-----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, HQar42S/R4xeXhqmj/03TqYj8rnFTlfwn+n/IJejhxbg5No2OJ2mnqIB0COfgTDY UBMOjgPJcIVRuq/wAs1nHg== 0000891092-03-003169.txt : 20031105 0000891092-03-003169.hdr.sgml : 20031105 20031105165053 ACCESSION NUMBER: 0000891092-03-003169 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20031105 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM FINANCE INC CENTRAL INDEX KEY: 0001269046 IRS NUMBER: 133468626 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-108611-01 FILM NUMBER: 03979974 MAIL ADDRESS: STREET 1: 437 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM CAPITAL INC CENTRAL INDEX KEY: 0001269043 IRS NUMBER: 061582649 STATE OF INCORPORATION: CT FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-108611-02 FILM NUMBER: 03979975 MAIL ADDRESS: STREET 1: ONE E WEAVER ST CITY: GREENWICH STATE: CT ZIP: 06831 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICOM GROUP INC CENTRAL INDEX KEY: 0000029989 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING AGENCIES [7311] IRS NUMBER: 131514814 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-108611 FILM NUMBER: 03979973 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 S-3/A 1 e15731s3a.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on November 5, 2003 Registration Statement No. 333-108611 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549-1004 ---------- Amendment No. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- OMNICOM GROUP INC. (Exact Name of Registrant as Specified in its Charter) New York 12-1514814 (State or Other Jurisdiction of (I.R.S. Employer Identification Number) Incorporation or Organization) 437 Madison Avenue New York, NY 10022 (212) 415-3600 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) ---------- For Co-Registrants, please see the "Table of Co-Registrants" on the following page. ---------- BARRY J. WAGNER, ESQ. Secretary and General Counsel Omnicom Group Inc. 437 Madison Avenue New York, New York 10022 (212) 415-3600 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) ---------- Copies To: MEREDITH BERKOWITZ, ESQ. Jones Day 222 East 41st Street New York, New York 10017 (212) 326-3939 Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. 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. o 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 registrations 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. |_| Calculation of Registration Fee
=========================================================================================================================== Proposed maximum Proposed maximum Amount of Amount to be offering price aggregate Registration Title of securities to be registered registered per security(1) offering price(1) Fee - --------------------------------------------------------------------------------------------------------------------------- Zero Coupon Zero Yield Convertible Notes due 2033 $600,000,000 $991.1 $594,660,000 $48,108(2) - --------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.15 per share(3) 5,825,220 -- -- -- - --------------------------------------------------------------------------------------------------------------------------- Guarantee of Zero Coupon Zero Yield Convertible Notes due 2033(4) (4) (4) (4) (4) ===========================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act, based on the average of the bid and asked prices of the notes on the Portal(TM) System on September 2, 2003 of $99.11 per $1,000 aggregate principal amount of the notes. (2) Previously paid to the Commission in connection with the initial filing of this Form S-3. (3) Also being registered are 5,825,220 shares of common stock issuable on conversion or redemption of the notes registered hereby and an indeterminate number of shares of common stock issuable in connection with a stock split, stock dividend, recapitalization or similar events for which no additional registration fee is payable pursuant to Rule 457(i) under the Securities Act. (4) The guarantee registered hereby relates to Omnicom Capital Inc.'s and Omnicom Finance Inc.'s obligations as co-obligor of the $600,000,000 Zero Coupon Zero Yield Convertible Notes due 2033 also being registered hereby. No separate consideration will be received for the guarantee. Pursuant to Rule 457(n), no separate registration fee is required with respect to the guarantee. 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 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. ================================================================================ Table of Co-Registrants IRS Employer Name State of Incorporation Identification Number ----- ---------------------- --------------------- Omnicom Capital Inc. Connecticut 06-1582649 Omnicom Finance Inc. Delaware 13-3468626 PROSPECTUS $600,000,000 OMNICOM GROUP INC. Omnicom Capital Inc. Omnicom Finance Inc. Zero Coupon Zero Yield Convertible Notes due 2033 ---------- Omnicom Group Inc. sold the notes in private transactions on June 10, 2003 and June 20, 2003. On November 5, 2003, pursuant to a supplemental indenture to the indenture under which the notes were issued, each of Omnicom Capital Inc., or Omnicom Capital, and Omnicom Finance Inc., or Omnicom Finance, both wholly-owned finance subsidiaries of Omnicom Group Inc., became a co-obligor on the notes jointly and severally with Omnicom Group Inc. Omnicom Group Inc., Omnicom Capital and Omnicom Finance are collectively referred to as "the issuers" in this prospectus. Selling securityholders may use this prospectus to resell their notes and the shares of common stock issuable on conversion or redemption of notes. On June 15, 2033, the maturity date of the notes, a holder will receive the principal amount at maturity of the notes, which will be $1,000 per note unless that amount is increased on and after June 15, 2023 as described in this prospectus. The notes are also zero-coupon debt securities. However, under some circumstances, contingent cash interest may become payable, as described in this prospectus. The issuers may also elect to voluntarily pay cash interest on the notes at any time, but they are not obligated to do so. Holders may convert each $1,000 initial principal amount at maturity into 9.7087 shares of common stock of Omnicom Group Inc. if the conditions for conversion described in this prospectus are satisfied. These conditions were not met as of the date of this prospectus. The conversion rate may be adjusted under limited circumstances. Omnicom Group Inc.'s common stock currently trades on the New York Stock Exchange under the symbol "OMC." The last reported sale price of Omnicom Group Inc.'s common stock on the New York Stock Exchange was $80.20 per share on November 3, 2003. The notes may not be redeemed before June 15, 2010. On or after June 15, 2010, and before June 15, 2033, the issuers may redeem all or any portion of the notes at any time at the prices described in this prospectus. Holders may require the issuers to purchase all or a portion of their notes on June 15, 2006, 2008, 2010, 2013, 2018, 2023 and on each June 15 annually thereafter through and including June 15, 2032. In addition, holders may require the issuers to purchase all or a portion of their notes if Omnicom Group Inc. undergoes a change in control on or before June 15, 2010. If 90% or more of the notes are repurchased, the issuers may redeem all of the remaining notes. The notes are the joint and several senior unsecured obligations of Omnicom Group Inc., Omnicom Capital and Omnicom Finance and rank equal in right of payment to all of their respective existing and future senior unsecured indebtedness. Omnicom Capital's and Omnicom Finance's obligations in respect of the notes are guaranteed by Omnicom Group Inc. The guarantee is a senior unsecured obligation of Omnicom Group Inc. and ranks equal in right of payment to all existing and future senior unsecured indebtedness of Omnicom Group Inc. For United States federal income tax purposes, the notes constitute contingent payment debt instruments. You should read the discussion of selected United States federal income tax considerations relevant to the notes beginning on page 29. ---------- Investing in the notes involves risks that are described in the "Risk Factors" section beginning on page 7 of this prospectus. ---------- Notes issued in the initial private placements are eligible for trading in the PORTAL System. Notes sold using this prospectus, however, will no longer be eligible for trading in the PORTAL System. The issuers do not intend to list the notes on any other national securities exchange or automated quotation system. ---------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The date of this prospectus is November 5, 2003 TABLE OF CONTENTS Page ---- Summary................................................................. 3 Risk Factors............................................................ 7 Forward-Looking Information............................................. 10 Selected Consolidated Historical Financial Information.................. 11 Ratio of Earnings to Fixed Charges...................................... 12 Use of Proceeds......................................................... 12 Price Range of Common Stock and Dividend History........................ 12 Capitalization.......................................................... 13 Description of the Notes................................................ 14 Description of Omnicom Group Inc.'s Capital Stock....................... 28 Federal Income Tax Considerations....................................... 29 Selling Securityholders................................................. 33 Plan of Distribution.................................................... 35 Legal Matters........................................................... 36 Experts................................................................. 36 Where You Can Find More Information..................................... 37 ---------- This prospectus is part of a registration statement on form S-3 that the issuers filed with the SEC using a shelf registration process. Under this shelf process, the selling securityholders named in this prospectus or any prospectus supplement may, from time to time, sell up to $600,000,000 initial principal amount of notes, including the related guarantee, or the 5,825,220 shares of Omnicom Group Inc.'s common stock issuable upon conversion thereof, directly to purchasers in one or more public offerings, or in any of the other ways described under the heading "Plan of Distribution." This prospectus provides you with a general description of the notes, the guarantee and common stock which the selling securityholders may sell. Each time a selling securityholder offers to sell any of the notes or shares of Omnicom Group Inc.'s common stock, such holder will provide a prospectus supplement that will contain specific information about the terms of that offering, including a description of the risks relating to the offering, to the extent those terms are not described in this prospectus. Prospectus supplements may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any accompanying prospectus supplement, you should rely on the information in the prospectus supplement. