default in the performance of any covenant or condition of the indenture (Senior Debt Indenture, Section 5.1; Subordinated Debt Indenture, Section 6.1). After the transaction, the successor corporation, if other than Omnicom, shall be substituted under the indenture. Omnicom will not, however, be released from its obligations to pay the principal of and interest on the debt securities (Senior Debt Indenture, Section 5.2; Subordinated Debt Indenture, Section 6.2). The indentures do not contain any covenants or provisions that would protect holders of the debt securities in the event of a highly leveraged transaction. 16 Modification of the Indentures Under the indentures, Omnicom and the relevant trustee can enter into supplemental indentures without obtaining the consent of any holder of debt securities: o to cure any ambiguity, defect or inconsistency; o to comply with the indenture's provisions regarding successor corporations; o to comply with any requirements of the SEC in connection with the qualification of the indenture under the Trust Indenture Act; o to provide for global securities in addition to or in place of certificated debt securities; o to add to, change or eliminate any of the provisions of the indenture with respect to any series of debt securities; although no such addition, change or elimination may apply to any series of debt security created prior to the execution of such amendment and entitled to the benefit of such provision, nor may any such amendment modify the rights of a holder of any such debt security with respect to such provision, unless the amendment becomes effective only when there is no outstanding debt security of any series created prior to such amendment and entitled to the benefit of such provision; o to make any change that does not adversely affect in any material respect the interest of any holder; or o to establish additional series of debt securities as permitted by the indenture. Omnicom and the trustee may, with the consent of the holders of at least a majority in aggregate principal amount of the senior or subordinated debt securities of a series, modify the applicable indenture or the rights of the holders of the securities of the series to be affected. No such modification may, without the consent of the holder of each security affected: o reduce the percentage of securities whose holders need to consent to the modification; o reduce the rate or change the time of payment of interest on the securities; o reduce the principal amount of or the premium, if any, on the securities; o change the fixed maturity of any of the securities; o reduce the amount of, or postpone the date fixed for, the payment of any sinking fund; o reduce the principal amount payable upon acceleration of the maturity of any securities issued originally at a discount; o waive a default in the payment of the principal amount of, the premium, if any, or any interest on the securities; o change the currency in which any of the securities are payable; o impair the right to sue for the enforcement of any payment on or after the maturity of the securities; or o waive a redemption payment with respect to the securities (Senior Debt Indenture, Sections 9.2 and 9.3; Subordinated Debt Indenture, Sections 10.2 and 10.3). Defaults Each indenture provides that events of default regarding any series of debt securities will be: o failure to pay required interest on any debt security of such series for 30 days; o failure to pay principal, other than a scheduled installment payment, or premium, if any, on any debt security of the series when due; o failure to make any required deposit of any sinking fund payment when due; 17 o failure to perform for 45 days after notice any other covenant in the relevant indenture (other than a covenant included in the relevant indenture solely for the benefit of a series of debt securities other than such series); o certain events of bankruptcy or insolvency, whether voluntary or not; or o any other event of default described in the prospectus supplement of such series of debt securities (Senior Debt Indenture, Section 6.1; Subordinated Debt Indenture, Section 7.1). If an event of default regarding debt securities of any series issued under the indentures should occur and be continuing, either the trustee or the holders of 25% in the principal amount of outstanding debt securities of such series may declare each debt security of that series due and payable (Senior Debt Indenture, Section 6.2; Subordinated Debt Indenture, Section 7.2). Omnicom is required to file annually with the trustee a statement of an officer as to the fulfillment by Omnicom of its obligations under the indenture during the preceding year (Senior Debt Indenture, Section 4.3; Subordinated Debt Indenture, Section 5.3). Holders of a majority in principal amount of the outstanding debt securities of any series will be entitled to control certain actions of the trustee under the indentures. Holders of a majority in principal amount of the outstanding debt securities of any series also will be entitled to waive past defaults regarding the series, except for a default in payment of principal, premium or interest or a default in a covenant or provision which may not be modified or amended without the consent of each holder of a debt security of the affected series. (Senior Debt Indenture, Sections 6.12 and 6.13; Subordinated Debt Indenture, Sections 7.12 and 7.13). The trustee generally may not be ordered or directed by any of the holders of debt securities to take any action, unless one or more of the holders shall have offered to the trustee reasonable security or indemnity. If an event of default occurs and is continuing regarding a series of debt securities, the trustee may use any sums that it holds under the relevant indenture for its own reasonable compensation and expenses incurred prior to paying the holders of debt securities of such series (Senior Debt Indenture, Section 6.6; Subordinated Debt Indenture, Section 7.6). Before any holder of any series of debt securities may institute action for any remedy, except payment on the holder's debt security when due, the holders of not less than 25% in principal amount of the debt securities of that series outstanding must request the trustee to take action. Holders must also offer and give the satisfactory security and indemnity against liabilities incurred by the trustee for taking such action (Senior Debt Indenture, Section 6.7; Subordinated Debt Indenture, Section 7.7). Defeasance Each indenture provides that Omnicom may specify with respect to any series of debt securities that after Omnicom has deposited with the trustee, cash or government securities, in trust for the benefit of the holders sufficient to pay the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of the debt securities of such series when due, then Omnicom: o will be deemed to have paid and satisfied its obligations on all outstanding debt securities of such series, which is known as "defeasance and discharge"; or o will cease to be under any obligation, other than to pay when due the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of such debt securities, relating to the debt securities of such series, which is known as "covenant defeasance." In each case, Omnicom must also deliver to the trustee an opinion of counsel to the effect that the holders of the debt securities of such series will have no federal income tax consequences as a result of such deposit. When there is a defeasance and discharge, (1) the indenture will no longer govern the debt securities of such series, (2) Omnicom will no longer be liable for payment, and (3) the holders of the debt securities will be entitled only to the deposited funds. When there is a covenant defeasance, however, Omnicom will continue to be obligated to make payments when due if the deposited funds are not sufficient. 18 Concerning the Trustees The trustees may engage in transactions with, or perform services for, Omnicom and affiliates of Omnicom in the ordinary course of business. The trustee will perform only those duties that are specifically set forth in each indenture unless an event of default under the indenture occurs and is continuing. In case an event of default occurs and is continuing, the trustee will exercise the same degree of care and skill as a prudent individual would exercise in the conduct of his or her own affairs (Section 7.1). Applicable Law The debt securities and the indentures will be governed by and construed in accordance with the laws of the State of New York. DESCRIPTION OF WARRANTS The following briefly summarizes the material terms and provisions of the warrants to purchase debt securities, preferred stock or common stock, other than pricing and related terms which will be disclosed in a prospectus supplement. You should read the particular terms of the warrants that are offered by Omnicom, which will be described in more detail in a prospectus supplement. The prospectus supplement will also state whether any of the general provisions summarized below do not apply to the warrants being offered. A copy of each form of warrant agreement, including the form of certificate that will represent a particular warrant, will be filed as an exhibit to one of Omnicom's future SEC reports and incorporated by reference in the registration statement to which this prospectus relates. You should read the more detailed provisions of the specific warrant agreement and the warrant certificate for provisions that may be important to you. Warrants may be issued independently or together with debt securities, preferred stock or common stock, as applicable, and may be attached to or separate from any such offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between Omnicom and a bank or trust company, as warrant agent. A single bank or trust company may act as warrant agent for more than one series of warrants. The warrant agent will act solely as the agent of Omnicom under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust for or with any owners of such warrants. Debt Warrants The applicable prospectus supplement will describe the terms of debt warrants offered, the debt warrant agreement relating to such debt warrants and the debt warrant certificates representing such debt warrants, including the following: o the title of the debt warrants; o the aggregate number of the debt warrants; o the price or prices at which the debt warrants will be issued; o the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of the debt warrants, and the procedures and conditions relating to the exercise of the debt warrants; o the designation and terms of any related debt securities with which the debt warrants are issued, and the number of the debt warrants issued with each security; o if applicable, the date on and after which the debt warrants and the related debt securities will be separately transferable; o the principal amount of debt securities purchasable upon exercise of each debt warrant, and the price at which such principal amount of debt securities may be purchased upon exercise of the warrant; o the date on which the right to exercise the warrants shall commence, and the date on which the right shall expire; o the maximum or minimum number of debt warrants which may be exercised at any time; 19 o a discussion of the material United States federal income tax considerations applicable to the exercise of the debt warrants; and o any other terms of the debt warrants and terms, procedures and limitations relating to the exercise of the debt warrants. Debt warrant certificates will be exchangeable for new debt warrant certificates of different denominations, and debt warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the securities purchasable upon exercise and will not be entitled to payments of principal of (or premium, if any) or interest, if any, on the securities purchasable upon exercise. Preferred Stock Warrants and Common Stock Warrants The applicable prospectus supplement will describe the terms of preferred stock warrants or common stock warrants offered, the stock warrant agreement relating to the preferred stock warrants or the common stock warrants, and the preferred stock warrant certificates or the common stock warrant certificates representing the preferred stock warrants or the common stock warrants, as applicable, including the following: o the title of the warrants; o the securities for which the warrants are exercisable; o the price or prices at which the warrants will be issued; o the number of warrants issued with each share of preferred stock or common stock; o any provisions for adjustment of the number or amount of shares of preferred stock or common stock receivable upon exercise of the warrants or the exercise price of the warrants; o if applicable, the date on and after which the warrants and the related preferred stock or common stock will be separately transferable; o the date on which the right to exercise the warrants shall commence, and the date on which the right shall expire; o the maximum or minimum number of warrants which may be exercised at any time; o if applicable, a discussion of the material United States federal income tax considerations applicable to the exercise of the warrants; and o any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. Exercise Of Warrants Each warrant entitles the holder to purchase for cash the principal amount of debt securities or shares of preferred stock or common stock at the exercise price set forth in the prospectus supplement relating to the offered warrants. The prospectus supplement for the offered warrants will describe the procedures for exercising the warrants and will set forth the expiration date of the warrants. Upon exercise of the warrants, Omnicom will forward the debt securities or shares of preferred stock or common stock purchased. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement for the offered warrants. After the close of business on the expiration date, unexercised warrants will become void. 20 DESCRIPTION OF TRUST PREFERRED SECURITIES AND RELATED GUARANTEES The following briefly summarizes the general provisions of the trust preferred securities and related guarantees. You should read the particular terms of any series of trust preferred securities that are offered, which will be described in more detail in a prospectus supplement. The prospectus supplement will also state whether any of the general provisions summarized below do not apply to the series of trust preferred securities being offered. The terms of the series of trust preferred securities will include those stated in the amended trust agreement and those made part of the amended trust agreement by the Trust Indenture Act or the Delaware Business Trust Act. You should read the more detailed provisions of the amended trust agreement for provisions that may be important to you. So that you may more easily locate the more detailed provisions, the numbers in parentheses below refer to sections in the amended trust agreement. Wherever particular sections or defined terms are referred to, the sections or defined terms are incorporated into this prospectus by reference and the statements in this prospectus are qualified by that reference. References to "trust securities" below include trust preferred securities and trust common securities, collectively. General Each trust may issue only one series of trust preferred securities, and will use the proceeds of sale to purchase junior subordinated debt securities of Omnicom. See "Description of Additional Terms of Junior Subordinated Debt Securities to be Issued to the Trusts" below. The applicable prospectus supplement relating to any series of trust preferred securities will describe the following terms, where applicable: o the name of the trust preferred securities; o the liquidation amount and number of trust preferred securities issued; o the annual distribution rate or rates or method of determining the rate or rates, the payment date or dates and the record dates used to determine the holders who are to receive distributions; o the date from which distributions will be cumulative; o the optional redemption provisions, if any, including the prices, time periods and other terms and conditions on which the trust preferred securities will be purchased or redeemed, in whole or in part; o the terms and conditions, if any, upon which the junior subordinated debt securities and the related guarantee may be distributed to holders of those trust preferred securities and trust common securities; o any securities exchange on which the trust preferred securities will be listed; o whether the trust preferred securities are to be issued in book-entry form and represented by one or more global certificates, and if so, the depositary for those global certificates and the specific terms of the depositary arrangements; o whether the trust preferred securities or related junior subordinated debt securities may be converted into or exchanged for common stock or other securities; and o any other relevant rights, preferences, privileges, limitations or restrictions of the trust preferred securities (Article 7). The interest rate and interest and other payment dates of each series of junior subordinated debt securities issued to a trust will correspond to the rate at which distributions will be paid and the distribution and other payment dates of the trust preferred securities of that trust. Holders of trust preferred securities will have no preemptive or similar rights (Section 7.1). Distributions Distributions on the trust preferred securities will be made on the dates payable to the extent that the trust has funds available for the payment of distributions in the property account. The trust's funds available for distribution to the holders of the trust securities will be limited to payments received from Omnicom on the 21 junior subordinated debt securities issued to the trust in connection with the issuance of the trust preferred securities. Omnicom has guaranteed the payment of distributions out of monies held by the trust to the extent set forth under "Description of the Guarantee" below. Distributions on the trust preferred securities will be payable to the holders named on the securities register of the trust at the close of business on the relevant record dates, which, as long as the trust preferred securities remain in book-entry only form, will be one business day prior to the relevant payment dates. Distributions will be paid through the property trustee who will hold amounts received in respect of the junior subordinated debt securities in the property account for the benefit of the holders of the trust securities. In the event that the trust preferred securities do not continue to remain in book-entry only form, the administrative trustees will have the right to select relevant record dates, which will be at least 15 days prior to the relevant payment dates. In the event that any date on which distributions are to be made on the trust preferred securities is not a business day, then payment of the distributions payable on that date will be made on the next succeeding day which is a business day and without any interest or other payment in respect of that delay, except that, if that business day is in the next succeeding calendar year, the payment will be made on the immediately preceding business day, in each case with the same force and effect as if made on the payment date (Section 7.2). Deferral of Distributions Omnicom has the right under the junior subordinated debt indenture to defer payments of interest on the junior subordinated debt securities by extending the interest payment period from time to time on the junior subordinated debt securities. As a consequence of Omnicom's extension of the interest payment period on junior subordinated debt securities held by a trust, distributions on the trust preferred securities would be deferred during any such extended interest payment period. The administrative trustees will give the holders of the trust preferred securities notice of an extension period upon their receipt of notice from Omnicom. If distributions are deferred, the deferred distributions and accrued interest will be paid to holders of record of the trust preferred securities as they appear on the books and records of the trust on the record date next following the termination of the deferral period. See "Description of Additional Terms of Junior Subordinated Debt Securities to be Issued to the Trusts" below for more information on Omnicom's right to defer interest payments. Mandatory Redemption The trust preferred securities have no stated maturity date, but will be redeemed upon the maturity of the junior subordinated debt securities issued to the trust in connection with the issuance of the trust preferred securities or to the extent the junior subordinated debt securities are redeemed prior to maturity. The junior subordinated debt securities will mature on the date specified in the applicable prospectus supplement. The junior subordinated debt securities may be redeemed at the option of Omnicom, to the extent specified in the applicable prospectus supplement and may also be redeemed at any time, in whole although not in part, in certain circumstances upon the occurrence of a tax event or an investment company event as described under "Special Event Redemption" below. Upon maturity of the junior subordinated debt securities, the proceeds of their repayment shall simultaneously be applied to redeem all outstanding trust securities at the redemption price. Upon the redemption of the junior subordinated debt securities, either at the option of Omnicom or pursuant to a tax event or investment company event, the trust will use the cash it receives upon redemption to redeem trust securities having an aggregate principal amount equal to the aggregate principal amount of the junior subordinated debt securities so redeemed at the redemption price. Before such redemption, holders of trust securities will be given not less than 30 nor more than 60 days' notice. In the event that fewer than all of the outstanding trust securities are to be redeemed, the trust securities will be redeemed proportionately (Section 7.3). Special Event Redemption Both a tax event and an investment company act event constitute special events for purposes of the redemption provisions described above. 22 A tax event means that the administrative trustees have received an opinion of tax counsel to the effect that, as a result of any amendment to, change or announced proposed change in, the laws or regulations of the United States or any of its political subdivisions or taxing authorities, there is more than an insubstantial risk that: o the trust is or within 90 days would be subject to U.S. federal income tax with respect to income accrued or received on the junior subordinated debt securities; o interest payable to the trust on the junior subordinated debt securities is not or within 90 days would not be deductible, in whole or in part, by Omnicom for U.S. federal income tax purposes; or o the trust is or within 90 days would be subject to a more than a de minimis amount of other taxes, duties or other governmental charges. An investment company event means that the administrative trustees have received an opinion of counsel to the effect that, as a result of an amendment to or change in the law or regulation, there is more than an insubstantial risk that the trust is or will be considered an investment company and be required to be registered under the Investment Company Act (Section 1.1). Redemption Procedures A trust may not redeem fewer than all of the outstanding trust securities unless all accrued and unpaid distributions have been paid on all trust securities for all distribution periods terminating on or prior to the date of redemption. If fewer than all of the outstanding trust securities are to be redeemed, the trust securities will be redeemed proportionately. If (1) a trust gives a notice of redemption of trust securities (which notice may not be conditional) and (2) if Omnicom has paid to the property trustee a sufficient amount of cash in connection with the related redemption or maturity of the junior subordinated debt securities, then on or before the redemption date, the property trustee will deposit with the paying agent funds sufficient to pay the applicable redemption price. Upon surrender of the trust securities to the paying agent, the holders of the trust securities will be paid the applicable redemption price plus accrued distributions. Once notice of redemption is given, distributions will cease to accrue and all rights of holders of trust preferred securities called for redemption will cease, except the right of the holders to receive the redemption price plus accrued distributions. If any redemption date is not a business day, then payment of the redemption price payable on such date will be made on the next succeeding day that is a business day, without any interest or other payment in respect of any such delay. However, if such business day falls in the next calendar year, such payment will be made on the immediately preceding business day. Omnicom or its subsidiaries may, at any time, and from time to time, purchase outstanding trust securities by tender, in the open market or by private agreement (Section 7.4). Conversion or Exchange Rights The terms on which the trust preferred securities or related junior subordinated debt securities will be convertible into or exchangeable for Omnicom common stock or other securities will be set forth in the applicable prospectus supplement. Those terms, if applicable, will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at Omnicom's option, and may include provisions under which the number of shares of Omnicom common stock or other securities to be received by the holders of trust preferred securities or related junior subordinated debt securities would be subject to adjustment. Dissolution Each amended trust agreement will state that the trust will be dissolved: o upon Omnicom's bankruptcy; o upon the filing of a certificate of dissolution or its equivalent with respect to Omnicom; 23 o upon obtaining the consent of at least a majority in liquidation amount of the trust securities, voting together as a single class; o 90 days after the revocation of Omnicom's charter, but only if the charter is not reinstated during that 90-day period; o upon entry of a court order for the dissolution of Omnicom or the trust; o upon the redemption of all of the trust securities; o upon the distribution of the related junior subordinated debt securities directly to the holders of the trust securities; or o if prior to the issuance of the trust securities, when Omnicom and the administrative trustees have consented to dissolution of the trust (Section 8.1). In the event of a dissolution, after the trust pays all amounts owed to creditors, the holders of the trust securities will be entitled to receive: o cash equal to the total liquidation amount of each trust security specified in the applicable prospectus supplement, plus accumulated and unpaid distributions to the date of payment; or o junior subordinated debt securities in a total principal amount equal to the total liquidation amount of the trust securities. If the trust cannot pay the full amount due on its trust securities because insufficient assets are available for payment, then the amounts payable by the trust on its trust securities will be paid proportionately. However, if an event of default under the related amended trust agreement occurs, the total amounts due on the trust preferred securities will be paid before any distribution on the trust common securities (Section 8.2). Distribution of Junior Subordinated Debt Securities Omnicom will have the right at any time to dissolve a trust and, after satisfaction of the liabilities of creditors of the trust as provided by applicable law, to cause junior subordinated debt securities issued to the trust to be distributed to the holders of the trust securities in a total stated principal amount equal to the total stated liquidation amount of the trust securities then outstanding. The right to dissolve the trust and distribute the junior subordinated debt securities will be conditioned on Omnicom's receipt of an opinion rendered by tax counsel that the distribution would not result in the recognition of gain or loss for federal income tax purposes by the holders (Section 8.1). Trust Enforcement Events Upon the occurrence of a trust enforcement event, the property trustee, as the sole holder of the junior subordinated debt securities, will have the right under the junior subordinated debt indenture to declare the principal of, interest and premium, if any, on the junior subordinated debt securities to be immediately due and payable. An event of default under the junior subordinated debt indenture will be a trust enforcement event under the amended trust agreement. See "Description of Additional Terms of Junior Subordinated Debt Securities to be Issued to the Trusts." Under the amended trust agreement, until all trust enforcement events with respect to the trust preferred securities have been cured, waived or otherwise eliminated, the holder of the trust common securities will be deemed to have waived any trust enforcement event with respect to the trust common securities, the property trustee will be deemed to be acting solely on behalf of the holders of the trust preferred securities and only the holders of the trust preferred securities will have the right to direct the property trustee with respect to certain matters under the amended trust agreement and the junior subordinated debt indenture. In the event that any trust enforcement event with respect to the trust preferred securities is waived by the holders of the trust preferred securities as provided in the amended trust agreement, under the amended trust agreement the holder of trust common securities has agreed that the waiver also constitutes a waiver of the trust enforcement event with respect to the trust common securities for all purposes under the amended trust agreement without any further act, vote or consent of the holder of trust common securities (Section 2.6). 24 Omnicom and the administrative trustees must file with the property trustee a certificate evidencing compliance with all the applicable conditions and covenants under the amended trust agreement (Section 2.4). If a property trustee fails to enforce its rights under the amended trust agreement or the junior subordinated debt indenture to the fullest extent permitted by law and, subject to the terms of the amended trust agreement and the junior subordinated debt indenture, any holder of trust securities may sue Omnicom, or seek other remedies, to enforce the property trustee's rights under the amended trust agreement or the junior subordinated debt indenture without first instituting a legal proceeding against the property trustee or any other person (Sections 7.5 and 7.6). If a trust enforcement event occurs and is continuing as a result of Omnicom's failure to pay the principal of or interest or premium, if any, on the junior subordinated debt securities when payable, then a holder of the trust preferred securities may directly sue Omnicom or seek other remedies, to collect its proportionate share of payments owed (Section 7.5). See "Relationship Among the Trust Preferred Securities, the Guarantees and the Junior Subordinated Debt Securities Held By The Trust" below. Removal and Replacement of Trustees Once trust securities have been issued, the number of trustees may be increased or decreased by a majority in liquidation amount of the trust common securities and only the holder of trust common securities has the right to remove or replace the trustees of the trust, except that while an event of default in respect of the junior subordinated debt securities has occurred or is continuing, the holders of a majority of the trust preferred securities will have this right. The resignation or removal of any property or Delaware trustee and the appointment of a successor property or Delaware trustee will be effective only on the acceptance of appointment by the successor property or Delaware trustee in accordance with the provisions of the amended trust agreement. The resignation of an administrative trustee is effective upon delivery of notice of resignation (Sections 6.1 and 6.6). Mergers and Sales of Assets A trust may not consolidate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other trust entity (each, a merger event), except as described below. A trust may, with the consent of a majority of its administrative trustees and without the consent of the holders of its trust securities, consolidate, merge with or into, or be replaced by another trust, provided that: o the successor entity either (1) assumes all of the obligations of the trust relating to its trust securities or (2) substitutes other securities for the trust preferred securities that are substantially similar to the trust preferred securities, so long as the successor securities rank the same as the trust preferred securities for distributions and payments upon liquidation, redemption and otherwise; o Omnicom appoints a trustee of the successor entity who has the same powers and duties as the property trustee of the trust, as the holder of the junior subordinated debt securities; o the trust preferred securities are listed, or any successor securities will be listed, upon notice of issuance, on the same securities exchange or other organization that the trust preferred securities are then listed; o the merger event does not cause the trust preferred securities or successor securities to be downgraded by any nationally recognized rating agency; o the merger event does not adversely affect the rights, preferences and privileges of the holders of the trust securities or successor securities in any material way, other than with respect to any dilution of the holders' interest in the new entity; o the successor entity has a purpose identical to that of the trust; o prior to the merger event, Omnicom has received an opinion of counsel stating that (1) the merger event does not adversely affect the rights of the holders of the trust preferred securities or any successor securities in any material way, other than with respect to any dilution of the holders' interest in the new entity, (2) following the merger event, neither the trust nor the successor entity will be required to register as an investment company under the Investment 25 Company Act, and (3) following the merger event the trust or the successor entity will continue to be classified as a grantor trust for U.S. federal income tax purposes; o Omnicom owns all of the trust common securities and guarantees the obligations of the successor entity under the successor securities in the same manner as in the guarantee; and o the successor entity assumes all of the obligations of the trust with respect to the trustees (Section 3.15). In addition, unless all of the holders of the trust preferred securities and trust common securities approve otherwise, the trust will not consolidate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, merge with or into, or replace it, if, in the opinion of tax counsel, the transaction would cause the trust or the successor entity to be classified other than as a grantor trust for U.S. federal income tax purposes and would cause the holders of the trust securities not to be treated as owning an undivided interest in the junior subordinated debt securities (Section 3.15). Voting Rights; Amendment of Amended Trust Agreement The holders of trust securities have no voting rights except as discussed under "Removal and Replacement of Trustees" and "Mergers and Sales of Assets" above and "Description of the Guarantee--Amendments" below and as otherwise required by law and the amended trust agreement. The amended trust agreement may be amended if approved by Omnicom, a majority of the administrative trustees of the trust, the property trustee and the Delaware trustee, if the amendment affects the rights of the Delaware trustee. However, if any proposed amendment provides for: o any action that would adversely affect the powers, preferences or special rights of the trust securities, whether by way of amendment to the amended trust agreement or otherwise; or o the dissolution, winding-up or termination of the trust other than under the terms of its amended trust agreement; then the holders of the trust securities as a single class will be entitled to vote on the amendment. In that case, the amendment will only be effective if approved by at least a majority in liquidation amount of the trust securities affected by the amendment. However, if any proposed amendment would adversely affect only the trust preferred securities or the trust common securities, then only the affected class will be entitled to vote on the amendment (Section 11.1). In addition, if any purposed amendment provides for: o any action that would change the amount or timing of any distribution of the trust securities or otherwise adversely affect the amount of any distribution required to be made in respect of the trust securities on a specified date; or o any action that would restrict the right of a holder of trust securities to institute suit for the enforcement of payment of the distribution on or after the specified date; then the holders of trust securities as a single class will be entitled to vote on the amendment. In that case, the amendment will only be effective if approved by each holder of trust securities affected by the amendment (Section 11.1). No amendment may be made to an amended trust agreement if that amendment would: o cause the trust to be characterized as other than a grantor trust for U.S. federal income tax purposes; o reduce or otherwise adversely affect the powers of the property trustee; or o cause the trust to be deemed to be an investment company which is required to be registered under the Investment Company Act (Section 11.1). 26 As described in the form of amended trust agreement, the administrative trustees may hold a meeting to have holders of trust securities vote on an amendment or have them approve an amendment by written consent (Section 11.2). If a vote by the holders of trust preferred securities is taken or a consent is obtained, any trust preferred securities owned by Omnicom or its affiliates will, for purposes of the vote or consent, be treated as if they were not outstanding, which will have the following consequences: o Omnicom and any of its affiliates will not be able to vote on or consent to matters requiring the vote or consent of holders of trust preferred securities; and o any trust preferred securities owned by Omnicom or any of its affiliates will not be counted in determining whether the required percentage of votes or consents has been obtained (Section 7.5). The holders of a majority of the total liquidation amount of each of the trust preferred securities and the trust common securities have the right to: o direct the time, method and place of conducting any proceeding for any remedy available to the property trustee; or o direct the exercise of any trust or power conferred upon the property trustee under the amended trust agreement, including the right to direct the property trustee, as the holder of the junior subordinated debt securities, to o exercise the remedies available under the junior subordinated debt indenture with respect to the junior subordinated debt securities; o consent to any amendment or modification of the junior subordinated indenture of the junior subordinated debt securities; or o waive any event of default under the junior subordinated debt indenture that is waivable (Sections 7.5 and 7.6). However, the holders of a majority of the total liquidation amount of the trust common securities can exercise the foregoing rights only after all trust enforcement events with respect to the trust preferred securities have been cured, waived or otherwise eliminated (Section 7.6). In addition, before taking any of the foregoing actions, the property trustee must obtain an opinion of tax counsel stating that, as a result of that action, the trust will continue to be classified as a grantor trust for U.S. federal income tax purposes and that each holder of trust securities will be treated as owning an undivided beneficial ownership interest in junior subordinated debt securities (Sections 7.5 and 7.6). Information Concerning the Property Trustee For matters relating to compliance with the Trust Indenture Act, the property trustee will have all of the duties and responsibilities of an indenture trustee under the Trust Indenture Act. The property trustee, other than during the occurrence and continuance of a trust enforcement event, undertakes to perform only the duties that are specifically described in the amended trust agreement and, upon a trust enforcement event, must use the same degree of care and skill as a prudent man would exercise or use in the conduct of his own affairs (Section 3.9). Subject to this provision, the property trustee is under no obligation to exercise any of the powers given it by the applicable amended trust agreement at the request of any holder of trust preferred securities unless it is offered reasonable security or indemnity against the costs, expenses and liabilities that it might incur (Section 3.10). Information Concerning the Administrative Trustees The administrative trustees are authorized and directed to conduct the affairs of and, among other things, to operate the trust in a way that: o will not cause it to be deemed to be an investment company required to be registered under the Investment Company Act; o will cause it to be classified as a grantor trust for U.S. federal income tax purposes; and o will cause the junior subordinated debt securities it holds to be treated as Omnicom's indebtedness for U.S. federal income tax purposes. 27 The administrative trustees are authorized to take any action, so long as it is consistent with applicable law, the certificate of trust and the amended trust agreement, that they determine to be necessary or desirable for those purposes (Section 3.6). Description of the Guarantees Omnicom will execute a guarantee for the benefit of the holders of each series of trust preferred securities. Each trust guarantee will be qualified as an indenture under the Trust Indenture Act. The prospectus supplement with respect to the trust preferred securities will identify the guarantee trustee. The terms of the guarantee will be those set forth in the guarantee and those made part of the guarantee by the Trust Indenture Act. The guarantee trustee will hold each guarantee for the benefit of the holders of the trust preferred securities to which it relates. The following briefly summarizes the material terms and provisions of the guarantee. The form of guarantee is filed as an exhibit to the registration statement to which this prospectus relates. You should read the more detailed provisions of the specific guarantee for provisions that may be important to you. So that you may easily locate the more detailed provisions, the numbers in parentheses below refer to sections in the guarantee. Wherever particular sections or defined terms of the guarantee are referred to, such sections or defined terms are incorporated into this prospectus by reference, and the statements in this prospectus are qualified by that reference. General Omnicom will irrevocably and unconditionally agree under each guarantee to pay the guarantee payments that are set forth below, to the extent specified in that guarantee, to the holders of the trust preferred securities to which the guarantee relates, to the extent that the guarantee payments are not paid by or on behalf of the related trust. Omnicom is required to pay the guarantee payments to the extent specified in the relevant guarantee regardless of any defense, right of set-off or counterclaim that it may have or may assert against any person (Section 5.1). The following payments and distributions on the trust preferred securities of a trust are guarantee payments: o any accrued and unpaid distributions required to be paid on the trust preferred securities of the trust, but only to the extent that the trust has funds legally and immediately available for those distributions; o the redemption price for any trust preferred securities that the trust calls for redemption, including all accrued and unpaid distributions to the redemption date, but only to the extent that the trust has funds legally and immediately available for the payment; and o upon a dissolution, winding-up or termination of the trust, other than in connection with the distribution of junior subordinated debt securities to the holders of trust securities of the trust or the redemption of all the trust preferred securities of the trust, the lesser of: o the sum of the liquidation amount and all accrued and unpaid distributions on the trust preferred securities of the trust to the payment date, to the extent that the trust has funds legally and immediately available for the payment; and o the amount of assets of the trust remaining available for distribution to holders of the trust preferred securities of the trust in liquidation of the trust (Section 1.1). Omnicom may satisfy its obligation to make a guarantee payment by making that payment directly to the holders of the related trust preferred securities or by causing the trust to make the payment to those holders (Section 5.1). Each guarantee will be a full and unconditional guarantee, subject to certain subordination provisions of the guarantee payments with respect to the related trust preferred securities from the time of issuance of those trust preferred securities, except that the guarantee will only apply to the payment of distributions and other payments on the trust preferred securities when the trust has sufficient funds legally and immediately available to make those distributions or other payments. 28 If Omnicom does not make the required payments on the junior subordinated debt securities that the property trustee holds under a trust, that trust will not make the related payments on its trust preferred securities. Subordination Omnicom's obligations under each guarantee will be unsecured obligations of Omnicom. Those obligations will rank: o subordinate and junior in right of payment to all of its other liabilities, other than obligations or liabilities that rank equal in priority or subordinate by their terms; o equal in priority with the junior subordinated debt securities that it may issue and similar guarantees; and o senior to its common stock (Section 6.2). Each guarantee will be a guarantee of payment and not of collection. This means that the guaranteed party may institute a legal proceeding directly against Omnicom, as guarantor, to enforce its rights under the guarantee without first instituting a legal proceeding against any other person or entity (Section 5.5). The terms of the trust preferred securities will provide that each holder of the trust preferred securities, by accepting those trust preferred securities, agrees to the subordination provisions and other terms of the related guarantee. Amendments Omnicom may amend the guarantee without the consent of any holder of the trust preferred securities to which the guarantee relates if the amendment does not materially and adversely affect the rights of those holders. Omnicom may otherwise amend the guarantee with the approval of the holders of at least a majority of the outstanding trust preferred securities to which the guarantee relates (Section 9.2). Termination The guarantee will terminate and be of no further effect when: o the redemption price of the trust preferred securities to which it relates is fully paid; o Omnicom distributes the related junior subordinated debt securities to the holders of those trust preferred securities; or o the amounts payable upon liquidation of the related trust are fully paid (Section 7.1). Each guarantee will remain in effect or will be reinstated if at any time any holder of the related trust preferred securities must restore payment of any sums paid to that holder with respect to those trust preferred securities or under that guarantee. Certain Covenants Omnicom covenants that, so long as any trust preferred securities remain outstanding, if Omnicom has given notice of its election to defer payments of interest under the junior subordinated indenture or if there is an event of default under the guarantee or the junior subordinated indenture (or any event of which Omnicom has knowledge that with the giving of notice or lapse of time or both would constitute an event of default under the junior subordinated indenture and which Omnicom has not taken responsible steps to cure): o it will not make distributions related to its debt securities that rank equally with or junior to the junior subordinated debt securities, including any payment of interest, principal or premium, or repayments, repurchases or redemptions; and o it will not make distributions related to its capital stock, including dividends, redemptions, repurchases, liquidation payments, or guarantee payments. It may, however, make the following types of distributions: o dividends paid in common stock; 29 o dividends in connection with the implementation of a shareholder rights plan, the issuance of capital stock under any such plan or the redemption or repurchase of any rights pursuant to such plan; o payments to a trust holding junior subordinated debt securities of the same series under a guarantee; o repurchases, redemptions or other acquisitions of shares of its capital stock in connection with any benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, consultants or advisors; and o the purchases of fractional interests in shares of capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged (Section 6.1). Because Omnicom is a holding company, the claims of creditors of Omnicom's subsidiaries will have a priority over Omnicom's equity rights and the rights of Omnicom's creditors, including the trust, as holder of the guarantee and the junior subordinated debt securities, to participate in the assets of the subsidiary upon the subsidiary's liquidation. Events of Default An event of default will occur under any guarantee if Omnicom fails to perform any of its payment obligations under the guarantee. The holders of a majority of the trust preferred securities of any series may waive any such event of default and its consequences on behalf of all of the holders of the trust preferred securities of that series (Section 2.6). The guarantee trustee is entitled to enforce the guarantee for the benefit of the holders of the trust preferred securities of a series if an event of default occurs under the related guarantee (Section 3.1). The holders of a majority of the trust preferred securities to which a guarantee relates have the right to direct the time, method and place of conducting any proceeding for any remedy available to the guarantee trustee with respect to that guarantee or to direct the exercise of any trust or power that the guarantee trustee holds under that guarantee. Any holder of the related trust preferred securities may institute a legal proceeding directly against Omnicom to enforce that holder's rights under the guarantee without first instituting a legal proceeding against the guarantee trustee or any other person or entity (Section 5.4). Information Concerning the Guarantee Trustee The trustee may engage in transactions with, or perform services for, Omnicom and affiliates of Omnicom in the ordinary course of business. The guarantee trustee will perform only those duties that are specifically set forth in each guarantee unless an event of default under the guarantee occurs and is continuing. In case an event of default occurs and is continuing, the guarantee trustee will exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs (Section 3.1). Subject to those provisions, the guarantee trustee is under no obligation to exercise any of its powers under any guarantee at the request of any holder of the related trust preferred securities unless that holder offers reasonable indemnity to the guarantee trustee against the costs, expenses and liabilities which it might incur as a result (Section 3.2). Applicable Law The guarantees will be governed by and construed in accordance with the laws of the State of New York. Agreement as to Expenses and Liabilities Omnicom will enter into an Agreement as to Expenses and Liabilities pursuant to each amended trust agreement. The Agreement as to Expenses and Liabilities will provide that Omnicom will, with certain exceptions, irrevocably and unconditionally guarantee the full payment of any indebtedness, expenses or liabilities of the related trust to each person or entity to whom that trust becomes indebted or liable. The exceptions are the obligations of the trust to pay to the holders of the related trust preferred securities or other similar interests in the trust the amounts due to the holders under the terms of those trust preferred securities or those similar interests. 