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading "Where You Can Find More Information" before investing in the offered securities. The issuers have not, and the selling securityholders have not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. The selling securityholders are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus or any documents incorporated by reference is accurate only as of the date on the front cover of the applicable document. The business, financial condition, results of operations and prospects of each of the issuers may have changed since that date. 2 - -------------------------------------------------------------------------------- SUMMARY The following summary is qualified in its entirety by the more detailed information included elsewhere in or incorporated by reference into this prospectus. Because this is a summary, it may not contain all the information that may be important to you. You should read the entire prospectus, as well as the information incorporated by reference, before making an investment decision. When used in this prospectus, the term "Omnicom Group" refers to Omnicom Group Inc. together with its consolidated subsidiaries, the term "Omnicom Group Inc." refers to only Omnicom Group Inc. and not its subsidiaries, the term "Omnicom Capital" refers only to Omnicom Capital Inc. and the term "issuers" refers collectively to Omnicom Group Inc., Omnicom Capital and Omnicom Finance, in each case, unless otherwise specified, as in the section captioned "Description of the Notes" beginning on page 14, or the context otherwise requires. Omnicom Group Inc. Omnicom Group is one of the largest marketing and corporate communications companies in the world. Marketing and corporate communications services are provided to clients through global, pan-regional and national independent agency brands. Omnicom Group provides services to over 5,000 clients in more than 100 countries. Omnicom Group Inc. is incorporated in New York and is a holding company. Its principal office is located at 437 Madison Avenue, New York, NY 10022, and its telephone number is (212) 415-3600. Omnicom Group Inc.'s common stock is traded on the New York Stock Exchange under the symbol "OMC." For additional information regarding Omnicom Group's business, see the reports on Forms 10-K and 10-Q and other SEC filings made by Omnicom Group Inc., which are incorporated by reference into this prospectus. Copies of these filings may be obtained as described under "Where You Can Find More Information" on page 37. Omnicom Capital Inc. and Omnicom Finance Inc. Omnicom Capital and Omnicom Finance are each a wholly-owned subsidiary of Omnicom Group Inc. Neither Omnicom Capital nor Omnicom Finance has any independent operations or subsidiaries. The sole function of both Omnicom Capital and Omnicom Finance is to provide funding for the operations of Omnicom Group Inc. and its operating subsidiaries by incurring debt and lending the proceeds to the operating subsidiaries. Their respective assets consist of the intercompany loans they make or have made to Omnicom Group Inc.'s operating subsidiaries and the related interest receivables. Omnicom Capital is incorporated in Connecticut. Its principal office is located at One East Weaver Street, Greenwich, CT 06831 and its telephone number is (203) 625-3000. Omnicom Finance is incorporated in Delaware. Its principal office is located at 437 Madison Avenue, New York, New York 10022 and its telephone number is (212) 415-3600. Recent Developments On October 28, 2003 Omnicom Group Inc. held a press conference to discuss its third quarter earnings release and investor presentation, copies of which were furnished to the SEC on a Form 8-K filed on that date. - -------------------------------------------------------------------------------- 3 - -------------------------------------------------------------------------------- The Offering The Issuers................................ Omnicom Group Inc., Omnicom Capital and Omnicom Finance. Securities Offered......................... $600,000,000 aggregate initial principal amount at maturity of Zero Coupon Zero Yield Convertible Notes due June 15, 2033. Maturity of the Notes...................... June 15, 2033. Principal Amount at Maturity of the Notes.. Before June 15, 2023, the principal amount at maturity of a note will be equal to $1,000 per $1,000 amount of notes, which is referred to in this prospectus as the initial principal amount at maturity. On or after June 15, 2023, the principal amount of the notes at maturity may be increased as described in this prospectus. If the principal amount due at maturity is increased, then contingent additional principal, which is the difference between $1,000 and the principal amount at maturity, will accrue from and including June 15, 2023 until maturity. Cash Interest.............................. Cash interest will not be paid on the notes, unless contingent cash interest becomes payable or the issuers elect to do so in their sole discretion. Yield to Maturity of the Notes............. The yield to maturity, calculated on the basis of the initial principal amount at maturity and therefore excluding any contingent cash interest or contingent additional principal that may become payable, will be zero. If contingent cash interest and/or contingent additional principal becomes payable, the yield to maturity may increase. Contingent Cash Interest................... Contingent cash interest will be payable to the holders of notes during any six-month period from June 16 to December 15, and from December 16 to June 15, commencing June 16, 2010, if the average market price of a note meets specified thresholds as described in this prospectus. Contingent cash interest, if any, will accrue from the first day of any interest period and be payable on the last day of the relevant six-month period to holders of the notes as of the applicable record date. For any six-month period, the amount of contingent cash interest payable per note will be equal to the amount set forth in "Description of the Notes--Contingent Cash Interest" on page 19. Tax Original Issue Discount................ For United States federal income tax purposes, the notes constitute contingent payment debt instruments. As a result, the notes are deemed to have been issued with original issue discount for United States federal income tax purposes, referred to as tax original issue discount. You should read the discussion of selected United States federal income tax considerations relevant to the notes beginning on page 29. Conversion Rights.......................... The notes are convertible into common stock of Omnicom Group Inc. if: - -------------------------------------------------------------------------------- 4 - -------------------------------------------------------------------------------- o the average conversion value for the notes, which is calculated based upon the price for Omnicom Group Inc.'s common stock on the relevant date of determination, meets specified thresholds; o the credit rating of the notes is reduced to Ba1 or lower by Moody's Investors Services, Inc. or BBB- or lower by Standard & Poor's Ratings Services; o the notes are called for redemption; or o Omnicom Group Inc. enters into specified corporate transactions. If the conditions for conversion are satisfied, a holder may surrender each $1,000 initial principal amount at maturity of notes for 9.7087 shares of common stock of Omnicom Group Inc. The conversion rate may be adjusted under the limited circumstances described in this prospectus and in the indenture but will not be adjusted for accrued contingent additional principal or contingent cash interest that may become payable. The ability to surrender notes for conversion will expire at the close of business on June 15, 2033. Ranking.................................... The notes are the joint and several senior unsecured obligations of each of the issuers and rank equal in right of payment to all of their respective existing and future senior unsecured indebtedness. The notes are effectively subordinated to all existing and future obligations of Omnicom Group Inc.'s operating subsidiaries, including trade payables and to any and all secured obligations of the issuers, to the extent of the security. As of June 30, 2003, Omnicom Group Inc. had $2,609.0 million of indebtedness outstanding, all of which is unsecured. Of this amount, $2,522.0 million represents direct obligations of the issuers and $87 million represents indebtedness of Omnicom Group Inc.'s operating subsidiaries, $11.0 million of which is guaranteed by Omnicom Group Inc. Guarantee.................................. Omnicom Group Inc. has fully and unconditionally guaranteed Omnicom Capital's and Omnicom Finance's obligations with respect to the notes. The guarantee is the senior unsecured obligation of Omnicom Group Inc. Sinking Fund............................... None. Redemption of Notes at the Option of the Issuers.................. The notes may not be redeemed before June 15, 2010, except as set forth under "Description of the Notes--Purchase of Notes at Option of Holders upon Change in Control of Omnicom Group Inc." on page 22. On or after June 15, 2010, all or any portion of the notes may be redeemed at any time by the issuers at the initial principal - -------------------------------------------------------------------------------- 5 - -------------------------------------------------------------------------------- amount at maturity of the notes plus any contingent additional principal that has accrued at the date of redemption. Purchase of the Notes at the Option of the Holder....................... On June 15, 2006, 2008, 2010, 2013, 2018, 2023 and on each June 15 annually thereafter through June 15, 2032, holders may require the issuers to purchase all or a portion of their notes, with payment on the fourth business day after any such date, at the following prices: (1) June 15, 2006, 2008, 2010, 2013 and 2018 at the initial principal amount at maturity; and (2) June 15, 2023 through and including June 15, 2032 at the initial principal amount at maturity of the notes plus accrued contingent additional principal that has accrued. The issuers may choose to pay the purchase price in cash, shares of common stock of Omnicom Group Inc. or a combination of cash and common stock of Omnicom Group Inc. See "Description of the Notes--Purchase of Notes at the Option of the Holder" on page 20. Change in Control of Omnicom Group Inc. ... If Omnicom Group Inc. undergoes a change in control on or before June 15, 2010, holders may require the issuers to purchase for cash all or a portion of their notes at a price equal to $1,000 per note. In addition, if at least 90% of the notes outstanding immediately prior to the change in control are purchased, the issuers may, within 90 days after the change in control purchase date, at their option, redeem for cash all of the remaining notes at a redemption price equal to $1,000 per note. See "Description of the Notes--Purchase of Notes at Option of Holders upon Change in Control of Omnicom Group Inc." on page 22. DTC Eligibility............................ The notes were issued only in the form of global securities held in book-entry form. The Depository Trust Company, or DTC, or its nominee is the sole registered holder of the notes represented by a global security for all purposes under the indenture. Beneficial interests in any such securities will be shown on, and transfers will be effected only through, records maintained by DTC and its direct and indirect participants and any such interest may not be exchanged for certificated securities, except in limited circumstances. Use of Proceeds............................ The issuers will not receive any proceeds from the sale by any securityholder of the notes or the common stock issuable upon conversion and/or redemption of the notes. Trading.................................... The notes sold in the private placements are eligible for trading in the PORTAL system. The notes resold using this prospectus, however, will no longer be eligible for trading in the PORTAL system. The issuers do not intend to list the notes on another national securities exchange or automated quotation system. Omnicom Group Inc.'s common stock is traded on the New York Stock Exchange under the symbol "OMC." - -------------------------------------------------------------------------------- 6 RISK FACTORS You should carefully consider the following information with the other information contained in or incorporated by reference into this prospectus before purchasing the notes or the common stock of Omnicom Group Inc. issuable upon conversion of the notes. The Lack of Covenants Applicable to the Notes May Not Afford Protection in Some Circumstances The holders of notes may require the issuers to purchase the notes upon the occurrence of certain change-in-control events described under "Description of the Notes--Purchase of Notes at Option of Holders upon Change in Control of Omnicom Group Inc." beginning on page 22. However, Omnicom Group Inc. could, in the future, enter into certain transactions, including certain recapitalizations, that would not constitute a change in control with respect to the change in control purchase feature of the notes but that would increase the amount of Omnicom Group's outstanding indebtedness. This purchase right would also not restrict Omnicom Group from incurring indebtedness or effecting extraordinary dividends. Further, the notes do not afford a holder protection under maintenance or other covenants relating to Omnicom Group Inc.'s consolidated financial position or results of operations. An Active Trading Market for the Notes May Not Develop There is currently no active public market for the notes. The notes will not be listed on any securities exchange or included in any automated quotation system. If the notes are traded, they may trade at a discount, depending on prevailing interest rates, the market for similar securities, the price of Omnicom Group's Inc. common stock, Omnicom Group's performance and other factors. The issuers do not know whether an active trading market will develop for the notes. To the extent that an active trading market does not develop, the price at which you may be able to sell the notes, if at all, may be less than the price you pay for them. In addition, the notes have a number of features, including conditions to conversion, which, if not met, could result in a holder receiving less than the value of the Omnicom Group Inc. common stock into which a note is otherwise convertible. These features could adversely affect the value and the trading prices for the notes. Omnicom Group Inc.'s Holding Company Structure Results in Structural Subordination and May Affect the Issuers' Ability to Make Payments on the Notes The notes are the joint and several obligations exclusively of the issuers. Omnicom Group Inc. is a holding company and, accordingly, substantially all of its operations are conducted through its operating subsidiaries. Omnicom Capital and Omnicom Finance are wholly-owned subsidiaries of Omnicom Group Inc. Their respective assets consist of the intercompany loans they make or have made to Omnicom Group Inc.'s operating subsidiaries and the related interest receivables. As a result, the issuers' cash flow and their ability to make payments on their respective debt, including the notes, are dependent upon the earnings of these operating subsidiaries. Omnicom Group Inc. is dependent on the distribution of earnings, loans or other payments by the operating subsidiaries to it to service its obligations in respect of the notes and its other debt. In addition, as a finance subsidiary, to service debt, each of Omnicom Capital and Omnicom Finance is also dependent on the earnings of the operating subsidiaries, the sale of certain assets of the operating subsidiaries and ability of the operating subsidiaries to repay principal and interest on the intercompany loans. Omnicom Group Inc.'s operating subsidiaries are separate and distinct legal entities. These subsidiaries have no obligation to pay any amounts due on the notes or to provide the issuers with funds for their respective payment obligations, whether by dividends, distributions, repayment or making of loans or other payments. In addition, any payment or repayment of dividends, distributions, loans or advances by these operating subsidiaries to the issuers could be subject to statutory or contractual restrictions. Payments to the issuers by the operating subsidiaries will also be contingent upon the operating subsidiaries' earnings and business considerations. Because of this structure the claims of creditors of Omnicom Group Inc.'s operating subsidiaries will have a priority over the equity rights of Omnicom Group Inc. and the rights of its creditors, including the holders of notes, to participate in the assets of the subsidiary upon the subsidiary's liquidation or reorganization. Although Omnicom Capital's and Omnicom Finance's respective loans to the operating subsidiaries are secured by the assets of those subsidiaries, the rights of Omnicom Capital and Omnicom Finance and their respective creditors, 7 including holders of the notes, to participate in the assets of the operating subsidiaries will depend upon the amount of loans, and security for those loans, on the relevant date of determination. The amount of loans outstanding from Omnicom Capital and Omnicom Finance to these operating subsidiaries, and the value of the collateral securing the loans, may not be sufficient to assure repayment in full to all of Omnicom Capital's or Omnicom Finance's respective creditors. The loans or the security for such loans could also be invalidated in whole or in part in any liquidation or reorganization. You Should Consider the United States Federal Income Tax Consequences of Owning the Notes The notes constitute contingent payment debt instruments and will accrue tax original issue discount. As a result, you will be required to include amounts in gross income, as ordinary interest income in excess of the accruals on the notes for non-tax purposes and in advance of the receipt of the cash, or other property, attributable thereto. The issuers intend to compute and report accruals of the tax original issue discount based upon an overall yield of 4.60% per year, computed on a semi-annual bond equivalent basis, which the issuers have determined represents the yield required to be reported under applicable Treasury regulations. Pursuant to the issuers' determination of the tax original issue discount on the notes, you will recognize gain or loss on the sale, purchase by the issuers at your option, conversion or redemption of a note in an amount equal to the difference between the amount realized on such a transaction, including the fair market value of any common stock of Omnicom Group Inc. received upon conversion or otherwise, and your adjusted tax basis in the note. Any gain so recognized by you generally will be ordinary interest income; any loss will be ordinary loss to the extent of the interest previously included in income and, thereafter, capital loss. Holders should consult their tax advisors regarding the deductibility of any such capital loss. A summary of the federal income tax consequences of ownership of the notes is described in this prospectus under the heading "Federal Income Tax Considerations" beginning on page 29. The Issuers May Not Have the Ability to Raise the Funds Necessary to Finance the Purchase of Notes at the Option of the Holder or Upon Change in Control of Omnicom Group Inc. On June 15, 2006, 2008, 2010, 2013, 2018, 2023 and on each June 15 annually thereafter through and including June 15, 2032 (or if any such day is not a business day, the next succeeding business day), and upon a change in control of Omnicom Group Inc. occurring on or before June 15, 2010, holders of the notes have the right to require the issuers to purchase their notes. The issuers have the right to elect to pay the purchase price in shares of common stock of Omnicom Group Inc. and to designate a financial institution to satisfy, at the issuers' option, their purchase obligation. However, if the issuers fail or are unable to elect to pay in Omnicom Group Inc. common stock or to so designate a financial institution, the issuers may not have sufficient funds at those times to make any required purchase of notes. In addition, corporate events involving fundamental changes to Omnicom Group Inc.'s capital structure, such as leveraged recapitalizations that would increase the level of Omnicom Group's indebtedness, would not necessarily constitute a change in control for these purposes. See "Description of the Notes--Purchase of Notes at the Option of the Holder" on page 20 and "--Purchase of Notes at Option of Holders Upon Change in Control of Omnicom Group Inc." on page 22. The Markets in Which Omnicom Group Participates are Highly Competitive and If Omnicom Group Is Not Able to Compete Effectively Its Business and Financial Results Could Be Adversely Affected Omnicom Group faces the risks normally associated with global services businesses. The operational and financial performance of its businesses is generally tied to overall economic and regional market conditions, competition for client assignments and talented staff, new business wins and losses and the risks associated with extensive international operations. While Omnicom Group has no reason to believe that its international operations as a whole present any material risk to its overall business, there are some risks of doing business, including those of currency fluctuations, political instability and exchange controls, which do not affect domestic-focused firms. The particular business in which Omnicom Group participates are highly competitive. In general, the financial and technological barriers to entry are low, with the key competitive considerations for keeping existing business and winning new business being the quality and effectiveness of the services offered, including 8 Omnicom Group's ability to efficiently serve clients, particularly large international clients, on a broad geographic basis. While many of Omnicom Group's client relationships are long-standing, companies often put their advertising, marketing services and public and corporate communications business up for competitive review from time to time. To the extent that Omnicom Group is not able to remain competitive or to keep key clients, its business and financial results could be adversely affected. Omnicom Group's ability to retain existing clients and to attract new clients may, in some cases, be limited by clients' policies on or perceptions of conflicts of interest arising out of other client relationships. In addition, an important aspect of Omnicom Group's competitiveness is its ability to retain key employee and management personnel. Our continuing ability to attract and retain these employees may have a material effect on its business and financial results. 9 FORWARD-LOOKING INFORMATION Some of the statements in this prospectus and the documents incorporated by reference constitute forward-looking statements. These statements relate to future events or future financial performance and involve known and unknown risks, uncertainties and other factors that may cause Omnicom Group'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 present expectations. Actual events or results may differ materially. Moreover, the issuers do not, nor does any other person, assume responsibility for the accuracy and completeness of those statements. 10 SELECTED CONSOLIDATED HISTORICAL FINANCIAL INFORMATION The following table sets forth selected consolidated financial data for Omnicom Group Inc. and its consolidated subsidiaries and should be read in conjunction with the consolidated financial statements of Omnicom Group Inc. incorporated into this prospectus by reference. The information for the six months ended June 30, 2003 and 2002 was derived from the unaudited financial data included in Omnicom Group Inc.'s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2003 which, in the opinion of management, includes all adjustments, consisting of normal recurring adjustments, which Omnicom Group Inc. considers necessary for a fair presentation, in all material respects, of its financial position and results of operations for these periods. The results for the six months ended June 30, 2003 are not necessarily indicative of the results to be expected for the fiscal year ended December 31, 2003. The information for the years ended December 31, 2002, 2001, 2000, 1999 and 1998 was derived from Omnicom Group Inc.'s audited financial statements. Omnicom Group Inc.'s financial statements for the year ended December 31, 2002 were audited by KPMG LLP, whom Omnicom Group Inc. appointed as its independent auditors as of June 13, 2002. Omnicom Group Inc.'s financial statements for the years ended December 31, 2001, 2000, 1999 and 1998 were audited by our former independent auditors, Arthur Andersen LLP. Arthur Andersen has ceased auditing public companies in the United States.
Six months ended June 30, Year ended December 31, -------------------------- -------------------------------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 ----------- ----------- ----------- ----------- ---------- ---------- ---------- (Dollars in thousands except for per share amounts) For the period: Revenue..................... $ 4,086,753 $ 3,648,995 $ 7,536,299 $ 6,889,406 $6,154,230 $5,130,545 $4,290,946 Operating profit.............. 560,000 559,349 1,104,115 968,184 878,090 724,130 562,207 Income after income taxes 353,013 340,212 697,987 543,257 542,477 400,461 302,705 Net income.................. 319,331 315,881 643,459 503,142 498,795 362,882 278,845 Earnings per common share Basic..................... 1.71 1.70 3.46 2.75 2.85 2.07 1.61 Diluted................... 1.70 1.67 3.44 2.70 2.73 2.01 1.57 Dividends declared per common share................ 0.40 0.40 0.80 0.775 0.70 0.625 0.525 At period end: Cash and short-term investments............... 543,579 454,392 695,881 516,999 576,539 600,949 717,391 Total assets................ $12,589,695 $11,575,553 $11,819,802 $10,617,414 $9,853,707 $9,017,637 $7,121,968 Long-term obligations: Long-term debt............ 184,430 806,063 197,861 490,105 1,015,419 263,149 268,913 Convertible notes......... 2,339,310 1,750,000 1,747,037 850,000 229,968 448,483 448,497 Deferred compensation and other liabilities... 326,895 301,917 293,638 296,980 296,921 300,746 269,966
As discussed in footnote 13 of the notes to Omnicom Group Inc.'s consolidated financial statements for the year ended December 31, 2002, and as required by Statement of Financial Accounting Standards (SFAS) No. 142--"Goodwill and Other Intangibles," beginning with Omnicom Group Inc.'s 2002 results, goodwill and other intangible assets that have indefinite lives are no longer amortized. In the table that follows, Omnicom Group Inc.'s historical results for periods prior to 2002 have been adjusted to eliminate goodwill amortization for all periods, as well as a non-recurring gain on the sale of Razorfish shares in 2000, and the related tax impacts. As a result of these exclusions, this presentation is a non-GAAP financial measure. Omnicom Group Inc. believes that by excluding these items, its financial results are more comparable year to year and thus more meaningful for purposes of this analysis. Omnicom Group Inc.'s consolidated results of operations with these adjustments were as follows:
Six months ended June 30, Year ended December 31, ---------------------- ------------------------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 -------- -------- -------- -------- -------- -------- -------- (Dollars in thousands except for per share amounts) As adjusted: Net income ...................... $319,331 $315,881 $643,459 $503,142 $498,795 $362,882 $278,845 Add-back goodwill amortization net of income taxes............ -- -- -- 83,066 76,518 66,490 54,112 Less: gain on sale of Razorfish shares, net of income taxes -- -- -- -- (63,826) -- -- Net income, excluding goodwill amortization and Razorfish gain........................... $319,331 $315,881 $643,459 $586,208 $511,487 $429,372 $332,957 Earnings per common share, excluding goodwill amortization and Razorfish gain Basic.......................... 1.71 1.70 3.46 3.21 2.93 2.45 1.92 Diluted........................ 1.70 1.67 3.44 3.13 2.80 2.36 1.87
11 RATIO OF EARNINGS TO FIXED CHARGES The following table shows the ratio of earnings to fixed charges for Omnicom Group Inc. and its consolidated subsidiaries for the six months ended June 30, 2003 and 2002 and each of the five most recent fiscal years. Six months ended June 30, Year ended December 31, ----------------- --------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 ------- ------- ------- ------- ------- ------- ------- 5.97x 6.27x 6.45x 4.82x 4.83x 4.44x 4.03x 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. Effective January 1, 2002 Omnicom Group Inc. stopped recording goodwill amortization expense as required by SFAS No. 142. The ratios shown for years ended December 31, 1998 through 2001, include goodwill amortization expense. USE OF PROCEEDS The issuers will not receive any proceeds from the sale by any securityholder of the notes or the Omnicom Group Inc. common stock issuable upon conversion and/or redemption of the notes. See "Selling Securityholders" on page 33. PRICE RANGE OF COMMON STOCK AND DIVIDEND HISTORY Omnicom Group Inc.'s common stock is traded on the New York Stock Exchange under the symbol "OMC." The table below shows the range of quarterly high and low closing sale prices per share reported on the New York Stock Exchange Composite Tape for Omnicom Group Inc.'s common stock for the periods indicated and the average closing sale price per share and the dividends paid per share on Omnicom Group Inc.'s common stock for such periods. The last reported sale price per share on November 3, 2003 was $80.20.
Omnicom Common Stock -------------------- Average Last Dividends High Low Sale Price Per Share ------ ------ ---------- --------- 2000: First Quarter.................................. $99.63 $79.88 $92.27 $0.175 Second Quarter................................. 97.25 82.13 89.26 0.175 Third Quarter.................................. 90.44 70.00 82.80 0.175 Fourth Quarter................................. 92.25 72.69 81.64 0.175 2001: First Quarter.................................. $94.51 $78.69 $87.96 $0.175 Second Quarter................................. 97.57 79.50 88.29 0.200 Third Quarter.................................. 87.71 60.01 79.57 0.200 Fourth Quarter................................. 89.77 62.35 80.70 0.200 2002: First Quarter.................................. $97.21 $85.10 $90.10 $0.200 Second Quarter................................. 94.80 44.30 81.43 0.200 Third Quarter.................................. 64.89 40.74 55.35 0.200 Fourth Quarter................................. 69.16 50.67 62.19 0.200 2003: First Quarter.................................. $67.72 $48.50 $57.56 $0.200 Second Quarter................................. 75.25 54.65 66.27 0.200 Third Quarter.................................. 80.97 71.05 75.01 0.200 Fourth Quarter (through November 3, 2003)...... 80.20 72.49 75.65 --
- ---------- The payment of dividends by Omnicom Group Inc. in the future will be determined by its board of directors and will depend on business conditions, Omnicom Group's financial condition and earnings and other factors. Omnicom Group Inc. is not aware of any restrictions on its present or future ability to pay dividends. However, under the terms of some of its borrowing facilities, certain financial tests must be satisfied in order to pay dividends. Omnicom Group Inc. has one billion authorized shares of common stock, par value $0.15 per share, of which 190.0 million shares were outstanding on July 31, 2003. 12 CAPITALIZATION The following table sets forth Omnicom Group Inc.'s consolidated capitalization as of June 30, 2003, which reflects its use of the net proceeds from the initial sale of the notes to pay down short-term bank loans and outstanding commercial paper in June 2003. You should read this table in conjunction with Omnicom Group Inc.'s financial statements and related notes and other financial and operating data included elsewhere in or incorporated by reference into this prospectus. June 30, 2003 ------------- (unaudited) (in thousands) Current liabilities: Accounts payable........................................ $4,543,047 Advance billings........................................ 678,551 Current portion of long-term debt....................... 20,403 Bank loans.............................................. 64,889 Accrued taxes and other liabilities..................... 1,262,638 ----------- Total current liabilities............................... 6,569,528 ----------- Long-term debt............................................. 184,430 Convertible subordinated debentures........................ 2,339,310 Deferred compensation and other liabilities................ 326,895 Minority interests......................................... 183,991 ----------- Total long-term indebtedness............................ 3,034,626 ----------- Shareholders' equity: Common stock, 198,624,279 shares issued, 189,931,128 shares outstanding(1).................... 29,790 Additional paid-in capital.............................. 1,384,244 Retained earnings....................................... 2,359,122 Unamortized restricted stock............................ (155,432) Accumulated other comprehensive loss.................... (23,311) Treasury stock.......................................... (608,872) ----------- Total shareholders' equity........................... 2,985,541 ----------- Total liabilities and shareholders' equity.............. $12,589,695 =========== - ---------- (1) Outstanding common stock of Omnicom Group Inc. as of July 31, 2003 of 190.0 million shares excludes 5.8 million shares reserved for issuance upon conversion of the notes, 7.7 million shares reserved for issuance upon conversion of the issuers' $847.0 million Liquid Yield Option Notes due 2031, 8.2 million shares reserved for issuance upon conversion of the issuers' $900.0 million Zero Coupon Zero Yield Convertible Notes due 2032 and shares reserved for issuance under Omnicom Group Inc.'s outstanding option grants. 