30 Description of Additional Terms of Junior Subordinated Debt Securities to be Issued to the Trusts General The junior subordinated debt securities, which each trust that issues trust preferred securities will hold as trust assets, will be issued under the junior subordinated debt indenture and, generally, will rank subordinated and junior in right of payment to Omnicom's senior debt securities, subordinated debt securities, 4 1/4% Convertible Subordinated Debentures due 2007 and 2 1/4% Convertible Subordinated Debentures due 2013. The features of the junior subordinated debt securities are similar to the subordinated debt securities described above under "Debt Securities," with the additional features summarized below. The junior subordinated debt indenture is similar to the subordinated debt indenture, except as summarized below, and the section numbers specified in the description of the subordinated debt indenture above under "Debt Securities" correspond to the section numbers of the junior subordinated debt indenture. You should read the more detailed provisions of the junior subordinated debt indenture, including the defined terms, for provisions that may be important to you. You should also read the particular terms of a series of the junior subordinated debt securities, which will be described in more detail in the applicable prospectus supplement. Copies of the junior subordinated debt indenture may be obtained from Omnicom or the trustee. So that you may easily locate the more detailed provisions, the numbers in parentheses below refer to sections in the junior subordinated debt indenture. Wherever particular sections or defined terms of the junior subordinated debt indenture are referred to, such sections or defined terms are incorporated into this prospectus by reference, and the statements in this prospectus are qualified by that reference. Junior subordinated debt securities will be issued in a principal amount equal to the aggregate stated liquidation amount of trust preferred securities plus Omnicom's investment in trust common securities. The entire principal amount of the junior subordinated debt securities held by each trust will mature and become due and payable, together with any accrued and unpaid interest thereon, on the date set forth in the applicable prospectus supplement. If distributed to the holders of trust preferred securities upon dissolution of trust, junior subordinated debt securities represented by a paper certificate may be presented for exchange or transfer at the office of the relevant registrar. Holders will not have to pay any service charge for any registration of transfer or exchange of their certificates, but Omnicom may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with such registration of transfer (Section 2.7). The procedures relating to the exchange and transfer of global securities are described below under "Book-Entry Procedures and Settlement." Subordination The junior subordinated debt securities will rank subordinated and junior in right of payment, to the extent set forth in the junior subordinated debt indenture, to all senior indebtedness of Omnicom. For purposes of the junior subordinated debt securities, senior indebtedness under the junior subordinated indenture shall include those obligations described as senior indebtedness for purposes of the subordinated debt securities under "Subordinated Debt" above, as well as: o all principal, premium, if any, and interest in respect of subordinated debt securities issued under the subordinated debt indenture, except for any series of subordinated debt securities that by its terms is subordinated to, or ranks on an equal basis with, junior subordinated debt securities; o Omnicom's 4 1/4% Convertible Subordinated Debentures due 2007; and o Omnicom's 2 1/4% Convertible Subordinated Debentures due 2013 (Section 1.1). The junior subordinated indenture does not limit the amount of senior indebtedness that Omnicom may issue. 31 Optional Redemption To the extent described in the applicable prospectus supplement, Omnicom shall have the right to redeem the junior subordinated debt securities, in whole or in part, from time to time, on or after the applicable redemption date at the applicable redemption price, together with interest, upon not less than 30 nor more than 60 days' notice. Omnicom will not be required to: o issue, register the transfer of or exchange junior subordinated debt securities of any series during a period of 15 days immediately preceding the date notice is mailed identifying the junior subordinated debt securities of such series called for redemption; or o register the transfer of or exchange any junior subordinated debt securities so selected for redemption, except the unredeemed portion of any junior subordinated debt securities being redeemed in part (Section 2.7). Deferral of Interest Payments on Junior Subordinated Debt Securities Omnicom can defer interest payments by extending the interest payment period for the number of consecutive extension periods specified in the applicable prospectus supplement. Other details regarding the extension period will also be specified in the applicable prospectus supplement. No extension period may extend beyond the maturity of the junior subordinated debt securities. At the end of the extension period (or periods), Omnicom will pay all interest then accrued and unpaid, together with interest on the deferred amount compounded quarterly at the rate of the junior subordinated debt securities, to the extent permitted by the applicable law. During any extension period, Omnicom will not make distributions related to its capital stock, including dividends, redemptions, repurchases, liquidation payments, or guarantee payments. In addition, Omnicom will not make any payments, redeem or repurchase any debt securities of equal or junior rank to the junior subordinated debt securities or make any guarantee payments on any such debt securities of its subsidiaries. Omnicom may, however, make the following types of distributions: o dividends or distributions paid in common stock; o dividends in connection with the implementation of a shareholder rights plan; o payments to a trust holding securities of the same series under a guarantee; o repurchases, redemptions or other acquisitions of shares of its capital stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, consultants or advisors; or o the purchases of fractional interests in shares of capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged. Prior to the termination of any extension period for a series of junior subordinated debt securities, Omnicom may further defer payments of interest on the junior subordinated debt securities by extending the interest payment period, provided that such extension period together with all such previous and further extensions thereof for such series of junior subordinated debt securities may not extend beyond five consecutive years or extend beyond the maturity of the series. Upon the termination of any extension period, and the payment of all accrued and unpaid interest on the junior subordinated debt securities then due, Omnicom may select a new extension period for such series of junior subordinated debt securities, subject to the above requirements. No interest on a series of junior subordinated debt securities during an extension period, except at the end thereof, will be due and payable. If the property trustee is the sole holder of the junior subordinated debt securities, Omnicom will give the property trustee notice of the selection of an extension period for such series of junior subordinated debt securities one business day prior to the earlier of: 32 o the regular record date for the interest payment on which the extension period is to commence or relating to the interest payment on which an extension period that is being extended would otherwise terminate; or o the date a trust is required to give notice to the applicable self-regulatory organization or to holders of such trust preferred securities on the record date or the date such distribution is payable, but in any event not less than one business day prior to such record date. The administrative trustees shall give notice of the selection of an extension period to the holders of trust preferred securities. If the property trustee is not the sole holder of a series of junior subordinated debt securities, Omnicom will give the holders of such junior subordinated debt securities notice of the selection of an extension period ten business days prior to the earlier of: o the regular record date for the interest payment on which the extension period is to commence or relating to the interest payment on which an extension period that is being extended would otherwise terminate; or o the date Omnicom is required to give notice to the applicable self-regulatory organization or to holders of such subordinated debt securities, but in any event at least two business days before such record date (Section 2.14). Omnicom has no present intention to defer interest payments. Certain Covenants Under the junior subordinated debt indenture Omnicom will be required to: o maintain 100% ownership of the trust common securities of any trust to which the junior subordinated debt securities have been issued while the junior subordinated debt securities remain outstanding; and o pay to any trust to which the junior subordinated debt securities have been issued any taxes, duties, assessments or governmental charges of whatever nature (other than withholding taxes) imposed by the United States or any other taxing authority on that trust, so that the net amounts received and retained by that trust (after paying any taxes, duties, assessments or other governmental charges) will be not less than the trust would have received had no such taxes, duties, assessments or other governmental charges been imposed (Section 5.7). If there has occurred any event of default, then Omnicom may not: o declare or pay any dividend on, make any distributions with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock; or o make any payment of interest, principal or premium, on or repay, repurchase or redeem any, debt securities (including guarantees other than the trust guarantee) issued by Omnicom which rank pari passu with or junior to the junior subordinated debt securities. The preceding sentence, however, shall not restrict: o dividends or distributions paid in common stock; o dividends in connection with the implementation of a shareholder rights plan; o payments to a trust holding securities of the same series under a guarantee; o repurchases, redemptions or other acquisitions of shares of Omnicom capital stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, consultants or advisors; or o the purchase of fractional interests in shares of capital stock pursuant to the conversion or exchange provision of such capital stock or the security being converted or exchanged (Section 5.8.1). 33 The indentures provide that Omnicom will not merge or consolidate with another corporation or sell or lease all or substantially all its assets to another corporation, or purchase all or substantially all the assets of another corporation unless: o either (1) Omnicom is the continuing corporation or (2) the successor corporation, if other than Omnicom, expressly assumes the obligations evidenced by the junior subordinated debt securities issued pursuant to the junior subordinated debt indenture and Omnicom's obligations under the trust guarantees; o immediately prior to and after the transaction, there would not be any events of default in the performance of any covenant or condition of the junior subordinated debt indenture; and o the transaction is permitted under the relevant trust agreement and guarantee and does not give rise to any breach or violation of such trust agreement or guarantee (Section 6.1). Modification of the Junior Subordinated Indenture If Omnicom and the trustee propose a modification of the junior subordinated debt indenture or the rights of the holders of a series of junior subordinated indenture that requires the consent of the holders of the junior subordinated debt securities and the modification relates to a series of junior subordinated debt securities held by or on behalf of an Omnicom Capital Trust, then: o if the consent of a majority in aggregate principal amount of junior subordinated debt securities is required, the modification will not be effective until the holders of a majority in liquidation amount of trust securities issued by the affected trust have consented to the modification; and o if the consent of each outstanding junior subordinated debt security is required, the modification will not be effective until each holder of the trust securities of the affected trust has consented to the modification (Section 10.2). However, the holders of the trust common securities can vote to provide the foregoing consent only after all events of default with respect to the trust preferred securities have been cured, waived or otherwise eliminated and after the property trustee has obtained an opinion from tax counsel that the corresponding trust will not fail to be classified as a grantor trust for federal income tax purposes, as provided in the trust agreement (Section 10.2). Junior Subordinated Debt Indenture Additional Events of Default In addition to the events of default described under "Description of Debt Securities -- Events of Default," the voluntary or involuntary dissolution, winding up or termination of a trust will be an additional event of default regarding any series of junior subordinated debt securities held as trust assets, unless the dissolution, winding up or termination is in connection with: o the distribution of junior subordinated debt securities to holders of trust securities in liquidation of a trust; o the redemption of all outstanding trust securities of such trust; or o certain mergers or consolidations permitted by the amended of trust agreement. Holders of a majority in principal amount of junior subordinated debt securities of any series or the majority in liquidation amount of the trust preferred securities of a trust or of the trust common securities of a trust may waive any past default will respect to such securities, except a default in payment of principal, premium or interest or a default in a covenant or provision which may not be modified or amended without the consent of each holder of a junior subordinated debt security of the affected series or the affected trust preferred securities or trust common securities. The holders of trust preferred securities in certain circumstances have the right to direct the property trustee to exercise its rights as holder of junior subordinated debt securities (Sections 7.12 and 7.13). 34 Enforcement of Certain Rights by Holders of Trust Preferred Securities To the extent any action under the junior subordinated debt indenture is entitled to be taken by the holders of at least a specified percentage of junior subordinated debt securities, holders of the corresponding trust preferred securities may take such action if it is not taken by the property trustee of the related Omnicom trust. Notwithstanding the foregoing, if a event of default has occurred and is continuing and is attributable either to: o the failure of Omnicom to pay the principal of or premium, if any, on or interest on the junior subordinated debt securities on the due date; or o the failure by Omnicom to deliver the required securities or other rights upon an appropriate conversion or exchange right election; a holder of the related trust preferred securities may institute a legal proceeding directly against Omnicom for enforcement of payment to such holder of the principal of or premium, if any, on or interest on such junior subordinated debt securities having a principal amount equal to the liquidation amount of the trust preferred securities held by such holder or for enforcement of such conversion or exchange rights, as the case may be, which is referred to as a direct action. Omnicom may not amend the junior subordinated debt indenture to remove the foregoing right to bring a direct action without the prior written consent of the holders of all of the trust preferred securities outstanding. If the right to bring a direct action is removed, the applicable Omnicom trust may become subject to the reporting obligations under the Exchange Act. Notwithstanding any payments made to a holder of trust preferred securities by Omnicom in connection with a direct action, Omnicom shall remain obligated to pay the principal of and premium, if any, on and interest on the related junior subordinated debt securities, and Omnicom shall be subrogated to the rights of the holder of such trust preferred securities with respect to payments on the trust preferred securities to the extent of any payments made by Omnicom to such holder in any direct action (Sections 7.3 and 10.2). The holders of the trust preferred securities will not be able to exercise directly any remedies, other than those set forth in the preceding paragraph, available to the holders of the related junior subordinated debt securities unless an event of default has occurred and is continuing under the applicable declaration of trust. See "Description of Trust Preferred Securities -- Trust Enforcement Events." Relationship Among the Trust Preferred Securities, the Guarantees and the Junior Subordinated Debt Securities Held by the Trust Omnicom will guarantee payments of distributions and redemption and liquidation payments due on the trust preferred securities, to the extent the trust has funds available for the payments, to the extent described under "Description of the Guarantees." No single document executed by Omnicom in connection with the issuance of the trust preferred securities will provide for Omnicom's full, irrevocable and unconditional guarantee of the trust preferred securities. It is only the combined operation of Omnicom's obligations under the guarantee, the amended trust agreement and the junior subordinated debt indenture that has the effect of providing a full, irrevocable and unconditional guarantee of the trust's obligations under the trust preferred securities. As long as Omnicom makes payments of interest and other payments when due on the junior subordinated debt securities held by the trust, those payments will be sufficient to cover the payment of distributions and redemption and liquidation payments due on the trust preferred securities issued by the trust, primarily because: o the total principal amount of the junior subordinated debt securities will be equal to the sum of the total liquidation amount of the trust securities; o the interest rate and interest and other payment dates on the junior subordinated debt securities will match the distribution rate and distribution and other payment dates for the trust securities; o Omnicom will pay for any and all costs, expenses and liabilities of the trust except its obligations under its trust preferred securities; and o each amended trust agreement will provide that the trust will not engage in any activity that is not consistent with the limited purposes of the trust. 35 If and to the extent that Omnicom does not make payments of the junior subordinated debt securities, the trust will not have funds available to make payments of distributions or other amounts due on its trust preferred securities. In those circumstances, holders will not be able to rely upon the guarantee for payment of these amounts. Instead, holders may directly sue Omnicom or seek other remedies to collect their proportionate share of payments owed. If holders sue Omnicom to collect payment, then Omnicom will assume rights as a holder of trust preferred securities under the amended trust agreement to the extent Omnicom makes a payment to holders in any such legal action. BOOK-ENTRY PROCEDURES AND SETTLEMENT Most series of debt securities and trust preferred securities will be book-entry securities. Upon issuance, all book-entry securities of the same issue will be represented by one or more fully registered global securities, without interest coupons. Each global security will be deposited with, or on behalf of, The Depository Trust Company, a securities depository, and will be registered in the name of DTC or a nominee of DTC. DTC will thus be the only registered holder of these debt securities or trust preferred securities and will be considered the sole owner of the securities for purposes of the indenture. Purchasers may only hold interests in the global securities through DTC if they are a participant in the DTC system. Purchasers may also hold interests through a securities intermediary--banks, brokerage houses and other institutions that maintain securities accounts for customers--that has an account with DTC or its nominee. DTC will maintain accounts showing the securities holdings of its participants, and these participants will in turn maintain accounts showing the securities holdings of their customers. Some of these customers may themselves be securities intermediaries holding debt securities or trust preferred securities for their customers. Thus, each beneficial owner of a book-entry security will hold that security indirectly through a hierarchy of intermediaries, with DTC at the "top" and the beneficial owner's own securities intermediary at the "bottom." The securities of each beneficial owner of a book-entry security will be evidenced solely by entries on the books of the beneficial owner's securities intermediary. The actual purchaser of the securities will generally not be entitled to have the securities represented by the global securities registered in its name and will not be considered the owner under the indenture. In most cases, a beneficial owner will also not be able to obtain a paper certificate evidencing the holder's ownership of securities. The book-entry system for holding securities eliminates the need for physical movement of certificates and is the system through which most publicly traded common stock is held in the United States. However, the laws of some jurisdictions require some purchasers of securities to take physical delivery of their securities in definitive form. These laws may impair the ability to transfer book-entry securities. A beneficial owner of book-entry securities represented by a global security may exchange the securities for definitive (paper) securities only if: (1) DTC is unwilling or unable to continue as depositary for such global security and Omnicom is unable to find a qualified replacement for DTC within 90 days; (2) at any time DTC ceases to be a clearing agency registered under the Securities Exchange Act of 1934; (3) Omnicom in its sole discretion decides to allow some or all book-entry securities to be exchangeable for definitive securities in registered form; or (4) an event of default with respect to the debt securities or a trust enforcement event with respect to the trust preferred securities has happened and is continuing. Unless indicated otherwise in the applicable prospectus supplement, any global security that is exchangeable will be exchangeable in whole for definitive securities in registered form, with the same terms and of an equal aggregate principal or liquidation amount, in denominations of $1,000 and whole multiples of $1,000. Definitive notes or trust certificates will be registered in the name or names of the person or persons specified by DTC in a written instruction to the registrar of the securities. DTC may base its written instruction upon directions it receives from its participants. 36 In this prospectus and any prospectus supplement, for book-entry securities, references to actions taken by security holders will mean actions taken by DTC upon instructions from its participants, and references to payments and notices of redemption to security holders and notices of redemption to DTC as the registered holder of the securities for distribution to participants in accordance with DTC's procedures. DTC is a limited purpose trust company organized under the laws of the State of New York, a "banking organization" within the meaning of the New York banking law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under section 17A of the Securities Exchange Act of 1934. The rules applicable to DTC and its participants are on file with the SEC. Omnicom will not have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the book-entry securities or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. PLAN OF DISTRIBUTION Each of Omnicom and the Omnicom Capital Trusts may offer the offered securities in one or more of the following ways from time to time: o by itself directly; o to or through underwriters or dealers; o through agents; or o through a combination of any of these methods of sale. The prospectus supplement relating to an offering of offered securities will set forth the terms of such offering, including, when applicable: o the purchase price of the offered securities or method by which it will be determined, and the proceeds to Omnicom or the Omnicom Capital Trusts from such sale; o the initial public offering price; o the name or names of any underwriters, dealers or agents; o underwriters', dealers' or agents' compensation; o discounts or concessions; and o securities exchanges on which such offered securities may be listed. Offering prices and compensation to underwriters, dealers and agents may be changed from time to time. If underwriters are used in an offering of offered securities, such offered securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be offered either to the public through underwriting syndicates represented by one or more managing underwriters or by one or more underwriters without a syndicate. Unless otherwise set forth in the prospectus supplement, the underwriters will not be obligated to purchase offered securities unless specified conditions are satisfied, and if the underwriters do purchase any offered securities, they will purchase all offered securities. In connection with underwritten offerings of the offered securities and in accordance with applicable law and industry practice, underwriters may over-allot or effect transactions that stabilize, maintain or otherwise affect the market price of the offered securities at levels above those that might otherwise prevail in the open market, including by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids, each of which is described below. o A stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining the price of a security. o A syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any purchase to reduce a short position created in connection with the offering. 37 o A penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member in connection with the offering when offered securities originally sold by the syndicate member are purchased in syndicate covering transactions. These transactions may be effected on the New York Stock Exchange, in the over-the-counter market or otherwise. Underwriters are not required to engage in any of these activities, or to continue such activities if commenced. If dealers are utilized in the sale of offered securities, Omnicom or the applicable Omnicom Capital Trust will sell such offered securities to the dealers as principals. The dealers may then resell such offered securities to the public at varying prices to be determined by such dealers at the time of resale. Additional information regarding these transactions will be included in the prospectus supplement relating to the offered securities, if required. Offered securities may be sold by Omnicom or an Omnicom Capital Trust to one or more institutional or other purchasers directly or through agents designated by Omnicom or an Omnicom Capital Trust from time to time for purposes of pricing offered securities, at a fixed price or prices, which may be changed, at varying prices determined at the time of sale or, if applicable, by reference to an existing market. If agents are designated, information relating to such arrangements will be set forth in the prospectus supplement relating to the offered securities, if required. As one of the means of direct issuance of offered securities, Omnicom or an Omnicom Capital Trust may utilize the services of an entity through which it may conduct an electronic "dutch auction" or similar offering of the offered securities among potential purchasers who are eligible to participate in the auction or offering of the offered securities, if so described in the applicable prospectus supplement. However, there may be other means by which offered securities will be offered directly, which will be described, if required, in the applicable prospectus supplement. If so indicated in the applicable prospectus supplement, Omnicom or an Omnicom Capital Trust may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase offered securities from Omnicom or an Omnicom Capital Trust at the public offering price set forth in such prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be subject only to those conditions set forth in the prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation of such contracts. Underwriters, dealers and agents may be entitled, under agreements with Omnicom or an Omnicom Capital Trust, to indemnification by Omnicom or an Omnicom Capital Trust relating to material misstatements and omissions. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, Omnicom and affiliates of Omnicom in the ordinary course of business. Offered securities may constitute a new issue of securities, in which case they will have no established trading market. Any underwriters to whom offered securities are sold for public offering and sale may make a market in such offered securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. Offered securities may or may not be listed on a national securities exchange. No assurance can be given that there will be a market for offered securities. LEGAL MATTERS Certain legal matters in connection with the legality of the securities offered hereby will be passed upon for Omnicom by its general counsel, Barry J. Wagner, Esq. Mr. Wagner is an officer of Omnicom and has received, and may in the future receive, awards of restricted stock and other benefits determined by reference to Omnicom securities. Mr. Wagner beneficially owns or has rights to acquire a total of less than 1% of Omnicom's outstanding common stock. Certain legal matters in connection with the validity of the trust preferred securities will be passed upon for Omnicom by Richards, Layton & Finger, P.A., Delaware counsel. 38 EXPERTS The consolidated financial statements and schedules incorporated by reference in this prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are included herein in reliance upon the authority of said firm as experts in accounting and auditing in giving these reports. 39 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. Expenses payable in connection with the distribution of the securities being registered (estimated except for the registration fee), all of which will be borne by the registrant, are as follows: Registration Fee .......................................... $118,800 Trustee's Fees and Expenses ............................... $ * Printing and Engraving Fees ............................... $ * Legal Fees And Expenses ................................... $ * Blue Sky Fees and Expenses ................................ $ * Accounting Fees and Expenses .............................. $ * Warrant Agent's Fees and Expenses ......................... $ * Transfer Agent and Registration Fees and Expenses ......... $ * Rating Agency Fees ........................................ $ * Miscellaneous Expenses .................................... $ * -------- Total ................................................ $ * ======== - ---------- * To be filed by amendment (estimated). Item l5. Indemnification of Directors and Officers. The Registrant's certificate of incorporation contains a provision limiting the liability of directors (except for approving statutorily prohibited dividends, share repurchases or redemptions, distributions of assets on dissolution or loans to directors) to acts or omissions determined by a judgment or other final adjudication to have been in bad faith, involving intentional misconduct or a knowing violation of the law, or resulting in personal gain to which the director was not legally entitled. The Registrant's By-Laws provide that an officer or director will be indemnified against any costs or liabilities, including attorneys' fees and amounts paid in settlement with the consent of the registrant in connection with any claim, action or proceeding to the fullest extent permitted by the New York Business Corporation Law. Section 722(a) of the New York Business Corporation Law provides that a corporation may indemnify any officer or director, made or threatened to be made, a party to an action or proceeding other than one by or in the right of the corporation, including an action by or in the right of any other corporation or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, because he was a director or officer of the corporation, or served such other corporation or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or in the case of service for any other corporation or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. Section 722(c) of the New York Business Corporation Law provides that a corporation may indemnify any officer or director made, or threatened to be made, a party to an action by or in the right of the corporation by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of any other corporation of any type or kind, or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred by him in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for another corporation or other enterprise, not opposed to, the best interests of the corporation. The corporation may not, however, indemnify any officer or director pursuant to Section 722(c) in respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought or, if no action was brought, any court of competent jurisdiction, determines upon application, that the person is fairly and reasonably entitled to indemnity for such portion of the settlement and expenses as the court deems proper. II-1 Section 723 of the New York Business Corporation Law provides that an officer or director who has been successful on the merits or otherwise in the defense of a civil or criminal action of the character set forth in Section 722 is entitled to indemnification as permitted in such section. Section 724 of the New York Business Corporation Law permits a court to award the indemnification required by Section 722. The Registrant has entered into agreements with its directors to indemnify them for liabilities or costs arising out of any alleged or actual breach of duty, neglect, errors or omissions while serving as a director. The Registrant also maintains and pays premiums for directors' and officers' liability insurance policies. Item 16. Exhibits and Financial Statement Schedules. Exhibit Number Description of Exhibit - -------- ------------------- 1.1 Form of Underwriting Agreement (for Debt Securities and Warrants).* 1.2 Form of Underwriting Agreement (for Common Stock and Preferred Stock and Depositary Shares).* 1.3 Form of Underwriting Agreement (for Trust Preferred Securities).* 4.1(a) Certificate of Incorporation (as amended on December 4, 1997 and as restated for filing purposes) (incorporated by reference to Omnicom Group Inc.'s Registration Statement on Form S-3 (No. 333-46303)). 4.1(b) Certificate of Amendment of the Certificate of Incorporation (incorporated by reference to Omnicom Group Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 2000). 4.2 Bylaws (incorporated by reference in Omnicom Group Inc.'s Annual Report on Form 10-K for the year ended December 31, 1987). 4.3 Form of Certificate of Designation with Respect to Preferred Stock.* 4.4 Form of Senior Indenture (incorporated by reference to Omnicom Group Inc.'s Registration Statement on Form S-3 (No. 333-46303). 4.5 Form of Senior Debt Security (included in Exhibit 4.4). 4.6 Form of Subordinated Indenture (incorporated by reference to Omnicom Group Inc.'s Registration Statement on Form S-3 (No. 333-46303). 4.7 Form of Subordinated Debt Security (included in Exhibit 4.6). 4.8 Form of Junior Subordinated Debt Indenture. 4.9 Form of Junior Subordinated Debt Security (included in Exhibit 4.8). 4.10 Form of Depositary Agreement.* 4.11 Form of Stock Warrant Agreement, together with Form of Warrant.* 4.12 Form of Debt Warrant Agreement, together with Form of Warrant.* 4.13 Form of Guarantee Agreement of Omnicom Group Inc. 4.14 Certificate of Trust of Omnicom Capital Trust I.** 4.15 Trust Agreement of Omnicom Capital Trust I.** 4.16 Certificate of Trust of Omnicom Capital Trust II.** 4.17 Trust Agreement of Omnicom Capital Trust II.** 4.18 Certificate of Trust of Omnicom Capital Trust III.** 4.19 Trust Agreement of Omnicom Capital Trust III.** 4.20 Form of Amended and Restated Trust Agreement. 4.21 Form of Trust Preferred Security (included in Exhibit 4.20). 4.22 Form of Agreement as to Expenses and Liabilities. 5.1 Opinion of Counsel as to the legality of the securities registered hereunder. 5.2 Opinion of Richards, Layton & Finger, P.A., Delaware Counsel, as to the validity of the trust preferred securities. 12 Statement Regarding Computation of Ratio of Earnings to Fixed Charges. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Counsel (included in Exhibit 5.1). 23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2). 24.1 Power of Attorney (included on Signature Page).** 25 Statement of Eligibility of Trustee on Form T-1.*** - ---------- * To be filed by amendment or by a report on Form 8-K pursuant to Item 601 of Regulations S-K under the Securities Act of 1933. ** Previously filed. *** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2). II-2 Item 17. Undertakings. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. Provided however, that paragraphs (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of post-effective amendment to this Registration Statement any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant further undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Registrant pursuant to the provisions described under Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture Act. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on November 15, 2000. OMNICOM GROUP INC. By: /s/ JOHN WREN ------------------------------------- John Wren President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date --------- ----- ---- /s/ JOHN WREN President, Chief Executive November 15, 2000 - ------------------------------- Officer and Director John Wren (Principal Executive Officer) /s/ RANDALL WEISENBURGER Executive Vice President November 15, 2000 - ------------------------------- and Chief Financial Randall Weisenburger Officer (Principal Financial Officer) /s/ PHILIP J. ANGELASTRO Controller (Principal November 15, 2000 - ------------------------------- Accounting Officer) Philip J. Angelastro * Director November 15, 2000 - ------------------------------- Richard I. Beattie * Director November 15, 2000 - ------------------------------- Bernard Brochand * Director November 15, 2000 - ------------------------------- Robert J. Callander * Director November 15, 2000 - ------------------------------- James A. Cannon * Director November 15, 2000 - ------------------------------- Leonard S. Coleman, Jr. * Director November 15, 2000 - ------------------------------- Bruce Crawford * Director November 15, 2000 - ------------------------------- Susan S. Denison * Director November 15, 2000 - ------------------------------- Peter Foy * Director November 15, 2000 - ------------------------------- Michael Greenlees II-4 Signature Title Date --------- ----- ---- * Director November 15, 2000 - ------------------------------- Thomas L. Harrison Director - ------------------------------- John R. Murphy * Director November 15, 2000 - ------------------------------- John R. Purcell * Director November 15, 2000 - ------------------------------- Keith L. Reinhard Director - ------------------------------- Linda Johnson Rice * Director November 15, 2000 - ------------------------------- Allen Rosenshine * Director November 15, 2000 - ------------------------------- Gary L. Roubos *By: /s/ Barry J. Wagner - ------------------------------- Barry J. Wagner Attorney-in-Fact II-5 Pursuant to the requirements of the Securities Act of 1933, as amended, Omnicom Capital Trust I certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on November 15, 2000. OMNICOM CAPITAL TRUST I By Omnicom Group Inc., as Depositor By: /s/ Robert A. Profusek -------------------------------- Robert A. Profusek Executive Vice President Pursuant to the requirements of the Securities Act of 1933, as amended, Omnicom Capital Trust II certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on November 15, 2000. OMNICOM CAPITAL TRUST II By Omnicom Group Inc., as Depositor By: /s/ Robert A. Profusek -------------------------------- Robert A. Profusek Executive Vice President Pursuant to the requirements of the Securities Act of 1933, as amended, Omnicom Capital Trust III certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on November 15, 2000. OMNICOM CAPITAL TRUST III By Omnicom Group Inc., as Depositor By: /s/ Robert A. Profusek -------------------------------- Robert A. Profusek Executive Vice President II-6 INDEX TO EXHIBITS Exhibit Number Description of Exhibit - ------- ---------------------- 1.1 Form of Underwriting Agreement (for Debt Securities and Warrants).* 1.2 Form of Underwriting Agreement (for Common Stock and Preferred Stock and Depositary Shares).* 1.3 Form of Underwriting Agreement (for Trust Preferred Securities).* 4.1(a) Certificate of Incorporation (as amended on December 4, 1997 and as restated for filing purposes) (incorporated by reference to Omnicom Group Inc.'s Registration Statement on Form S-3 (No. 333-46303)). 4.1(b) Certificate of Amendment of the Certificate of Incorporation (incorporated by reference to Omnicom Group Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 2000). 4.2 Bylaws (incorporated by reference in Omnicom Group Inc.'s Annual Report on Form 10-K for the year ended December 31, 1987). 4.3 Form of Certificate of Designation with Respect to Preferred Stock.* 4.4 Form of Senior Debt Indenture (incorporated by reference to Omnicom Group Inc.'s Registration Statement on Form S-3 (No. 333-46303). 4.5 Form of Senior Debt Security (included in Exhibit 4.4). 4.6 Form of Subordinated Debt Indenture (incorporated by reference to Omnicom Group Inc.'s Registration Statement on Form S-3 (No. 333-46303). 4.7 Form of Subordinated Debt Security (included in Exhibit 4.6). 4.8 Form of Junior Subordinated Debt Indenture. 4.9 Form of Junior Subordinated Debt Security (included in Exhibit 4.8). 4.10 Form of Depositary Agreement.* 4.11 Form of Stock Warrant Agreement, together with Form of Warrant.* 4.12 Form of Debt Warrant Agreement, together with Form of Warrant.* 4.13 Form of Guarantee Agreement of Omnicom Group Inc. 4.14 Certificate of Trust of Omnicom Capital Trust I.** 4.15 Trust Agreement of Omnicom Capital Trust I.** 4.16 Certificate of Trust of Omnicom Capital Trust II.** 4.17 Trust Agreement of Omnicom Capital Trust II.** 4.18 Certificate of Trust of Omnicom Capital Trust III.** 4.19 Trust Agreement of Omnicom Capital Trust III.** 4.20 Form of Amended and Restated Trust Agreement. 4.21 Form of Trust Preferred Security (included in Exhibit 4.20). 4.22 Form of Agreement as to Expenses and Liabilities. 5.1 Opinion of Counsel as to the legality of the securities registered hereunder. 5.2 Opinion of Richards, Layton & Finger, P.A., Delaware counsel, as to the validity of the trust preferred securities. 12 Statement Regarding Computation of Ratio of Earnings to Fixed Charges. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Counsel (included in Exhibit 5.1). 23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2). 24.1 Power of Attorney (included on Signature Page).** 25 Statement of Eligibility of Trustee on Form T-1.*** - ---------- * To be filed by amendment or by a report on Form 8-K pursuant to Item 601 of Regulation S-K under the Securities Act of 1933. ** Previously filed. *** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2). EX-4.8 2 0002.txt FORM OF JUNIOR SUBORDINATED DEBT INDENTURE OMNICOM GROUP INC. AS ISSUER INDENTURE DATED AS OF ___________, 200_ ---------------------- AS TRUSTEE JUNIOR SUBORDINATED DEBT SECURITIES Cross-Reference Table Section of Trust Indenture Act of 1939, Section of as amended Indenture - -------------------------------------------------------------------------------- Section 310(a)(1)....................................... 8.10 (a)(2)................................... 8.10 (a)(3)................................... Inapplicable (a)(4)................................... Inapplicable (a)(5)................................... 8.10 (b)...................................... 8.10 Section 311(a) ......................................... 8.11 (b)...................................... 8.11 (c)...................................... Inapplicable Section 312(a) ......................................... 2.6 (b)...................................... 11.3 (c)...................................... 11.3 Section 313(a) ......................................... 8.6 (b)(1)................................... 8.6 (b)(2)................................... 8.6 (c)(1)................................... 8.6 (d)...................................... 8.6 Section 3.14(a)......................................... 5.2, 11.5 (b)...................................... Inapplicable (c)(1)................................... 11.4 (c)(2)................................... 11.4 (c)(3)................................... Inapplicable (d)...................................... Inapplicable (e)...................................... 11.5 (f)...................................... Inapplicable Section 315(a) ......................................... 8.1 (b)...................................... 8.5 (c)...................................... 8.1 (d)...................................... 8.1 (e)...................................... 7.14 Section 316(a) ......................................... 2.10 (a)(1)(A)................................ 7.12 (a)(1)(B)................................ 7.13 (b)...................................... 7.8 Section 317(a)(1)....................................... 7.3 (a)(2)................................... 7.4 (b)...................................... 2.5 Section 318(a) ......................................... 11.1 Note: This Cross-Reference Table is not part of the Indenture. Table of Contents Page ---- ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE ...................... 1 Section 1.1 Definitions ............................................... 1 Section 1.2 Other Definitions ......................................... 8 Section 1.3 Incorporation by Reference of Trust Indenture Act ......... 8 Section 1.4 Rules of Construction ..................................... 9 ARTICLE II THE SECURITIES ................................................. 9 Section 2.1 Issuable in Series ........................................ 9 Section 2.2 Establishment of Terms of Series of Securities ............ 10 Section 2.3 Execution and Authentication .............................. 12 Section 2.4 Registrar and Paying Agent ................................ 13 Section 2.5 Paying Agent to Hold Money in Trust ....................... 14 Section 2.6 Securityholder Lists ...................................... 14 Section 2.7 Transfer and Exchange ..................................... 14 Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities .......... 15 Section 2.9 Outstanding Securities .................................... 16 Section 2.10 Treasury Securities ....................................... 16 Section 2.11 Temporary Securities ...................................... 16 Section 2.12 Cancellation .............................................. 17 Section 2.13 Defaulted Interest ........................................ 17 Section 2.14 Deferrals of Interest Payment Dates ....................... 17 Section 2.15 Right of Set-Off .......................................... 19 Section 2.16 Shortening or Extension of Stated Maturity ................ 19 Section 2.17 Global Securities ......................................... 19 Section 2.18 CUSIP Numbers ............................................. 20 ARTICLE III REDEMPTION .................................................... 21 Section 3.1 Notice to Trustee ......................................... 21 Section 3.2 Selection of Securities to be Redeemed .................... 21 Section 3.3 Notice of Redemption ...................................... 21 Section 3.4 Effect of Notice of Redemption ............................ 22 Section 3.5 Deposit of Redemption Price ............................... 22 Section 3.6 Securities Redeemed in Part ............................... 22 ARTICLE IV SUBORDINATION OF SECURITIES .................................... 22 Section 4.1 Agreement of Subordination ................................ 22 Section 4.2 Payments to Securityholders ............................... 23 Section 4.3 Subrogation of Securities ................................. 24 Section 4.4 Authorization by Securityholders .......................... 25 Section 4.5 Notice to Trustee ......................................... 25 Section 4.6 Trustee's Relation to Senior Indebtedness ................. 26 Section 4.7 No Impairment of Subordination ............................ 27 Section 4.8 Certain Conversions Deemed Payment ........................ 27 Section 4.9 Senior Indebtedness Entitled to Rely ...................... 27 ARTICLE V COVENANTS ....................................................... 27 Section 5.1 Payment of Principal and Interest ......................... 27 Section 5.2 SEC Reports ............................................... 28 Section 5.3 Compliance Certificate .................................... 28 Section 5.4 Stay, Extension and Usury Laws ............................ 28 Section 5.5 Corporate Existence ....................................... 28 Section 5.6 Taxes ..................................................... 29 Section 5.7 Additional Tax Sums ....................................... 29 Section 5.8 Additional Covenants ...................................... 29 Section 5.9 Calculation of Original Issue Discount .................... 30 ARTICLE VI SUCCESSORS 31 Section 6.1 When Company May Merge, Etc. .............................. 31 Section 6.2 Successor Corporation Substituted ......................... 31 ARTICLE VII DEFAULTS AND REMEDIES ......................................... 32 Section 7.1 Events of Default ......................................... 32 Section 7.2 Acceleration of Maturity; Rescission and Annulment ........ 33 Section 7.3 Collection of Indebtedness and Suits for Enforcement by Trustee; Direct Action ................................. 35 Section 7.4 Trustee May File Proofs of Claim .......................... 36 Section 7.5 Trustee May Enforce Claims Without Possession of Securities ................................................ 37 Section 7.6 Application of Money Collected ............................ 37 Section 7.7 Limitation on Suits ....................................... 38 Section 7.8 Unconditional Right of Holders to Receive Principal and Interest .............................................. 38 Section 7.9 Restoration of Rights and Remedies ........................ 38 Section 7.10 Rights and Remedies Cumulative ............................ 39 Section 7.11 Delay or Omission Not Waiver .............................. 39 Section 7.12 Control by Holders of Securities and Holders of Trust Preferred Securities ................................ 39 Section 7.13 Waiver of Past Defaults ................................... 40 Section 7.14 Undertaking for Costs ..................................... 41 ARTICLE VIII TRUSTEE ...................................................... 41 Section 8.1 Duties of Trustee ......................................... 