13 DESCRIPTION OF THE NOTES Omnicom Group Inc. issued the notes under a senior indenture dated as of June 10, 2003 between JPMorgan Chase Bank, as trustee, and it. On November 5, 2003, Omnicom Capital and Omnicom Finance, wholly-owned finance subsidiaries of Omnicom Group Inc., each became a co-issuer and co-obligor, jointly and severally with Omnicom Group Inc., of the notes pursuant to a supplemental indenture between JPMorgan Chase Bank, as trustee, Omnicom Group Inc., Omnicom Capital and Omnicom Finance. The following summarized the material provisions of the notes and the indenture, as amended by the supplemental indenture. The following summary is not complete and is subject to, and qualified by reference to, all of the provisions of the notes and the indenture as so amended. The indenture does not contain any financial covenants or any restrictions on the payment of dividends or the issuance or purchase of the issuers' securities. The indenture contains no covenants or other provisions to give protection to the holders of the notes in the event of a highly leveraged transaction or a change in control, except to the extent described under "--Purchase of Notes at Option of Holders upon Change in Control of Omnicom Group Inc." on page 22. General The notes are limited to $600,000,000 aggregate initial principal amount at maturity. The notes will mature June 15, 2033. Before June 15, 2023, the principal amount at maturity of a note will be equal to $1,000, the initial principal amount at maturity. On or after June 15, 2023, if, for the last 20 trading days preceding June 15, 2023, the average conversion value of a note is greater than the initial principal amount at maturity but less than or equal to $2,200, then the principal amount at maturity of a note will be equal to the lesser of the average conversion value of the note on June 15, 2023 and $2,000. If that average conversion value exceeds $2,200, then the principal amount at maturity will equal $1,000. For purposes of the notes and the indenture, the difference between the $1,000 initial principal amount at maturity of a note and the principal amount at maturity, as determined in accordance with the prior paragraph, is known as contingent additional principal. If contingent additional principal becomes payable, it will accrue from and including June 15, 2023 until maturity. Contingent additional principal will be calculated on a semi-annual bond equivalent basis, using a 360-day year composed of twelve 30-day months. The conversion value of a note as of any date of determination will equal the sale price per share of the common stock of Omnicom Group Inc. on the determination date multiplied by the number of shares of common stock then issuable upon conversion of a note. Principal on the notes will be payable at the office of the paying agent, which initially will be an office or agency of the trustee, or an office or agency maintained by the issuers for that purpose, in the Borough of Manhattan, The City of New York. The issuers will not pay any cash interest on the notes prior to maturity except in the limited circumstances described below under "--Contingent Cash Interest" on page 19 or if the issuers elect to do so in their sole discretion. Each note was originally issued at an initial principal amount at maturity of $1,000 per note. Although the notes were not initially offered at a discount, they are contingent payment debt instruments. Any and all contingent additional principal and contingent cash interest otherwise payable on the note will cease to accrue on that note upon maturity, conversion, purchase by the issuers at the option of the holder or redemption of the note. The issuers may not reissue a note that has matured or been converted, purchased by the issuers at your option, redeemed or otherwise cancelled. Notes may be presented for conversion at the office of the conversion agent and for exchange or registration of transfer at the office of the registrar. The conversion agent and the registrar will initially be the trustee. The issuers will not charge a service fee for any exchange or registration of transfer of notes. However, the issuers may require the holder to pay any tax, assessment or other governmental charge payable as a result of such transfer or exchange. Ranking of the Notes The notes are the joint and several senior unsecured obligations of Omnicom Group Inc., Omnicom Capital and Omnicom Finance. The notes rank equal in right of payment to all of the issuers' respective existing and future senior unsecured indebtedness. However, Omnicom Group Inc. is a holding company and Omnicom Capital and Omnicom Finance are finance subsidiaries. As finance subsidiaries, their respective assets consist of the 14 intercompany loans they make or have made to Omnicom Group's operating subsidiaries and the related interest receivables. As a result, the notes are effectively subordinated to all existing and future obligations of Omnicom Group Inc.'s operating subsidiaries, including trade payables, and to the issuers' respective obligations that are secured, to the extent of the security. See "Risk Factors--Omnicom Group Inc.'s Holding Company Structure Results in Structural Subordination and May Affect the Issuers' Ability to Make Payments on the Notes" on page 7. As of June 30, 2003, Omnicom Group had $2,609.0 million of indebtedness outstanding, all of which is unsecured. Of this amount $2,522.0 million represents direct obligations of the issuers and $87 million represents indebtedness of Omnicom Group Inc.'s operating subsidiaries, of which $11.0 million is guaranteed by Omnicom Group Inc. Guarantee The obligations of Omnicom Capital and Omnicom Finance under the notes are fully and unconditionally guaranteed on a senior unsecured basis by Omnicom Group Inc. The guarantee is senior in right of payment to all subordinated debt of Omnicom Group Inc. and its subsidiaries and equal in right of payment to all of Omnicom Group Inc.'s other senior unsecured indebtedness, including the notes. Yield to Maturity; Tax Original Issue Discount The yield to maturity, calculated on the basis of the initial principal amount at maturity and therefore excluding any contingent cash interest or contingent additional principal that may become payable, will be zero. In addition, the yield to maturity for a particular purchaser of the notes will be negative if the price paid by the purchaser exceeds $1,000. If contingent cash interest and/or contingent additional principal becomes payable, the yield to maturity may increase. Although the notes were not originally offered at a discount, the notes constitute contingent payment debt instruments. As a result, the notes are deemed to have been issued with original issue discount for United States federal income tax purposes, referred to as tax original issue discount. The issuers intend to compute and report accruals of the tax original issue discount based upon an overall yield of 4.60% per year, computed on a semi-annual bond equivalent basis, which the issuers have determined represents the yield required to be reported under applicable Treasury regulations. However, the actual rate recorded could vary from that amount. In accordance with the application of the contingent payment debt tax regulations, you will also recognize gain or loss on the sale, exchange, conversion or redemption of a note in an amount equal to the difference between the amount realized, including the fair market value of any common stock received, and your adjusted tax basis in the note. Any gain recognized by you generally will be ordinary interest income; any loss will be ordinary loss to the extent of the interest previously included in income and, thereafter, capital loss. However, it is possible that deductions for capital losses realized upon conversion or redemption for stock may not be allowed under certain rules regarding recapitalizations. See "Federal Income Tax Considerations" beginning on page 29 for more information and a summary of the resulting consequences from this treatment. Book-Entry System The notes were only issued in the form of global securities held in book-entry form. DTC or its nominee are the sole registered holder of the notes for all purposes under the indenture. Owners of beneficial interests in the notes represented by the global securities hold their interests pursuant to the procedures and practices of DTC. As a result, beneficial interests in any such securities are shown on, and may only be transferred through, records maintained by DTC and its direct and indirect participants and any such interest may not be exchanged for certificated securities, except in limited circumstances. Owners of beneficial interests must exercise any rights in respect of their interests, including any right to convert or require purchase of their interests in the notes, in accordance with the procedures and practices of DTC. Beneficial owners are holders and are not entitled to any rights provided to the holder of notes under the global securities or the indenture. The issuers and the trustee, and any of their respective agents, may treat DTC as the sole holder and registered owner of the global securities. Exchange of Global Securities Notes represented by a global security are exchangeable for certificated securities with the same terms only if: o DTC is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered under the Exchange Act and a successor depositary is not appointed by us within 90 days; 15 o the issuers decide to discontinue use of the system of book-entry transfer through DTC (or any successor depositary); or o a default under the indenture occurs and is continuing. DTC has advised the issuers that it is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC facilitates the settlement of transactions among its participants through electronic computerized book-entry changes in participants' accounts, eliminating the need for physical movement of securities certificates. DTC's participants include securities brokers and dealers, including the initial purchasers, banks, trust companies, clearing corporations and other organizations, some of whom and/or their representatives own DTC. Access to DTC's book-entry system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. Conversion Rights Holders may surrender notes for conversion into shares of common stock of Omnicom Group Inc. only if at least one of the conditions described below is satisfied. In addition, a note for which a holder has delivered a purchase notice or a change in control purchase notice requiring the issuers to purchase the note may be surrendered for conversion only if such notice is withdrawn in accordance with the indenture. The initial conversion rate is 9.7087 shares of common stock per $1,000 initial principal amount at maturity of the notes, subject to adjustment only upon the occurrence of the events described below. The conversion rate will not be adjusted for any accrued contingent principal or contingent cash interest that may become payable. A holder of a note otherwise entitled to a fractional share will receive cash in an amount equal to the value of such fractional share based on the sale price, as defined below under "--Purchase of Notes at the Option of the Holder" on page 20, on the trading day immediately preceding the conversion date. If contingent cash interest is payable to holders of notes during any particular six-month period, and any notes are converted after the applicable record date and prior to the next succeeding interest payment date, holders of such notes at the close of business on the record date will receive the contingent cash interest payable on such notes on the corresponding interest payment date notwithstanding the conversion. Such notes, upon surrender for conversion, must be accompanied by funds equal to the amount of contingent cash interest payable on the principal amount of notes so converted, unless those notes have been called for redemption, in which case no such payment shall be required. The ability to surrender notes for conversion will expire at the close of business on June 15, 2033. Conversion Based on Omnicom Group Inc. Common Stock Price Before June 15, 2023, holders may surrender a note for conversion during any calendar quarter commencing after June 30, 2003 if, for the last 20 trading days in the preceding calendar quarter, the average conversion value, calculated as described above under "--General" on page 14, per note is greater than or equal to the following amounts for the quarters indicated: Quarter Ended Amount ------------- -------- September 30, 2003...................................... $1,250 December 31, 2003....................................... $1,300 March 31, 2004.......................................... $1,350 June 30, 2004........................................... $1,400 September 30, 2004...................................... $1,450 December 31, 2004....................................... $1,500 March 31, 2005.......................................... $1,550 June 30, 2005........................................... $1,600 September 30, 2005...................................... $1,650 December 31, 2005....................................... $1,700 March 31, 2006.......................................... $1,750 June 30, 2006........................................... $1,800 September 30, 2006...................................... $1,850 December 31, 2006....................................... $1,900 16 Quarter Ended Amount ------------- -------- March 31, 2007.......................................... $1,950 June 30, 2007........................................... $2,000 September 30, 2007...................................... $2,050 December 31, 2007....................................... $2,100 March 31, 2008.......................................... $2,150 June 30, 2008 and thereafter............................ $2,200 If this condition is met at any time after June 30, 2003 and before June 15, 2023, then the notes will be convertible at any time after the date on which the condition is first met, at the option of the holder, through maturity. On or after June 15, 2023, holders may surrender a note for conversion during any calendar quarter if, for the last 20 trading days in the preceding calendar quarter, the average conversion value of the note is greater than or equal to 110% of the principal amount at maturity of the note. If the foregoing condition is satisfied, then the notes will thereafter be convertible at any time at the option of the holder, through maturity. Conversion Based on Credit Ratings Holders may also surrender a note for conversion at the then-applicable conversion rate at any time after the credit rating assigned to the notes is reduced to Ba1 or lower by Moody's or BBB- or lower by S&P. This event would not, however, result in an adjustment to the number of shares issuable upon conversion. Conversion upon Notice of Redemption A holder may surrender for conversion a note called for redemption at any time prior to the close of business on the second business day prior to the redemption date, even if it is not otherwise convertible at that time. A note for which a holder has delivered a purchase notice or a change in control purchase notice as described below requiring us to purchase the note may be surrendered for conversion only if such notice is withdrawn in accordance with the indenture. Conversion upon Occurrence of Specified Corporate Transactions If Omnicom Group Inc. elects to o distribute to all holders of its common stock certain rights entitling them to purchase, for a period expiring within 60 days, common stock at less than the sale price, as defined below under "--Purchase of Notes at the Option of the Holder" on page 20, at the time; or o distribute to all holders of its common stock assets, debt securities or certain rights to purchase its securities, which distribution has a per share value as determined by its board of directors exceeding 15% of the closing price of the common stock on the day preceding the declaration date for such distribution, Omnicom Group Inc. must notify the holders of notes at least 20 days prior to the ex-dividend date for such distribution. Once Omnicom Group Inc. has given such notice, holders may surrender their notes for conversion at any time until the earlier of the close of business on the business day prior to the ex-dividend date or Omnicom Group Inc.'s announcement that such distribution will not take place. In addition, if Omnicom Group Inc. is party to a consolidation, merger or binding share exchange pursuant to which its common stock would be converted into cash, securities or other property, a holder may surrender notes for conversion at any time from and after the date which is 15 days prior to the anticipated effective date for the transaction until 15 days after the actual effective date of such transaction. Conversion Rate Adjustments and Delivery of Omnicom Group Inc. Common Stock The initial conversion rate is 9.7087 of common stock of Omnicom Group Inc. for each $1,000 initial principal amount at maturity of the notes. The conversion rate will not be adjusted for accrued contingent additional principal or contingent cash interest that may become payable. 17 The conversion rate is required to be adjusted for: o dividends or distributions on Omnicom Group Inc.'s common stock payable in common stock or other capital stock of Omnicom Group Inc.; o subdivisions, combinations or certain reclassifications of Omnicom Group Inc.'s common stock; o distributions to all holders of Omnicom Group Inc.'s common stock of certain rights to purchase common stock of Omnicom Group Inc. for a period expiring within 60 days at less than the sale price at the time; and o distributions to those holders of Omnicom Group Inc.'s assets or debt securities or certain rights to purchase its securities, excluding cash dividends or other cash distributions from current or retained earnings unless the annualized amount thereof per share exceeds 5% of the sale price of Omnicom Group Inc.'s common stock on the day preceding the date of declaration of such dividend or other distribution. However, no adjustment will voluntarily be made if holders participate in the transaction without conversion or in limited certain other cases as described in the indenture. The indenture also permits Omnicom Group Inc. to increase the conversion rate from time to time at its option. If Omnicom Group Inc. is party to a consolidation, merger or binding share exchange pursuant to which its common stock is converted into cash, securities or other property, at the effective time of the transaction, the right to convert a note into shares of its common stock will be changed into a right to convert it into the kind and amount of securities, cash or other property of Omnicom Group Inc. or another person which the holder would have received if the holder had converted the holder's note immediately prior to the transaction. If the transaction also constitutes a "change in control," as defined below, and occurs before June 15, 2010, the holder will be able to require the issuers to purchase all or a portion of its notes as described under "--Purchase of Notes at Option of Holders upon Change in Control of Omnicom Group Inc." on page 22. In the event of: o a taxable distribution to holders of common stock which results in an adjustment of the conversion rate; or o an increase in the conversion rate at the issuers' discretion, the holders of the notes may, in certain circumstances, be deemed to have received a distribution subject to United States federal income tax as a dividend. See "Federal Income Tax Considerations--Constructive Dividend" on page 32. To convert a note into shares of common stock of Omnicom Group Inc., a holder must: o complete and manually sign the conversion notice on the back of the note or complete and manually sign a facsimile of the conversion notice and deliver the conversion notice to the conversion agent; o surrender the note to the conversion agent; o if required by the conversion agent, furnish appropriate endorsements and transfer documents; and o if required, pay all transfer or similar taxes. Pursuant to the indenture, the date on which all of the foregoing requirements have been satisfied is the conversion date. If one or more of the conditions to the conversion of the notes has been satisfied, the issuers will promptly notify the holders of notes thereof and use their respective reasonable best efforts to post this information on Omnicom Group Inc.'s web site or, at the issuers' option, otherwise publicly disclose this information. When a holder surrenders notes for conversion, the conversion agent may first offer the notes to a financial institution chosen by the issuers for exchange in lieu of conversion. The designated institution will have the option, but not the obligation (unless separately agreed to by it and the issuers at the time), to agree to exchange those notes for the number of shares of Omnicom Group Inc.'s common stock that the holder of those notes would have been entitled to receive upon conversion, plus cash for any fractional shares. The issuers may, but will not be 18 obligated to, enter into a separate agreement with the financial institution which would compensate it for any such transaction. As soon as practicable following the conversion date, the designated institution or the issuers, as the case may be, will deliver through the conversion agent a certificate for the number of full shares of common stock into which any note is converted, together with any cash payment for fractional shares. Delivery to the holder of the full number of shares of common stock into which the note is convertible, together with any cash payment for such holder's fractional shares, will be deemed to satisfy the issuers' respective obligations to pay the principal amount at maturity of the note whether made by the issuers or by the designated institution. For a discussion of the tax treatment of a holder receiving common stock of Omnicom Group Inc. upon conversion, see "Federal Income Tax Considerations--Disposition or Conversion" on page 31. Contingent Cash Interest The issuers will be required to pay contingent cash interest to the holders of notes during any six-month period from June 16 to December 15, and from December 16 to June 15, from the interest period commencing June 16, 2010 if the average market price of a note for a five trading day measurement period preceding the first day of the applicable six-month period equals or exceeds $1,200. Each five trading day measurement period will end on the second trading day immediately preceding the first day of the applicable six-month period. Contingent cash interest, if any, will accrue from the first day of any interest period and be payable on June 15 and December 15 of the relevant six-month period to holders of the notes on the record date, which will be the immediately preceding June 1 and December 1 of each applicable six-month period. For any six-month period, the amount of contingent cash interest per note will be equal to the amounts set forth in the table below per $1,000 aggregate principal amount for each applicable interest period.
Payment Date Semi-Annual Interest Payment Date Semi-Annual Interest - ------------ -------------------- ------------ -------------------- December 15, 2010........... $ 5.25 June 15, 2022................... $ 8.25 June 15, 2011............... $ 5.50 December 15, 2022............... $ 8.25 December 15, 2011........... $ 5.50 June 15, 2023................... $ 8.50 June 15, 2012............... $ 5.75 December 15, 2023............... $ 8.50 December 15, 2012........... $ 5.75 June 15, 2024................... $ 8.75 June 15, 2013............... $ 6.00 December 15, 2024............... $ 8.75 December 15, 2013........... $ 6.00 June 15, 2025................... $ 9.00 June 15, 2014............... $ 6.25 December 15, 2025............... $ 9.00 December 15, 2014........... $ 6.25 June 15, 2026................... $ 9.25 June 15, 2015............... $ 6.50 December 15, 2026............... $ 9.25 December 15, 2015........... $ 6.50 June 15, 2027................... $ 9.50 June 15, 2016............... $ 6.75 December 15, 2027............... $ 9.50 December 15, 2016........... $ 6.75 June 15, 2028................... $ 9.75 June 15, 2017............... $ 7.00 December 15, 2028............... $ 9.75 December 15, 2017........... $ 7.00 June 15, 2029................... $10.00 June 15, 2018............... $ 7.25 December 15, 2029............... $10.00 December 15, 2018........... $ 7.25 June 15, 2030................... $10.25 June 15, 2019............... $ 7.50 December 15, 2030............... $10.25 December 15, 2019........... $ 7.50 June 15, 2031................... $10.50 June 15, 2020............... $ 7.75 December 15, 2031............... $10.50 December 15, 2020........... $ 7.75 June 15, 2032................... $10.75 June 15, 2021............... $ 8.00 December 15, 2032............... $10.75 December 15, 2021........... $ 8.00 June 15, 2033................... $11.00
The market price of a note on any date of determination means the average of the secondary market bid quotations per note obtained by the bid solicitation agent for $10.0 million principal amount at maturity of notes at approximately 4:00 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by one or both of the issuers, provided that if o at least three such bids are not obtained by the bid solicitation agent; or o in the issuers' reasonable judgment, the bid quotations are not indicative of the secondary market value of the notes, 19 then the market price of the note will equal (1) the then applicable conversion rate of the notes multiplied by (2) the average sale price of Omnicom Group Inc. common stock on the five trading days ending on such determination date, appropriately adjusted. The bid solicitation agent will be initially JPMorgan Chase Bank. The issuers may change the bid solicitation agent, but the bid solicitation agent will not be an affiliate of the issuers. The bid solicitation agent will solicit bids from securities dealers that are believed by the issuers to be willing to bid for the notes. The issuers will determine every six months, commencing June 15, 2010, whether the conditions to the payment of contingent cash interest have been satisfied and, if so, the issuers will promptly notify the holders of notes thereof and use their respective reasonable best efforts to post this information on Omnicom Group Inc.'s web site or, at their option, otherwise publicly disclose this information. The issuers may unilaterally increase the amount of contingent cash interest they pay or pay interest or other amounts they are not obligated to pay, but the issuers have no obligation to do so. Redemption of Notes at the Option of the Issuers No sinking fund is provided for the notes. The issuers cannot redeem the notes before June 15, 2010, except as set forth under "Description of Notes--Purchase of Notes at Option of Holders upon Change in Control of Omnicom Group Inc." on page 22. On and after June 15, 2010, the issuers may, at their option, redeem all or any portion of the notes for cash at any time in whole or from time to time in part at a redemption price of $1,000 per $1,000 initial principal amount of notes plus any contingent additional principal that has accrued to the date of redemption. The issuers will provide a notice of redemption by mail to holders of notes at least 30 days and not more than 60 days in advance of any redemption. Notes called for redemption will be convertible by the holder, even if the other conditions described under "--Conversion Rights" on page 16 have not occurred, until the close of business on the second business day prior to the redemption date. The notes will be redeemable in integral multiples of $1,000. If less than all of the outstanding notes are to be redeemed, the trustee will select the notes to be redeemed. In this case, the trustee may select the notes by lot, pro rata or by any other method the trustee considers fair and appropriate. If a portion of a holder's notes is selected for partial redemption and the holder converts a portion of the notes, the converted portion will be deemed to be the portion selected for redemption. Purchase of Notes at the Option of the Holder On June 15, 2006, 2008, 2010, 2013, 2018, 2023 and on each June 15 annually thereafter through and including June 15, 2032 (or if any such day is not a business day, the next succeeding business day), holders may require the issuers to purchase any outstanding note for which the holder has properly delivered a written purchase notice, subject to certain additional conditions, including that such notice is not withdrawn by the close of business on the next business day, at the following prices: (1) June 15, 2006, 2008, 2010, 2013 and 2018 at the initial principal amount at maturity; and (2) June 15, 2023 through and including June 15, 2032 at the initial principal amount at maturity of the notes plus any accrued contingent additional principal that may be payable. Holders may submit their notes for purchase to the paying agent at any time from the opening of business on the date that is 20 business days prior to June 15 of each applicable redemption year, or, if such day is not a business day, the next succeeding business day, until the close of business on such date. The purchase price will be payable on the fourth business day following the applicable purchase date in cash, shares of common stock of Omnicom Group Inc. or a combination of cash and common stock at the issuers' option. When a holder surrenders the notes for purchase, the purchase agent may first offer the notes to a financial institution chosen by the issuers to purchase the notes. The designated financial institution will have the option, but not the obligation (unless separately agreed to by it and the issuers at the time) to purchase the notes at the purchase price and in the form of cash or common stock or both, as the issuers may have previously elected in the notice sent to holders described in the next paragraph. The issuers may, but will not be obligated to, enter into a separate agreement with the financial institution which would compensate it for any such transaction. The issuers will be required to give notice on a date not less than 20 business days prior to each applicable purchase date to all holders at their addresses shown in the register of the registrar stating among other things: 20 o whether the purchase price will be paid in cash or common stock or any combination thereof, specifying the percentage of each; o if the issuers elect to pay in common stock of Omnicom Group Inc., the method of calculating the market price of common stock; and o the procedures that holders must follow to require the issuers to purchase their notes. Each holder electing to require the issuers to purchase notes is required to give notice of its election to the paying agent no later than the close of business on June 15 of each applicable redemption year, or, if such day is not a business day, the next succeeding business day. The notice is required to state: o the certificate numbers of the holder's notes to be delivered for purchase; o the portion of the initial principal amount at maturity of notes to be purchased, which must be $1,000 or an integral multiple of $1,000; and o that the notes are to be purchased pursuant to the applicable provisions of the notes. A holder may withdraw any purchase notice by delivering a written notice of withdrawal to the paying agent prior to the close of business on the business day following the date on which the purchase notice is required to be delivered. The notice of withdrawal is required to state: o the initial principal amount at maturity of the notes being withdrawn; o the certificate numbers of the notes being withdrawn; and o the initial principal amount at maturity, if any, of the notes that remain subject to the purchase notice. If the issuers elect to pay the purchase price, in whole or in part, in shares of common stock of Omnicom Group Inc., the number of shares of common stock to be delivered by Omnicom Group Inc., or the designated institution, as the case may be, will be equal to the portion of the purchase price to be paid in common stock of Omnicom Group Inc. divided by the market price for a share of common stock of Omnicom Group Inc. For this purpose, the "market price" of the common stock of Omnicom Group Inc. means the average of the sale prices of the common stock for the five trading days ending on the third business day prior to the applicable purchase date if the third business day prior to the applicable purchase date is a trading day or, if not, then on the last trading day prior to the measurement date. The price as determined will be appropriately adjusted to take into account the occurrence, during the period commencing on the first of the trading days during the relevant five trading day period and ending on the purchase date, of any events that would result in an adjustment of the conversion rate then in effect for the notes as described under "--Conversion Rights" on page 16. The "sale price" of the common stock of Omnicom Group Inc. on any date means the closing per share sale price (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal United States securities exchange on which the common stock is then traded or, if the common stock is not listed on a United States national or regional securities exchange, then the issuers will use the prices as reported by the National Association of Securities Dealers Automated Quotation System or by the National Quotation Bureau Incorporated or otherwise as provided in the indenture. Because the market price of the common stock of Omnicom Group Inc. is determined prior to the applicable purchase date, holders of notes bear the market risk with respect to the value of such common stock to be received from the date such market price is determined to such purchase date. The issuers, or the designated institution, as the case may be, may pay the purchase price or any portion of the purchase price in common stock only if the information necessary to calculate the market price is published in a daily newspaper of national circulation. Upon determination of the actual number of shares of common stock of Omnicom Group Inc. to be issued for each $1,000 initial principal amount at maturity of notes in accordance with the foregoing provisions, the issuers will promptly notify the holders of notes thereof and use their respective reasonable best efforts to post this information on Omnicom Group Inc.'s web site or, at their option, otherwise publicly disclose this information. 21 Omnicom Group Inc., or the designated institution, as the case may be, will pay cash based on the market price for all fractional shares of common stock of Omnicom Group Inc. in the event the issuers elect to deliver common stock in payment, in whole or in part, of the purchase price. In addition to the above conditions, the right of the issuers or the designated institution, as the case may be, to purchase notes, in whole or in part, with common stock of Omnicom Group Inc. is subject to Omnicom Group Inc. satisfying various conditions, including: o listing of such common stock on the principal United States securities exchange on which Omnicom Group Inc.'s common stock is then listed or, if not so listed, on Nasdaq; o the registration of the common stock under the Securities Act and the Exchange Act, if required; and o any necessary qualification or registration under applicable state securities law or the availability of an exemption from such qualification and registration. If these conditions are not satisfied with respect to a holder prior to the close of business on the purchase date, the issuers, or the designated institution, as the case may be, will be required to pay the purchase price of the notes to the holder entirely in cash. See "Federal Income Tax Considerations--Disposition or Conversion" on page 31. Neither the issuers nor the designated institution may change the form or components or percentages of components of consideration to be paid for the notes once the issuers have given the notice that the issuers are required to give to holders of notes, except as described in the first sentence of this paragraph. In connection with any purchase offer, the issuers, or the designated institution, as the case may be, will o comply with the provisions of any tender offer rules under the Exchange Act which may then be applicable; and o file a Schedule TO or any other required schedule under the Exchange Act, if required. The issuers' obligation, or the obligation of the designated institution, as the case may be, to pay the purchase price for a note for which a purchase notice has been delivered and not validly withdrawn is conditioned upon the holder delivering the note, together with necessary endorsements, to the paying agent at any time after delivery of the purchase notice. Payment of the purchase price for the note will be made promptly following the later of the purchase date or the time of delivery of the note. If on any purchase date, the notes are purchased in accordance with