41 Section 8.2 Rights of Trustee ......................................... 42 Section 8.3 Individual Rights of Trustee .............................. 43 Section 8.4 Trustee's Disclaimer ...................................... 43 Section 8.5 Notice of Defaults ........................................ 43 Section 8.6 Reports by Trustee to Holders ............................. 44 Section 8.7 Compensation and Indemnity ................................ 44 Section 8.8 Replacement of Trustee .................................... 45 Section 8.9 Successor Trustee by Merger, Etc. ......................... 46 Section 8.10 Eligibility; Disqualification ............................. 46 Section 8.11 Preferential Collection of Claims Against Company ......... 46 ARTICLE IX SATISFACTION AND DISCHARGE ..................................... 46 Section 9.1 Satisfaction and Discharge of Indenture ................... 46 Section 9.2 Application of Trust Funds; Indemnification ............... 47 Section 9.3 Repayment to Company ...................................... 47 ARTICLE X AMENDMENTS AND WAIVERS .......................................... 48 Section 10.1 Supplemental Indentures Without Consent of Holders ........ 48 Section 10.2 Supplemental Indentures With Consent of Holders ........... 48 Section 10.3 Limitations ............................................... 50 Section 10.4 Compliance with Trust Indenture Act ....................... 50 Section 10.5 Revocation and Effect of Consents ......................... 50 Section 10.6 Notation on or Exchange of Securities ..................... 51 Section 10.7 Trustee Protected ......................................... 51 ARTICLE XI MISCELLANEOUS .................................................. 51 Section 11.1 Trust Indenture Act Controls ............................. 51 Section 11.2 Notices .................................................. 51 Section 11.3 Communication by Holders with Other Holders .............. 52 Section 11.4 Certificate and Opinion as to Conditions Precedent ....... 52 Section 11.5 Statements Required in Certificate or Opinion ............ 53 Section 11.6 Rules by Trustee and Agents .............................. 53 Section 11.7 Legal Holidays ........................................... 53 Section 11.8 No Recourse Against Others ............................... 53 Section 11.9 Counterparts ............................................. 54 Section 11.10 Governing Laws ........................................... 54 Section 11.11 No Adverse Interpretation of Other Agreements ............ 54 Section 11.12 Successors ............................................... 54 Section 11.13 Severability ............................................. 54 Section 11.14 Table of Contents, Headings, Etc. ........................ 54 ARTICLE XII SINKING FUNDS ................................................. 54 Section 12.1 Applicability of Article .................................. 54 Section 12.2 Satisfaction of Sinking Fund Payments with Securities ..... 55 Section 12.3 Redemption of Securities for Sinking Fund ................. 55 EXHIBIT A -- Form of Junior Subordinated Debt Security Indenture dated as of ________ __, 200_ between Omnicom Group Inc., a New York corporation (the "Company"), and ________, a ________, as Trustee ("Trustee"). The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its junior subordinated debt securities or other evidences of indebtedness to be issued in one or more series (the "Securities"), as herein provided, up to such principal amount as may from time to time be authorized in or pursuant to one or more resolutions of the Board of Directors or by supplemental indenture. Such authorization includes provision for, without limitation, Securities of a series issued to evidence loans made to the Company of the proceeds from the issuance from time to time by one or more business trusts (each an "Omnicom Trust," and collectively the "Omnicom Trusts") of preferred interests in such Trusts, having the rights provided for in such Trusts (the "Trust Preferred Securities") and common interests in such Trusts, having the rights provided for in such Trusts (the "Trust Common Securities," and collectively with the Trust Preferred Securities, the "Trust Securities") by the related Amended and Restated Trust Agreement and this Indenture; to be authenticated by the Trustee. The Company has duly authorized the execution of this Indenture to provide the terms and conditions upon which these Securities are to be authenticated, issued and delivered. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture. ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1 Definitions. "Additional Interest" means such interest as shall accrue on interest due and not paid on the applicable interest payment date of any Series of Securities held by an Omnicom Trust, accruing at the rate specified for such Series in accordance with the terms specified in such Security. "Additional Tax Sums" has the meaning specified in Section 5.7. "Administrative Trustee" means, in respect of any Omnicom Trust, each Person identified as an "Administrative Trustee" in the related Trust Agreement, solely in such Person's capacity as Administrative Trustee of such Omnicom Trust under such Trust Agreement and not in such Person's individual capacity, or any successor administrative trustee appointed as therein provided. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise. "Agent" means any Registrar, Paying Agent or Service Agent. "Board of Directors" means the Board of Directors of the Company or any duly authorized committee thereof. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate (and delivered to the Trustee, if appropriate). "Business Day" means, unless otherwise provided by Board Resolution, Officers' Certificate or supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close. "Capital Stock" means shares of capital stock of any class of any corporation whether now or hereafter authorized regardless of whether such capital stock shall be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate in dividends and in the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up. "Company" means the party named as such above until a successor replaces it pursuant to this Indenture and thereafter means the successor. "Company Order" means a written order signed in the name of the Company by two Officers, one of whom must be the Company's principal executive officer, principal financial officer or principal accounting officer. "Company Request" means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered. "Debt" of any person as of any date means, without duplication, all indebtedness of such person in respect of borrowed money, including all interest, fees and expenses owed in respect thereto (whether or not the recourse of the lender is to the whole of the assets of such person or only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments. "Default" means any event which is, or with the passage of time or giving of notice or both would be, an Event of Default. "Delaware Trustee" means, in respect of any Omnicom Trust, the natural person who is resident in Delware, or, if not if not a natural person, the entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, as identified as the "Delaware Trustee" in the related Trust Agreement, solely in its capacity as Delaware Trustee of such Omnicom Trust under such Trust Agreement and not in its individual capacity, or its successor in interest in such capacity, or any successor Property Trustee appointed as therein provided. "Depositary" means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, "Depositary" as used with respect to the Securities of any Series shall mean the Depositary with respect to the Securities of such Series. "Discount Security" means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 7.2. "Distribution" means, with respect to the Trust Securities issued by an Omnicom Trust, amounts payable in respect to such Trust Securities as provided in the related Trust Agreement and referred to therein as "Distributions." "Dollars" means the currency of The United States of America. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time. "Global Security" or "Global Securities" means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee. "Holder" or "Securityholder" means a person in whose name a Security is registered. "Indenture" means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder. "interest" with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Investment Company Event" means in respect of an Omnicom Trust, the receipt by the Company and an Omnicom Trust of an opinion of counsel, as provided in the related Trust Agreement and referred to therein as a "1940 Act Opinion," to the effect that, as a result of the occurrence of a change in law or regulation or a written change in interpretation or application of a law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), such Omnicom Trust is or will be considered an investment company that is required to be registered under the 1940 Act, which Change in 1940 Act Law becomes effective on or after the date of original issuance of the Trust Preferred Securities of such Omnicom Trust. "Majority in Liquidation Amount" means, except as provided in the terms of the Trust Preferred Securities or by the TIA, Holder(s) of outstanding Securities, voting together as a single class, or, as the context may require, holders of outstanding Trust Preferred Securities or holders of outstanding Trust Common Securities, voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class. In determining whether the Holders of the requisite amount of Securities have voted, Securities which are owned by the Company or any Affiliate of the Company or any other obligor on the Securities shall be disregarded for the purpose of any such determination. "Maturity," when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, notice of option to elect repayment or otherwise. "1940 Act" means the Investment Company Act of 1940, as amended. "Officer" means the Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company. "Officers' Certificate" means a certificate signed by two Officers, one of whom must be the Company's principal executive officer, principal financial officer or principal accounting officer. "Omnicom Guarantee" means the guarantee by the Company of distributions on the Trust Preferred Securities of an Omnicom Trust to the extent provided in a Guarantee Agreement (as defined in the related Trust Agreement). "Omnicom Trust" and "Omnicom Trusts" each have the meaning specified in the recitals to this Indenture. "Opinion of Counsel" means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company. "Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon declaration pursuant to Section 7.1. "person" means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "principal" of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Tax Sums in respect of, the Security. "Property Trustee" means, in respect of any Omnicom Trust, the commercial bank or trust company identified as the "Property Trustee" in the related Trust Agreement, solely in its capacity as Property Trustee of such Omnicom Trust under such Trust Agreement and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as therein provided. "Responsible Officer" means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject. "SEC" means the Securities and Exchange Commission. "Securities" means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture. "Securities Act" means the Securities Act of 1933, as amended from time to time. "Senior Indebtedness" means the principal of, premium, if any, interest on, and any other payment due pursuant to any of the following, whether outstanding at the date hereof or hereafter incurred or created: (a) all indebtedness of the Company for money borrowed (including any indebtedness secured by a conditional sales contract, mortgage or other lien which is (i) given to secure all or part of the purchase price of property subject thereto, whether given to the vendor of such property or to another or (ii) existing on property at the time of acquisition thereof); (b) all indebtedness of the Company evidenced by notes, debentures, bonds or other securities sold by the Company for money otherwise than pursuant to this Indenture; (c) all lease obligations of the Company which are capitalized on the books of the Company in accordance with generally accepted accounting principles; (d) all indebtedness of others of the kinds described in either of the preceding clause (a) or (b) and all lease obligations of others of the kind described in the preceding clause (c) assumed by or guaranteed in any manner by the Company or in effect guaranteed by the Company through an agreement to purchase, contingent or otherwise; (e) all renewals, extensions or refundings of indebtedness of the kinds described in any of the preceding clauses (a), (b) and (d) and all renewals or extensions of lease obligations of the kinds described in either of the preceding clauses (c) and (d); unless, in the case of any particular indebtedness, lease, renewal, extension or refunding, the instrument or lease creating or evidencing the same or the assumption or guarantee of the same expressly provides that such indebtedness, lease, renewal, extension or refunding is not superior in right of payment to, or is pari passu with, the Securities. Notwithstanding the foregoing, Senior Indebtedness shall not include (i) any indebtedness or lease obligation of any kind of the Company to any Subsidiary of the Company or (ii) any Omnicom Guarantee of Trust Securities, which shall rank equally with and not prior to the Securities in right of payment; (f) all subordinated debt securities issued under any subordinated debt indenture, except for any series of subordinated debt securities that by its terms is subordinated to, or ranks on an equal basis with, junior subordinated debt securities; and (g) the Company's 4 1/4% Convertible Subordinated Debentures due 2007, and the Company's 2 1/4% Convertible Subordinated Debentures due 2013. "Series" or "Series of Securities" means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof. "Significant Subsidiary" means (i) any direct or indirect Subsidiary of the Company that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as a group, would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof. "Stated Maturity" when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date may shortened or extended as provided pursuant to the terms of such Security and this Indenture. "Subsidiary" of any specified person means any corporation of which at least a majority of the outstanding stock having by the terms thereof ordinary voting power for the election of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned by such person, or by one or more other Subsidiaries, or by such person and one or more other Subsidiaries. "Tax Event" means the receipt by the Company and an Omnicom Trust of a Tax Event Opinion (as defined in the relevant Trust Agreement) to the effect that, as a result of (a) any amendment to, or change in or any announced prospective change in the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or (b) as a result of any official administrative written decision or pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of issuance of the Trust Preferred Securities of such Omnicom Trust, there is more than an insubstantial risk that (i) the Omnicom Trust is, or will be within 90 days after the date of such Tax Event Opinion, subject to United States federal income tax with respect to income received or accrued on the corresponding Series of Securities issued by the Company to such Omnicom Trust, (ii) interest payable by the Company on such corresponding Series of Securities is not, or will not be within 90 days of the date of such Tax Event Opinion, deductible by the Company, in whole or in part, for United States federal income tax purposes, or (iii) the Omnicom Trust is, or will be within 90 days after the date of such Tax Event Opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "Trust Agreement" means the Trust Agreement, as may be amended from time to time, governing any Omnicom Trust, whether now existing or created in the future, which purchased the Securities of any Series in each case. "TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb), as amended from time to time, and as in effect on the date of this Indenture; provided, however, that in the event the TIA is amended after such date, "TIA" means, to the extent required by any such amendment, the Trust Indenture Act as so amended. "Trustee" means the person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to this Indenture, and thereafter "Trustee" shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than one such person, "Trustee" as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series. "Trust Common Securities" has the meaning specified in the recitals to this Indenture. "Trust Preferred Securities" has the meaning specified in the recitals to this Indenture. "Trust Securities" has the meaning specified in the recitals to this Indenture. "U.S. Government Obligations" means securities which are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary receipt. Section 1.2 Other Definitions. TERM DEFINED IN SECTION "Bankruptcy Law" 7.1 "Custodian" 7.1 "Event of Default" 7.1 "Extension Period" 2.14 "Journal" 11.15 "Judgment Currency" 11.16 "Legal Holiday" 11.7 "mandatory sinking fund payment" 12.1 "Market Exchange Rate" 11.15 "New York Banking Day" 11.16 "optional sinking fund payment" 12.1 "Paying Agent" 2.4 "Registrar" 2.4 "Service Agent" 2.4 "successor person" 6.1 Section 1.3 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the SEC. "indenture securities" means the Securities. "indenture security holder" means a Securityholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the Securities means the Company and any successor obligor upon the Securities. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined. Section 1.4 Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles; (c) references to "generally accepted accounting principles" shall mean generally accepted accounting principles in effect as of the time when and for the period as to which such accounting principles are to be applied; (d) "or" is not exclusive; (e) words in the singular include the plural, and in the plural include the singular; and (f) provisions apply to successive events and transactions. ARTICLE II THE SECURITIES Section 2.1 Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officers' Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers' Certificate or supplemental indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture. Section 2.2 Establishment of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.22) by a Board Resolution, a supplemental indenture or an Officers' Certificate pursuant to authority granted under a Board Resolution: 2.2.1 the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series); 2.2.2 the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued; 2.2.3 any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 10.6); 2.2.4 the date or dates on which the principal of the Securities of the Series is payable; 2.2.5 the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable, any regular record date for the interest payable on any interest payment date and the right of the Company to defer or extend an interest payment date; 2.2.6 the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, or the method of such payment, if by wire transfer, mail or other means; 2.2.7 if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company; 2.2.8 the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; 2.2.9 the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations; 2.2.10 if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable; 2.2.11 whether the Securities will be issuable as Global Securities; 2.2.12 if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 7.2; 2.2.13 the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index; 2.2.14 any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 7.2; 2.2.15 any addition to or change in the covenants set forth in Article V or VI which applies to Securities of the Series; 2.2.16 any other terms of the Securities of the Series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 10.1, but which may modify or delete any provision of this Indenture insofar as it applies to such Series); 2.2.17 any depositaries, interest rate calculation agents, or other agents with respect to Securities of such Series if other than those appointed herein; 2.2.18 the form of the related Trust Agreement and Omnicom Guarantee, if applicable; 2.2.19 any additional provisions relating to defeasance of the Securities; 2.2.20 whether and under what circumstances the Company will pay Additional Tax Sums as contemplated by Section 5.7 on the Securities of the Series to any Holder who is not a United States person (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities rather than pay such Additional Tax Sums (and the terms of any such option); 2.2.21 the form and terms of any guarantees of the Securities and the terms and conditions, if any, upon which any guarantees thereof shall be subordinated in right of payment to other indebtedness of the Company or any guarantor; and 2.2.22 if and as applicable, the terms of any right to exchange for or convert Securities of the Series into shares of common stock of the Company or other securities or property. All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officers' Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers' Certificate. The Securities of each Series shall be in substantially the form set forth in Exhibit A to this Indenture, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of any Series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 2.3 for the authentication and delivery of such Securities. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities. Section 2.3 Execution and Authentication. Two Officers shall sign the Securities for the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid. A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers' Certificate. The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers' Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8. Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 8.2) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers' Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers' Certificate complying with Section 11.4, and (c) an Opinion of Counsel complying with Section 11.4. The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate. Section 2.4 Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment ("Paying Agent"), where Securities of such Series may be surrendered for registration of transfer or exchange ("Registrar") and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served ("Service Agent"). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term "Registrar" includes any co-registrar; the term "Paying Agent" includes any additional paying agent; and the term "Service Agent" includes any additional service agent. The Company hereby appoints the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. Section 2.5 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent. Section 2.6 Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities. Section 2.7 Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar's request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 10.6). Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part. Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. Section 2.9 Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser. If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue. A Security does not cease to be outstanding because the Company or an Affiliate holds the Security. In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.2. Section 2.10 Treasury Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that the Trustee knows are so owned shall be so disregarded. Section 2.11 Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities. Section 2.12 Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange Act) and deliver a certificate of such destruction to the Company, unless the Company otherwise directs. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation. Section 2.13 Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least 30 days before the record date, the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner. Section 2.14 Deferrals of Interest Payment Dates. If specified as contemplated by Section 2.2 with respect to the Securities of a particular Series, so long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time during the term of such Series, from time to time to defer the payment of interest on such Securities in the manner and for such period or periods as may be specified as contemplated by Section 2.2 (each, an "Extension Period") during which Extension Periods the Company shall have the right to make partial payments of interest on any interest payment date. No Extension Period shall end on a date other than an interest payment date or extend beyond the Stated Maturity. At the end of any such Extension Period the Company shall pay all interest then accrued and unpaid on the Securities (together with Additional Interest or other interest thereon, if any, at the rate specified for the Securities of such Series to the extent permitted by applicable law). During any Extension Period, the Company shall not make any distributions with respect to any of its Capital Stock, including dividends, redemptions, repurchases, liquidation payments or guarantee payments. In addition, the Company shall not make any payment, redeem or repurchase any debt securities issued by the Company which rank pari passu with or junior to the Securities or make any guarantee payments on any such debt securities of its subsidiaries, (i) if at such time the Company shall have given notice of its election of an Extension Period, as provided in this Section 2.14, and such Extension Period shall be continuing or (ii) if at such time an Event of Default with respect to the Securities shall have occurred and be continuing; provided, however, that notwithstanding the foregoing, the Company may make the following types of distributions: (a) dividends or distributions in common stock of the Company; (b) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of any Capital Stock of any class or series under such plan in the future, or the redemption or repurchase of any rights pursuant thereto; (c) payments under any Omnicom Guarantee relating to the Trust Preferred Securities issued by the Omnicom Trust holding the Securities of such Series; (d) repurchases, redemptions or other acquisitions of Capital Stock of the Company in connection with any of the Company's benefit plans or other similar arrangements with or for the benefit of its employees, officers, directors, consultants or advisors, and (e) the purchase of fractional interests in shares of the Company's Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged. Prior to the termination of any Extension Period, the Company may further extend the interest payment period; provided that such Extension Period, together with all such further extensions of that Extension Period, shall not exceed twenty (20) consecutive quarters. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest and any additional interest then due, the Company may select a new Extension Period, subject to the limitations and requirements of this Section 2.14. Upon the termination of any Extension Period, which termination shall be on an interest payment date, the Company shall pay all installments of interest as are not paid during any Extension Period, plus Additional Interest thereon, on the next succeeding interest payment date to the Holder of such Security fifteen days prior to the next succeeding interest payment date; provided that all such payments payable at Stated Maturity or on any redemption date will be paid to the person or persons to whom principal is payable. If the Property Trustee is not the sole Holder of a Series of Securities, the Company shall give the Holders of such Series notice of the selection of an Extension Period ten business days prior to the earlier of either (a) the regular record date for the interest payment on which the Extension Period is to commence or relating to the interest payment on which an Extension Period that is being extended would otherwise terminate; or (b) the date the Company is required to give notice to the applicable self-regulatory organization or to the Holders of such Securities, but in any event at least two business days before such record date; provided, however, if the Property Trustee is the sole Holder of a Series of Securities, the Company shall give to the Property Trustee such notice one business day prior to the earlier of either (x) the date described in clause (a) above or (y) the date an Omnicom Trust is required to give notice to the applicable self-regulatory organization or to the holder of such Trust Preferred Securities on the record date or the date such distribution is payable, but in any event not less than one business day prior to such record date. Notwithstanding the foregoing, the Company shall cause the Omnicom Trust, corresponding to the Series of Securities for which an Extension Period is to be announced, to give notice of the Company's selection of such Extension Period to holders of the Trust Preferred Securities of such Trust, and the month in which any such notice is given shall constitute the first month of the first quarter of the twenty (20) consecutive quarters which comprise the maximum Extension Period. At any time the foregoing notices are given to the Trustee, the Company shall give the Paying Agent for the Securities such information as said Paying Agent shall reasonably require in order to fulfill its tax reporting obligations with respect to such Securities. Section 2.15 Right of Set-Off. With respect to the Securities of a Series issued to an Omnicom Trust, notwithstanding anything to the contrary in this Indenture (but subject to the last paragraph of Section 7.3), the Company shall have the right to set off any payment it is otherwise required to make thereunder in respect of any such Security to the extent the Company has theretofore made, or is concurrently on the date of such payment making, such payment under the Omnicom Guarantee relating to such Security or under Section 7.4. Section 2.16 Shortening or Extension of Stated Maturity. If specified as contemplated by Section 2.2 with respect to the Securities of a particular Series, the Company shall have the right to (i) shorten the Stated Maturity of the principal of the Securities of such Series at any time to any date not earlier than the first date on which the Company has the right, if any, to redeem the Securities of such Series, and (ii) extend the Stated Maturity of the principal of the Securities of such Series at any time at its election for one or more periods, all in accordance with such terms as are specified as contemplated by Section 2.2. Section 2.17 Global Securities. 2.17.1 Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officers' Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities. 2.17.2 Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers' Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms. Except as provided in this Section 2.17.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary. 2.17.3 Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form: "This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary." 2.17.4 Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture. 2.17.5 Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof. 2.17.6 Consents, Declaration and Directions. Except as provided in Section 2.17.5, the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. Section 2.18 CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. ARTICLE III REDEMPTION Section 3.1 Notice to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee). Section 3.2 Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers' Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption. Section 3.3 Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers' Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed. The notice shall identify the Securities of the Series to be redeemed and shall state: (a) the redemption date; (b) the redemption price; (c) the name and address of the Paying Agent; (d) that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price; (e) that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and (f) any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense. Section 3.4 Effect of Notice of Redemption. Once notice of redemption is mailed as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date. Section 3.5 Deposit of Redemption Price. On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date. Section 3.6 Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered. ARTICLE IV SUBORDINATION OF SECURITIES Section 4.1 Agreement of Subordination. The Company covenants and agrees, and each holder of Securities issued hereunder by his acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article IV; and each person holding any Security, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions. The payment of the principal of, premium, if any, and interest on all Securities issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the date of this Indenture or thereafter incurred. No provision of this Article IV shall prevent the occurrence of any default or Event of Default hereunder. Section 4.2 Payments to Securityholders. In the event and during the continuation of any default in the payment of principal, premium, interest or any other payment due on any Senior Indebtedness continuing beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness, then, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company with respect to the principal of, or premium, if any, or interest on the Securities, except payments made pursuant to Article IX hereof or defeasance, which as contemplated by Section 2.2 may be provided for in a supplemental indenture, from monies deposited with the Trustee pursuant thereto prior to the happening of such default. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior Indebtedness shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made on account of the principal (and premium, if any) or interest on the Securities (except payments made pursuant to Article IX hereof or defeasance, which as contemplated by Section 2.2 may be provided for in a supplemental indenture, from monies deposited with the Trustee pursuant thereto prior to the happening of such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation or reorganization any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee would be entitled, except for the provisions of this Article IV, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full, in money or money's worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made to the Holders of the Securities or to the Trustee. By reason of such subordination, in the event of the Company's dissolution, holders of Senior Indebtedness may receive more, ratably, and Holders of the Securities may receive less, ratably, than the other creditors of the Company. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. For purposes of this Article IV, the words, "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article IV with respect to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness (other than leases) and of leases which are assumed are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions provided for in Article VI hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.2 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article VI hereof. Nothing in this Section 4.2 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.7. Section 4.3 Subrogation of Securities. Subject to the payment in full of all Senior Indebtedness, the rights of the Holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness until the principal of (and premium, if any) and interest on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article IV, and no payment over pursuant to the provisions of this Article IV, to or for the benefit of the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness. It is understood that the provisions of this Article IV are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained in this Article IV or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article IV of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article IV, the Trustee, subject to the provisions of Section 8.1, and the Holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article IV. Section 4.4 Authorization by Securityholders. Each holder of a Security by his acceptance thereof authorizes and directs the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article IV and appoints the Trustee his attorney-in-fact for any and all such purposes. Section 4.5 Notice to Trustee. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article IV. Notwithstanding the provisions of this Article IV or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article IV, unless and until a Responsible Officer of the Trustee shall have received written notice thereof at the Principal Office of the Trustee from the Company or a holder or holders of Senior Indebtedness or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 8.1, shall be entitled in all respects to assume that no such facts exist; provided that if on a date not fewer than three business days prior to the date upon which by the terms hereof any such monies may become payable for any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Security) the Trustee shall not have received, with respect to such monies, the notice provided for in this Section 4.5, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date. Notwithstanding anything to the contrary herein set forth, nothing shall prevent any payment by the Company or the Trustee to the Securityholders of monies (A) in connection with a redemption of Securities if (i) notice of such redemption has been given pursuant to Article III or Section 9.1 hereof prior to the receipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is given not earlier than 60 days before the date fixed for redemption. The Trustee, subject to the provisions of Section 8.1, shall be entitled to rely on the delivery to it of a written notice by a person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article IV, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, the extent to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such person under this Article IV, and if such evidence is not furnished the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. Section 4.6 Trustee's Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article IV in respect of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing or elsewhere in this Indenture shall deprive the Trustee of any of its rights as such holder. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article IV, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and, subject to the provisions of Section 8.1, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or deliver to holders of Securities, the Company or any other person money or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article IV or otherwise. Section 4.7 No Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with. Section 4.8 Certain Conversions Deemed Payment. For the purposes of this Article IV only, (1) the issuance and delivery of junior securities upon any conversion of Securities shall not be deemed to constitute a payment or distribution on account of the principal of (or premium, if any) or interest on Securities or on account of the purchase or other acquisition of Securities, and (2) the payment, issuance or delivery of cash (except in satisfaction of fractional shares), property or securities (other than junior securities) upon conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this Section 4.8, the term "junior securities" means (a) shares of any stock of any class of the Company, or (b) securities of the Company which are subordinated in right of payment to all Senior Indebtedness which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. Section 4.9 Senior Indebtedness Entitled to Rely. The holders of Senior Indebtedness shall have the right to rely upon this Article IV, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing thereto. ARTICLE V COVENANTS Section 5.1 Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. Section 5.2 SEC Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA ss. 314(a). Section 5.3 Compliance Certificate. The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company, an Officers' Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge). The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. Section 5.4 Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted. Section 5.5 Corporate Existence. Subject to Article VI, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership or other existence of each Significant Subsidiary in accordance with the respective organizational documents of each Significant Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and its Significant Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Significant Subsidiary, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders. Section 5.6 Taxes. The Company shall, and shall cause each of its Significant Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate proceedings. Section 5.7 Additional Tax Sums. In the case of the Securities of a Series issued to an Omnicom Trust, so long as no Event of Default has occurred and is continuing and except as otherwise specified as contemplated by Section 2.2, the Company will be required to pay to any Omnicom Trust which is the registered holder of any such Securities, (or its permitted successor or assign under the related Trust Agreement) any taxes, duties, assessments or governmental charges of whatever nature (other than withholding taxes) imposed by the United States or any other taxing authority on such Trust, so that the net amounts received and retained by that Trust (after paying any taxes, duties, assessments or other governmental charges) will be not less than the Trust would have received had no such taxes, duties, assessments or other governmental charges been imposed (the "Additional Tax Sums"). Whenever in this Indenture or the Securities there is a reference in any context to the payment of principal of or interest on the Securities, such reference shall be deemed to include payment of the Additional Tax Sums provided for in this Section 5.7 to the extent that, in such context, Additional Tax Sums are, were or would be payable in respect thereof pursuant to the provisions of this Section, and express reference to the payment of Additional Tax Sums (if applicable) in any provisions hereof shall not be construed as excluding Additional Tax Sums in those provisions hereof where such express reference is not made; provided, however, that the deferral of the payment of interest pursuant to Section 2.14 or pursuant to the Securities shall not defer the payment of any Additional Tax Sums that may be then due and payable. Section 5.8 Additional Covenants. 5.8.1 The Company covenants and agrees with each Holder of Securities of a Series issued to an Omnicom Trust that if: (i) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have taken reasonable steps to cure; (ii) the Company shall be in default with respect to its payment of any obligations under the related Omnicom Guarantee; or (iii) the Company shall have given notice of its election to begin an Extension Period as provided in Section 2.14 and shall not have rescinded such notice, and such Extension Period, or any extension thereof, shall be continuing; then at such time the Company shall not: (x) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any shares of the Company's Capital Stock, or (y) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank on a parity with or junior to the Securities of such Series or make any guarantee payments with respect to any Omnicom Guarantee or other guarantee by the Company of debt securities of any Subsidiary that by its terms ranks on a parity with or junior to the Securities of such Series; provided, however, that clauses (x) and (y) of this Section 5.8.1 shall not be deemed to include or apply to (a) dividends or distributions in common stock of the Company; (b) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of any Capital Stock of any class or series under such plan in the future, or the redemption or repurchase of any rights pursuant thereto; (c) payments under any Omnicom Guarantee relating to the Trust Preferred Securities issued by the Omnicom Trust holding the Securities of such Series; (d) repurchases, redemptions or other acquisitions of Capital Stock of the Company in connection with any of the Company's benefit plans or other similar arrangements with or for the benefit of its employees, officers, directors, consultants or advisors, and (e) the purchase of fractional interests in shares of the Company's Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged. 5.8.2 The Company also covenants with each holder of Securities of a Series issued to an Omnicom Trust (i) to maintain directly or indirectly 100% ownership of the Trust Common Securities of such Omnicom Trust; provided, however, that any permitted successor to or assignee of the Company hereunder may succeed to the Company's ownership of such Trust Common Securities, (ii) not to voluntarily terminate, wind up or liquidate such Omnicom Trust, except (a) in connection with a prepayment in full of the Securities or a distribution of the Securities of such Series to the holders of Trust Preferred Securities in liquidation of such Omnicom Trust or (b) in connection with certain mergers, consolidations or amalgamations permitted by the relevant Trust Agreement and (iii) to use its reasonable efforts, consistent with the terms and provisions of such Trust Agreement, to cause such Omnicom Trust to remain classified as a grantor trust and not an association taxable as a corporation for United States federal income tax purposes. Section 5.9 Calculation of Original Issue Discount. The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time. ARTICLE VI SUCCESSORS Section 6.1 When Company May Merge, Etc. The Company shall not consolidate with or merge into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a "successor person"), and may not permit any person to merge into, or convey, transfer or lease its properties and assets substantially as an entirety to, the Company, unless: (a) the successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Company's obligations on the Securities and under this Indenture; (b) immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing; and (c) in the case of Securities of a Series issued to an Omnicom Trust, such consolidation, merger, conveyance, transfer or lease is permitted under the relevant Trust Agreement and the Omnicom Guarantee and does not give rise to any breach or violation of such Trust Agreement or Omnicom Guarantee. The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers' Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture. Section 6.2 Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 6.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, lease, conveyance or other disposition shall not be released from the obligation to pay the principal of and interest, if any, on the Securities. ARTICLE VII DEFAULTS AND REMEDIES Section 7.1 Events of Default. "Event of Default," wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers' Certificate, it is provided that such Series shall not have the benefit of said Event of Default: (a) default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days, subject to the deferral of any due date in the case of an Extension Period (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days), whether or not such payment is permitted under Article IV hereof; or (b) default in the payment of the principal, and premium if any, of any Security of that Series when such payment becomes due and payable, at its Maturity, upon redemption, by acceleration or otherwise, whether or not such payment is permitted under Article IV hereof; or (c) default in the deposit of any sinking fund payment, when due in respect of any Security of that Series; or (d) default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period of 45 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (e) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors, or (v) generally is unable to pay its debts as the same become due; or (f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case, (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries or for all or substantially all of its property, or (iii) orders the liquidation of the Company or any of its Significant Subsidiaries, and the order or decree remains unstayed and in effect for 60 days; or (g) any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate, in accordance with Section 2.2.14. The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. Section 7.2 Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default as to the Company referred to in Section 7.1(e) or (f)) then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 7.1(e) or (f) shall occur as to the Company, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Notwithstanding anything to the contrary in this Indenture, in the case of the Securities of a Series issued to an Omnicom Trust, if upon an Event of Default, the Trustee or the Holders of at least 25% in principal amount of the outstanding Securities of such Series fail to declare the principal of all the Securities of that Series to be immediately due and payable, the holders of at least 25% in aggregate liquidation amount of the Trust Preferred Securities of the corresponding Omnicom Trust then outstanding shall have such right by a notice in writing to the Company and the Trustee. At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (i) all overdue interest, if any, on all Securities of that Series, (ii) the principal of any Securities of that Series have become due otherwise than by such declaration of and interest thereon at the rate or rates therefor in such Securities, (iii) to the extent that payment of such interest is, interest upon any overdue principal and overdue at the rate or rates prescribed therefor in such, and (iv) all sums paid or advanced by the Trustee and the reasonable compensation, expenses, and advances of the Trustee, its agents and employees; and (b) all Events of Default with respect to Securities of that Series, other than the non-payment of the principal of Securities of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 7.13. In the case of Securities issued to an Omnicom Trust, if the Holders of such Securities fail to rescind and annul such declaration and waive such default as provided in clauses (a) and (b) of this Section 7.2, the holders of a Majority in Liquidation Amount of the Trust Preferred Securities and Trust Common Securities of the corresponding Omnicom Trust shall have such rights pursuant to the requirements and waivers set forth in Section 7.13 of this Indenture; provided, however, that each holder of Trust Common Securities will be deemed to have waived any default and all defaults with respect to the Trust Common Securities and the consequences thereof until all defaults with respect to the Trust Preferred Securities have been cured, waived or otherwise eliminated. No such rescission shall affect any subsequent Default or impair any right consequent thereon. If the Trustee, any Holder of Securities, or any holder of Trust Preferred Securities of a corresponding Omnicom Trust, has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason (including rescission or annulment under Section 7.2), or has been determined adversely to the Trustee, such Holder of Securities or such holder of corresponding Trust Preferred Securities, then and in every such case, the Company, the Trustee, such Holder of Securities of such Series (or of all of the Securities, as the case may be) or such holder of corresponding Trust Preferred Securities, as the case may be, shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee, such Holder of Securities, or such holder of corresponding Trust Preferred Securities shall continue as though no such proceeding had been instituted. Section 7.3 Collection of Indebtedness and Suits for Enforcement by Trustee; Direct Action. The Company covenants that, subject to the deferral of any due date in the case of an Extension Period, if: (a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default for a period of 30 days, or (b) default is made in the payment of principal of any Security at the Maturity thereof, or (c) default is made in the deposit of any sinking fund payment when and as due by the terms of a Security, then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal or any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated. If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. In the case of Securities of a Series issued to an Omnicom Trust, any holder of the corresponding Trust Preferred Securities issued by such Omnicom Trust shall have the right, upon the occurrence of an Event of Default described in Section 7.1(a) and (b) above, to institute a suit directly against the Company (a "Direct Action") for enforcement of payment to such holder of principal of (including premium, if any) and interest (including any Additional Interest) on the Securities having a principal amount equal to the aggregate liquidation amount of such Trust Preferred Securities of the corresponding Series held by such holder. Notwithstanding any payments made to a holder of such Trust Preferred Securities by the Company pursuant to a Direct Action initiated by such holder, the Company shall remain obligated to pay the principal of or interest due on the Securities, and the Company shall be subrogated to the rights of the holder of such Trust Preferred Securities with respect to payments on the Trust Preferred Securities to the extent of any payments made by the Company to such holder in any Direct Action. Section 7.4 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.7. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 7.5 Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. Section 7.6 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: First: To the payment of all amounts due the Trustee under Section 8.7; Second: Subject to the provisions of Article IV, in case the principal of the outstanding Securities shall not have become due and be unpaid, to the payment of interest on the Securities in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by the Securities, such payments to be made ratably to the persons entitled thereto; Third: Subject to the provisions of Article IV, in case the principal of the outstanding Securities shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount then owing and unpaid upon the Securities for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate borne by the Securities; and in case such money shall be insufficient to pay in full the whole amounts so due and unpaid upon the Securities, then to the payment of such principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Security over any other Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest; and Fourth: Subject to the provisions of Article IV, to the Company or any other person lawfully entitled thereto. Section 7.7 Limitation on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series; (b) the Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. Section 7.8 Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. Section 7.9 Restoration of Rights and Remedies. If the Trustee, any Holder of Securities, or any holder of Trust Preferred Securities of a corresponding Omnicom Trust, has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason (including rescission or annulment under Section 7.2), or has been determined adversely to the Trustee, such Holder of Securities or such holder of corresponding Trust Preferred Securities, then and in every such case, the Company, the Trustee, such Holder of Securities of such Series (or of all of the Securities, as the case may be) or such holder of corresponding Trust Preferred Securities, as the case may be, shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee, such Holder of Securities, or such holder of corresponding Trust Preferred Securities shall continue as though no such proceeding had been instituted. Section 7.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 7.11 Delay or Omission Not Waiver Except as provided in the last paragraph of Section 7.3 concerning the right to Direct Action, no delay or omission of the Trustee, of any Holder of any Securities or of any holder of corresponding Trust Preferred Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee, the Holders of any Securities or the holders of the corresponding Trust Preferred Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee, the Holders of any Securities or the holders of the corresponding Trust Preferred Securities, as the case may be. Section 7.12 Control by Holders of Securities and Holders of Trust Preferred Securities. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that: (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and (c) subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. For so long as any Trust Preferred Securities remain outstanding, the Property Trustee shall have the legal power to exercise all of the rights, powers and privileges of a Holder of Securities under this Indenture. If an Event of Default occurs and is continuing, the Property Trustee may, for the benefit of the holders of the Trust Preferred Securities of the Omnicom Trust with such Event of Default, enforce its rights as Holder of the Securities, subject to the rights of the holders of such Trust Preferred Securities pursuant to the Trust Agreement and the terms of such Trust Preferred Securities. Section 7.13 Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of any Series, and the holders of at least a Majority in Liquidation Amount of the corresponding Trust Preferred Securities issued by an Omnicom Trust, or alternatively (as provided in Section 2.6 of the Trust Agreement) of the corresponding Trust Common Securities issued by an Omnicom Trust, may on behalf of the Holders of all the Securities of such Series or on behalf of each such securities of such Trust (as the case may be) waive any past Event of Default hereunder with respect to such Series or each such securities of such Trust and its consequences, except an Event of Default in the payment of the principal of or interest on any Security of such Series or such Trust or an Event of Default in a covenant or provision which may not be modified or amended without the consent of each holder of such Securities of the affected Series or Trust (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series, or Majority in Liquidation Amount of the corresponding Trust Preferred Securities or of the corresponding Trust Common Securities issued to such Omnicom Trust (as provided in Section 2.6 of the Trust Agreement), may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration with respect to such Series or the securities of such Trust); and provided, further, each holder of Trust Common Securities will be deemed to have waived any Event of Default and all Events of Default with respect to the Trust Common Securities and the consequences thereof until all Events of Default with respect to the Trust Preferred Securities have been cured, waived or otherwise eliminated, and until such Events of Default with respect to the Trust Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the holders of the Trust Preferred Securities and only the holders of the Trust Preferred Securities will have the right to direct the Property Trustee in accordance with the terms of the Securities. Upon any such waiver by Holders of Securities or holders of corresponding Trust Preferred Securities or corresponding Trust Common Securities, such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon. Any such waiver shall be deemed to be on behalf of the Holders of all the Securities of such Series or, in the case of a waiver by holders of Trust Preferred Securities or Trust Common Securities (as the case may be, as provided in this Section and Section 2.6 of the amended Trust Agreement) issued by such Omnicom Trust, on behalf of the holders of Trust Preferred Securities or Trust Common Securities issued by such Omnicom Trust. Section 7.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security, on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date). ARTICLE VIII TRUSTEE Section 8.1 Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (i) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others. (ii) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers' Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers' Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers' Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) This paragraph does not limit the effect of paragraph (b) of this Section. (ii) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. (iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section. (e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. (g) No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee. Section 8.2 Rights of Trustee. (a) The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. (c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. Section 8.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 8.10 and 8.11. Section 8.4 Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication. Section 8.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Securityholders of that Series. Section 8.6 Reports by Trustee to Holders. Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA ss. 313. A copy of each report at the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange. Section 8.7 Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. The Company shall indemnify the Trustee (including the cost of defending itself) against any loss, liability or expense incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or bad faith. To secure the Company's payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 7.1(e) or (f) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. In addition, the Company shall pay the fees and expenses of the Delaware Trustee and the Property Trustee. Section 8.8 Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section. The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if: (a) the Trustee fails to comply with Section 8.10; (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; (c) a Custodian or public officer takes charge of the Trustee or its property; or (d) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee with respect to the Securities of any one or more Series fails to comply with Section 8.10, any Securityholder of the applicable Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 8.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 8.8, the Company's obligations under Section 8.7 hereof shall continue for the benefit of the retiring trustee with respect to expenses and liabilities incurred by it prior to such replacement. Section 8.9 Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee, provided the successor corporation complies with the TIA provisions of Section 8.10. Section 8.10 Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA ss.ss. 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA ss. 310(b). Section 8.11 Preferential Collection of Claims Against Company. The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated. ARTICLE IX SATISFACTION AND DISCHARGE Section 9.1 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this Section 9.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when: (a) either (i) all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation (1) have become due and payable, or (2) will become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; and the Company has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (c) the Company has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 8.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 9.1, 9.2 and 9.3 shall survive. Section 9.2 Application of Trust Funds; Indemnification. All money deposited with the Trustee pursuant to Section 9.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments. Section 9.3 Repayment to Company. The Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. ARTICLE X AMENDMENTS AND WAIVERS Section 10.1 Supplemental Indentures Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture, any supplemental Indenture or the Securities of one or more Series without the consent of any Securityholder: (a) to cure any ambiguity, defect or inconsistency; (b) to comply with Article VI; (c) to provide for uncertificated Securities in addition to or in place of certificated Securities; (d) to make any change that does not adversely affect the rights of any Securityholder; (e) to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture; (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or (g) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; provided, however, that no such action shall adversely affect the interest of the Holders of Securities of any Series in any material respect or, in the case of the Securities of a Series issued to an Omnicom Trust and for so long as any of the corresponding Trust Preferred Securities issued by such Omnicom Trust shall remain outstanding, the interests of the holders of such Trust Preferred Securities. Section 10.2 Supplemental Indentures With Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 7.13, the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such waiver by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series. However, in the case of the Securities of a Series issued to an Omnicom Trust, so long as any of the corresponding Trust Preferred Securities or Trust Common Securities issued by such Omnicom Trust remain outstanding, (i) no amendment or provision in this Indenture or any supplemental indenture shall be made that adversely affects the holders of such Trust Preferred Securities or holders of such Trust Common Securities in any material respect, and no termination of this Indenture shall occur, and no waiver of any Event of Default with respect to such Trust Preferred Securities or Trust Common Securities or compliance with any covenant with respect to such securities under this Indenture shall be effective, without the prior consent of the holders of at least a Majority in Liquidation Amount of the corresponding Trust Preferred Securities or the corresponding Trust Common Securities then outstanding unless and until the principal (and premium, if any) of such Trust Preferred Securities and Trust Common Securities and all accrued and unpaid interest (including any Additional Interest) thereon have been paid in full, and (ii) no amendment shall be made to Section 7.3 of this Indenture that would impair the rights of the holders of such Trust Preferred Securities provided therein or to any Section of this Indenture that requires the consent of each holder of such Trust Preferred Securities or the consent of each holder of Trust Common Securities, without the prior consent of each holder of the corresponding Trust Preferred Securities or corresponding Trust Common Securities then outstanding, unless and until the principal (and premium, if any) of such Trust Preferred Securities or of such Trust Common Securities and all accrued and unpaid interest (including any Additional Interest) thereon have been paid in full; provided, however, the Trust Common Securities shall have no such rights of consent as herein provided until after all Events of Default with respect to the Trust Preferred Securities have been cured, waived or otherwise eliminated, and until after the Property Trustee has obtained an opinion from independent tax counsel experienced in such matters that the amendment or change shall not be a Tax Event. It shall not be necessary for the consent of the Holders of Securities, the holders of corresponding Trust Preferred Securities or the holders of the corresponding Trust Common Securities under this Section 10.2 to approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Securities or the holders of corresponding Trust Preferred Securities affected thereby, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has been expressly included solely for the benefit of one or more particular Series of Securities or corresponding Trust Preferred Securities or corresponding Trust Common Securities issued by a particular Omnicom Trust, or which modifies the rights of Holders of Securities of such Series or holders of corresponding Trust Preferred Securities or holders of corresponding Trust Common Securities of such Trust with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other Series or holders of Trust Preferred Securities or holders of Trust Common Securities of any other Trust. Section 10.3 Limitations. Without the consent of each Securityholder affected, an amendment or waiver may not: (a) reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver; (b) reduce the rate of or change the time for payment of interest (including default interest) on any Security; (c) reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; (d) reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof; (e) waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration); (f) make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security; (g) make any change in Sections 7.8 or 7.13, or this Section 10.3; or (h) waive a redemption payment with respect to any Security or change any of the provisions with respect to the redemption of any Securities. Section 10.4 Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect. Section 10.5 Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of Section 10.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security. Section 10.6 Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver. Section 10.7 Trustee Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 8.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights. ARTICLE XI MISCELLANEOUS Section 11.1 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control. Section 11.2 Notices. Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail: (a) if to the Company: Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 Attention:_________________________ (b) if to the Trustee: [Name of Trustee] [Address] ___________________________________ ___________________________________ Attention:_________________________ The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series. If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it. If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time. Section 11.3 Communication by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA ss. 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c). Section 11.4 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (a) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Section 11.5 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss. 314(e) and shall include: (a) a statement that the person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. Section 11.6 Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions. Section 11.7 Legal Holidays. Unless otherwise provided by Board Resolution, Officer's Certificate or supplemental indenture for a particular Series, a "Legal Holiday" is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. Section 11.8 No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. Section 11.9 Counterparts. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Section 11.10 Governing Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. Section 11.11 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. Section 11.12 Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor. Section 11.13 Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 11.14 Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. ARTICLE XII SINKING FUNDS Section 12.1 Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture. The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a "mandatory sinking fund payment" and any other amount provided for by the terms of Securities of such Series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such Series. Section 12.2 Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers' Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 12.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company. Section 12.3 Redemption of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers' Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 12.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers' Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written. OMNICOM GROUP INC. By: ________________________________ Name: Its: Attest: ___________________________ [NAME OF TRUSTEE] By: ________________________________ Name: Its: EXHIBIT A Junior Subordinated Debt Security Form of Face of Security [Title of Series] [Insert any legend required by the Internal Revenue Code and the regulations thereunder.] THE INDEBTEDNESS EVIDENCED BY THIS SECURITY IS, TO THE EXTENT PROVIDED IN THE INDENTURE, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN FULL OF ALL SENIOR INDEBTEDNESS AND THIS SECURITY IS ISSUED SUBJECT TO THE PROVISIONS OF THE INDENTURE WITH RESPECT THERETO. [CUSIP] No._________ $___________ OMNICOM GROUP INC, a New York corporation (herein called the "Company", which term includes any successor person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ________________________, or registered assigns, the principal sum of ______________________ Dollars on ___________, ____. The Company further promises to pay to the registered Holder hereof as hereinafter provided: a) and to pay interest thereon (subject to deferral as set forth herein) from _______________ or from the most recent interest payment date to which interest has been paid] or duly provided for, [semi-annually on _________________ and _________________ in each year] [If other than semi-annual payments, insert frequency of payments and payment dates], commencing _______________, at [If the Security is to bear interest at a fixed rate, insert - -- the rate of ___% per annum, set forth below] [If the Security is to bear interest at a variable or floating rate and if determined with reference to an index, refer to description of index below] until the principal hereof is paid or made available for payment [if applicable, insert -- and (to the extent that the payment of such interest shall be legally enforceable) at the rate of ___% per annum on any overdue principal and premium and on any overdue installment of interest; plus b) Additional Interest, as defined in the Indenture, to the extent permitted by applicable law, on interest payment that is not made on the applicable interest payment date, which shall accrue at the rate per annum specified in the title of this Security, compounded semiannually. The interest so payable, and punctually paid or duly provided for, on any interest payment date will, as provided in such Indenture, be paid to the person in whose name this Security (or one or more predecessor securities) is registered at the close of business on the [regular] record date (the "Record Date"), as described below, for such interest. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such [regular] record date and may either be paid to the person in whose name this Security (or one or more predecessor securities) is registered at the close of business on a [special] record date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this Series not less than 10 days prior to such [special] record date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this Series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture). The Record Date shall be the Business Day next preceding the interest payment date, unless this Security is registered to a holder other than the Property Trustee or a nominee of [The Depository Trust Company], in which case the Record Date at least fifteen days prior to such interest payment date or, if such day is not a Business Day, then the Business Day next preceding such day. This Security may be presented for payment of principal and interest at the principal corporate trust office of ________, as paying agent for the Company, maintained for that purpose in ______________________; provided, however, that payment of interest may be made at the option of the Company (i) by check mailed to such address of the person entitled thereto as the address shall appear on the Register of the Securities of this Series or (ii) by transfer to an account maintained by the Person entitled thereto as specified in the Register, provided that proper transfer instructions have been received by the Record Date. Interest on this Security will be computed on the basis of a 360-day year of twelve 30-day months. So long as no Event of Default has occurred and is continuing, the Company shall have the right at any time during the term of this Security from time to time to defer payment of interest on this Security, for up to __ consecutive [semiannual][quarterly] interest payment periods with respect to each deferral period (each an "Extension Period"), [during which Extension Periods the Company shall have the right to make partial payments of interest on any interest payment date]; provided, however, that no Extension Period shall end on a date other than an interest payment date or extend beyond ________. At the end of each Extension Period, the Company shall pay all interest then accrued and unpaid (together with any Additional Interest thereon to the extent permitted by applicable law, and Additional Tax Sums, if applicable). During any such Extension Period, the Company shall not, and shall cause any Subsidiary of the Company not to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company's Capital Stock (which includes common stock and preferred stock) or (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank on a parity with or junior to this Security or make any guarantee payments with respect to any Omnicom Guarantee or other guarantee by the Company of the debt securities of any Subsidiary of the Company that by its terms ranks on a parity with or junior to this Security (other than (a) dividends or distributions in common stock; (b) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of any Capital Stock of any class or series under such plan in the future, or the redemption or repurchase of any rights pursuant thereto; (c) payments under any Omnicom Guarantee relating to the Trust Preferred Securities issued by the Omnicom Trust holding the Securities of such Series; (d) repurchases, redemptions or other acquisitions of Capital Stock in connection with any of the Company's benefit plans or other similar arrangements with or for the benefit of its employees, officers, directors, consultants or advisors, and (e) the purchase of fractional interests in shares of the Company's Capital Stock pursuant to the conversion or exchange provisions of such Capital Stock or the security being converted or exchanged). (Prior to the termination of any such Extension Period, the Company may further extend such Extension Period; provided, however, that no Extension Period shall exceed __ consecutive [semiannual][quarterly] periods or extend beyond __________. At any time following the termination of any Extension Period and the payment of all accrued and unpaid interest (together with any Additional Interest and Additional Tax Sums, if applicable) then due, the Company may elect to begin a new Extension Period, subject to the above requirements. No interest shall be due and payable during an Extension Period except at the end thereof. If the Property Trustee is the only registered holder of the Securities of this series, the Company shall give written notice to the Property Trustee and the Trustee of its election to begin or extend any Extension Period at least one Business Day prior to the earlier of (i) the regular Record Date relating to the interest payment date on which the Extension Period is to commence or relating to the interest payment date on which an Extension Period that is being extended would otherwise terminate or (ii) the date the Administrative Trustees are required to give notice to any securities exchange or other applicable self-regulatory organization or to holders of such Trust Securities of the record date or the date such Distributions are payable, but in any event not less than one Business Day prior to such record date. An Administrative Trustee shall give notice of the Company's election to begin or extend an Extension Period to the holders of such Trust Securities. If the Property Trustee is not the only holder of the Securities of this series at the time the Company elects to begin or extend an Extension Period, the Company shall give the holders of the Securities of this series and the Trustee written notice of its election to begin or extend such Extension Period at least 10 Business Days prior to the earlier of (i) the regular Record Date relating to the interest payment date on which the Extension Period is to commence or relating to the interest payment date on which an Extension Period that is being extended would otherwise terminate or (ii) the date the Company is required to give notice of the record or payment date of such interest payment to any applicable self-regulatory organization or to holders of the Securities of this series. This Security is issued pursuant to an Indenture, dated as of ________, between the Company, as issuer, and ________, as trustee, as supplemented by a supplemental indenture dated as of ________ (as further supplemented or amended from time to time, the "Indenture"). Reference is made to the Indenture for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the word "Holder" or "Holders" meaning the registered holder or registered holders) of the Junior Subordinated Debt Securities of this series. Capitalized terms used herein but not defined herein shall have the respective meanings assigned thereto in the Indenture. By acceptance of this Security, the Holder hereof agrees to be bound by the provisions of the Indenture. [If the Securities are floating or adjustable rate securities with respect to which the principal of or any premium or interest may be determined with reference to an index, insert the text of the floating or adjustable rate provision.] The indebtedness of the Company evidenced by this Security, including the principal thereof and interest hereon, is, to the extent and in the manner set forth in the Indenture, subordinate and junior in right of payment to the Company's obligations to holders of Senior Indebtedness of the Company and each Holder of this Security, by acceptance hereof, agrees to and shall be bound by such provisions of the Indenture and all other provisions of the Indenture. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. The Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of said state. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: OMNICOM GROUP INC. By: ________________________________ Attest: __________________________ Form of Trustee's Certificate of Authentication The Trustee's certificate of authentication shall be in substantially the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. ____________________________________ As Trustee By: ________________________________ Authorized Officer Form of Reverse of Security. OMNICOM GROUP INC. [Title of Series] This Security is one of a duly authorized issue of securities of the Company, designated as its ________ due _____ (herein called the "Securities"), issued and to be issued in one or more Series under a Junior Subordinated Indenture, dated as of _________________ (herein called the "Indenture"), between the Company and ____________________, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the Series designated on the face hereof as [Series A] ___% Junior Subordinated Debt Securities due _____ (the "Series A Debt Securities") in aggregate principal amount of up to $ _____. Capitalized terms used in this Security and not defined herein have the meaning ascribed thereto in the Indenture. [______, the Trustee under the Indenture has been appointed by the Company as paying agent, Securities registrar, [conversion agent] and [custodian] with regard to the Securities.] Upon the occurrence of a Special Event (as defined below), the Company may, within 90 days following the occurrence thereof and subject to the terms and conditions of the Indenture, redeem this Security without premium or penalty, in whole, at a Redemption Price equal to ___% of the principal amount thereof plus accrued but unpaid interest (including any Additional Interest) to the Redemption Date. A Special Event may be a Tax Event or an Investment Company Act Event. A "Tax Event" means that the Administrative Trustees and the Company shall have received an opinion of independent tax counsel experienced in such matters, to the effect that, as a result of (a) any amendment to, change in or announced prospective change in the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or (b) any official administrative written decision or pronouncement, or judicial decision interpreting or applying such laws or regulations, where such amendment or change is effective or which pronouncement or decision is announced on or after the first date of issuance of Trust Preferred Securities of the Omnicom Trust, that there is more than an insubstantial risk that (i) the Omnicom Trust is, or will be within 90 days of the date of such opinion, subject to the United States federal income tax with respect to income received or accrued on this Security, (ii) interest payable by the Company on this Security is not, or within 90 days of the date of such opinion will not be, deductible, in whole or in part, by the Company for United States federal income tax purposes, or (iii) the Omnicom Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. An "Investment Company Act Event" means that the Administrative Trustees and the Company shall have received an opinion of Counsel experienced in such matters to the effect that, as a result of the occurrence of a change in law or regulation or a written change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, on or after the first date of issuance of Trust Preferred Securities of the Omnicom Trust, that the Omnicom Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act of 1940, as amended. In case an Event of Default shall have occurred and be continuing, the principal of and accrued interest on all Securities of this series may be declared, and upon said declaration, shall become due and payable, in the manner, with the effect and subject to the conditions provided for in the Indenture, including the terms of the subordination to Senior Indebtedness as described below. [If applicable, insert -- The Securities of this series are subject to redemption upon not less than 30 days' nor more than 60 days' notice by mail, [if applicable, insert -- (1) on __________________ in any year commencing with the year _________ and ending with the year __________ through operation of the sinking fund for this series at a redemption price equal to 100% of the principal amount, and (2)] at any time on or after ____________, __, as a whole or in part, at the election of the Company, at the following redemption prices (expressed as percentages of the principal amount): If redeemed [on or before __________________, ___% and if redeemed] during the 12-month period beginning ______________ of the years indicated, Year Redemption Year Redemption and thereafter at a redemption price equal to _________________ of the principal amount, together in the case of any such redemption [if applicable, insert -- (whether through operation of the sinking fund or otherwise)] with accrued interest to the redemption date, but interest installments whose stated maturity is on or prior to such redemption date will be payable to the Holders of such Securities, or one or more predecessor securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.] [If applicable, insert -- The Securities of this Series are subject to redemption upon not less than 30 days' nor more than 60 days' notice by mail, (1) on __________ in any year commencing with the year __________ and ending with the year __________ through operation of the sinking fund for this Series at the redemption prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after __________], as a whole or in part, at the election of the Company, at the redemption prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning __________ of the years indicated, Year Redemption Price Redemption Price For For Redemption Redemption Otherwise Through Operation Than Through Operation of the of the Sinking Fund Sinking Fund and thereafter at a redemption price equal to _____% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the redemption date, but interest installments whose Stated Maturity in on or prior to such redemption date will be payable to the Holders of such Securities, or one or more predecessor securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.] [The sinking fund for this series provides for the redemption on __________ in each year beginning with the year __________ and ending with the year __________ of [not less than $__________ ("mandatory sinking fund") and not more than] $__________ aggregate principal amount of Securities of this Series. Securities of this Series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made [in the inverse order in which they become due.] [If this Security is subject to redemption, insert -- In the event of redemption of this Security in part only, a new Security or Securities of this Series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.] The indebtedness evidenced by the Securities of this series is subordinate to the prior payment in full of all Senior Indebtedness (as such term is defined in the Indenture). During the continuance beyond any applicable grace period of any default in the payment of principal, premium, interest or any other payment due on any Senior Indebtedness, no payment of principal of, or premium if any, or interest on the Securities shall be made by the Company. In addition, upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization, the payment of the principal of, or premium, if any, and interest on the Securities is to be subordinated to the extent provided in the Indenture in right of payment to the prior payment in full of all Senior Indebtedness. By reason of such subordination, in the event of the Company's dissolution, holders of Senior Indebtedness may receive more, ratably, and holders of the Securities of this series may receive less, ratably, than the other creditors of the Company. Such subordination will not prevent the occurrence of any Event of Default under the Indenture. Each holder of this Securities, by accepting the same, agrees to and shall be bound by such provisions and authorizes the Trustee on its behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and appoints the Trustee its attorney-in-fact for such purpose. [If the Security is convertible into common stock of the Company, insert appropriate provisions and specify the conversion features and the form of conversion notice pursuant to the Form of Conversion Notice set forth herein.] [If the Security is convertible into or exchangeable for other securities or property, specify the conversion features and the form of conversion notice pursuant to the Form of Conversion Notice set forth herein.] [If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this Series shall occur and be continuing, the principal of the Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture.] [If the Security is an Original Issue-Discount Security, insert -- If an Event of Default with respect to Securities of this Series shall occur and be continuing, an amount of principal of the Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- Insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this Series shall terminate.] The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company, and the rights of the Holders of the Securities of each Series and the holders of the corresponding Trust Preferred Securities under the Indenture, at any time by the Company and the Trustee with the consent of the holders of a majority in principal amount of the Securities at the time outstanding of each Series or the holders of a majority in liquidation amount of the corresponding Trust Preferred Securities to be affected thereby, with certain exceptions as therein provided with respect to certain modifications or amendments which may not be made without the consent of each holder of such Security or holder of Trust Preferred Security affected thereby. The Indenture also permits certain amendments and modifications thereto from time to time by the Company and the Trustee without the consent of the Holders of any Series of the Securities or holders of any Trust Preferred Securities of a Trust to be affected thereby for certain specified purposes, including curing ambiguities, defects or inconsistencies and making any such change that does not adversely affect the rights of any Holder of such series of the Securities or holder of Trust Preferred Securities, as provided therein. The Indenture contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each Series at the time outstanding, on behalf of the Holders of all Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and Interest on this Security at the times, place and rate(s), and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the security register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. [The Securities of this Series are issuable only in registered form without coupons in denominations of $___ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.] No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. As provided in and subject to the provisions of the Indenture, the holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than a majority in principal amount of the Securities of this series at the time outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request and shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any interest hereon on or after the respective due dates expressed herein. The applicable supplemental indenture may contain provisions for defeasance at any time of the entire indebtedness of the Securities of this series upon compliance with certain conditions set forth in the applicable supplemental indenture. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. No recourse shall be had for the payment of the principal of (and premium, if any) or interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. Form of Conversion Notice. To Omnicom Group Inc.: The undersigned owner of this Security hereby irrevocably exercises the option to convert this Security, or portion hereof (which is $1,000 or an integral multiple thereof) below designated, into [shares of common stock of the Company] in accordance with the terms of the Indenture referred to in this Security, and directs that the [shares] issuable and deliverable upon the conversion, together with any check in payment for fractional shares of any securities representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If this Notice is being delivered on a date after the close of business on a [regular] record date and prior to the opening of business on the related interest payment date (unless this Security or the portion thereof being converted has been called for redemption on a redemption date within such period), this Notice is accompanied by payment, in funds acceptable to the Company, of an amount equal to the interest payable on such interest payment date of the principal of this Security to be converted. If shares are to be issued in the name of a period other than the undersigned, the undersigned will pay all transfer taxes payable with respect hereto. Any amount required to be paid by the undersigned on account of interest accompanies this security. EX-4.13 3 0003.txt FORM OF GUARANTEE AGREEMENT GUARANTEE AGREEMENT By and Between OMNICOM GROUP INC., as Guarantor and ------------, as Trustee Dated as of ________ __, 200_ Cross Reference Table* Section of Section of Trust Indenture Act of 1939, as amended Guarantee Agreement - --------------------------------------- ------------------- 310(a).................................. 4.1 310(b).................................. 2.8; 4.1 310(c).................................. Inapplicable 311(a).................................. 2.2(b) 311(b).................................. 2.2(b) 311(c).................................. Inapplicable 312(a).................................. 2.2(a); 2.9 312(b).................................. 2.2(b); 2.9 312(c).................................. 2.9 313(a).................................. 2.3 313(b).................................. 2.3 313(c).................................. 2.3 313(d).................................. 2.3 314(a).................................. 2.4 314(b).................................. Inapplicable 314(c).................................. 2.5 314(d).................................. Inapplicable 314(e).................................. 2.5; 1.1 314(f).................................. Inapplicable 315(a).................................. 3.1(d) 315(b).................................. 2.7(a) 315(c).................................. 3.1(c) 315(d).................................. 3.1(e) 316(a).................................. 2.6; 5.4(a) 316(b).................................. 5.3 316(c).................................. Inapplicable 317(a).................................. 2.10 317(b).................................. Inapplicable 318(a).................................. 2.1(b) 318(b).................................. 2.1 318(c).................................. 2.1(a) - ---------- * This cross-reference table does not constitute part of the agreement and shall not have any bearing upon the interpretation of any of its terms or provisions. Table of Contents ARTICLE I INTERPRETATION AND DEFINITIONS .................................. 1 Section 1.1 Definitions ............................................... 1 Section 1.2 Incorporation by Reference of Trust Indenture Act ......... 5 Section 1.3 Rules of Construction ..................................... 5 ARTICLE II TRUST INDENTURE ACT ............................................ 5 Section 2.1 Trust Indenture Act; Application .......................... 5 Section 2.2 Lists of Holders .......................................... 6 Section 2.3 Reports by Guarantee Trustee .............................. 6 Section 2.4 Periodic Reports to Guarantee Trustee ..................... 6 Section 2.5 Evidence of Compliance with Conditions Precedent .......... 6 Section 2.6 Guarantee Event of Default; Waiver ........................ 7 Section 2.7 Guarantee Event of Default; Notice ........................ 7 Section 2.8 Conflicting Interests ..................................... 7 Section 2.9 Disclosure of Information ................................. 7 Section 2.10 Guarantee Trustee May File Proofs of Claim ................ 7 ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE ................ 8 Section 3.1 Duties of Guarantee Trustee ............................... 8 Section 3.2 Rights of Guarantee Trustee ............................... 9 Section 3.3 Guarantee Trustee's Disclaimer ............................ 10 ARTICLE IV GUARANTEE TRUSTEE .............................................. 11 Section 4.1 Eligibility; Disqualification ............................. 11 Section 4.2 Replacement of Guarantee Trustee .......................... 11 ARTICLE V GUARANTEE ....................................................... 12 Section 5.1 Guarantee ................................................. 12 Section 5.2 Waiver of Notice and Demand ............................... 12 Section 5.3 Obligations Not Affected .................................. 13 Section 5.4 Rights of Holders ......................................... 14 Section 5.5 Guarantee of Payment ...................................... 14 Section 5.6 Subrogation ............................................... 14 Section 5.7 Independent Obligations ................................... 15 ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION ...................... 15 Section 6.1 Limitation of Transactions ................................ 15 Section 6.2 Ranking ................................................... 16 ARTICLE VII TERMINATION ................................................... 16 Section 7.1 Termination ............................................... 16 ARTICLE VIII INDEMNIFICATION .............................................. 16 Section 8.1 Exculpation ............................................... 16 Section 8.2 Compensation and Indemnity ................................ 17 ARTICLE IX MISCELLANEOUS .................................................. 17 Section 9.1 Successors and Assigns .................................... 17 Section 9.2 Amendments ................................................ 18 Section 9.3 Notices ................................................... 18 Section 9.4 Counterparts .............................................. 19 Section 9.5 Benefit ................................................... 19 Section 9.6 Governing Laws ............................................ 19 GUARANTEE AGREEMENT WHEREAS, pursuant to the Trust Agreement (as defined herein), the Omnicom Capital Trust [I / II / III] (the "Trust") is issuing on the date hereof $________ aggregate liquidation amount of preferred securities, having a liquidation amount of $____ per security and designated the "____% Trust Preferred Securities" [OR INSERT OTHER DESIGNATION] of the Trust (the "Trust Preferred Securities") and $________ aggregate liquidation amount of common securities, having a liquidation amount of $____ per security and designated the "____% Trust Common Securities" of the Trust (together with the Trust Preferred Securities, the "Trust Securities"); WHEREAS, as incentive for the Holders (as defined herein) to purchase the Trust Preferred Securities, Omnicom Group, Inc. (the "Guarantor") desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay to the Holders of the Trust Preferred Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein; and NOW, THEREFORE, in consideration of the purchase by each Holder of Trust Preferred Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of such Holders. ARTICLE I INTERPRETATION AND DEFINITIONS Section 1.1 Definitions. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise. "Beneficial Owners" has the meaning specified in the Trust Agreement. "Business Day" has the meaning specified in the Trust Agreement. "Corporate Trust Office" means the office of the Guarantee Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Guarantee is located at ________, ________, ________, ________, Attention: __________. "Covered Person" means a Holder or beneficial owner of Trust Preferred Securities. "Depositary" has the meaning specified in the Trust Agreement. "Depositary Participants" has the meaning specified in the Trust Agreement. "Distribution" has the meaning specified in the Trust Agreement. "Event of Default" has the meaning specified in the Indenture. "Global Certificate" has the meaning specified in the Trust Agreement. "Global Security" means a fully registered, global Preferred Security representing the Trust Preferred Securities. "Guarantee Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Guarantee. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Trust Preferred Securities, to the extent not paid by or on behalf of the Trust: (i) any accrued and unpaid Distributions that are required to be paid on such Trust Preferred Securities to the extent the Trust has sufficient funds legally and immediately available therefor at the time, (ii) the Redemption Price, including all accrued and unpaid Distributions to the date of redemption, with respect to any Trust Preferred Securities called for redemption by the Trust, to the extent the Trust shall have sufficient funds legally and immediately available therefor at the time or (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Trust (other than in connection with the distribution of Junior Subordinated Debt Securities to the holders of Trust Securities as provided in the Trust Agreement or the redemption of all the Trust Preferred Securities), the lesser of (a) the sum of the liquidation amount and all accrued and unpaid Distributions on the Trust Preferred Securities to the date of payment, to the extent the Trust has sufficient funds legally and immediately available therefor and (b) the amount of assets of the Trust remaining available for distribution to Holders of Trust Preferred Securities in liquidation of the Trust (in either case, the "Liquidation Distribution"). "Guarantee Trustee" means ________, until a successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee and thereafter means each such Successor Guarantee Trustee. "Guarantor" has the meaning specified in the recitals hereto. "Holder" means a person in whose name any of the Trust Preferred Securities is registered; provided, however, that, in determining whether the Holders of the requisite percentage of Trust Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of the Guarantor or any other obligor on the Trust Preferred Securities; and provided further that in determining whether the Holders of the requisite liquidation amount of Trust Preferred Securities have voted on any matter provided for in this Guarantee, then for the purpose of such determination only (and not for any other purpose hereunder), if the Trust Preferred Securities remain in the form of one or more Global Certificates and if the Depositary which is the holder of such Global Securities has sent an omnibus proxy to the Trust assigning voting rights to Depositary Participants to whose accounts the Trust Preferred Securities are credited on the record date, the term "Holders" shall mean such Depositary Participants acting at the direction of the Beneficial Owners. "Indemnified Person" means the Guarantee Trustee, or any officers, directors, employees, shareholders or agents of the Guarantee Trustee. "Indenture" means the Junior Subordinated Indenture, dated as of ________ __, 200_, by and between Omnicom Group Inc. and ________, as Trustee, as supplemented and amended by a First Supplemental Indenture dated as of ________ __, 200_, pursuant to which the Junior Subordinated Debt Securities are to be issued to the Property Trustee. "Junior Subordinated Debt Securities" means the series of junior subordinated debt securities to be issued by Omnicom Group Inc. designated the "____% Junior Subordinated Debt Securities due ____" held by the Property Trustee. "List of Holders" has the meaning assigned to it in Section 2.2 hereof. "Majority in Liquidation Amount" means Holders of outstanding Trust Preferred Securities, voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Trust Preferred Securities. In determining whether the Holders of the requisite amount of Trust Preferred Securities have voted, Trust Preferred Securities which are owned by the Guarantor or any Affiliate of the Guarantor or any other obligor on the Trust Preferred Securities shall be disregarded for the purpose of any such determination. "Officer" means the Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Guarantor. "Officers' Certificate" means a certificate signed by two Officers, one of whom must be the Guarantor's principal executive officer, principal financial officer or principal accounting officer. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee (other than pursuant to Section 314(a)(4) of the TIA) shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer on behalf of such person in rendering the Officers' Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer on behalf of such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer acting on behalf of such person, such condition or covenant has been complied with. "person" means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof. "Property Trustee" has the meaning specified in the Trust Agreement. "Redemption Price" has the meaning specified in the Trust Agreement. "Registrar" has the meaning specified in the Indenture. "Responsible Officer" means, with respect to the Guarantee Trustee, any officer with direct responsibility for the administration of this Guarantee and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject. "Senior Indebtedness" has the meaning specified in the Indenture. "Sponsor" has the meaning specified in the Trust Agreement. "Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1. "Trust" has the meaning specified in the recitals hereto. "Trust Agreement" means the Amended and Restated Trust Agreement, dated as of __________ __, ____, as amended, modified or supplemented from time to time, among the trustees of the Trust named therein, the Guarantor, as sponsor, and the Holders, from time to time, of undivided beneficial ownership interests in the assets of the Trust. "Trust Preferred Securities" has the meaning specified in the recitals hereto. In the event that pursuant to the Trust Agreement, the Trust and the Sponsor grant an Option (as defined in Section 7.18 of the Trust Agreement) to certain underwriters or initial purchasers, as the case may be, such that an additional amount of Trust Preferred Securities may be issued pursuant to the terms of the Trust Agreement, then the defined term "Trust Preferred Securities" shall include such additional Trust Preferred Securities. "Trust Securities" has the meaning specified in the recitals hereto. "TIA" means the TIA of 1939 (15 U.S. Code ss.ss.. 77aaa-77bbbb), as amended from time to time, and as in effect on the date of this Guarantee; provided, however, that in the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended. Section 1.2 Incorporation by Reference of Trust Indenture Act. Whenever this Guarantee refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Guarantee. All terms used in this Guarantee that are defined by the TIA, defined by the TIA's reference to another statute or defined by Securities and Exchange Commission rule under the TIA and not otherwise defined herein are used herein as so defined. Section 1.3 Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) "or" is not exclusive; (c) words in the singular include the plural, and in the plural include the singular; and (d) provisions apply to successive events and transactions. ARTICLE II TRUST INDENTURE ACT Section 2.1 Trust Indenture Act; Application. (a) This Guarantee is subject to the provisions of the TIA that are required to be part of this Guarantee and shall, to the extent applicable, be governed by such provisions. (b) If and to the extent that any provision of this Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the TIA, such imposed duties shall control. Section 2.2 Lists of Holders. (a) The Guarantor shall furnish to the Guarantee Trustee a list of the names and addresses of the Holders ("List of Holders") in such form and as of such date as the Guarantee Trustee may reasonably require. The Guarantor shall furnish such List of Holders (i) within 30 days after receiving a written request from the Guarantee Trustee, such list to be as of a date no more than 15 days before such list is provided to the Guarantee Trustee, and (ii) unless the Trust Preferred Securities are represented by one or more Global Securities, at least one Business Day prior to the date for payment of Distributions, such list to be as of the record date relating to the payment of such Distributions. However, the Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Guarantee Trustee by the Guarantor or at any time the Guarantee Trustee is the Registrar under the Trust Agreement. The Guarantee Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it, provided that the Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the TIA. Section 2.3 Reports by Guarantee Trustee. Within 60 days after September 15 of each year (commencing with the year of the first anniversary of the issuance of the Trust Preferred Securities), the Guarantee Trustee shall provide to the Holders such reports as are required by Section 313(a) of the TIA (if any) in the form and in the manner provided by Section 313 of the TIA. The Guarantee Trustee shall also comply with the other requirements of Section 313 of the TIA. The Guarantor shall promptly notify the Guarantee Trustee when the Trust Preferred Securities are listed on any stock exchange. Section 2.4 Periodic Reports to Guarantee Trustee. The Guarantor shall provide to the Guarantee Trustee such documents, reports and information as required by Section 314(a) (if any) of the TIA and the compliance certificate required by Section 314(a)(4) of the TIA in the form, in the manner and at the times required by Section 314(a) of the TIA, provided that such compliance certificate shall be delivered on or before 120 days after the end of each calendar year of the Guarantor. Section 2.5 Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Guarantee that relate to any of the matters set forth in Section 314(c) of the TIA. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. Section 2.6 Guarantee Event of Default; Waiver. The Holders of a Majority in Liquidation Amount of the Trust Preferred Securities may, by vote or written consent, on behalf of all of the Holders, waive any past Guarantee Event of Default and its consequences. Upon such waiver, any such Guarantee Event of Default shall cease to exist, and any Guarantee Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee, but no such waiver shall extend to any subsequent or other default or Guarantee Event of Default or impair any right consequent thereon. Section 2.7 Guarantee Event of Default; Notice. If a Guarantee Event of Default occurs and is continuing and if it is known to a Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall mail to each Holder notice of a Guarantee Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Guarantee Trustee has knowledge of such Guarantee Event of Default. The Guarantee Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders. Section 2.8 Conflicting Interests. The Trust Agreement shall be deemed to be specifically described in this Guarantee for the purposes of clause (i) of the first proviso contained in Section 310(b) of the TIA. Section 2.9 Disclosure of Information. The disclosure of information as to the names and addresses of the Holders in accordance with Section 312 of the TIA, regardless of the source from which such information was derived, shall not be deemed to be a violation of any existing law, or any law hereafter enacted which does not specifically refer to Section 312 of the TIA, nor shall the Guarantee Trustee be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the TIA. Section 2.10 Guarantee Trustee May File Proofs of Claim. Upon the occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby authorized to (a) recover judgment, in its own name and as trustee of an express trust, against the Guarantor for the whole amount of any Guarantee Payments remaining unpaid and (b) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have its claims and those of the Holders allowed in any judicial proceedings relative to the Guarantor, its creditors or its property. ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE Section 3.1 Duties of Guarantee Trustee. (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Trust for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to any Person except a Holder exercising his or her rights pursuant to Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee Trustee, and such vesting and succession of title shall be effective upon acceptance of appointment whether or not conveyance documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders. (c) If a Guarantee Event of Default has occurred and is continuing, the Guarantee Trustee shall exercise the rights and powers vested in it by this Guarantee and use the same degree of care and skill in its exercise thereof as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (d) Except during the continuance of any Guarantee Event of Default: (i) The Guarantee Trustee need perform only those duties that are specifically set forth in this Guarantee and no others. (ii) In the absence of bad faith on its part, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers' Certificates or opinions of counsel furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee; however, in the case of any such Officers' Certificates or opinions of counsel which by any provisions hereof are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall examine such Officers' Certificates and opinions of counsel to determine whether or not they conform to the requirements of this Guarantee. (e) The Guarantee Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) This paragraph does not limit the effect of paragraph (d) of this Section. (ii) The Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts. (iii) The Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to the Trust Preferred Securities in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Trust Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee with respect to the Trust Preferred Securities. (f) Every provision of this Guarantee that in any way relates to the Guarantee Trustee is subject to paragraphs (c), (d) and (e) of this Section. (g) The Guarantee Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (h) The Guarantee Trustee shall not be liable for interest on any money received by it except as the Guarantee Trustee may agree in writing with the Guarantor. Money held in trust by the Guarantee Trustee need not be segregated from other funds except to the extent required by law. (i) No provision of this Guarantee shall require the Guarantee Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. Section 3.2 Rights of Guarantee Trustee. (a) The Guarantee Trustee may rely on and shall be protected in acting or refraining from acting upon, any document believed by it to be genuine and to have been signed or presented by the proper person. The Guarantee Trustee need not investigate any fact or matter stated in the document. (b) Before the Guarantee Trustee acts or refrains from acting, it may require an Officers' Certificate or an opinion of counsel. The Guarantee Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or opinion of counsel. (c) The Guarantee Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed an agent of the Guarantee Trustee and the Guarantee Trustee shall not be responsible for any act or omission by any Depositary. (d) The Guarantee Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) The Guarantee Trustee may consult with counsel and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (f) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee at the request or direction of any of the Holders unless such Holders shall have offered to the Guarantee Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee; provided, that nothing contained in this Section 3.2(f) shall be taken to relieve the Guarantee Trustee, upon the occurrence of a Guarantee Event of Default, of its obligation to exercise the rights and powers vested in it by this Guarantee in the manner provided by Section 3.1(c). (g) Whenever in the administration of this Guarantee, the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request written instructions from the Holders of a Majority in Liquidation Amount of the Trust Preferred Securities, (B) may refrain from enforcing such remedy or right or taking such other action until such written instructions are received and (C) shall be protected in conclusively relying on or acting in accordance with such written instructions. (h) No provision of this Guarantee shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent to act in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty. Section 3.3 Guarantee Trustee's Disclaimer. The Guarantee Trustee makes no representation as to the validity or adequacy of this Guarantee or the Trust Preferred Securities, and it shall not be responsible for any statement in the Securities other than its authentication of the Trust Preferred Securities. ARTICLE IV GUARANTEE TRUSTEE Section 4.1 Eligibility; Disqualification. This Guarantee shall always have a Guarantee Trustee who satisfies the requirements of Sections 310(a)(1), (2) and (5) of the TIA. The Guarantee Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Guarantee Trustee shall comply with Section 310(b) of the TIA. Section 4.2 Replacement of Guarantee Trustee. (a) A resignation or removal of the Guarantee Trustee and appointment of a successor Guarantee Trustee shall become effective only upon the successor Guarantee Trustee's acceptance of appointment as provided in this Section. (b) The Guarantee Trustee may resign by so notifying the Guarantor. The Holders of a Majority in Liquidation Amount of the Trust Preferred Securities may remove the Guarantee Trustee by so notifying the Guarantee Trustee and the Guarantor. The Guarantor may remove the Guarantee Trustee if: (i) the Guarantee Trustee fails to comply with Section 4.1; (ii) the Guarantee Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Guarantee Trustee under any Bankruptcy Law; (iii) a custodian or public officer takes charge of the Guarantee Trustee or its property; or (iv) the Guarantee Trustee becomes incapable of acting. (c) If the Guarantee Trustee resigns or is removed or if a vacancy exists in the office of Guarantee Trustee for any reason, the Guarantor shall promptly appoint a Successor Guarantee Trustee. Within one year after the Successor Guarantee Trustee takes office, the Holders of a Majority in Liquidation Amount of the then outstanding Trust Preferred Securities may appoint a Successor Guarantee Trustee to replace the Successor Guarantee Trustee appointed by the Guarantor. (d) If a Successor Guarantee Trustee does not take office within 60 days after the retiring Guarantee Trustee resigns or is removed, the retiring Guarantee Trustee, the Guarantor or the Holders of at least 10% in Liquidation Amount of the Trust Preferred Securities may petition any court of competent jurisdiction for the appointment of a Successor Guarantee Trustee. (e) If the Guarantee Trustee fails to comply with Section 4.1, any Holder may petition any court of competent jurisdiction for the removal of the Guarantee Trustee and the appointment of a Successor Guarantee Trustee. (f) A Successor Guarantee Trustee shall deliver a written acceptance of its appointment to the retiring Guarantee Trustee and to the Guarantor. Immediately after that, the retiring Guarantee Trustee shall transfer all property held by it as Guarantee Trustee to the Successor Guarantee Trustee, the resignation or removal of the retiring Guarantee Trustee shall become effective, and the Successor Guarantee Trustee shall have all the rights, powers and duties of the Guarantee Trustee under this Guarantee. A Successor Guarantee Trustee shall mail a notice of its succession to each Holder. Notwithstanding replacement of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor's obligations under Section 8.2 hereof shall continue for the benefit of the retiring Guarantee Trustee with respect to expenses and liabilities incurred by it prior to such replacement. ARTICLE V GUARANTEE Section 5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Guarantor may have or assert against any person. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Trust to pay such amounts to the Holders. Notwithstanding anything to the contrary herein, the Guarantor retains all of its rights under the Indenture to (i) extend the interest payment period on the Junior Subordinated Debt Securities pursuant to Section 2.10 thereof and the Guarantor shall not be obligated hereunder to make any Guarantee Payments during any Extension Period with respect to the Distributions on the Securities and (ii) change the maturity date of the Junior Subordinated Debt Securities to the extent permitted by the Indenture. Section 5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Trust or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. Section 5.3 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee shall be absolute and unconditional and shall remain in full force and effect until the entire liquidation amount of all outstanding Trust Preferred Securities shall have been paid and such obligation shall in no way be affected or impaired by reason of the happening from time to time of any event, including without limitation, the following, whether or not with notice to, or the consent of, the Guarantor: (a) The release or waiver, by operation of law or otherwise, of the performance or observance by the Trust of any express or implied agreement, covenant, term or condition relating to the Trust Preferred Securities to be performed or observed by the Trust; (b) The extension of time for the payment by the Trust of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Trust Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with the Trust Preferred Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Junior Subordinated Debt Securities or any change to the maturity date of the Junior Subordinated Debt Securities permitted by the Indenture); (c) Any failure, omission, delay or lack of diligence on the part of the Property Trustee or the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Property Trustee or the Holders pursuant to the terms of the Trust Preferred Securities, or any action on the part of the Trust granting indulgence or extension of any kind; (d) The voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Trust or any of the assets of the Trust; (e) Any invalidity of, or defect or deficiency in, the Trust Preferred Securities; (f) The settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) Any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Guarantee Trustee or the Holders to give notice to or obtain consent of the Guarantor or any other Person with respect to the happening of any of the foregoing. No setoff, counterclaim, reduction or diminution of any obligation, or any defense of any kind or nature that the Guarantor has or may have against any Holder shall be available hereunder to the Guarantor against such Holder to reduce the payments to it under this Guarantee. Section 5.4 Rights of Holders. (a) The Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under this Guarantee, provided, that, subject to Section 3.1, the Guarantee Trustee shall have the right to decline to follow any such direction if: (i) the Guarantee Trustee shall determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction, (ii) the Guarantee Trustee being advised by counsel determines that the action or proceeding so directed may not lawfully be taken or (iii) the Guarantee Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceedings so directed would involve the Guarantee Trustee in personal liability. (b) If the Guarantee Trustee fails to enforce this Guarantee, then any Holder may, subject to the subordination provisions of Section 6.2, institute a legal proceeding directly against the Guarantor to enforce the Guarantee Trustee's rights under this Guarantee without first instituting a legal proceeding against the Trust, the Guarantee Trustee or any other person or entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a Holder may, subject to the subordination provisions of Section 6.2, directly institute a proceeding against the Guarantor for enforcement of the Guarantee for such payment to the Holder of the principal of or interest on the Junior Subordinated Debt Securities on or after the respective due dates specified in the Junior Subordinated Debt Securities, and the amount of the payment will be based on the Holder's pro rata share of the amount due and owing on all of the Trust Preferred Securities. The Guarantor hereby waives any right or remedy to require that any action on this Guarantee be brought first against the Trust or any other person or entity before proceeding directly against the Guarantor. Section 5.5 Guarantee of Payment. This Guarantee creates a guarantee of payment and not of collection. Section 5.6 Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Holders against the Trust in respect of any amounts paid to such Holders by the Guarantor under this Guarantee; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee, if at the time of any such payment, any amounts are due and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Guarantee Trustee for the benefit of the Holders. Section 5.7 Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Trust with respect to the Trust Preferred Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the occurrence of any event referred to in subsections 5.3(a) through 5.3(g), inclusive, hereof. ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION Section 6.1 Limitation of Transactions. So long as any Trust Preferred Securities remain outstanding, if (i) there shall have occurred any Event of Default under the Indenture or any event of which the Guarantor has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default under the Indenture and (b) in respect of which the Guarantor shall not have taken reasonable steps to cure, (ii) there shall be a Guarantee Event of Default or (iii) the Guarantor shall have given notice of its election of an Extension Period as provided in the certificate evidencing the Junior Subordinated Debt Securities and shall not have rescinded such notice, or such Extension Period or any extension thereof shall be continuing, then the Guarantor shall not, and shall not permit any subsidiary of the Guarantor, to (x) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Guarantor's capital stock or (y) make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Guarantor that rank on a parity with or junior in interest to the Junior Subordinated Debt Securities or make any guarantee payments with respect to any guarantee by the Guarantor of the debt securities of any subsidiary of the Guarantor if such guarantee ranks on a parity with or junior in interest to the Junior Subordinated Debt Securities (other than (a) dividends or distributions in common stock of the Guarantor, (b) any declaration of a dividend in connection with the implementation of a shareholders' rights plan, or the issuance of capital stock of any class or series under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) payments under this Guarantee, any other similar guarantee by the Guarantor in respect of Trust Preferred Securities issued by a trust holding Junior Subordinated Debt Securities issued under the Indenture, (d) repurchases, redemptions or other acquisitions of capital stock in connection with any of the Guarantor's benefit plans or other similar arrangements with or for the benefit of its employees, officers, directors, consultants or advisors, or (e) the purchase of fractional interests in shares of the Guarantor's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged). Section 6.2 Ranking. This Guarantee will constitute an unsecured obligation of the Guarantor and will rank (i) subordinate and junior in right of payment to all Senior Indebtedness of the Guarantor in the same manner and to the same extent as set forth in Article IV of the Indenture, (ii) on an equal basis with any series of junior subordinated debt securities issued under the Indenture, and any guarantee of the Guarantor in respect of any trust preferred securities issued by a trust to which such debt securities are issued, and (iii) senior to all common stock of the Guarantor. ARTICLE VII TERMINATION Section 7.1 Termination. This Guarantee shall terminate upon: (a) full payment of the Redemption Price of all Trust Preferred Securities, (b) distribution of the Junior Subordinated Debt Securities to the Holders in exchange for all the outstanding Trust Preferred Securities, or (c) full payment of the amounts payable in accordance with the Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing, this Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Holder must restore payment of any sums paid under the Trust Preferred Securities or under this Guarantee. ARTICLE VIII INDEMNIFICATION Section 8.1 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Guarantor or any Covered Person for any loss, damage, liability, expense or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith in accordance with this Guarantee and in a manner that such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Guarantee or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Guarantor and upon such information, opinions, reports or statements presented to the Guarantor by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders might properly be paid. Section 8.2 Compensation and Indemnity. (a) The Guarantor shall pay to the Guarantee Trustee from time to time reasonable compensation for its services. The Guarantee Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Guarantor shall reimburse the Guarantee Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Guarantee Trustee's agents and counsel. (b) The Guarantor shall indemnify each of the Indemnified Persons (including the cost of defending itself) against any loss, liability or expense incurred by it except as set forth in the next paragraph in the performance of its duties under this Guarantee. An Indemnified Person shall notify the Guarantor promptly of any claim for which it may seek indemnity. The Guarantor shall defend the claim and the Indemnified Person shall cooperate in the defense. The Guarantor need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. (c) The Guarantor need not reimburse any expense or indemnify against any loss or liability incurred by an Indemnified Person through such Indemnified Person's negligence or bad faith. (d) To secure the Guarantor's payment obligations in this Section 8.2, the Guarantee Trustee shall have a lien prior to the Trust Preferred Securities on all money or property held or collected by the Guarantee Trustee, except money or property held in trust to pay Distributions on, or for redemption pursuant to Sections 7.3 and 7.4 of the Trust Agreement of, the Trust Preferred Securities. ARTICLE IX MISCELLANEOUS Section 9.1 Successors and Assigns. All guarantees and agreements contained in this Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Guarantee Trustee, any Successor Guarantee Trustee and the Holders of the Trust Preferred Securities then outstanding. Except in connection with a consolidation, merger, sale or conveyance involving the Guarantor that is permitted by Article VI of the Indenture and pursuant to which the successor or assignee agrees in writing to perform the Guarantor's obligations hereunder, the Guarantor shall not assign its obligations hereunder. Section 9.2 Amendments. Except with respect to any changes that do not materially adversely affect the rights of the Holders (in which case no consent of the Holders will be required), this Guarantee may not be amended without the prior approval of the Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities. The provisions of Section 11.2 of the Trust Agreement with respect to meetings of, and action by written consent of, the Holders apply to the giving of such approval. Section 9.3 Notices. Any notice or communication by the Guarantor or the Guarantee Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail: (a) if to the Guarantor: Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 Attention:______________________________ (b) if to the Guarantee Trustee: [Name of Trustee] [Address] ________________________________________ ________________________________________ Attention:______________________________ The Guarantor or the Guarantee Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication to a Holder shall be mailed by first-class mail to the address shown on the books and records of the Trust. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it. If the Guarantor mails a notice or communication to Holders, it shall mail a copy to the Guarantee Trustee at the same time. Section 9.4 Counterparts. This Guarantee may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Section 9.5 Benefit. This Guarantee is solely for the benefit of the Holders and, subject to Section 3.1(a), is not separately transferable from the Trust Preferred Securities. Section 9.6 Governing Laws. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. IN WITNESS WHEREOF, the parties hereto have caused this Guarantee to be duly executed as of the day and year first above written. OMNICOM GROUP INC., as Guarantor By: ______________________________ Name: Its: Attest: ___________________________ [NAME OF TRUSTEE], as Guarantee Trustee By: ______________________________ Name: Its: EX-4.20 4 0004.txt FORM OF AMENDED AND RESTATED TRUST AGREEMENT AMENDED AND RESTATED TRUST AGREEMENT By and Among OMNICOM GROUP INC. as Sponsor, -------------------------, as Property Trustee, CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee, and THE ADMINISTRATIVE TRUSTEES NAMED HEREIN Dated as of ________ __, 200_ Cross Reference Table* Section of Section of Trust Indenture Act of 1939, as amended Trust Agreement - --------------------------------------- --------------- 310(a)......................................... 6.3 310(b)......................................... 6.3 310(c)......................................... Inapplicable 311(a)......................................... 2.2(b) 311(b)......................................... 2.2(b) 311(c)......................................... Inapplicable 312(a)......................................... 2.2(a) 312(b)......................................... 2.2(b); 13.2 312(c)......................................... 13.2 313(a)......................................... 2.3 313(b)......................................... 2.3 313(c)......................................... 2.3 313(d)......................................... 2.3 314(a)......................................... 2.4; 3.6(i); 13.4 314(b)......................................... Inapplicable 314(c)......................................... 2.5 314(d)......................................... Inapplicable 314(e)......................................... 2.5; 13.4 314(f)......................................... Inapplicable 315(a)......................................... 3.9(b); 3.10(a) 315(b)......................................... 2.7 315(c)......................................... 3.9 315(d)......................................... 3.9 316(a)......................................... 2.6(a), (b) and (c) 316(b)......................................... Inapplicable 316(c)......................................... 3.6(e) 317(a)......................................... 3.16; 3.8(e) 317(b)......................................... 3.8(h) 318(a)......................................... 2.1(c) - ---------- * This cross-reference table does not constitute part of the agreement and shall not have any bearing upon the interpretation of any of its terms or provisions. Table of Contents Page ---- ARTICLE 1 INTERPRETATION AND DEFINITIONS.......................................1 Section 1.1. Definitions..................................................1 Section 1.2. Other Definitions............................................8 Section 1.3. Incorporation by Reference of Trust Indenture Act............9 Section 1.4. Rules of Construction........................................9 ARTICLE 2 TRUST INDENTURE ACT..................................................9 Section 2.1. Trust Indenture Act; Application.............................9 Section 2.2. Lists of Holders of Securities...............................9 Section 2.3. Reports by the Property Trustee.............................10 Section 2.4. Periodic Reports to the Property Trustee....................10 Section 2.5. Evidence of Compliance with Conditions Precedent............10 Section 2.6. Trust Enforcement Events; Waiver............................10 Section 2.7. Notice of Trust Enforcement Event...........................12 ARTICLE 3 ORGANIZATION........................................................12 Section 3.1. Name and Organization......................................12 Section 3.2. Office.....................................................12 Section 3.3. Purpose....................................................13 Section 3.4. Authority..................................................13 Section 3.5. Title to Property of the Trust.............................13 Section 3.6. Powers and Duties of the Administrative Trustees...........14 Section 3.7. Prohibition of Actions by the Trust and the Trustees.......16 Section 3.8. Powers and Duties of the Property Trustee..................17 Section 3.9. Duties and Responsibilities of the Property Trustee........19 Section 3.10. Rights of Property Trustee.................................21 Section 3.11. Delaware Trustee...........................................22 Section 3.12. Execution of Documents.....................................22 Section 3.13. Trustees' Disclaimer.......................................23 Section 3.14. Duration of Trust..........................................23 Section 3.15. Mergers....................................................23 Section 3.16. Property Trustee May File Proofs of Claim..................25 ARTICLE 4 SPONSOR.............................................................25 Section 4.1. Responsibilities of the Sponsor.............................25 Section 4.2. Compensation and Indemnification............................26 ARTICLE 5 TRUST COMMON SECURITIES HOLDER......................................26 Section 5.1. Debenture Issuer's Purchase of Common Securities............26 Section 5.2. Covenants of the Common Securities Holder...................26 ARTICLE 6 TRUSTEES............................................................27 Section 6.1. Number of Trustees.........................................27 Section 6.2. Delaware Trustee; Eligibility..............................27 Section 6.3. Property Trustee; Eligibility; Disqualification............27 Section 6.4. Qualifications of Administrative Trustees and Delaware Trustee Generally.................................28 Section 6.5. Initial Administrative Trustees............................28 Section 6.6. Replacement of Trustees....................................28 Section 6.7. Vacancies among Trustees...................................29 Section 6.8. Effect of Vacancies........................................30 Section 6.9. Meetings...................................................30 Section 6.10. Delegation of Power........................................30 Section 6.11. Successor Trustee by Merger, Etc...........................31 ARTICLE 7 TERMS OF SECURITIES.................................................31 Section 7.1. General Provisions Regarding Securities...................31 Section 7.2. Distributions.............................................34 Section 7.3. Redemption of Securities..................................35 Section 7.4. Redemption Procedures.....................................35 Section 7.5. Voting Rights of Preferred Securities.....................36 Section 7.6. Voting Rights of Common Securities........................39 Section 7.7. Registrar and Paying Agent................................40 Section 7.8. Listing...................................................41 Section 7.9. Transfer and Exchange of Securities.......................41 Section 7.10. Mutilated, Destroyed, Lost and Stolen Securities..........42 Section 7.11. Outstanding Securities....................................42 Section 7.12. Treasury Securities.......................................43 Section 7.13. Temporary Securities......................................43 Section 7.14. Cancellation..............................................43 Section 7.15. Deemed Security Holders...................................43 Section 7.16. Global Securities.........................................43 Section 7.16.1 Terms of Securities.......................................43 Section 7.16.2 Transfer and Exchange.....................................44 Section 7.16.3 Legend....................................................44 Section 7.16.4 Cancellation; Issuance of Registered Securities...........44 Section 7.16.5 Acts of Holders...........................................45 Section 7.16.6 Payments..................................................45 Section 7.16.7 Consents, Declaration and Directions......................45 Section 7.17. CUSIP Numbers.............................................45 Section 7.18. Over-Allotment Option.....................................46 ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST................................47 Section 8.1. Dissolution and Termination of Trust........................47 Section 8.2. Liquidation Distribution Upon Dissolution of the Trust......48 ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS.........................................48 Section 9.1. Liability...................................................48 Section 9.2. Exculpation.................................................49 Section 9.3. Fiduciary Duty..............................................49 Section 9.4. Indemnification.............................................50 Section 9.5. Outside Businesses..........................................53 ARTICLE 10 ACCOUNTING.........................................................54 Section 10.1. Fiscal Year................................................54 Section 10.2. Certain Accounting Matters.................................54 Section 10.3. Banking....................................................54 Section 10.4. Withholding................................................54 ARTICLE 11 AMENDMENTS AND MEETINGS............................................55 Section 11.1. Amendments.................................................55 Section 11.2. Meetings of the Holders of Securities; Action by Written Consent............................................57 ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE...........58 Section 12.1. Representations and Warranties of the Property Trustee.....58 Section 12.2. Representations and Warranties of the Delaware Trustee.....59 ARTICLE 13 MISCELLANEOUS......................................................60 Section 13.1. Notices...................................................60 Section 13.2. Communication by Holders with Other Holders...............61 Section 13.3. Certificate and Opinion as to Conditions Precedent........61 Section 13.4. Statements Required in Certificate or Opinion.............61 Section 13.5. Rules by Trustee and Agents...............................62 Section 13.6. Legal Holidays............................................62 Section 13.7. No Recourse Against Others................................62 Section 13.8. Intention of the Parties..................................62 Section 13.9. Counterparts..............................................62 Section 13.10. Governing Laws............................................62 Section 13.11. Successors................................................62 Section 13.12. Severability..............................................62 Section 13.13. Table of Contents, Headings, Etc..........................63 Exhibits Exhibit A.........Form Of Preferred Security Certificate Exhibit B.........Form Of Common Security Certificate AMENDED AND RESTATED TRUST AGREEMENT This AMENDED AND RESTATED TRUST AGREEMENT (the "Trust Agreement"), dated as of _________, 200_, is entered into by and among (i) Omnicom Group Inc., a New York corporation, as sponsor (the "Sponsor"), (ii)(a) ________, as initial Property Trustee, (b) Chase Manhattan Bank USA, National Association, a Delaware corporation, as Delaware Trustee, and (c) John Wren, an individual, Randall Weisenburger, an individual, Robert A. Profusek, an individual, Dennis E. Hewitt, an individual, and Barry J. Wagner, an individual, each of whose address is 437 Madison Avenue, New York, New York 10022 (each an "Administrative Trustee" and, collectively, the "Administrative Trustees" and, together with the Property Trustee and the Delaware Trustee, the "Trustees", all not in their individual capacities, but solely as Trustees) and (iii) the several Holders as hereinafter defined. RECITALS WHEREAS, the Delaware Trustee and the Sponsor established Omnicom Capital Trust [I/II/III] (the "Trust"), a business trust under the Business Trust Act (as defined, together with other capitalized terms, herein) pursuant to a Trust Agreement dated as of October 4, 2000 (the "Original Trust Agreement") and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of State of the State of Delaware on October 4, 2000; WHEREAS, the sole purpose of the Trust shall be to issue and sell certain securities representing undivided beneficial ownership interests in the assets of the Trust, to invest the proceeds from such sales in the Debentures issued by the Debenture Issuer, to make Distributions as herein provided and to engage in only those activities necessary, advisable or incidental thereto; and WHEREAS, the parties hereto, by this Trust Agreement, amend and restate each and every term and provision of the Original Trust Agreement; NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a business trust under the Business Trust Act and that this Trust Agreement constitute the governing instrument of such business trust, the Trustees hereby declare that all assets contributed to the Trust be held in trust for the benefit of the Holders, from time to time, of the Securities representing undivided beneficial ownership interests in the assets of the Trust issued hereunder, subject to the provisions of this Trust Agreement. ARTICLE 1 INTERPRETATION AND DEFINITIONS Section 1.1. Definitions. The following terms have the following meanings: "Administrative Trustee" means any Trustee other than the Property Trustee and the Delaware Trustee. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") as used with respect to any person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, directly or indirectly, whether through the ownership of voting securities or by agreement or otherwise. "Agreement as to Expenses and Liabilities" means the Agreement as to Expenses and Liabilities between the Sponsor and Omnicom Capital Trust [I/II/III] dated as of ________, __, 200_. "Authorized Officer" of a person means any person that is authorized to bind such person. "Bankruptcy Event" means, with respect to any person: (a) the entry of a decree or order by a court having jurisdiction in the premises judging such person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such person under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such person or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (b) the institution by such person of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such person or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by such person in furtherance of any such action. "Beneficial Owners" means, for Preferred Securities represented by a Global Security, the person who acquires an interest in the Preferred Securities which is reflected on the records of the Depositary through the Depositary Participants. "Board Of Directors" means the Board of Directors of the Sponsor or any duly authorized committee thereof. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Sponsor to have been duly adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate. "Business Day" means, unless otherwise provided by Board Resolution or Officers' Certificate, any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time, or any successor legislation. "Certificate" means a Common Security Certificate or a Preferred Security Certificate. "Certificate of Trust" has the meaning specified in the Recitals hereto. "Closing Date" means the date on which the Preferred Securities are issued and sold; provided that if the Trust and the Sponsor grant the underwriters or initial purchasers an option to purchase an additional amount of Preferred Securities, pursuant to Section 7.18(a), including for the purpose of covering over-allotments, pursuant to the underwriting agreement or purchase agreement, as the case may be, and such option is so exercised, then the term "Closing Date" shall mean such initial or second closing date, as the context requires. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation. A reference to a specific section of the Code refers not only to such specific section but also to any corresponding provision of any federal tax statute enacted after the date of this Trust Agreement, as such specific section or corresponding provision is in effect on the date of application of the provisions of this Trust Agreement containing such reference. "Commission" means the Securities and Exchange Commission or any successor thereto. "Common Security" has the meaning specified in Section 7.1. "Common Security Certificate" means a definitive certificate in fully registered form representing a Common Security, substantially in the form of Exhibit B hereto. "Common Securities Holder" means Omnicom Group Inc., in its capacity as purchaser and holder of all of the Common Securities issued by the Trust, or any permitted successor holder of the Common Securities. "Corporate Trust Office" means the office of the Property Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Trust Agreement is located at ________, ________, ________, ________, Attention ________. "Covered Person" means (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Trust or (ii) the Trust's Affiliates; and (b) any Holder. "Debentures" means the series of junior subordinated debt securities to be issued by the Debenture Issuer designated the "____% Junior Subordinated Debt Securities due ______" and to be purchased by the Trust and held by the Property Trustee. "Debenture Issuer" shall mean Omnicom Group Inc., a New York corporation, in its capacity as issuer of the Debentures under the Indenture. "Debenture Issuer Indemnified Person" means (i) any Administrative Trustee or any officers, directors, employees, shareholders or agents of any Administrative Trustee or (ii) any officer, employee or agent of the Trust. "Delaware Trustee" means the Trustee meeting the eligibility requirements set forth in Section 6.2. "Depositary" means, with respect to Securities issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities. "Depositary Participant" means a member of, or participant in, the Depositary. "Distribution" means a distribution payable to Holders of Securities in accordance with Section 7.2. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation. "Global Security" means a fully registered, global Preferred Security Certificate. "Guarantee" means the Guarantee Agreement, dated as of ________ __, 200_, of the Sponsor in respect of the Preferred Securities. "Holder" means a person in whose name a Security is registered; provided, however, that in determining whether the Holders of the requisite liquidation amount of Preferred Securities have voted on any matter provided for in this Trust Agreement, then for the purpose of such determination only (and not for any other purpose hereunder), if the Preferred Securities remain in the form of one or more Global Securities and if the Depositary which is the holder of such Global Securities has sent an omnibus proxy to the Trust assigning voting rights to Depositary Participants to whose accounts the Preferred Securities are credited on the record date, the term "Holders" shall mean such Depositary Participants acting at the direction of the Beneficial Owners. "Indemnified Person" means a Debenture Issuer Indemnified Person or a Fiduciary Indemnified Person. "Indenture" means the Junior Subordinated Indenture, dated as of __________, 200_, between the Debenture Issuer and ____________________, as Trustee, pursuant to which the Debentures are to be issued. "Indenture Event Of Default" has the meaning given to the term "Event of Default" in the Indenture. "Indenture Trustee" means _______________________, in its capacity as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee. "Investment Company" means an investment company as defined in the 1940 Act and the regulations promulgated thereunder. "Investment Company Event" means the receipt by the Trust of an opinion of a nationally recognized independent counsel (an "1940 Act Opinion"), to the effect that, as a result of the occurrence of a change in law or regulation or a written change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or will be considered an "investment company" that is required to be registered under the 1940 Act, which Change in 1940 Act Law becomes effective on or after the Closing Date. "Majority In Liquidation Amount" means, except as provided in the terms of the Preferred Securities or by the TIA, Holder(s) of outstanding Securities, voting together as a single class, or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities, voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class. "New York Stock Exchange" means the New York Stock Exchange, Inc. or any successor thereto. "1940 Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation. "Officer" means the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Sponsor. "Officers' Certificate" means a certificate signed by two Officers, one of whom must be the Sponsor's principal executive officer, principal financial officer or principal accounting officer. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer on behalf of such person in rendering the Officers' Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer on behalf of such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer acting on behalf of such person, such condition or covenant has been complied with; provided, that the term "Officers' Certificate," when used with reference to Administrative Trustees who are natural persons shall mean a certificate signed by two or more of the Administrative Trustees which otherwise satisfies the foregoing requirements. "Person" means any individual, corporation, partnership, joint venture, association, limited liability company, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof. "Preferred Security Certificate" means a definitive certificate in fully registered form representing a Preferred Security, substantially in the form of Exhibit A. "Property Trustee" means the Trustee meeting the eligibility requirements set forth in Section 6.3. "Pro Rata" means pro rata to each Holder of Securities according to the aggregate liquidation amount of the Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Securities outstanding. "Quorum" means a majority of the Administrative Trustees or, if there are only two Administrative Trustees, both of them. "Redemption Price" means the amount for which the Securities will be redeemed, which amount will equal (i) the redemption price paid by the Debenture Issuer to repay or redeem, in whole or in part, the Debentures held by the Trust plus an amount equal to accumulated and unpaid Distributions on such Securities through the date of their redemption or (ii) such lesser amount as will be received by the Trust in respect of the Debentures so repaid or redeemed. "Responsible Officer" means, with respect to the Property Trustee, any officer with direct responsibility for the administration of this Trust Agreement and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of that officer's knowledge of and familiarity with a particular subject. "Securities" means the Common Securities and the Preferred Securities. "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation. "Special Event" means a Tax Event or an Investment Company Event. "Sponsor" means Omnicom Group Inc., a New York corporation, or any successor entity in a transaction involving the Sponsor that is permitted by Article VI of the Indenture and pursuant to which the successor agrees in writing to perform the Sponsor's obligations hereunder. "Tax Event" means the receipt by the Trust of an opinion of independent tax counsel experienced in such matters ("Tax Event Opinion"), to the effect that, as a result of (a) any amendment to, change in or announced prospective change in the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or (b) any official administrative written decision or pronouncement, or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement, or decision is announced on or after the Closing Date, there is more than an insubstantial risk that (i) the Trust is, or will be within 90 days of the date of such opinion, subject to the United States federal income tax with respect to income received or accrued on the Debentures, (ii) interest payable by the Debenture Issuer on the Debentures is not, or within 90 days of the date of such opinion will not be, deductible, in whole or in part, by the Debenture Issuer for United States federal income tax purposes, or (iii) the Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "10% In Liquidation Amount" means, except as provided in the terms of the Preferred Securities or by the TIA, Holder(s) of outstanding Securities, voting together as a single class, or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities, voting separately as a class, who are the record owners of 10% or more of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding Securities of the relevant class. "TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb), as amended from time to time, and as in effect on the date of this Trust Agreement; provided, however, that in the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended. "Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Trust Enforcement Event" in respect of the Securities means an Indenture Event of Default has occurred and is continuing in respect of the Debentures. "Trust Order" has the meaning specified in Section 7.1(c) "Trustee" or "Trustees" means each person who has signed this Trust Agreement as a trustee, so long as such person shall continue as a trustee in accordance with the terms hereof, and all other persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such person or persons solely in their capacity as trustees hereunder. Section 1.2. Other Definitions. TERM DEFINED IN SECTION "Common Security" 7.1(a)(ii) "Direct Action" 3.8(e) "Fiduciary Indemnified Person" 9.4(b) "Fiscal Year" 10.1 "Legal Action" 3.6(g) "Legal Holiday" 13.6 "List Of Holders" 2.2(a) "Option" 7.18(a) "Paying Agent" 3.8(h) "Payment Amount" 7.2(c) "Preferred Security" 7.1 "Property Account" 3.8(c) "Registrar" 7.7 "Service Agent" 7.7 "Successor Entity" 3.15(b)(i) "Successor Security" 3.15(b)(i)b "Super Majority" 2.6(a)(ii) "Trust Agreement" Preamble "Trust Order" 7.1(c) Section 1.3. Incorporation by Reference of Trust Indenture Act. Whenever this Trust Agreement refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Trust Agreement. All terms used in this Trust Agreement that are defined by the TIA, defined by TIA reference to another statute or defined by Securities and Exchange Commission rule under the TIA and not otherwise defined herein are used herein as so defined. Section 1.4. Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) "or" is not exclusive; (c) words in the singular include the plural, and in the plural include the singular; and (d) provisions apply to successive events and transactions. ARTICLE 2 TRUST INDENTURE ACT Section 2.1. Trust Indenture Act; Application. (a) This Trust Agreement is subject to the provisions of the TIA that are required to be part of this Trust Agreement and shall, to the extent applicable, be governed by such provisions. (b) The Property Trustee shall be the only Trustee which is a Trustee for the purposes of the TIA. (c) If and to the extent that any provision of this Trust Agreement conflicts with the duties imposed by Sections 310 to 317, inclusive, of the TIA, such imposed duties shall control. (d) The application of the TIA to this Trust Agreement shall not affect the Trust's classification as a grantor trust for United States federal income tax purposes and shall not affect the nature of the Securities as equity securities representing undivided beneficial ownership interests in the assets of the Trust. Section 2.2. Lists of Holders of Securities. (a) Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide the Property Trustee at any time when the Property Trustee is not also acting as Security Registrar for the Securities at least 10 days before each Distribution payment date and at such other times as the Property Trustee may request in writing a list, in such form and as of such date as the Property Trustee may reasonably may require, of the names and addresses of the Holders of the Securities ("List of Holders"); provided that neither the Sponsor nor the Administrative Trustees on behalf of the Trust shall be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Property Trustee by the Sponsor and the Administrative Trustees on behalf of the Trust. The Property Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it or which it receives in the capacity as Paying Agent (if acting in such capacity); provided that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Property Trustee shall comply with its obligations under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the TIA. Section 2.3. Reports by the Property Trustee. Within 60 days after May 15 of each year (commencing with the year in which the first anniversary of the issuance of the Preferred Securities occurs), the Property Trustee shall provide to the Holders of the Preferred Securities such reports as are required by Section 313(a) of the TIA, if any, in the form and in the manner provided by Section 313 of the TIA. The Property Trustee shall also comply with the other requirements of Section 313 of the TIA. The Sponsor shall promptly notify the Property Trustee when the Preferred Securities are listed on any stock exchange. Section 2.4. Periodic Reports to the Property Trustee. Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the TIA (if any) and the compliance certificate required by Section 314(a)(4) of the TIA in the form, in the manner and at the times required by Section 314 of the TIA; provided that such compliance certificate shall be delivered on or before 120 days after the end of each calendar year of the Sponsor. Section 2.5. Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the TIA. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. Section 2.6. Trust Enforcement Events; Waiver. (a) The Holders of a Majority in Liquidation Amount of the Preferred Securities may, by vote or written consent, on behalf of the Holders of all of the Preferred Securities, waive any past Trust Enforcement Event in respect of the Preferred Securities and its consequences; provided that, if the underlying Indenture Event of Default: (i) is not waivable under the Indenture, the Trust Enforcement Event under the Trust Agreement shall also not be waivable; or (ii) requires the consent or vote of the Holders of greater than a majority in principal amount of the Debentures (a "Super Majority") to be waived under the Indenture, the related Trust Enforcement Event under the Trust Agreement may only be waived by the vote or written consent of the Holders of at least the proportion in liquidation amount of the Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding. The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this Trust Agreement and the Securities, as permitted by the TIA. Upon such waiver, any such default shall cease to exist, and any Trust Enforcement Event with respect to the Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Trust Agreement and the Preferred Securities, but no such waiver shall extend to any subsequent or other Trust Enforcement Event with respect to the Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Preferred Securities of a Trust Enforcement Event with respect to the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Trust Enforcement Event with respect to the Common Securities for all purposes of this Trust Agreement without any further act, vote, or consent of the Holders of the Common Securities. (b) The Holders of a Majority in Liquidation Amount of the Common Securities may, by vote or written consent, on behalf of the Holders of all of the Common Securities, waive any past Trust Enforcement Event in respect of the Common Securities and its consequences; provided that, if the underlying Indenture Event of Default: (i) is not waivable under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Trust Enforcement Event under the Trust Agreement as provided below in this Section 2.6(b), the Trust Enforcement Event under the Trust Agreement shall also not be waivable; or (ii) requires the consent or vote of a Super Majority to be waived under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Trust Enforcement Event under the Trust Agreement as provided below in this Section 2.6(b), the Trust Enforcement Event under the Trust Agreement may only be waived by the vote or written consent of the Holders of at least the proportion in liquidation amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding; provided, further, each Holder of Common Securities will be deemed to have waived any Trust Enforcement Event and all Trust Enforcement Events with respect to the Common Securities and the consequences thereof until all Trust Enforcement Events with respect to the Preferred Securities have been cured, waived or otherwise eliminated, and until such Trust Enforcement Events with respect to the Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Preferred Securities and only the Holders of the Preferred Securities will have the right to direct the Property Trustee in accordance with the terms of the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the TIA and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the TIA are hereby expressly excluded from this Trust Agreement and the Securities, as permitted by the TIA. Subject to the foregoing provisions of this Section 2.6(b), upon such cure, waiver or other elimination, any such default shall cease to exist and any Trust Enforcement Event with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other Trust Enforcement Event with respect to the Common Securities or impair any right consequent thereon. (c) A waiver of an Indenture Event of Default by the Property Trustee at the direction of the Holders of the Preferred Securities constitutes a waiver of the corresponding Trust Enforcement Event with respect to the Preferred Securities under this Trust Agreement. The foregoing provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this Trust Agreement and the Securities, as permitted by the TIA. Section 2.7. Notice of Trust Enforcement Event. If a Trust Enforcement Event occurs and is continuing with respect to the Securities and if it is known to a Responsible Officer of the Property Trustee, the Property Trustee shall mail to each Holder of Securities notice of a Trust Enforcement Event within 90 days after it occurs or, if later, after a Responsible Officer of the Property Trustee has knowledge of such Trust Enforcement Event. Except in the case of a Trust Enforcement Event caused by a default in payment of principal of or interest on any Debentures, the Property Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of Securities. ARTICLE 3 ORGANIZATION Section 3.1. Name and Organization. The Trust hereby continued is named "Omnicom Capital Trust __" as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders of Securities, the Property Trustee and the Delaware Trustee. The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Administrative Trustees. Section 3.2. Office. The address of the principal office of the Trust is c/o Omnicom Group Inc., 437 Madison Avenue, New York, New York 10022. On 10 Business Days' written notice to the Holders of Securities, the Property Trustee and the Delaware Trustee, the Administrative Trustees may designate another principal office. Section 3.3. Purpose. The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and use the gross proceeds from such sale to acquire the Debentures, (b) making Distributions to Holders of Securities as herein provided and (c) except as otherwise limited herein, to engage in only those other activities necessary, advisable or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be classified as a grantor trust for United States federal income tax purposes. By the acceptance of this Trust, none of the Trustees, the Sponsor, the Holders of the Preferred Securities or Common Securities or the Beneficial Owners will take any position for United States federal income tax purposes which is contrary to the classification of the Trust as a grantor trust. Section 3.4. Authority. Subject to the limitations provided in this Trust Agreement and to the specific duties of the Property Trustee, the Administrative Trustees shall have exclusive authority to carry out the purposes of the Trust. An action taken by the Administrative Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust, and an action taken by the Property Trustee on behalf of the Trust in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Trust Agreement. (a) Except as expressly set forth in this Trust Agreement and except if a meeting of the Administrative Trustees is called with respect to any matter over which the Administrative Trustees have power to act, any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee. (b) Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Business Trust Act or applicable law, any Administrative Trustee is authorized to execute on behalf of the Trust any documents which the Administrative Trustees have the power and authority to cause the Trust to execute pursuant to Section 3.6(b). (c) Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing any documents which the Administrative Trustees have power and authority to cause the Trust to execute pursuant to Section 3.6. Section 3.5. Title to Property of the Trust. Except as provided in Section 3.8 with respect to the Debentures and the Property Account or as otherwise provided in this Trust Agreement, legal title to all assets of the Trust shall be vested in the Trust. The Holders shall not have legal title to any part of the assets of the Trust, but shall have an undivided beneficial ownership interest in the assets of the Trust. Section 3.6. Powers and Duties of the Administrative Trustees. The Administrative Trustees shall have the exclusive power, duty and authority to cause the Trust to engage in the following activities: (a) issue and sell the Preferred Securities and the Common Securities in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities; and provided, further, that there shall be no interests in the Trust other than the Securities and, except as provided in Section 7.18, the issuance of Securities shall be limited to a one-time, simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date; (b) in connection with the issue and sale of the Preferred Securities, at the direction of the Sponsor, to execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary, in order to qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale; and (c) to acquire the Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the Administrative Trustees shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders of the Preferred Securities and the Holders of the Common Securities; (d) to give the Sponsor and the Property Trustee prompt written notice of the occurrence of a Special Event; (e) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the TIA, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Preferred Securities and Holders of Common Securities as to such actions and applicable record dates; (f) to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Trust Agreement and the Securities; (g) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action or otherwise adjust claims or demands of or against the Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal Action; (h) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants to conduct only those services that the Administrative Trustees have authority to conduct directly, and to pay reasonable compensation for such services; (i) to cause the Trust to comply with the Trust's obligations under the TIA; (j) to give the certificate required by Section 314(a)(4) of the TIA to the Property Trustee, which certificate may be executed by any Administrative Trustee; (k) to incur expenses that are necessary or incidental to carry out any of the purposes of the Trust; (l) to act as, or appoint another person to act as, registrar and transfer agent for the Securities; (m) to give prompt written notice to the Holders of the Securities of any notice received from the Debenture Issuer of its election to defer payments of interest on the Debentures by extending the interest payment period under the Debentures as authorized by the Indenture; (n) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Preferred Securities and the Holders of the Common Securities or to enable the Trust to effect the purposes for which the Trust was created; (o) to take any action, not inconsistent with applicable law, that the Administrative Trustees determine in their discretion to be necessary or desirable in carrying out the purposes and functions of the Trust as set out in Section 3.3 or the activities of the Trust as set out in this Section 3.6, including, but not limited to: (i) causing the Trust not to be deemed to be an Investment Company required to be registered under the 1940 Act; (ii) causing the Trust to be classified as a grantor trust for United States federal income tax purposes; and (iii) cooperating with the Debenture Issuer to ensure that the Debentures will be treated as indebtedness of the Debenture Issuer for United States federal income tax purposes. (p) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust; and (q) to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. The Administrative Trustees shall exercise the powers set forth in this Section 3.6 in a manner that is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Administrative Trustees shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Trust set forth in Section 3.3. Subject to this Section 3.6, the Administrative Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8. Any expenses incurred by the Administrative Trustees pursuant to this Section 3.6 shall be reimbursed by the Sponsor. Section 3.7. Prohibition of Actions by the Trust and the Trustees. (a) The Trust shall not, and none of the Trustees (including the Property Trustee) shall cause the Trust to, engage in any activity other than as required or authorized by this Trust Agreement. In particular, the Trust shall not and none of the Trustees (including the Property Trustee) shall cause the Trust to: (i) invest any proceeds received by the Trust from holding the Debentures, but shall distribute all such proceeds to Holders of Securities pursuant to the terms of this Trust Agreement and of the Securities; (ii) acquire any assets other than as expressly provided herein; (iii) possess Trust property for other than a Trust purpose; (iv) make any loans other than loans represented by the Debentures or incur any indebtedness; (v) possess any power or otherwise act in such a way as to vary the Trust assets; (vi) possess any power or otherwise act in such a way as to vary the terms of the Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Securities); (vii) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Securities; (viii) other than as provided in this Trust Agreement or by the terms of the Securities, (A) direct the time, method and place of exercising any trust or power conferred upon the Indenture Trustee with respect to the Debentures, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Debentures shall be due and payable, or (D) consent to any amendment, modification or termination of the Indenture or the Debentures where such consent shall be required unless the Trust shall have received an opinion of counsel to the effect that such amendment or modification will not cause more than an insubstantial risk that the Trust will be deemed an Investment Company required to be registered under the 1940 Act, or the Trust will not be classified as a grantor trust for United States federal income tax purposes; (ix) take any action inconsistent with the status of the Trust as a grantor trust for United States federal income tax purposes; or (x) revoke any action previously authorized or approved by vote of the Holders of the Preferred Securities except pursuant to a subsequent vote of the Holders of the Preferred Securities. Section 3.8. Powers and Duties of the Property Trustee. (a) The legal title to the Debentures shall be owned by and held of record in the name of the Property Trustee for the benefit of the Trust and the Holders of the Securities. The right, title and interest of the Property Trustee to the Debentures shall vest automatically in each person who may hereafter be appointed as Property Trustee in accordance with Section 6.6. Such vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the Debentures have been executed and delivered. (b) The Property Trustee shall not transfer its right, title and interest in the Debentures to the Administrative Trustees or to the Delaware Trustee (if the Property Trustee does not also act as Delaware Trustee). (c) The Property Trustee shall: (i) establish and maintain a segregated non-interest bearing trust account (the "Property Account") in the name of and under the exclusive control of the Property Trustee on behalf of the Holders of the Securities and, upon the receipt of payments of funds made in respect of the Debentures held by the Property Trustee, deposit such funds into the Property Account and make payments to the Holders of the Preferred Securities and Holders of the Common Securities from the Property Account in accordance with Section 7.2. Funds in the Property Account shall be held uninvested until disbursed in accordance with this Trust Agreement. The Property Account shall be an account that is maintained with a banking institution the rating on whose long-term unsecured indebtedness is at least equal to the rating assigned to the Preferred Securities by a "nationally recognized statistical rating organization," within the meaning of Rule 436(g)(2) under the Securities Act; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Preferred Securities and the Common Securities to the extent the Debentures are redeemed or mature; and (iii) upon written notice of distribution issued by the Administrative Trustees in accordance with the terms of the Securities, engage in such ministerial activities as so directed and as shall be necessary or appropriate to effect the distribution of the Debentures to Holders of Securities upon the occurrence of a Special Event. (d) The Property Trustee shall take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement and the Securities. (e) Subject to Section 3.9(b), the Property Trustee may take any Legal Action which arises out of or in connection with a Trust Enforcement Event or the Property Trustee's duties and obligations under this Trust Agreement or the TIA; provided, however, that if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to pay interest, principal or other required payments on the Debentures on the date such interest, principal or other required payments are otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Preferred Securities may directly institute a proceeding against the Debenture Issuer for enforcement of payment to such Holder of the principal of (including premium, if any) or interest (including any Additional Interest, as defined in the Indenture) on Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Debentures. Notwithstanding anything to the contrary in this Trust Agreement or the Indenture, the Debenture Issuer shall have the right to set-off any payment it is otherwise required to make under the Indenture in respect of any Preferred Security to the extent the Debenture Issuer has heretofore made, or is currently on the date of such payment making, a payment under the Guarantee relating to such Preferred Security or under Section 7.3 of the Indenture. (f) The Property Trustee shall continue to serve as a Trustee until either: (i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders of Securities pursuant to the terms of the Securities; or (ii) a successor Property Trustee has been appointed and has accepted that appointment in accordance with Section 6.6. (g) The Property Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of Debentures under the Indenture and, if a Trust Enforcement Event occurs and is continuing, the Property Trustee shall, for the benefit of Holders of the Securities, enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to this Trust Agreement and the terms of the Securities. (h) The Property Trustee may authorize one or more Persons (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Trust with respect to all Securities and any such Paying Agent shall comply with Section 317(b) of the TIA. Any Paying Agent may be removed by the Property Trustee at any time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Property Trustee. (i) Subject to this Section 3.8, the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 3.6. The Property Trustee shall exercise the powers set forth in this Section 3.8 in a manner that is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Property Trustee shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Trust set out in Section 3.3. Section 3.9. Duties and Responsibilities of the Property Trustee. (a) If a Trust Enforcement Event has occurred and is continuing, the Property Trustee shall exercise the rights and powers vested in it by this Trust Agreement and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of any Trust Enforcement Event: (i) the Property Trustee need perform only those duties that are specifically set forth in this Trust Agreement and no others; and (ii) in the absence of bad faith on its part, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers' Certificates or opinions of counsel furnished to the Property Trustee and conforming to the requirements of this Trust Agreement; however, in the case of any such Officer's Certificates or opinions of counsel which by any provision hereof are specifically required to be furnished to the Property Trustee, the Property Trustee shall examine such Officers' Certificates and opinions of counsel to determine whether or not they conform to the requirements of this Trust Agreement. (c) The Property Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) This paragraph does not limit the effect of paragraph (b) of this Section; (ii) the Property Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Property Trustee was negligent in ascertaining the pertinent facts; and (iii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to the Securities in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement. (d) Every provision of this Trust Agreement that in any way relates to the Property Trustee is subject to paragraphs (a), (b) and (c) of this Section. (e) The Property Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (f) The Property Trustee shall not be liable for interest on any money received by it except as the Property Trustee may agree in writing with the Sponsor. Money held in trust by the Property Trustee need not be segregated from other funds except in relation to the Property Account maintained pursuant to Section 3.8(c)(i) and except to the extent required by law. (g) No provision of this Trust Agreement shall require the Property Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (h) The Property Trustee's sole duty with respect to the custody, safe-keeping and physical preservation of the Debentures and the Property Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement and the TIA. (i) The Property Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Debentures or the payment of any taxes or assessments levied thereon or in connection therewith. (j) The Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Sponsor with their respective duties under this Trust Agreement, nor shall the Property Trustee be liable for any default or misconduct of the Administrative Trustees or the Sponsor. Section 3.10. Rights of Property Trustee. (a) The Property Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Property Trustee need not investigate any fact or matter stated in the document. (b) Before the Property Trustee acts or refrains from acting, it may require an Officers' Certificate or an opinion of counsel. The Property Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or opinion of counsel. (c) The Property Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed an agent of the Property Trustee and the Property Trustee shall not be responsible for any act or omission by any Depositary. (d) The Property Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) The Property Trustee may consult with counsel and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (f) The Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided, that nothing contained in this Section 3.10(f) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement in the manner provided by Section 3.9(a). (g) Whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Securities as would been entitled to direct the Property Trustee under the terms of the Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions. (h) Except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement. (i) When the Property Trustee incurs expenses or renders services in connection with a bankruptcy, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy law or law for the relief of debtors generally. (j) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty. Section 3.11. Delaware Trustee. Notwithstanding any other provision of this Trust Agreement other than Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Administrative Trustees or the Property Trustee described in this Trust Agreement. Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Business Trust Act. In the event the Delaware Trustee shall at any time be required to take any action or perform any duty hereunder with respect to the Trust, the Delaware Trustee shall be entitled to all of the same rights as the Property Trustee listed in Sections 3.9(b)-(h) and Section 3.10. No implied covenants or obligations shall be read into this Trust Agreement against the Delaware Trustee. It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) any agreements or instruments executed and delivered by Chase Manhattan Bank USA, National Association are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank USA, National Association in its individual capacity but is made and intended for the purpose of binding only the Trust, and (iii) under no circumstances shall Chase Manhattan Bank USA, National Association in its individual capacity be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Trust Agreement, except if such breach or failure is due to any gross negligence or willful misconduct of the Delaware Trustee. Section 3.12. Execution of Documents. Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Business Trust Act or applicable law, any Administrative Trustee is authorized to execute on behalf of the Trust any documents that the Administrative Trustees have the power and authority to execute pursuant to Section 3.6. Section 3.13. Trustees' Disclaimer. The Trustees make no representation as to the validity or adequacy of this Trust Agreement, the Securities, the Indenture or the Debentures; they shall not be accountable for the Debenture Issuer's use of the proceeds from the Debentures, and they shall not be responsible for any statement in the Debentures or the Securities, except that the Property Trustee and the Administrative Trustees shall be responsible for the Securities' authentication. Section 3.14. Duration of Trust. The Trust shall exist until terminated pursuant to the provisions of Article 8 hereof. Section 3.15. Mergers. (a) The Trust may not consolidate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any person, except as described in Section 3.15(b) and (c) or Section 8.2. (b) The Trust may, at the request of the Sponsor and with the consent of the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees and without the consent of the Holders of the Securities, the Delaware Trustee or the Property Trustee, consolidate, merge with or into, or be replaced by or convey, transfer or lease its properties substantially as an entirety to a trust organized as such under the laws of any State; provided, that: (i) if the Trust is not the successor, such successor entity (the "Successor Entity") either: a. expressly assumes all of the obligations of the Trust with respect to the Securities; or b. substitutes for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Preferred Securities rank in priority with respect to Distributions and payments upon liquidation, redemption and otherwise; (ii) if the Trust is not the successor Entity, the Sponsor expressly appoints a trustee of such Successor Entity that possesses the same powers and duties as the Property Trustee as the holder of the Debentures; (iii) the Preferred Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or with any other or organization on which the Preferred Securities are then listed or quoted; (iv) such merger, consolidation, replacement, conveyance, transfer or lease does not cause the Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization; (v) such merger, consolidation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect other than with respect to the dilution of the Holders' interest in the new entity; (vi) such Successor Entity has a purpose identical to that of the Trust; (vii) prior to such merger, consolidation, replacement, conveyance, transfer or lease the Sponsor has received an opinion of independent counsel to the Trust experienced in such matters to the effect that: a. such merger, consolidation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect (including any Successor Securities) other than with respect to the dilution of the Holders' interest in the new entity; b. following such merger, consolidation, replacement, conveyance, transfer or lease, neither the Trust nor the Successor Entity will be required to register as an Investment Company; and c. following such merger, consolidation or replacement, the Trust (or the Successor Entity) will continue to be classified as a grantor trust for United States federal income tax purposes; (viii) the Sponsor or any permitted successor or assignee owns all of the common securities and guarantees the obligations of such Successor Entity under the Successor Securities at least to the extent provided by the Guarantee; and (ix) such Successor Entity expressly assumes all of the obligations of the Trust with respect to the Trustees. (c) Notwithstanding Section 3.15(b), the Trust shall not, except with the consent of Holders of 100% in aggregate liquidation amount of the Securities, consolidate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to, any other entity or permit any other entity to consolidate, merge with or into, or replace it, if such consolidation, merger, replacement, conveyance, transfer or lease would cause the Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes and each Holder of the Securities not to be treated as owning an undivided interest in the Debentures. Section 3.16. Property Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Trust or any other obligor upon the Securities or the property of the Trust or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Property Trustee shall have made any demand on the Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee. Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or compensation affecting the Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding. ARTICLE 4 SPONSOR Section 4.1. Responsibilities of the Sponsor. In connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: (a) to prepare, execute and file on behalf of by the Trust an application to the New York Stock Exchange or any other national stock exchange or the NASDAQ Stock Market for listing upon notice of issuance of any Preferred Securities, the Guarantee and the Debentures; (b) to prepare, execute and file on behalf of by the Trust with the Commission under the Securities Act or the Exchange Act one or more registration statements on the applicable forms, including any amendments thereto, pertaining to the Preferred Securities, the Guarantee and the Debentures; (c) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and to do any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; and (d) to negotiate the terms of and to execute on behalf of the Trust an underwriting agreement and other related agreements providing for the sale of the Preferred Securities. Section 4.2. Compensation and Indemnification. Pursuant to the Agreement as to Expenses and Liabilities, the Sponsor shall pay to each of the Property Trustee and the Delaware Trustee from time to time reasonable compensation for their services. Such Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Sponsor shall reimburse each Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. ARTICLE 5 TRUST COMMON SECURITIES HOLDER Section 5.1. Debenture Issuer's Purchase of Common Securities. On the applicable Closing Date, the Debenture Issuer will purchase all of the Common Securities issued by the Trust on such Closing Date, for an amount at least equal to 3% of the capital of the Trust at such time, at the same time as Preferred Securities are sold; provided that, if the Option set forth in Section 7.18(a) is exercised, then the Debenture Issuer will purchase such additional Common Securities from the Trust on such second Closing Date such that it will then hold at least 3% of the capital of the Trust. The aggregate stated liquidation amount of Common Securities outstanding at any time shall not be less than 3% of the capital of the Trust. Section 5.2. Covenants of the Common Securities Holder. For so long as the Preferred Securities remain outstanding, the Common Securities Holder will covenant (i) to maintain, directly or indirectly, 100% ownership of the Common Securities, (ii) to cause the Trust to remain a statutory business trust and not to voluntarily dissolve, wind up, liquidate or be terminated, except as permitted by this Trust Agreement, (iii) to use its commercially reasonable efforts to ensure that the Trust will not be an investment company for purposes of the 1940 Act, and (iv) to take no action which would be reasonably likely to cause the Trust to be classified as an association or a publicly traded partnership taxable as a corporation for United States federal income tax purposes. ARTICLE 6 TRUSTEES Section 6.1. Number of Trustees. The number of Trustees initially shall be seven, and: (a) at any time before the issuance of any Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees; and (b) after the issuance of any Securities, the number of Trustees may be increased or decreased by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities or by written consent in lieu of such meeting; provided that the number of Trustees shall be at least three; and provided, further, that (i) the Delaware Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or that, if not a natural person, is an entity which has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law; (ii) at least one Administrative Trustee is an employee or officer of, or is affiliated with, the Sponsor; and (iii) one Trustee shall be the Property Trustee for so long as this Trust Agreement is required to qualify as an indenture under the TIA, and such Trustee may also serve as Delaware Trustee if it meets the applicable requirements. Section 6.2. Delaware Trustee; Eligibility. If required by the Business Trust Act, one Trustee (which may be the Property Trustee) (the "Delaware Trustee") shall be: (a) a natural person who is a resident of the State of Delaware; or (b) if not a natural person, an entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law; provided that, if the Property Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the Property Trustee shall also be the Delaware Trustee and Section 3.11 shall have no application. Section 6.3. Property Trustee; Eligibility; Disqualification. This Trust Agreement shall always have a Property Trustee who satisfies the requirements of Sections 310(a)(1), (2) and (5) of the TIA. The Property Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Property Trustee shall comply with Section 310(b) of the TIA. Section 6.4. Qualifications of Administrative Trustees and Delaware Trustee Generally. Each Administrative Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more Authorized Officers. Section 6.5. Initial Administrative Trustees. The initial Administrative Trustees shall be: John Wren, Randall Weisenburger, Robert A. Profusek, Dennis E. Hewitt and Barry J. Wagner, the business address of all of whom is c/o Omnicom Group Inc., 437 Madison Avenue, New York, New York 10022. Section 6.6. Replacement of Trustees. (a) Subject to Section 6.6(b), Trustees may be appointed or removed without cause at any time: (i) until the issuance of any Securities, by written instrument executed by the Sponsor; (ii) after the issuance of any Securities (but prior to the occurrence of an Indenture Event of Default), by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities; and (iii) after the issuance of the Preferred Securities and the occurrence of an Indenture Event of Default, by vote of the Holders of a Majority in Liquidation Amount of the Preferred Securities; provided, however, that the Administrative Trustees may still be appointed or removed without cause in such circumstance, by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities. (b) A Trustee may resign with respect to the Securities by so notifying the Sponsor and the Trust. A resignation or removal of the Property Trustee or Delaware Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section or, in the case of the resignation of the Property Trustee, if the assets of the Trust have been completely liquidated and the proceeds distributed to the Holders of the Securities. The resignation of an Administrative Trustee is effective upon delivery of notice to the Sponsor and the Trust. (c) The Holders of the Common Securities may remove the Property Trustee or Delaware Trustee if: (i) the Trustee fails to comply with Section 6.3, in the case of the Property Trustee, or Section 6.2 in the case of the Delaware Trustee; (ii) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; (iii) a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) takes charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting. (d) If a Trustee resigns or is removed or if a vacancy exists in the office of a Trustee for any reason, the Holders of the Common Stock shall promptly appoint a successor Trustee. (e) If a successor Property Trustee or Delaware Trustee does not take office within 60 days after the retiring Property Trustee or Delaware Trustee, as the case may be, resigns or is removed, the retiring Trustee, the Sponsor or the Holders of at least 10% in Liquidation Amount of the Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) If the Property Trustee fails to comply with Section 6.3, any Holder of Securities may petition any court of competent jurisdiction for the removal of the Property Trustee and the appointment of a successor Property Trustee. (g) A successor Property Trustee shall deliver a written acceptance of its appointment to the retiring Property Trustee and to the Trust and Sponsor. Immediately after that, the retiring Property Trustee shall transfer all property held by it as Property Trustee to the successor Property Trustee, the resignation or removal of the retiring Property Trustee shall become effective, and the successor Property Trustee shall have all the rights, powers and duties of the Property Trustee. A successor Property Trustee shall mail a notice of its succession to each Holder. Notwithstanding replacement of the Property Trustee pursuant to this Section 6.6, the Sponsor's obligations under Section 4.2 hereof shall continue for the benefit of the retiring Property Trustee with respect to expenses and liabilities incurred by it prior to such replacement. (h) A successor Delaware Trustee shall deliver a written acceptance of its appointment to the retiring Delaware Trustee and to the Trust and Sponsor. Immediately after that, the resignation or removal of the retiring Delaware Trustee shall become effective, and the successor Delaware Trustee shall have all the rights, powers and duties of the Delaware Trustee. A successor Delaware Trustee shall mail a notice of its succession to each Holder. Section 6.7. Vacancies among Trustees. If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is increased pursuant to Section 6.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 6.6. Section 6.8. Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of an Administrative Trustee in accordance with Section 6.6, the Administrative Trustees in office, regardless of their number, shall have all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the Administrative Trustees by this Trust Agreement. Section 6.9. Meetings. If there is more than one Administrative Trustee, meetings of the Administrative Trustees may be held from time to time upon the call of any Administrative Trustee. Regular meetings of the Administrative Trustees may be held at a time and place fixed by resolution of the Administrative Trustees. Notice of any in-person meetings of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile) not less than 48 hours before such meeting. Notice of any telephonic meetings of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of an Administrative Trustee at a meeting shall constitute a waiver of notice of such meeting except where an Administrative Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this Trust Agreement, any action of the Administrative Trustees may be taken at a meeting by vote of a majority of the Administrative Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter; provided that a Quorum is present, or without a meeting by the unanimous written consent of the Administrative Trustees. In the event there is only one Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such Administrative Trustee. Section 6.10. Delegation of Power. (a) Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any natural person over the age of 21 his, her or its power for the purpose of executing any documents contemplated in Section 3.6, including any registration statement or amendment thereto filed with the Commission, or making any other governmental filing. (b) The Administrative Trustees shall have power to delegate from time to time to such of their number or to officers of the Trust the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust, as set forth herein. Section 6.11. Successor Trustee by Merger, Etc. If a Property Trustee or Delaware Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Property Trustee or Delaware Trustee; provided the successor corporation complies with the TIA provisions of Section 6.3 or Section 6.4, respectively. ARTICLE 7 TERMS OF SECURITIES Section 7.1. General Provisions Regarding Securities. (a) The Administrative Trustees shall on behalf of the Trust issue one class of preferred securities representing undivided beneficial ownership interests in the assets of the Trust and one class of common securities representing undivided beneficial ownership interests in the assets of the Trust. (i) Preferred Securities. The Preferred Securities of the Trust have an aggregate liquidation amount with respect to the assets of the Trust of _______________ dollars ($_________) with respect to the initial closing of the sale of Preferred Securities [and, if the Option set forth in Section 7.18(a) is exercised, an additional aggregate liquidation amount with respect to the assets of the Trust of __________ dollars ($__________) with respect to the second closing of the sale of Preferred Securities; provided that the maximum aggregate liquidation amount of Preferred Securities of the Trust shall not exceed ____________ dollars ($_________).] The Preferred Securities are hereby designated for identification purposes only as "_____% Preferred Securities" (the "Preferred Securities"). The Preferred Securities shall be in substantially the form set forth in Exhibit A to this Trust Agreement, or in such other form as shall be established by the Administrative Trustees, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Trust Agreement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistent herewith, be determined by the Administrative Trustees executing such Preferred Securities, as evidenced by their execution of the Preferred Securities. The definitive Preferred Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Administrative Trustees executing such Preferred Securities, as evidenced by their execution of such Preferred Securities. (ii) Common Securities. The Common Securities of the Trust shall have an aggregate liquidation amount with respect to the assets of the Trust of ____________ dollars ($_______________) with respect to the initial closing of the sale of Common Securities [and, if the Option set forth in Section 7.18(a) is exercised, an additional aggregate liquidation amount with respect to the assets of the Trust of __________ dollars ($__________)] with respect to the second closing of the sale of Common Securities; provided that the maximum aggregate liquidation amount of common securities issued by the Trust shall not exceed __________ dollars ($___________). The Common Securities are hereby designated for identification purposes only as "____% Common Securities" (the "Common Securities" and, together with the Preferred Securities, the "Securities"). The Common Securities shall be in substantially the form set forth in Exhibit B to this Trust Agreement, or in such other form as shall be established by the Administrative Trustees, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Trust Agreement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistent herewith, be determined by the Administrative Trustees executing such Common Securities, as evidenced by their execution of the Common Securities. The definitive Common Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Administrative Trustees executing such Common Securities, as evidenced by their execution of such Common Securities. (b) Payment of Distributions on, and payment of the Redemption Price upon a redemption of, the Preferred Securities and the Common Securities, as applicable, shall be made Pro Rata based on the liquidation amount of such Preferred Securities and Common Securities; provided, however, that if on any date on which amounts payable on distribution or redemption, an Indenture Event of Default shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of, any of the Common Securities, and no other payment on account of the redemption, liquidation or other acquisition of such Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions on all of the outstanding Preferred Securities for all Distribution periods terminating on or prior thereto, or, in the case of amounts payable on redemption, the full amount of the Redemption Price for all of the outstanding Preferred Securities then called for redemption, shall have been made or provided for, and all funds available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions on, or the Redemption Price of, the Preferred Securities then due and payable. The Trust shall issue no securities or other interests in the assets of the Trust other than the Preferred Securities and the Common Securities. (c) An Administrative Trustee shall sign the Securities for the Trust by manual or facsimile signature. If an Administrative Trustee whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid. A Security shall not be valid until authenticated by the manual signature of the Property Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Trust Agreement. The Property Trustee shall at any time, and from time to time, authenticate Securities for original issue in an amount not to exceed the liquidation amounts set forth in Section 7.1(a), upon receipt by the Property Trustee of a written order of the Trust signed by an Administrative Trustee (a "Trust Order"). Such Trust Order may authorize authentication and delivery pursuant to oral or electronic instructions from an Administrative Trustee, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Trust Order. The aggregate number of Securities outstanding at any time may not exceed the liquidation amounts set forth in Section 7.1(a), except as provided in Section 7.10. The Property Trustee shall have the right to decline to authenticate and deliver any Securities: (a) if the Property Trustee, being advised by counsel, determines that such action may not lawfully be taken; or (b) if the Property Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall determine that such action would expose the Property Trustee to personal liability to Holders of any Securities. The Property Trustee may appoint an authenticating agent acceptable to the Trust to authenticate Securities. An authenticating agent may authenticate Securities whenever the Property Trustee may do so. Each reference in this Trust Agreement to authentication by the Property Trustee includes authentication by such agent. An authenticating agent has the same rights as any registrar, paying agent or service agent to deal with the Trust. (d) The consideration received by the Trust for the issuance of the Securities shall constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust. (e) Except to the extent set forth in Section 9.1(b), upon issuance of the Securities as provided in this Trust Agreement, the Securities so issued shall be deemed to be validly issued, fully paid and non-assessable undivided beneficial ownership interests in the assets of the Trust. (f) Every person, by virtue of having become a Holder or a Preferred Security Beneficial Owner in accordance with the terms of this Trust Agreement, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Trust Agreement and the terms of the Securities, the Guarantee, the Indenture and the Debentures. (g) The holders of the Securities shall have no preemptive or similar rights. Section 7.2. Distributions. (a) Holders of Securities shall be entitled to receive cumulative cash Distributions at the rate per annum of __% of the stated liquidation amount of $__ per Security. The amount of Distributions payable for any period shall be computed on the basis of a 360-day year of twelve 30-day months. The amount of distributions payable for any period shorter than a full [quarterly] [semi-annual] distribution period shall be computed on the basis of a 30-day month and for periods of less than a month, the actual number of days elapsed per 30-day month. Subject to Section 7.1(b), Distributions shall be made on the Preferred Securities and the Common Securities on a Pro Rata basis. Distributions on the Securities shall, from the date of original issue, accrue and be cumulative and shall be payable [quarterly][semi-annually], in arrears, on each __________ [, __________, _________] and _________, commencing_________ __, ____, when, as and if available for payment, by the Property Trustee, except as otherwise described below. Distributions are payable only to the extent that payments are made in respect of the Debentures held by the Property Trustee and to the extent that the Trust has funds available for the payment of such Distributions in the Property Account. (b) Distributions not paid on the scheduled payment date will accumulate and compound [quarterly][semi-annually] at the rate of __% per annum ("Compounded Distributions"). "Distributions" shall mean ordinary cumulative distributions together with any Compounded Distributions. (c) If and to the extent that the Debenture Issuer makes a payment of interest, premium and/or principal on the Debentures held by the Property Trustee (the amount of any such payment being a "Payment Amount"), the Property Trustee shall and is directed, to the extent funds are available for that purpose, to make a Pro Rata distribution of the Payment Amount to Holders, subject to Section 7.1(b). (d) Distributions on the Securities shall be payable to the Holders thereof as they appear on the register of the Trust as of the close of business on the relevant record dates. While the Preferred Securities are represented by one or more Global Securities, the relevant record dates shall be the close of business on the Business Day next preceding such Distribution payment date, unless a different regular record date is established or provided for the corresponding interest payment date on the Debentures. The relevant record dates for the Common Securities shall be the same as for the Preferred Securities. If the Preferred Securities shall not continue to remain represented by one or more Global Securities, the relevant record dates for the Preferred Securities shall be selected by the Administrative Trustees and shall be at least 15 days prior to the relevant payment dates. At all times, the Distribution payment dates shall correspond to the interest payment dates on the Debentures. Distributions payable on any Securities that are not punctually paid on any Distribution payment date, as a result of the Debenture Issuer having failed to make a payment under the Debentures, shall cease to be payable to the person in whose name such Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the person in whose name such Securities are registered on the special record date or other specified date determined with respect to the related interest payment date pursuant to the Indenture. If any date on which Distributions are payable on the Securities is not a Business Day, then payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the next preceding day which is a Business Day, with the same force and effect as if made on such payment date. (e) In the event that there is any money or other property held by or for the Trust that is not accounted for hereunder, such property shall be distributed Pro Rata among the Holders of the Securities. Section 7.3. Redemption of Securities. (a) Upon the repayment or redemption, in whole or in part, of the Debentures held by the Trust, whether at the stated maturity of the Debentures or upon earlier redemption as provided in the Debentures and the Indenture, including pursuant to a Special Event, the proceeds from such repayment or redemption shall be simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Debentures so repaid or redeemed at the Redemption Price. Holders shall be given not less than 30 nor more than 60 days notice of such redemption in accordance with Section 7.4. (b) Certificates called for redemption in whole must be surrendered to the Paying Agent in order to receive payment of the Redemption Price. Upon surrender of a Security that is redeemed in part, the Property Trustee shall authenticate for the Holder a new Security equal in liquidation amount to the unredeemed portion of the Security surrendered. Section 7.4. Redemption Procedures. (a) At least 30 days but not more than 60 days before a redemption date, the Trust shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed. The notice shall identify the Securities to be redeemed and shall state: (i) the redemption date; (ii) the redemption price; (iii) the name and address of the Paying Agent; (iv) that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price; (v) that Distributions on Securities called for redemption cease to accrue on and after the redemption date; and (vi) any other information as may be required by the terms of the Securities being redeemed. At the Trust's request, the Property Trustee shall give the notice of redemption in the Trust's name and at its expense. (b) If fewer than all the outstanding Securities are to be so redeemed, the Common Securities and the Preferred Securities will be redeemed Pro Rata (subject to Section 7.1(b)) and will be redeemed as described in Section 7.4(c) below. The Trust may not redeem the Securities in part unless all accumulated and unpaid Distributions to the date of redemption have been paid in full on all Securities then outstanding. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Preferred Securities shall relate, in the case of any Preferred Security redeemed or to be redeemed only in part, to the portion of the aggregate liquidation amount of Preferred Securities which has been or is to be redeemed. (c) Once notice of redemption is mailed as provided in Section 7.4(a), Securities called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued Distributions to the redemption date. (d) On or before the redemption date; provided that the Debenture Issuer has paid the Property Trustee a sufficient amount of immediately available funds in connection with the related redemption of the Debentures, the Property Trustee shall deposit with the Paying Agent money sufficient to pay the redemption price of and accumulated and unpaid Distributions, if any, on all Securities to be redeemed on that date. (e) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), the Sponsor or its subsidiaries may at any time and from time to time purchase outstanding Preferred Securities by tender, in the open market or by private agreement. Section 7.5. Voting Rights of Preferred Securities. (a) Except as provided under Sections 6.6, 11.1 and this Article 7 and as otherwise required by the Business Trust Act, the TIA and other applicable law, the Holders of the Preferred Securities shall have no voting rights. (b) Subject to the requirement of the Property Trustee to obtain a tax opinion in certain circumstances as set forth in Section 7.5(d) below, the Holders of a Majority in Liquidation Amount of the Preferred Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred on the Property Trustee under the Trust Agreement, including the right to direct the Property Trustee, as Holder of the Debentures, to (i) exercise the remedies available to it under the Indenture as a Holder of the Debentures; (ii) consent to any amendment or modification of the Indenture or the Debentures where such consent shall be required or (iii) waive any past default and its consequences that is waivable under Section 7.13 of the Indenture; provided, however, that if an Indenture Event of Default has occurred and is continuing, then the Holders of ___% of the aggregate liquidation amount of the Preferred Securities may direct the Property Trustee to declare the principal of and accrued and unpaid interest, if any, on the Debentures due and payable immediately; provided, further, that where a consent or action under the Indenture would require the consent or act of the Holders of more than a majority of the aggregate principal amount of Debentures affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount of the Preferred Securities which is at least equal to the percentage required under the Indenture may direct the Property Trustee to give such consent to take such action; provided, further, that (subject to the provisions of Section 3.9) the Property Trustee shall have the right to decline to follow any such direction if the Property Trustee shall (x) determine that the direction conflicts with any rule of law, the Trust Agreement or the Indenture; (y) determine that the Property Trustee may take any other action deemed proper by the Property Trustee which is not inconsistent with such direction; and (z) in good faith, by a Responsible Officer of the Property Trustee, determine that the proceeding so directed would involve the Property Trustee in personal liability. (c) If the Property Trustee fails to enforce its rights under the Debentures after a Holder of Preferred Securities has made a written request, such Holder of Preferred Securities may, to the extent permitted by applicable law, institute a legal proceeding directly against the Debenture Issuer to enforce the Property Trustee's rights under the Indenture without first instituting any legal proceeding against the Property Trustee or any other person. In addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to make any interest, principal or other required payments when due under the Indenture, then a Holder of Preferred Securities may directly institute a Direct Action against the Debenture Issuer on or after the respective due date specified in the Debentures. (d) Subject to Section 2.7, the Property Trustee shall notify all Holders of the Preferred Securities of any notice of any Indenture Event of Default received from the Debenture Issuer with respect to the Debentures. Such notices shall state that such Indenture Event of Default also constitutes a Trust Enforcement Event. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not fail to be classified as a grantor trust for United States federal income tax purposes as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Debentures. (e) In the event the consent of the Property Trustee, as the Holder of the Debentures, is required under the Indenture with respect to any amendment or modification of the Indenture, the Property Trustee shall request the direction of the Holders of the Securities with respect to such amendment or modification and shall vote with respect to such amendment or modification as directed by not less than a majority in liquidation amount of the Securities voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the Debentures, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount of the Securities. The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Securities unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not be classified as other than a grantor trust for United States federal income tax purposes as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Debentures. (f) A waiver of an Indenture Event of Default with respect to the Debentures will constitute a waiver of the corresponding Trust Enforcement Event. (g) Any required approval or direction of Holders of Preferred Securities may be given at a separate meeting of Holders of Preferred Securities convened for such purpose, at a meeting of all of the Holders of Securities or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of Preferred Securities are entitled to vote to be mailed to each Holder of record of Preferred Securities. Each such notice will include a statement setting forth (i) the date of such meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote and (iii) instructions for the delivery of proxies. (h) No vote or consent of the Holders of Preferred Securities shall be required for the Trust to redeem and cancel Preferred Securities or distribute Debentures in accordance with this Trust Agreement and the terms of the Securities. (i) Notwithstanding that Holders of Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Securities that are owned at such time by the Debenture Issuer, any Administrative Trustee or any entity directly or indirectly controlled by, or under direct or indirect common control with, the Debenture Issuer or any Administrative Trustee, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Securities were not outstanding; provided, however, that persons otherwise eligible to vote to whom the Debenture Issuer or any of its subsidiaries have pledged Preferred Securities may vote or consent with respect to such pledged Preferred Securities under any of the circumstances described herein. (j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred Securities shall have no rights to appoint or remove the Trustees, who may be appointed, removed or replaced solely by the Common Securities Holders. (k) Subject to the rights of the Holders of a Majority in Liquidation Amount of the Common Securities to appoint or remove Administrative Trustees as provided in Section 6.6(a)(iii), if an Indenture Event of Default has occurred and is continuing, the Trustees may be removed at such time only by a Majority in Liquidation Amount of the Preferred Securities. Section 7.6. Voting Rights of Common Securities. (a) Except as provided under Section 6.1(b), this Section 7.6 or Section 11.1 or as otherwise required by the Business Trust Act, the TIA or other applicable law, the Holders of the Common Securities will have no voting rights. (b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common Securities shall be entitled, in accordance with Article 6 of this Trust Agreement, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees. (c) Subject to Section 2.6 and only after all Trust Enforcement Events with respect to the Preferred Securities have been cured, waived, or otherwise eliminated and subject to the requirement of the Property Trustee to obtain a tax opinion in certain circumstances as set forth in this paragraph (c), the Holders of a Majority in Liquidation Amount of the Common Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred on the Property Trustee under this Trust Agreement, including the right to direct the Property Trustee, as Holder of the Debentures, to (i) exercise the remedies available to it under the Indenture as a Holder of the Debentures, (ii) consent to any amendment or modification of the Indenture or the Debentures where such consent shall be required or (iii) waive any past default and its consequences that is waivable under Section 7.13 of the Indenture; provided, however, that where a consent or action under the Indenture would require the consent or act of the Holders of more than a majority of the aggregate principal amount of Debentures affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount of the Common Securities which is at least equal to the percentage required under the Indenture may direct the Property Trustee to have such consent or take such action; provided, further, that (subject to the provisions of Section 3.9) the Property Trustee shall have the right to decline to follow any such direction if the Property Trustee shall (x) determine that the direction conflicts with any rule of law, the Trust Agreement or the Indenture; (y) determine that the Property Trustee may take any other action deemed proper by the Property Trustee which is not inconsistent with such direction; and (z) in good faith, by a Responsible Officer of the Property Trustee, determine that the proceeding so directed would involve the Property Trustee in personal liability. Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 7.6(c)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not fail to be classified as a grantor trust for United States federal income tax purposes as a result of such action, and each Holder will be treated as owning an undivided beneficial ownership interest in the Debentures. (d) If the Property Trustee fails to enforce its rights under the Debentures after a Holder of Common Securities has made a written request, such Holder of Common Securities may, to the extent permitted by applicable law, directly institute a legal proceeding directly against the Debenture Issuer to enforce the Property Trustee's rights under the Debentures without first instituting any legal proceeding against the Property Trustee or any other person. (e) A waiver of an Indenture Event of Default with respect to the Debentures will constitute a waiver of the corresponding Trust Enforcement Event. (f) Any required approval or direction of Holders of Common Securities maybe given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of Securities or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to vote to be mailed to each Holder of record of Common Securities. Each such notice will include a statement setting forth (i) the date of such meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote and (iii) instructions for the delivery of proxies. (g) No vote or consent of the Holders of the Common Securities will be required for the Trust to redeem and cancel Common Securities or to distribute Debentures in accordance with the Trust Agreement and the terms of the Securities. Section 7.7. Registrar and Paying Agent. The Trust shall cause a Paying Agent to maintain an office or agency where the Securities may be presented or surrendered for payment, maintain an office or agency where Securities may be surrendered for registration of transfer or exchange ("Registrar") and where notices and demands to or upon the Trust in respect of the Securities and this Trust Agreement may be served ("Service Agent"). The Registrar shall keep a register with respect to the Securities and to their transfer and exchange. The Trust will give prompt written notice to the Property Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Trust shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Property Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Property Trustee, and the Trust hereby appoints the Property Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Trust may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Trust of its obligations to maintain a Registrar, Paying Agent and Service Agent for such purposes. The Trust will give prompt written notice to the Property Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term "Registrar" includes any co-registrar; the term "Paying Agent" includes any additional paying agent; and the term "Service Agent" includes any additional service agent. The Trust hereby appoints the Property Trustee the initial Registrar, Paying Agent and Service Agent for the Securities. Section 7.8. Listing. The Sponsor shall use its best efforts to cause the Preferred Securities to be listed for quotation on the New York Stock Exchange. Section 7.9. Transfer and Exchange of Securities. (a) Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Trust Agreement and in the terms of the Securities. To the fullest extent permitted by law, any transfer or purported transfer of any Security not made in accordance with this Trust Agreement shall be null and void. (b) (i) Subject to this Article 7, Preferred Securities shall be freely transferable. (ii) Holders of the Common Securities may not transfer the Common Securities except (A) in compliance with a consolidation, merger, sale, conveyance or lease of the Sponsor in compliance with Article VI of the Indenture or (B) to the Sponsor or an Affiliate thereof in compliance with applicable law, including the Securities Act and applicable state securities and blue sky laws. To the fullest extent permitted by law, any attempted transfer of the Common Securities other than as set forth in the immediately preceding sentence shall be null and void. (c) Where Securities are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal liquidation amount of Securities, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Property Trustee shall authenticate Securities at the Registrar's request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Trust may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Section 7.4). Neither the Trust nor the Registrar shall be required (i) to issue, register the transfer of, or exchange Securities for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange Securities selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part. Section 7.10. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Property Trustee, the Administrative Trustees shall execute and the Property Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and liquidation amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Administrative Trustees and the Property Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Administrative Trustees or the Property Trustee that such Security has been acquired by a bona fide purchaser, the Administrative Trustees shall execute and upon its request the Property Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and liquidation amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Trust in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Trust may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Property Trustee) connected therewith. Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Trust, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Trust Agreement equally and proportionately with any and all other Securities duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. Section 7.11. Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 7.10, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser. If the Paying Agent (other than the Sponsor, a subsidiary or an Affiliate of any thereof) holds on a redemption date of Securities money sufficient to pay such Securities payable on that date, then on and after that date such Securities cease to be outstanding and Distributions on them ceases to accrue. A Security does not cease to be outstanding because the Sponsor or an Affiliate holds the Security. Section 7.12. Treasury Securities. In determining whether the Holders of the required liquidation amount of Preferred Securities have concurred in any request, demand, authorization, direction, notice, consent or waiver, Preferred Securities owned by the Sponsor or an Affiliate shall be disregarded, except that for the purposes of determining whether the Property Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Preferred Securities that the Property Trustee knows are so owned shall be so disregarded. Section 7.13. Temporary Securities. Until definitive Securities are ready for delivery, the Administrative Trustees may prepare and the Property Trustee shall authenticate temporary Securities upon a Trust Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Administrative Trustees considers appropriate for temporary Securities. Without unreasonable delay, the Administrative Trustees shall prepare and the Property Trustee upon request shall authenticate definitive Securities in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Trust Agreement as the definitive Securities. Section 7.14. Cancellation. The Trust at any time may deliver Securities to the Property Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Property Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Property Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange Act) and deliver a certificate of such destruction to the Trust, unless the Trust otherwise directs. The Trust may not issue new Securities to replace Securities that it has paid or delivered to the Property Trustee for cancellation. Section 7.15. Deemed Security Holders. The Trustees may treat the person in whose name any Certificate shall be registered on the register of the Trust as the sole Holder of such Certificate and of the Securities represented by such Certificate for purposes of receiving Distributions subject to Section 7.2(d) and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Certificate or in the Securities represented by such Certificate on the part of any Person, whether or not the Trust shall have actual or other notice thereof. Section 7.16. Global Securities. Section 7.16.1 Terms of Securities. A Trust Order shall establish whether the Preferred Securities shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities. Section 7.16.2 Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 7.9 and in addition thereto, any Global Security shall be exchangeable pursuant to Section 7.9 for Preferred Securities registered in the names of Holders other than the Depositary for such Preferred Security or its nominee only if (i) such Depositary notifies the Trust that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Trust fails to appoint a successor Depositary within 90 days of such event, (ii) the Trust executes and delivers to the Property Trustee an Officers' Certificate to the effect that such Global Security shall be so exchangeable or (iii) a Trust Enforcement Event with respect to the Preferred Securities represented by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Preferred Securities registered in such names as the Depositary shall direct in writing in an aggregate liquidation amount equal to the liquidation amount of the Global Security with like tenor and terms. Except as provided in this Section 7.16.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary. Section 7.16.3 Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form: "This Security is a Global Security within the meaning of the Trust Agreement hereinafter referred to and is registered in the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for Preferred Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Trust Agreement, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary." Unless this Preferred Security Certificate is presented by an authorized representative of the Depositary to Omnicom Capital Trust __ or its agent for registration of transfer, exchange or payment, and any Preferred Security Certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner hereof, Cede & Co., has an interest herein." Section 7.16.4 Cancellation; Issuance of Registered Securities. At such time as all interests in Global Securities have been redeemed, repurchased or cancelled, such Global Securities shall be, upon receipt thereof, cancelled by the Property Trustee in accordance with standing procedures of the Depositary. At any time prior to such cancellation, if any interest in Global Securities is exchanged for Preferred Securities not represented by a Global Security, redeemed, cancelled or transferred to a transferee who receives Preferred Securities not represented by a Global Security therefor or any Preferred Security not represented by a Global Security is exchanged or transferred for part of Global Securities, the principal amount of such Global Securities shall, in accordance with the standing procedures of the Depositary, be reduced or increased, as the case may be, and an endorsement shall be made on such Global Securities by the Property Trustee to reflect such reduction or increase. The Trust may at any time and in its sole discretion determine that the Preferred Securities issued in the form of one or more Global Securities shall no longer be represented by a Global Security or Preferred Securities. In such event the Trust shall execute, and the Property Trustee, shall authenticate and deliver, Preferred Securities in definitive registered form, in any authorized denominations, in an aggregate liquidation amount equal to the principal amount of the Global Security or Preferred Securities representing such Preferred Securities, in exchange for such Global Security or Preferred Securities. Section 7.16.5 Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Trust Agreement. Section 7.16.6 Payments. Notwithstanding the other provisions of this Trust Agreement, payment of the liquidation amount on any Global Security shall be made to the Holder thereof. Section 7.16.7 Consents, Declaration and Directions. Except as provided in Section 7.16.6, the Trust, the Property Trustee and any Agent shall treat a person as the Holder of such liquidation amount of outstanding Preferred Securities represented by a Global Security as shall be specified in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Trust Agreement. Section 7.17. CUSIP Numbers. The Trust in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Property Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. SECTION 7.18. Over-Allotment Option. (a) The Administrative Trustees, on behalf of the Trust, and the Sponsor may grant to the underwriters or initial purchasers who are underwriting or purchasing, as the case may be, any series of Preferred Securities, an option (the "Option") to purchase an additional liquidation amount of such series of Preferred Securities on the terms and conditions specified in the underwriting agreement or purchase agreement, as the case may be, relating to such Preferred Securities; provided, however, the Option may only be granted if the following conditions are satisfied: (i) the Option, if exercised, may not result in the issue and sale of an aggregate liquidation amount of Preferred Securities greater than that registered by the Sponsor and the Trust on the applicable registration statement or registration statements (including by a registration statement filed under Rule 462(b) under the Securities Act, if any), as the case may be, with the Commission under the Securities Act; (ii) the Option must result, if exercised, in the issuance and sale of Preferred Securities to such underwriters or initial purchasers, as the case may be, and the issuance and sale of Common Securities to the Sponsor on a Pro Rata basis and not in contravention of any other provision of this Agreement or the Business Trust Act, consistent with Section 5.1; and (iii) the Preferred Securities and the Common Securities issued and sold subject to the exercise of the Option, if any, must be of the same series and must bear the same CUSIP numbers as the series of Preferred Securities and the Common Securities, respectively, which were initially issued and sold by the Trust and the Sponsor, respectively. (b) With respect to any issuance of Preferred Securities and Common Securities following the exercise of the Option, (i) the designation the "__% Preferred Securities" and, for all purposes under this Trust Agreement, the defined terms the "Preferred Securities" shall mean both the Preferred Securities issued initially hereunder and any Preferred Securities issued pursuant to the exercise of the Option; and (ii) the designation the "__% Common Securities" and, for all purposes under this Trust Agreement, the defined term the "Common Securities" shall mean both the Common Securities issued initially hereunder and any Common Securities issued pursuant to the requirement of Section 7.18(a)(ii) regarding the additional issuance of Common Securities on a Pro Rata basis if the Option is exercised. (c) If the Option set forth in Section 7.18(a) is exercised on a date other than the initial Closing Date, then the parties to the Trust Agreement shall cause there to occur a second closing for the consummation of the sale of the Preferred Securities and Common Securities under substantially the same conditions that applied to the initial closing of the sale of such securities, including the following: (i) the execution and delivery of a second Preferred Security Certificate, or such additional Preferred Security Certificates, as appropriate, which is, or are, as the case may be, substantially identical in all respects to the Preferred Security Certificate issued initially; and (ii) the execution and delivery of a second Common Security Certificate, or such additional Common Security Certificate, as appropriate, which is, or are, as the case may be, substantially identical in all relevant respects to the Common Security Certificate issued initially. ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST Section 8.1. Dissolution and Termination of Trust. (a) The Trust shall dissolve upon the earliest of: (i) the Bankruptcy Event of the Holder of the Common Securities or the Sponsor; (ii) the filing of a certificate of dissolution or its equivalent with respect to the Sponsor; after obtaining the consent of the Holders of at least a Majority in Liquidation Amount of the Securities to dissolve the Trust; or the revocation of the Sponsor's charter and the expiration of 90 days after the date of revocation without a reinstatement thereof; (iii) the entry of a decree of judicial dissolution of the Sponsor or the Trust; (iv) the time when all of the Securities shall have been called for redemption and the amounts then due shall have been paid to the Holders in accordance with the terms of the Securities; (v) at the Sponsor's election by notice and direction to the Property Trustee to distribute the Debentures to the Holders of the Securities in exchange for all of the Securities; provided that the Sponsor will be required to obtain an opinion of an independent counsel that the distribution of the Debentures will not be taxable to the Holders of the Preferred Securities for United States federal income tax purposes; or (vi) the time when all of the Administrative Trustees and the Sponsor shall have consented to dissolution of the Trust; provided such action is taken before the issuance of any Securities. (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a) and upon completion of the winding up and liquidation of the Trust, the Trustees shall terminate the Trust by filing a certificate of cancellation with the Secretary of State of the State of Delaware. (c) The provisions of Section 4.2 and Article 9 shall survive the termination of the Trust. Section 8.2. Liquidation Distribution Upon Dissolution of the Trust. (a) In the event of any voluntary or involuntary liquidation, dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of the Securities on the date of the Liquidation will be entitled to receive, out of the assets of the Trust available for distribution to Holders of Securities after satisfaction of the Trusts' liabilities to creditors, if any, distributions in cash or other immediately available funds in an amount equal to the aggregate of the stated liquidation amount of $__ per Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"), unless, in connection with such Liquidation, Debentures in an aggregate stated principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the distribution rate of, and accrued and unpaid interest equal to accumulated and unpaid Distributions on, such Securities shall be distributed on a Pro Rata basis to the Holders of the Securities in exchange for such Securities. (b) If, upon any such Liquidation, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a Pro Rata basis. The Holders of the Common Securities will be entitled to receive distributions upon any such Liquidation Pro Rata with the Holders of the Preferred Securities except that if an Indenture Event of Default has occurred and is continuing, the Preferred Securities shall have a preference over the Common Securities with regard to such distributions. ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS Section 9.1. Liability. (a) Except as expressly set forth in this Trust Agreement, the Guarantee and the terms of the Securities, the Sponsor: (i) shall not be personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Securities which shall be made solely from assets of the Trust; and (ii) shall not be required to pay to the Trust or to any Holder of Securities any deficit upon dissolution of the Trust or otherwise. (b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of the Common Securities shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. (c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of the Preferred Securities shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. Section 9.2. Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Trust Agreement or by law, except that, subject to Section 3.11, an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence or willful misconduct with respect to such acts or omissions. (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any person as to matters the Indemnified Person reasonably believes are within such other person's professional or expert competence and who has if selected by such Indemnified Person, been selected by such Indemnified Person with reasonable care on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Securities might properly be paid. Section 9.3. Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Trust Agreement shall not be liable to the Trust or to another Covered Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Property Trustee under the TIA), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between any Covered Person and any Indemnified Person; or (ii) whenever this Trust Agreement or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any Holder of Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Trust Agreement or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. (c) Whenever in this Trust Agreement an Indemnified Person is permitted or required to make a decision: (i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or (ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Trust Agreement or by applicable law. Section 9.4. Indemnification. (a) (i) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Debenture Issuer Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Trust) by reason of the fact that he is or was a Debentures Issuer Indemnified Person against expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Debenture Issuer Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (ii) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Debenture Issuer Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Trust to procure a judgment in its favor by reason of the fact that he is or was a Debentures Issuer Indemnified Person against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Debentures Issuer Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. (iii) Any indemnification under paragraphs (i) and (ii) of this Section 9.4(a) (unless ordered by a court) shall be made by the Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Debentures Issuer Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Holders of the Common Securities of the Trust. (iv) Expenses (including attorneys' fees) incurred by a Debentures Issuer Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Debentures Issuer Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Debenture Issuer as authorized in this Section 9.4(a). Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer if a determination is reasonably and promptly made (i) by the Administrative Trustees by a majority vote of a quorum of disinterested Administrative Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or (iii) the Common Security Holder of the Trust, that, based upon the facts known to the Administrative Trustees, counsel or the Common Security Holder at the time such determination is made, such Debentures Issuer Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Trust, or, with respect to any criminal proceeding, that such Debentures Issuer Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Administrative Trustees, independent legal counsel or Common Security Holder reasonably determine that such person deliberately breached his duty to the Trust or its Common or Preferred Security Holders. (v) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 9.4(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Debenture Issuer or Preferred Security Holders of the Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 9.4(a) shall be deemed to be provided by a contract between the Debenture Issuer and each Debentures Issuer Indemnified Person who serves in such capacity at any time while this Section 9.4(a) is in effect. Any repeal or modification of this Section 9.4(a) shall not affect any rights or obligations then existing. (vi) The Debenture Issuer or the Trust may purchase and maintain insurance on behalf of any person who is or was a Debentures Issuer Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 9.4(a). (vii) For purposes of this Section 9.4(a), references to "the Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 9.4(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued. (viii) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 9.4(a) shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Debentures Issuer Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. The obligation to indemnify as set forth in this Section 9.4(a) shall survive the resignation or removal of the Delaware Trustee or the Property Trustee or the termination of this Trust Agreement. (b) The Debenture Issuer agrees to indemnify the (i) Property Trustee, (ii) the Delaware Trustee and (iii) any officers, directors, employees, shareholders or agents of the Property Trustee or the Delaware Trustee (each of the Persons in (i) through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against or investigating any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall survive the resignation and removal of the Delaware Trustee or the Property Trustee and the dissolution of the Trust and the termination of this Trust Agreement. In addition, the Debenture Issuer has agreed in the Indenture to pay the fees and expenses of the Delaware Trustee and the Property Trustee. Section 9.5. Outside Businesses. Subject to the provisions of Section 6.3, any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the activities of the Trust, and the Trust and the Holders of Securities shall have no rights by virtue of this Trust Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the activities of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE 10 ACCOUNTING Section 10.1. Fiscal Year.The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or such other year as is required by the Code. Section 10.2. Certain Accounting Matters. (a) At all times during the existence of the Trust, the Administrative Trustees shall keep, or cause to be kept, full books of account, records and supporting documents, which shall reflect in reasonable detail, each transaction of the Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied. The Trust shall use the accrual method of accounting for United States federal income tax purposes. The books of account and the records of the Trust shall be examined by and reported upon as of the end of each Fiscal Year of the Trust by a firm of independent certified public accountants selected by the Administrative Trustees. (b) The Administrative Trustees shall cause to be prepared and delivered to each of the Holders of Securities, within 90 days after the end of each Fiscal Year of the Trust, annual financial statements of the Trust, including a balance sheet of the Trust as of the end of such Fiscal Year, and the related statements of income or loss. (c) The Administrative Trustees shall cause to be duly prepared and delivered to each of the Holders of Securities, an annual United States federal income tax information statement, required by the Code, containing such information with regard to the Securities held by each Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Administrative Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Trust. (d) The Administrative Trustees shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Administrative Trustees on behalf of the Trust with any state or local taxing authority. Section 10.3. Banking. The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Trust; provided, however, that all payments of funds in respect of the Debentures held by the Property Trustee shall be made directly to the Property Account and no other funds of the Trust shall be deposited in the Property Account. The sole signatories for such accounts shall be designated by the Administrative Trustees; provided, however, that the Property Trustee shall designate the signatories for the Property Account. Section 10.4. Withholding. The Trust and the Administrative Trustees shall comply with all withholding requirements under United States federal, state and local law. The Trust shall request, and the Holders shall provide to the Trust, such forms or certificates as are necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Administrative Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Trust is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder. In the event of any claimed over withholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual Distributions made, the Trust may reduce subsequent Distributions by the amount of such withholding. ARTICLE 11 AMENDMENTS AND MEETINGS Section 11.1. Amendments. (a) Except as otherwise provided in this Trust Agreement or by any applicable terms of the Securities, this Trust Agreement may only be amended by a written instrument approved and executed by the Sponsor and (i) the Administrative Trustees (or, if there are more than two Administrative Trustees, a majority of the Administrative Trustees), (ii) the Property Trustee; and (iii) the Delaware Trustee if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee. (b) No amendment shall be made, and any such purported amendment shall be void and ineffective: (i) unless, the Property Trustee shall have first received: a. an Officers' Certificate from each of the Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Trust Agreement (including the terms of the Securities) and that all conditions precedent to the execution and delivery of such amendment have been satisfied; and b. an opinion of counsel (who may be counsel to the Sponsor or the Trust) that such amendment is permitted by, and conforms to, the terms of this Trust Agreement (including the terms of the Securities) and that all conditions precedent to the execution and delivery of such amendment have been satisfied; and (ii) to the extent the result of such amendment would be to: a. cause the Trust to be classified other than as a grantor trust for United States federal income tax purposes; b. reduce or otherwise adversely affect the powers of the Property Trustee in contravention of the TIA; or c. cause the Trust to be deemed to be an Investment Company required to be registered under the 1940 Act. (c) If the Trust has issued any Securities that remain outstanding: (i) any amendment that would (a) change the amount or timing of any distribution of the Securities or otherwise adversely affect the amount of any distribution required to be made in respect of the Securities as of a specified date or (b) restrict the right of a Holder of Securities to institute suit for the enforcement of any such payment on or after such date, will entitle the Holders of such Securities, voting together as a single class, to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of each of the Holders of the Securities affected thereby; and (ii) any amendment that would (a) adversely affect the powers, preferences or special rights of the Securities, whether by way of amendment to this Trust Agreement or otherwise or (b) result in the dissolution, winding-up or termination of the Trust other than pursuant to the terms of this Trust Agreement, will entitle the holders of the Securities voting together as a single class to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority in Liquidation Amount of the Securities affected thereby; provided that, if any amendment or proposal referred to in clause (a) above would adversely affect only the Preferred Securities or the Common Securities, then only the affected class will be entitled to vote on such amendment or proposal. (d) This Section 11.1 shall not be amended without the consent of all of the Holders of the Securities. (e) Article 4 shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities. (f) The rights of the Holders of the Common Securities under Article 6 to increase or decrease the number of, and appoint and remove Trustees shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities. (g) Notwithstanding Section 11.1(c), this Trust Agreement may be amended without the consent of the Holders of the Securities, if such amendment does not adversely affect in any material respect the rights of the holders of the Securities, to: (i) cure any ambiguity, defect or inconsistency; (ii) add to the covenants, restrictions or obligations of the Sponsor; (iii) to conform to any change in Rule 3a-5 of the 1940 Act or written change in interpretation or application of Rule 3a-5 of the 1940 Act by any legislative body, court, government agency or regulatory authority; or (iv) to modify, eliminate and add to any provision of this Trust Agreement to ensure that the Trust will be classified as a grantor trust for United States federal income tax purposes at all times that any Securities are outstanding or to ensure that the Trust will not be required to register as an Investment Company under the 1940 Act. (h) Neither the Property Trustee nor the Delaware Trustee shall be required to sign any amendment that affects its rights, duties, obligations or immunities under this Trust Agreement or otherwise. Section 11.2. Meetings of the Holders of Securities; Action by Written Consent. (a) Meetings of the Holders of any class of Securities may be called at any time by the Administrative Trustees (or as provided in the terms of the Securities) to consider and act on any matter on which Holders of such class of Securities are entitled to act under the terms of this Trust Agreement, the terms of the Securities or the rules of any stock exchange on which the Preferred Securities are listed or admitted for trading. The Administrative Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of at least 10% in Liquidation Amount of such class of Securities. Such direction shall be given by delivering to the Administrative Trustees one or more calls in a writing stating that the signing Holders of Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders of Securities calling a meeting shall specify in writing the Certificates held by the Holders of Securities exercising the right to call a meeting and only those Securities specified shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met. (b) Except to the extent otherwise provided in the terms of the Securities, the following provisions shall apply to meetings of Holders of Securities: (i) notice of any such meeting shall be given to all the Holders of Securities having a right to vote thereat at least 7 days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval of the Holders of Securities is permitted or required under this Trust Agreement or the rules of any stock exchange on which the Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Securities. Any action that may be taken at a meeting of the Holders of Securities may be taken without a meeting and without prior notice if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not less than the minimum amount of Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders of Securities having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders of Securities entitled to vote who have not consented in writing. The Administrative Trustees may specify that any written ballot submitted to the Security Holders for the purpose of taking any action without a meeting shall be returned to the Trust within the time specified by the Administrative Trustees; (ii) each Holder of a Security may authorize any person to act for it by proxy on all matters in which a Holder of Securities is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder of Securities executing such proxy. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust were a Delaware corporation and the Holders of the Securities were stockholders of a Delaware corporation; (iii) each meeting of the Holders of the Securities shall be conducted by the Administrative Trustees or by such other person that the Administrative Trustees may designate; and (iv) unless the Business Trust Act, this Trust Agreement, the terms of the Securities, the TIA or the listing rules of any stock exchange on which the Preferred Securities are then listed for trading, otherwise provides, the Administrative Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Securities, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE Section 12.1. Representations and Warranties of the Property Trustee. The Trustee that acts as initial Property Trustee represents and warrants to the Trust and to the Sponsor at the date of this Trust Agreement, and each successor Property Trustee represents and warrants to the Trust and the Sponsor at the time of the successor Property Trustee's acceptance of its appointment as Property Trustee that: (a) the Property Trustee is a banking corporation, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Trust Agreement; (b) the Property Trustee satisfies the requirements set forth in Section 6.3; (c) the execution, delivery and performance by the Property Trustee of this Trust Agreement has been duly authorized by all necessary corporate action on the part of the Property Trustee. This Trust Agreement has been duly executed and delivered by the Property Trustee, and it constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (d) the execution, delivery and performance of this Trust Agreement by the Property Trustee does not conflict with or constitute a breach of the articles of association or incorporation, as the case may be, or the by-laws (or other similar organizational documents) of the Property Trustee; and (e) no consent, approval or authorization of, or registration with or notice to, any State (which term, in the case of the initial Property Trustee, shall mean the State of __________) or federal banking authority having jurisdiction over the trust powers of the Property Trustee is required for the execution, delivery or performance by the Property Trustee of this Trust Agreement. Section 12.2. Representations and Warranties of the Delaware Trustee. The Trustee that acts as initial Delaware Trustee represents and warrants to the Trust and to the Sponsor at the date of this Trust Agreement, and each successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that: (a) the Delaware Trustee satisfies the requirements set forth in Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has the power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Trust Agreement and, if it is not a natural person, is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Trust Agreement. This Trust Agreement under Delaware law constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); and (c) no consent, approval or authorization of, or registration with or notice to, the State of Delaware or federal banking authority is required for the execution, delivery or performance by the Delaware Trustee of this Trust Agreement. ARTICLE 13 MISCELLANEOUS Section 13.1. Notices. Any notice or communication is duly given if in writing and delivered in person or mailed by first-class mail: (a) if to the Trust, in care of the Administrative Trustees: c/o Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 (b) if to the Property Trustee: [Name of Trustee] [Address] -------------------------------- -------------------------------- Attention: ---------------------- (c) if to the Delaware Trustee: Chase Manhattan Bank USA, National Association 1201 Market Street Wilmington, Delaware 19801 Attention: Corporate Trust Administration (d) if to the Holder of the Common Securities: Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 Notice may be given to designate additional or different addresses for subsequent notices or communications. Any notice or communication to a Holder of Preferred Securities shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder of Preferred Securities or any defect in it shall not affect its sufficiency with respect to other Holders of Preferred Securities. If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder of Preferred Securities receives it. If the Trust mails a notice or communication to Holders of Securities, it shall mail a copy to the Property Trustee and each Agent at the same time. Section 13.2. Communication by Holders with Other Holders. Holders of Securities may communicate pursuant to TIA ss. 312(b) with other Holders of Securities with respect to their rights under this Trust Agreement or the Securities. The Trust, the Property Trustee, the Delaware Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c). Section 13.3. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Trust to the Property Trustee to take any action under this Trust Agreement, the Administrative Trustees shall furnish to the Property Trustee: (a) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Trust Agreement relating to the proposed action have been complied with; and (b) an opinion of counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Section 13.4. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Trust Agreement (other than a certificate provided pursuant to TIA ss.314(a)(4)) shall comply with the provisions of TIA ss. 314(e) and shall include: (a) a statement that the person signing such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. Section 13.5. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Holders of Securities. Any Agent may make reasonable rules and set reasonable requirements for its functions. Section 13.6. Legal Holidays. Unless otherwise provided by Officer's Certificate, a "Legal Holiday" is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no Distributions shall accrue for the intervening period. Section 13.7. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Debenture Issuer shall not have any liability for any obligations of the Debenture Issuer under the Securities, the Trust Agreement, the Debentures or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder of Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. Section 13.8. Intention of the Parties. It is the intention of the parties hereto that the Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Trust Agreement shall be interpreted in a manner consistent with such classification. Section 13.9. Counterparts. This Trust Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Section 13.10. Governing Laws. THIS TRUST AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF; PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE JURISDICTION OF ITS INCORPORATION. Section 13.11. Successors. All agreements of the Trust in this Trust Agreement and the Securities shall bind its successor. All agreements of the Trustees in this Trust Agreement shall bind their respective successors. Section 13.12. Severability. In case any provision in this Trust Agreement or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 13.13. Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Trust Agreement have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. [THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY; THE SIGNATURE PAGE FOLLOWS.] IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day and year first above written. OMNICOM GROUP INC., as Sponsor, as Common Securities Holder and as Debenture Issuer By: ------------------------------------------ Name: Title: --------------------------------------------- as Property Trustee By: ------------------------------------------ Name: Title: CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee By: ------------------------------------------ Name: Title: John Wren, as Administrative Trustee --------------------------------------------- Randall Weisenburger, as Administrative Trustee --------------------------------------------- Robert A. Profusek, as Administrative Trustee --------------------------------------------- Dennis E. Hewitt, as Administrative Trustee --------------------------------------------- Barry J. Wagner, as Administrative Trustee --------------------------------------------- EXHIBIT A [IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT THE FOLLOWING: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.] UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE DEBENTURE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. CERTIFICATE NO.___________ NUMBER OF PREFERRED SECURITIES:___________ CUSIP NO._________________ CERTIFICATE EVIDENCING __% PREFERRED SECURITIES OF OMNICOM CAPITAL TRUST [ ] % PREFERRED SECURITIES (LIQUIDATION AMOUNT $__ PER PREFERRED SECURITY) FULLY AND UNCONDITIONALLY GUARANTEED BY OMNICOM GROUP INC. OMNICOM CAPITAL TRUST [ ], a statutory business trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that ________ (the "Holder") is the registered owner of _____ preferred securities of the Trust representing undivided beneficial ownership interests in the assets of the Trust designated the "__% Preferred Security" (liquidation amount $__ per Preferred Security) (the "Preferred Securities"). The Preferred Securities are transferable on the register of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in the Trust Agreement (as defined below). The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Trust Agreement of the Trust, dated as of __________, ____, as the same may be amended from time to time (the "Trust Agreement"), by and among OMNICOM GROUP INC., John Wren, Randall Weisenburger, Robert A. Profusek, Dennis E. Hewitt, and Barry J. Wagner, as Administrative Trustees, _______________, as Property Trustee, Chase Manhattan Bank USA, National Association, as Delaware Trustee and the Holders. Capitalized terms used herein but not defined shall have the meaning given them in the Trust Agreement. The Holder is entitled to the benefits of the Guarantee to the extent described therein. The Sponsor will provide a copy of the Trust Agreement, the Guarantee and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Debentures as indebtedness and the Preferred Securities as evidence of undivided indirect beneficial ownership interests in the Debentures. IN WITNESS WHEREOF, the Trust has executed this certificate this ______ day of , ____. OMNICOM CAPITAL TRUST [ ] By:________________________________ Name: Title: Administrative Trustee This is one of the Preferred Securities referred to in the within-mentioned Trust Agreement. __________________________, as Property Trustee By:________________________ Name: Authorized Officer EXHIBIT B TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SET FORTH IN THE TRUST AGREEMENT REFERRED TO BELOW. CERTIFICATE NO.___________ NUMBER OF COMMON SECURITIES:___________ CUSIP NO._________________ CERTIFICATE EVIDENCING COMMON SECURITIES OF OMNICOM CAPITAL TRUST [ ] % COMMON SECURITIES (LIQUIDATION AMOUNT $__ PER COMMON SECURITY) OMNICOM CAPITAL TRUST [ ], a statutory business trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that OMNICOM GROUP INC. (the "Holder") is the registered owner of common securities of the Trust representing an undivided beneficial ownership interest in the assets of the Trust designated the "_____% Common Securities" (liquidation amount $__ per Common Security) (the "Common Securities"). The Common Securities are not transferable and any attempted transfer thereof shall be void except as permitted by applicable law and by Section 7.9(b)(ii) of the Trust Agreement (as defined below). The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Trust Agreement of the Trust, dated as of ____________ ___, ____ (as the same may be amended from time to time, the "Trust Agreement"), by and among OMNICOM GROUP INC., as Sponsor, John Wren, Randall Weisenburger, Robert A. Profusek, Dennis E. Hewitt and Barry J. Wagner, as Administrative Trustees, and ____________, as Property Trustee, Chase Manhattan Bank USA National Association, as Delaware Trustee and the Holders. The Holder is entitled to the benefits of the Guarantee to the extent described therein. Capitalized terms used herein but not defined shall have the meaning given them in the Trust Agreement. The Sponsor will provide a copy of the Trust Agreement, the Guarantee and the Indenture to the Holder without charge upon written request to the Sponsor at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Debentures as indebtedness and the Common Securities as evidence of an undivided indirect beneficial ownership interest in the Debentures. IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day of ______, ____. OMNICOM CAPITAL TRUST [ ] By:______________________________ Name: Title: Administrative Trustee This is one of the Common Securities referred to in the within-mentioned Trust Agreement. __________________________, as Property Trustee By:_______________________ Name: Authorized Officer EX-4.22 5 0005.txt FORM OF AGREEMENT AS TO EXPENSES AND LIABILITIES AGREEMENT AS TO EXPENSES AND LIABILITIES This AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is made as of ________ __, 200_, between OMNICOM GROUP INC., a New York corporation ("Omnicom"), as Sponsor and OMNICOM CAPITAL TRUST [I / II / III], a Delaware business trust (the "Trust"). WHEREAS, Omnicom, as Sponsor, and Chase Manhattan Bank USA, National Association, a Delaware corporation, as Delaware Trustee, established the Trust pursuant to a Trust Agreement dated as of October 4, 2000 (the "Original Trust Agreement") and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of State of the State of Delaware on October 4, 2000; WHEREAS, the Trust intends to issue and sell its ___% Trust Common Securities (the "Trust Common Securities") to, and purchase Series ___% Junior Subordinated Debt Securities (the "Debt Securities") from, Omnicom, and to issue and sell its ___% Trust Preferred Securities (the "Trust Preferred Securities") with such powers, preferences and special rights and restrictions as are set forth in the Amended and Restated Trust Agreement of the Trust dated as of ________ __, 2000, as the same may be amended from time to time (the "Trust Agreement"); WHEREAS, Omnicom will directly or indirectly own all of the Trust Common Securities of the Trust and will issue the Debt Securities; NOW, THEREFORE, in consideration of the purchase by each holder of the Trust Preferred Securities, which purchase Omnicom hereby agrees shall benefit Omnicom and which purchase Omnicom acknowledges will be made in reliance upon the execution and delivery of this Agreement, Omnicom and the Trust hereby agree as follows: ARTICLE I GUARANTEE BY OMNICOM 1.1 Guarantee by Omnicom. Subject to the terms and conditions hereof, Omnicom hereby irrevocably and unconditionally guarantees to each person or entity to whom the Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the full payment, when and as due, of any and all Obligations (as hereinafter defined) to such Beneficiaries. As used herein, "Obligations" means any indebtedness, expenses or liabilities of the Trust, other than obligations of the Trust to pay to holders of any Trust Preferred Securities the amounts due such holders pursuant to the terms of the Trust Preferred Securities. This Agreement is intended to be for the benefit of, and to be enforceable by, all such Beneficiaries, whether or not such Beneficiaries have received notice hereof. 1.2 Terms of Agreement. This Agreement shall terminate and be of no further force and effect upon the date on which there are no Beneficiaries remaining; provided, however, that this Agreement shall continue to be effective or shall be reinstated, as the case may be, if at any time any holder of Trust Preferred Securities or any Beneficiary must restore payment of any sums paid under the Trust Preferred Securities, under any Obligation, under the Guarantee Agreement dated ________ __, 200_ by the guarantor and ________, as guarantee trustee, or under this Agreement for any reason whatsoever. Except as set forth in this Section 1.2, this Agreement is continuing, irrevocable, unconditional and absolute. 1.3 Waiver of Notice. Omnicom hereby waives notice of acceptance of this Agreement and of any Obligation to which it applies or may apply, and Omnicom hereby waives presentment, demand for payment, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. 1.4 No Impairment. The obligations, covenants, agreements and duties of Omnicom under this Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the extension of time for the payment by the Trust of all or any portion of the Obligations or for the performance of any other obligation under, arising out of, or in connection with, the Obligations; (b) any failure, omission, delay or lack of diligence on the part of the Beneficiaries to enforce, assert or exercise any right, privilege, power or remedy conferred on the Beneficiaries with respect to the Obligations or any action on the part of the Trust granting indulgence or extension of any kind; or (c) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Trust or any of the assets of the Trust. There shall be no obligation of the Beneficiaries to give notice to, or obtain the consent of, Omnicom with respect to the happening of any of the foregoing. 1.5 Enforcement. A Beneficiary may enforce this Agreement directly against Omnicom, and Omnicom waives any right or remedy to require that any action be brought against the Trust or any other person or entity before proceeding against Omnicom. 1.6 Subrogation. Omnicom shall be subrogated to all rights (if any) of the Trust in respect of any amounts paid to the Beneficiaries by Omnicom under this Agreement; provided, however, that Omnicom shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Agreement. ARTICLE II BINDING EFFECT 2.1 Binding Effect. All guarantees and agreements contained in this Agreement shall bind the successors, assigns, receivers, trustees and representatives of Omnicom and shall inure to the benefit of the Beneficiaries. 2.2 Amendment. So long as there remains any Beneficiary, or any Trust Preferred Securities of any series remain outstanding, this Agreement shall not be modified or amended in any manner adverse to such Beneficiary or to the holders of the Trust Preferred Securities. 2.3 Notices. Any notice or communication by Omnicom or the Trust to the other is duly given if in writing and delivered in person or mailed by first-class mail: (a) if to Omnicom to: Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 Attention: _______ Telecopy No.: (b) if to the Trust to: Omnicom Capital Trust [I / II / III] c/o Omnicom Group, Inc. 437 Madison Avenue New York, New York 10022 Attention: _______ Telecopy No.: Omnicom or the Trust by notice to the other may designate additional or different addresses for subsequent notices or communications. 2.4 Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 2.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS THEREOF. IN WITNESS WHEREOF, the parties caused this agreement to be duly executed as of the day and year first above written. OMNICOM GROUP INC., as Sponsor By:______________________________________ Name: Title: OMNICOM CAPITAL TRUST [I / II / III] By:______________________________________ ___________, as Administrative Trustee EX-5.1 6 0006.txt OPINION OF COUNSEL Exhibit 5.1 Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 TEL 212 415-3600 November 15, 2000 Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 Re: Registration Statement on Form S-3 Dear Sirs: This opinion is furnished in connection with the preparation of the Registration Statement on Form S-3 (the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission") by Omnicom Group Inc., a New York corporation (the "Company"), and Omnicom Capital Trust I, Omnicom Capital Trust II and Omnicom Capital Trust III, each a statutory business trust formed under the laws of the State of Delaware (individually, the "Trust" and collectively, the "Trusts"), on October 4, 2000. The Registration Statement relates to the issuance and sale from time to time pursuant to Rule 415 of the General Rules and Regulations promulgated under the Securities Act of 1933, as amended (the "Securities Act") of the following securities with an aggregate initial public offering price of up to $750,000,000: (i) common stock, par value $.15 per share of the Company ("Common Stock"), (ii) one or more series of preferred stock, par value $1.00 per share of the Company ("Preferred Stock"), interests in which may be represented by depositary shares of the Company ("Depositary Shares"), (iii) one or more series of debt securities of the Company ("Debt Securities"), consisting of debentures, notes and/or other unsecured evidences of indebtedness, which may be unsubordinated ("Senior Debt Securities") or subordinated ("Subordinated Debt Securities" and "Junior Subordinated Debt Securities") to certain other obligations of the Company, (iv) warrants to purchase Debt Securities under the Senior Indenture and Subordinated Indenture (as hereinafter defined), Preferred Stock or Common Stock of the Company ("Warrants"), (v) Trust Preferred Securities of the Trusts ("Trust Preferred Securities"), and (vi) guarantees by the Company of the Trust Preferred Securities (individually, "Trust Guarantee," and collectively, "Trust Guarantees," and together with the Common Stock, Preferred Stock, Depositary Shares, Debt Securities and Warrants, "Securities"). The Senior Debt Securities may be issued under a senior indenture in the form incorporated by reference as an exhibit to the Registration Statement, as amended or supplemented from time to time (the "Senior Indenture"), proposed to be entered into between the Company and one or more trustees chosen by the Company and qualified to act as such under the Trust Indenture Act of 1939, as amended ( the "TIA") (any such Omnicom Group Inc. November 15, 2000 Page 2 trustee, the "Senior Indenture Trustee"). The Subordinated Debt Securities may be issued under a subordinated indenture in the form incorporated by reference as an exhibit to the Registration Statement, as amended or supplemented from time to time (the "Subordinated Indenture"), proposed to be entered into between the Company and one or more trustees chosen by the Company and qualified to act as such under the TIA (any such trustee, the "Subordinated Indenture Trustee"). The Junior Subordinated Debt Securities may be issued under a junior subordinated indenture in the form filed as an exhibit to the Registration Statement, as amended or supplemented from time to time (the "Junior Subordinated Indenture"), proposed to be entered into between the Company and one or more trustees chosen by the Company and qualified to act as such under the TIA (any such trustee, the "Junior Subordinated Indenture Trustee," and, together with the Senior Indenture Trustee and the Subordinated Indenture Trustee, the "Trustees"). The Senior Indenture, the Subordinated Indenture and the Junior Subordinated Indenture are sometimes hereinafter referred to individually as the "Indenture" and collectively as the "Indentures." The Trust Preferred Securities will be issued by each Trust pursuant to an amended and restated trust agreement in the form filed as an exhibit to the Registration Statement, as amended or supplemented from time to time (the "Trust Agreement"), proposed to be entered into between the Company, as sponsor, a Property Trustee to be chosen by the Company and qualified to act as such under the TIA, Chase Manhattan Bank, National Association, as Delaware Trustee, and the Administrative Trustees named therein, and each Trust Guarantee will be issued pursuant to a guarantee agreement in the form filed as an exhibit to the Registration Statement, as amended or supplemented from time to time (the "Guarantee Agreement"), proposed to be entered into between the Company and the trustee named therein. This opinion is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. As General Counsel and Secretary of the Company, I have examined (i) the form of Registration Statement relating to the Securities and the Trust Preferred Securities; (ii) the form of Senior Indenture; (iii) the form of Subordinated Indenture; (iv) the form of Junior Subordinated Indenture; (v) the Amended and Restated Trust Agreement; (vi) the Guarantee Agreement; (vii) the Certificate of Incorporation of the Company, as amended and currently in effect (the "Certificate of Incorporation"); (viii) the By-Laws of the Company as currently in effect (the "By-Laws"); and (ix) resolutions adopted by the Board of Directors of the Company (the "Board") relating to the issuance of the Securities (the "Board Resolutions"). I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as I have deemed necessary or appropriate as a basis for the opinions set forth herein. In my capacity as General Counsel and Secretary, I am familiar with the proceedings taken and proposed to be taken by the Company in connection with the Omnicom Group Inc. November 15, 2000 Page 3 authorization and issuance of the Securities. For purposes of this opinion, I have assumed that such proceedings will be timely and properly completed, in accordance with all requirements of applicable federal and New York laws, in the manner presently proposed. In my examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. In making my examination of documents executed by parties other than the Company, I have assumed that such parties had the power, corporate or other, to enter into and perform all their obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. As to any facts material to the opinions expressed herein which were not independently established or verified, I have relied upon oral or written statements and representations of officers and other representatives of the Company and others. I have assumed that (1) the Senior Indenture, the Subordinated Indenture and the Junior Subordinated Indenture each will be duly authorized, executed and delivered by the respective Trustees, and that any Debt Securities that may be issued will be manually signed by duly authorized officers of the applicable Trustee; (2) any Trust Agreement and Guarantee Agreement, respectively, will be duly authorized, executed and delivered by the applicable Trustees; and (3) any Depositary Agreement and any Warrant Agreement (each as hereinafter defined) will be duly authorized, executed and delivered by the Depositary and the Warrant Agent, respectively, and that the Warrants will be duly signed by the Depositary and the Warrant Agent. I am admitted to the Bar in the State of New York, and I do not express any opinion as to the laws of any jurisdiction other than the corporate laws of the State of New York and the laws of the United States of America to the extent referred to specifically herein. The Securities may be issued from time to time on a delayed or continuous basis, but this opinion is limited to the laws, including the rules and regulations thereunder, as in effect on the date hereof. Based upon and subject to the foregoing, I am of the opinion that: 1. With respect to any offering of Common Stock (the "Offered Common Stock"), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments) has become effective; (ii) an appropriate Prospectus Supplement with respect to the Offered Common Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder; (iii) if the Offered Common Stock is to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Common Stock in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been Omnicom Group Inc. November 15, 2000 Page 4 duly authorized, executed and delivered by the Company and the other parties thereto; (iv) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance of the Offered Common Stock and related matters; (v) the terms of the issuance and sale of the Offered Common Stock have been duly established in conformity with the Certificate of Incorporation and the By-Laws so as not to violate any applicable law, the Certificate of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any restriction imposed by any court or governmental body having jurisdiction over the Company; and (vi) certificates representing the shares of the Offered Common Stock have been duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor and have been duly issued and sold in accordance with the underwriting agreement with respect to the Offered Common Stock or any other duly authorized, executed and delivered, applicable, valid and binding purchase agreement, or as otherwise contemplated by the Registration Statement or any post-effective amendment thereto, and any Prospectus Supplement relating thereto, the shares of the Offered Common Stock (including any Offered Common Stock duly issued upon conversion or exchange of any Debt Securities or shares of Preferred Stock convertible or exchangeable into Common Stock or upon exercise of any Warrants exercisable for Common Stock) will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof. 2. With respect to any offering of any series of Preferred Stock (the "Offered Preferred Stock"), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective; (ii) an appropriate Prospectus Supplement with respect to the Offered Preferred Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder; (iii) if the Offered Preferred Stock is to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Preferred Stock in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been duly authorized, executed and delivered by the Company and the other parties thereto; (iv) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the shares of the Offered Preferred Stock and related matters, including the adoption of a Certificate of Amendment to the Certificate of Incorporation in accordance with the applicable provisions of Business Corporation Law of the State of New York (the "Certificate of Amendment"); (v) the Certificate of Amendment has been duly filed with the Secretary of State of the State of New York; (vi) the terms of the Offered Preferred Stock and of its issuance and sale have been duly established in conformity with the Certificate of Incorporation (including the Certificate of Amendment relating to the Offered Preferred Stock) and the By-Laws so as not to violate any applicable law, the Certificate of Incorporation or the By-Laws or result in default under or breach of any agreement or instrument binding upon the Company and so as to comply Omnicom Group Inc. November 15, 2000 Page 5 with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (vii) certificates representing the shares of the Offered Preferred Stock have been duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor and have been duly issued and sold in accordance with the underwriting agreement with respect to the Offered Preferred Stock or any other duly authorized, executed and delivered, applicable, valid and binding purchase agreement, or as otherwise contemplated by the Registration Statement or any post-effective amendment thereto, and any Prospectus Supplement relating thereto, the shares of the Offered Preferred Stock (including any Offered Preferred Stock duly issued upon conversion or exchange of any Debt Securities convertible or exchangeable into Preferred Stock or upon exercise of any Warrants exercisable for Preferred Stock or upon surrender of any Depositary Shares in connection with the withdrawal of Preferred Stock), will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof. 3. With respect to any offering of any series of Depositary Shares (the "Offered Depositary Shares"), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective; (ii) an appropriate Prospectus Supplement with respect to the Offered Depositary Shares has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder; (iii) the depositary agreement relating to the Offered Depositary Shares (the "Depositary Agreement") in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been duly executed and delivered as contemplated by the Board Resolutions or other action by the Board or a duly appointed committee thereof; (iv) if the Offered Depositary Shares are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Depositary Shares in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been duly authorized, executed and delivered by the Company and the other parties thereto; (v) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Depositary Shares and related matters; (vi) the terms of the Offered Depositary Shares and of their issuance and sale have been duly established in conformity with the Depositary Agreement so as not to violate any applicable law, the Certificate of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (vii) the receipts for the Offered Depositary Shares (the "Receipts") have been duly executed, countersigned, registered and delivered in accordance with the Depositary Agreement relating to such Offered Depositary Shares, and the Offered Depositary Shares have been duly issued and sold in accordance with the Depositary Agreement, the underwriting agreement with respect to the Offered Depositary Shares or any other duly authorized, executed and delivered, applicable, valid Omnicom Group Inc. November 15, 2000 Page 6 and binding purchase agreement, or as otherwise contemplated by the Registration Statement or any post-effective amendment thereto, and any Prospectus Supplement relating thereto; and (viii) the Preferred Stock which is represented by the Offered Depositary Shares is duly authorized, validly issued and delivered to the Depositary in accordance with the laws of the State of New York, (1) the Offered Depositary Shares will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and (c) public policy considerations which may limit the rights of parties to obtain further remedies; and (2) when the Receipts evidencing the Offered Depositary Shares are duly issued against the deposit of the Preferred Stock in accordance with the Depositary Agreement, such Receipts will be validly issued and will entitle the holders thereof to the rights specified therein and in the Depositary Agreement. 4. With respect to any offering of any series of Debt Securities (the "Offered Debt Securities"), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective; (ii) an appropriate Prospectus Supplement with respect to the Offered Debt Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder; (iii) if the Offered Debt Securities are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Debt Securities in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been duly authorized, executed and delivered by the Company and the other parties thereto; (iv) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Debt Securities and related matters; (v) the terms of the Offered Debt Securities and of their issuance and sale have been duly established in conformity with the applicable Indenture so as not to violate any applicable law, the Certificate of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (vi) the applicable Indenture has been qualified under the TIA and duly executed and delivered by the Company and the applicable Trustee; and (vii) the Offered Debt Securities have been duly executed and authenticated in accordance with the provisions of the applicable Indenture and delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor and have been duly issued and sold in accordance with the applicable Indenture and the underwriting agreement with respect to the Offered Debt Securities or any other duly authorized, executed and delivered applicable valid and binding purchase agreement, or as otherwise contemplated by the Registration Statement, or any post-effective amendment thereto, and any Prospectus Supplement relating thereto, the Offered Debt Omnicom Group Inc. November 15, 2000 Page 7 Securities (including any Offered Debt Securities, offered under the Senior Indenture and Subordinated Indenture, duly issued upon conversion or exchange of any shares of Preferred Stock convertible or exchangeable into such Debt Securities or upon exercise of any Warrants exercisable for such Debt Securities), will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and (c) public policy considerations which may limit the rights of parties to obtain further remedies. 5. With respect to any offering of any series of Warrants (the "Offered Warrants"), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective; (ii) an appropriate Prospectus Supplement with respect to the Offered Warrants has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder; (iii) the warrant agreement relating to the Offered Warrants (the "Warrant Agreement") in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been duly executed and delivered as contemplated by the Board Resolutions or other action by the Board or a duly appointed committee thereof; (iv) if the Offered Warrants are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Warrants in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been duly authorized, executed and delivered by the Company and the other parties thereto; (v) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Warrants and related matters; (vi) the terms of the Offered Warrants and of their issuance and sale have been duly established in conformity with the Warrant Agreement so as not to violate any applicable law, the Certificate of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (vii) the Offered Warrants have been duly executed, countersigned, registered and delivered and have been duly issued and sold in accordance with the Warrant Agreement, the underwriting agreement with respect to the Offered Warrants or any other duly authorized, executed and delivered, applicable, valid and binding purchase agreement, or as otherwise contemplated by the Registration Statement, or any post-effective amendment thereto, and any Prospectus Supplement relating thereto, the Offered Warrants will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (b) general principles of equity (regardless of whether Omnicom Group Inc. November 15, 2000 Page 8 enforceability is considered in a proceeding at law or in equity), and (c) public policy considerations which may limit the rights of parties to obtain further remedies. 6. With respect to any offering of any Trust Preferred Securities by a Trust (the "Offered Trust Preferred Securities") and any Trust Guarantee by the Company (the "Offered Trust Guarantee"), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective; (ii) an appropriate Prospectus Supplement with respect to the Offered Trust Preferred Securities and the Offered Trust Guarantee has been prepared, delivered and filed in compliance with the Securities Act and the TIA and the applicable rules and regulations thereunder; (iii) the Offered Trust Preferred Securities have been executed, authenticated and delivered in accordance with the terms of the applicable Trust Agreement; (iv) the applicable Trust Agreement has been duly executed and delivered by the Company and the other parties thereto; (v) if the Offered Trust Preferred Securities are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Trust Preferred Securities in the form to be filed as an exhibit to the Registration Statement or any post-effective amendment thereto, or incorporated by reference therein, has been duly authorized, executed and delivered by the Company and the other parties thereto; (vi) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Trust Guarantee and related matters; (vii) the terms of the Offered Trust Guarantee have been duly established in conformity with the applicable Indenture and Guarantee Agreement so as not to violate any applicable law, the Certificate of Incorporation or the By-Laws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (viii) the Offered Trust Preferred Securities have been duly executed and authenticated in accordance with the provisions of the applicable Trust Agreement and delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor and have been duly issued and sold in accordance with the applicable Trust Agreement and the underwriting agreement with respect to the Offered Trust Preferred Securities or any other duly authorized, executed and delivered applicable valid and binding purchase agreement, or as otherwise contemplated by the Registration Statement, or any post-effective amendment thereto, and any Prospectus Supplement relating thereto; and (ix) the Offered Trust Guarantee has been duly executed and authenticated in accordance with the provisions of the applicable Guarantee Agreement, the Offered Trust Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and (c) public policy considerations which may limit the rights of parties to obtain further remedies. Omnicom Group Inc. November 15, 2000 Page 9 I hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. I also consent to the reference to my name as general counsel under the heading "Legal Matters" in the Registration Statement. In giving this consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ Barry J. Wagner EX-5.2 7 0007.txt OPINION OF DELAWARE COUNSEL November 15, 2000 Omnicom Capital Trust I Omnicom Capital Trust II c/o Omnicom Group Inc. 437 Madison Avenue New York, New York 10019 Re: Omnicom Capital Trust I , Omnicom Capital Trust II and Omnicom Capital Trust III Ladies and Gentlemen: We have acted as special Delaware counsel for Omnicom Group Inc., a New York corporation (the "Company"), Omnicom Capital Trust I, a Delaware business trust ("Trust I"), Omnicom Capital Trust II, a Delaware business trust ("Trust II"), and Omnicom Capital Trust III, a Delaware business trust ("Trust III") (Trust I , Trust II and Trust III are hereinafter collectively referred to as the "Trusts" and sometimes hereinafter individually referred to as a "Trust"), in connection with the matters set forth herein. At your request, this opinion is being furnished to you. For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following: (a) The Certificate of Trust of Trust I, dated October 4, 2000, as filed with the Secretary of State on October 4, 2000; (b) The Certificate of Trust of Trust II, dated October 4, 2000, as filed with the Secretary of State on October 4, 2000; Omnicom Capital Trust I Omnicom Capital Trust II Omnicom Capital Trust III November 15, 2000 Page 2 (c) The Certificate of Trust of Trust III, dated October 4, 2000, as filed with the Secretary of State on October 4, 2000; (d) The Trust Agreement of Trust I, dated as of October 4, 2000, between the Company and the trustee of Trust I named therein; (e) The Trust Agreement of Trust II, dated as of October 4, 2000, between the Company and the trustee of Trust II named therein; (f) The Trust Agreement of Trust III, dated as of October 4, 2000, between the Company and the trustee of Trust II named therein; (g) Amendment No.1 to the Registration Statement (the "Registration Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"), relating to the Preferred Securities of the Trusts representing preferred undivided beneficial interests in the assets of the Trusts (each, a "Preferred Security" and collectively, the "Preferred Securities"), to be filed by the Company and the Trusts with the Securities and Exchange Commission on or about November 15, 2000; (f) A form of Amended and Restated Trust Agreement for each of the Trusts, to be entered into between the Company, the trustees of the Trust named therein, and the holders, from time to time, of the undivided beneficial interests in the assets of such Trust (including Exhibits [A, C and D] thereto) (collectively, the "Trust Agreements" and individually, a "Trust Agreement"), attached as an exhibit to the Registration Statement; and (g) A Certificate of Good Standing for each of the Trusts, dated November 15, 2000, obtained from the Secretary of State. Initially capitalized terms used herein and not otherwise defined are used as defined in the Trust Agreements. For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (g) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (g) above) that is referred to in or incorporated by reference into the documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth Omnicom Capital Trust I Omnicom Capital Trust II Omnicom Capital Trust III November 15, 2000 Page 3 therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. For purposes of this opinion, we have assumed (i) that each of the Trust Agreements constitutes the entire agreement among the parties thereto with respect to the subject matter thereof, including with respect to the creation, operation and termination of the applicable Trust, and that the Trust Agreements and the Certificates of Trust are in full force and effect and have not been amended, (ii) except to the extent provided in paragraph 1 below, the due organization or due formation, as the case may be, and valid existence in good standing of each party to the documents examined by us under the laws of the jurisdiction governing its organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) that each of the parties to the documents examined by us has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) the due authorization, execution and delivery by all parties thereto of all documents examined by us, (vi) the receipt by each Person to whom a Preferred Security is to be issued by the Trusts (collectively, the "Preferred Security Holders") of a Preferred Security Certificate for such Preferred Security and the payment for such Preferred Security, in accordance with the Trust Agreements and the Registration Statement, and (vii) that the Preferred Securities are issued and sold to the Preferred Security Holders in accordance with the Trust Agreements and the Registration Statement. We have not participated in the preparation of the Registration Statement and assume no responsibility for its contents. This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder which are currently in effect. Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: Omnicom Capital Trust I Omnicom Capital Trust II Omnicom Capital Trust III November 15, 2000 Page 4 1. Each of the Trusts has been duly created and is validly existing in good standing as a business trust under the Business Trust Act. 2. The Preferred Securities of each Trust will represent valid and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable undivided beneficial interests in the assets of the applicable Trust. 3. The Preferred Security Holders, as beneficial owners of the applicable Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. We note that the Preferred Security Holders may be obligated to make payments as set forth in the Trust Agreements. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. We hereby consent to the use of our name under the heading "Legal Matters" in the Prospectus. In giving the foregoing consents, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Except as stated above, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other person for any purpose. Very truly yours, /s/ Richards, Layton & Finger, P.A. CDK EX-12 8 0008.txt RATIO OF EARNINGS Exhibit 12 Ratio of Earnings to Fixed Charges Omnicom Group, Inc. Ratio of Earnings to Fixed Charges 1995-2000 ($000s)
Years Ended December 31, : ------------------------------------------------------- Nine Months 1995 1996 1997 1998 Ended (A) (A) (A) (A) 1999 September 30, 00 -------- -------- --------- --------- -------- ---------------- Earning as defined: Profit before tax as reported $244,739 $299,312 $390,578 $521,797 $673,708 $658,789 Add: Dividends from affiliates 15,303 18,085 14,901 19,353 10,485 6,006 Interest expense 44,267 35,158 44,783 74,482 84,908 79,007 Interest factor (re: rentals) (B) 57,793 68,544 80,890 103,829 113,861 98,738 -------- -------- -------- -------- -------- -------- Total earnings $362,102 $421,099 $531,152 $719,461 $882,962 $842,540 ======== ======== ======== ======== ======== ======== Fixed charges as defined: Interest expense 44,267 35,158 44,783 74,482 84,908 79,007 Interest factor (re: rentals) (B) 57,793 68,544 80,890 103,829 113,861 98,738 -------- -------- -------- -------- -------- -------- Total fixed charges $102,060 $103,702 $125,673 $178,311 $198,769 $177,745 ======== ======== ======== ======== ======== ======== Ratio of earnings to fixed charges 3.55 4.06 4.23 4.03 4.44 4.74 ======== ======== ======== ======== ======== ========
- -------- (A) All information prior to 1999 has been restated to give effect to the accounting for the acquisition of Abbott Mead Vickers Group Limited in February 1999 under the pooling of interests method of accounting, as discussed in note 6 of the company's 1999 Form 10-K. (B) The interest factor related to rentals reflects the appropriate portion of rental expense representative of an interest factor. EX-23.1 9 0009.txt CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 17, 2000 included in Omnicom Group, Inc.'s Form 10-K for the year ended December 31, 1999 and to all references to our firm included in this registration statement. Arthur Andersen LLP New York, New York November 15, 2000 -----END PRIVACY-ENHANCED MESSAGE-----