the terms of the indenture, then, immediately after the purchase date, whether or not the note is delivered to the paying agent, the holder exercising its right to require the issuers to purchase such notes will cease to be entitled to any contingent additional principal or contingent cash interest that may be payable or then be accruing and all other rights of that holder will terminate, other than the right to receive the purchase price upon delivery of the note. The issuers' ability to purchase notes may be limited by the terms of their then-existing borrowing agreements. The issuers may not purchase any notes for cash at the option of holders if an event of default with respect to the notes has occurred and is continuing, other than a default in the payment of the purchase price with respect to such notes. Purchase of Notes at Option of Holders upon Change in Control of Omnicom Group, Inc. In the event of a change in control of Omnicom Group Inc. occurring on or prior to June 15, 2010, each holder will have the right, at the holder's option, subject to the terms and conditions of the indenture, to require the issuers to purchase for cash all or any portion of the holder's notes, at a price equal to $1,000 per note. The issuers will be required to purchase the notes as of the date that is 35 business days after the occurrence of such change in control. This date is referred to as the "change in control purchase date." In addition, if at least 90% in aggregate principal amount of the notes outstanding immediately prior to the change of control are purchased on the change in control purchase date, the issuers may, within 90 days following the change in control purchase date, at their option, redeem all of the remaining notes at a redemption price equal to $1,000 per note. Within 15 days after the occurrence of a change in control of Omnicom Group Inc., the issuers must mail to the trustee and to all holders of notes at their addresses shown in the register of the registrar and to beneficial owners as required by applicable law a notice regarding the change in control, which notice must state: 22 o the events causing the change in control of Omnicom Group Inc.; o the date of the change in control; o the last date on which a holder may exercise the purchase right; o the change in control purchase price; o the change in control purchase date; o the name and address of the paying agent and the conversion agent; o the conversion rate and any adjustments to the conversion rate; o that notes with respect to which a change in control purchase notice is given by the holder may be converted, if otherwise convertible, only if the change in control purchase notice has been withdrawn in accordance with the terms of the indenture; and o the procedures that holders must follow to exercise these rights. To exercise this right, the holder must deliver a written notice so as to be received by the paying agent no later than the close of business on the third business day prior to the purchase date. The required purchase notice upon a change in control must state: o the certificate numbers of the notes to be delivered by the holder; o the initial principal amount at maturity of notes to be purchased, which must be $1,000 or an integral multiple of $1,000; and o that the issuers are to purchase such notes pursuant to the applicable provisions of the notes. A holder may withdraw any change in control purchase notice by delivering to the paying agent a written notice of withdrawal prior to the close of business on the change in control purchase date. The notice of withdrawal must state: o the initial principal amount at maturity of the notes being withdrawn; o the certificate numbers of the notes being withdrawn; and o the initial principal amount at maturity, if any, of the notes that remain subject to a change in control purchase notice. The issuers' obligation to pay the change in control purchase price for a note for which a change in control purchase notice has been delivered and not validly withdrawn is conditioned upon delivery of the note, together with necessary endorsements, to the paying agent at any time after the delivery of such change in control purchase notice. Payment of the change in control purchase price for such note will be made promptly following the later of the change in control purchase date or the time of delivery of such note. If on any change in control purchase date, notes are purchased in accordance with the terms of the indenture, then, immediately after the change in control purchase date, whether or not the note is delivered to the paying agent, the holder exercising its right to require the issuers to purchase such notes will cease to be entitled to contingent additional principal or contingent additional interest, if any, and all other rights of that holder shall terminate, other than the right to receive the change in control purchase price upon delivery of the note. Under the indenture, a "change in control" of Omnicom Group Inc. is deemed to have occurred at such time as: o any person, including its affiliates and associates, other than Omnicom Group Inc., its subsidiaries or their employee benefit plans, files a Schedule 13D or TO (or any successor schedules, forms or reports under the Exchange Act) disclosing that such person has become the beneficial owner of 50% or more of the voting power of Omnicom Group Inc.'s common stock or other capital stock into which Omnicom Group Inc.'s common stock is reclassified or changed, with limited exceptions; or o any consolidation, merger or share exchange of Omnicom Group Inc. shall have been consummated under which the common stock would be converted into cash, securities or other property, in each case other than a consolidation, merger or share exchange of Omnicom Group Inc. in which the holders of Omnicom Group Inc.'s common stock immediately prior to the consolidation, merger or share exchange have, directly or indirectly, at least a majority of the total voting power in the aggregate of all classes of 23 ordinary voting stock of the continuing or surviving corporation immediately after the consolidation, merger or share exchange. The indenture does not permit the issuers' respective boards of directors to waive their respective obligations to purchase notes at the option of holders in the event of a change in control. In connection with any purchase offer in the event of a change in control, the issuers will: o comply with the provisions of any tender offer rules under the Exchange Act which may then be applicable; and o file a Schedule TO or any other required schedule under the Exchange Act, if required. The change in control purchase feature of the notes may in certain circumstances make more difficult or discourage a takeover of Omnicom Group Inc. The change in control purchase feature, however, is not the result of the issuers' knowledge of any specific effort: o to accumulate shares of common stock of Omnicom Group Inc.; o to obtain control of Omnicom Group Inc. by means of a merger, tender offer, solicitation or otherwise; or o part of a plan by management to adopt a series of anti-takeover provisions. Instead, the change in control purchase feature is a standard term contained in other notes offerings that have been marketed by the initial purchasers and other investment banks. The terms of the change in control purchase feature resulted from negotiations between JPMorgan and Omnicom Group Inc. Omnicom Group Inc. could, in the future, enter into certain transactions, including certain recapitalizations, that would not constitute a change in control with respect to the change in control purchase feature of the notes but that would increase the amount of its (or its subsidiaries') outstanding indebtedness. See "Risk Factors Relating to the Notes--The Lack of Covenants Applicable to the Notes May Not Afford Protection in Some Circumstances" on page 7. The issuers may not purchase notes at the option of holders upon a change in control if there has occurred and is continuing an event of default with respect to the notes, other than a default in the payment of the change in control purchase price with respect to the notes. Events of Default The following will be events of default for the notes: (1) default in payment of the principal amount at maturity, contingent additional principal, redemption price, purchase price or change in control purchase price with respect to any note when such becomes due and payable; (2) default in payment of any contingent cash interest, which default continues for 30 days; (3) the issuers' failure to comply with any of their respective other agreements in the notes or the indenture upon receipt by them of notice of such default by the trustee or by holders of not less than 25% in aggregate principal amount at maturity of the notes then outstanding and their failure to cure (or obtain a waiver of) such default within 60 days after receipt of such notice; (4) (A) the issuers' failure to make any payment by the end of any applicable grace period after maturity of their respective indebtedness, which term as used in the indenture means obligations (other than nonrecourse obligations) of the issuers for borrowed money or evidenced by bonds, debentures, notes or similar instruments in an amount (taken together with amounts in (B)) in excess of $100 million and continuance of such failure, or (B) the acceleration of their respective indebtedness in an amount (taken together with the amounts in (A)) in excess of $100 million because of a default with respect to such indebtedness without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled in case of (A) or (B) above, for a period of 30 days after written notice to the issuers by the trustee or to the issuers and the trustee by the holders of not less than 25% in aggregate principal amount at maturity of the notes then outstanding; however, if any such failure or acceleration referred to in (A) or (B) above shall cease or be cured, waived, rescinded or annulled, then the event of default by reason thereof shall be deemed not to have occurred; or 24 (5) certain events of bankruptcy or insolvency affecting Omnicom Group Inc., Omnicom Capital or certain of Omnicom Group Inc.'s subsidiaries. If an event of default shall have happened and be continuing, either the trustee or the holders of not less than 25% in aggregate principal amount at maturity of the notes then outstanding may declare the initial principal amount at maturity of the notes, plus any accrued and unpaid contingent cash interest and contingent additional principal through the date of such declaration, to be immediately due and payable. In the case of certain events of bankruptcy or insolvency, which would constitute an event of default, the initial principal amount at maturity of the notes plus accrued and unpaid contingent cash interest and contingent additional principal will automatically become immediately due and payable. The holders of a majority in aggregate principal amount at maturity of the notes then outstanding, by notice to the trustee, and without notice to any other holder, may rescind an acceleration and its consequences if: o the rescission would not conflict with any judgment or decree; o all existing events of default have been cured or waived, except any nonpayment of the initial principal amount at maturity plus accrued and unpaid contingent cash interest and contingent additional principal that have become due solely as a result of acceleration; and o all amounts due to the trustee have been paid. No rescission shall affect any subsequent default or impair any right consequent to the rescission. In some circumstances the holders of a majority in aggregate principal amount at maturity of the notes then outstanding, by notice to the trustee, and without notice to any other holder, may waive an existing default and its consequences. When a default is waived, it is deemed cured, but no waiver will extend to any subsequent or other default or impair any consequent right. The holders of a majority in aggregate principal amount at maturity of the notes then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or of exercising any trust or power conferred on the trustee. However, the trustee may refuse to follow any direction that conflicts with law or the indenture or that the trustee determines in good faith is unduly prejudicial to the rights of other holders or would involve the trustee in personal liability unless the trustee is offered indemnity satisfactory to it against loss, liability or expense. A holder may not pursue any remedy with respect to the indenture or the notes unless: o the holder gives the trustee written notice stating that an event of default is continuing; o the holders of at least 25% in aggregate principal amount at maturity of the notes then outstanding make a written request to the trustee to pursue the remedy; o the holder or holders offer to the trustee reasonable security or indemnity satisfactory to the trustee against any loss, liability or expense; o the trustee does not comply with the request within 60 days after receipt of such notice, request and offer of security or indemnity; and o the holders of a majority in aggregate principal amount at maturity of the notes then outstanding do not give the trustee a direction inconsistent with the request during such 60-day period. A holder may not use the indenture to prejudice the rights of any other holder or to obtain a preference or priority over any other holder. Under the indenture, the issuers are required to deliver to the trustee, within five business days of becoming aware of the occurrence of an event of default, written notice of the event of default. In addition, the issuers are required to deliver to the trustee written notice of any event which with the giving of notice or the lapse of time, or both, would become an event of default as a result of their failure to comply with any of their other agreements in the notes or the indenture upon receipt of notice of such default or our failure to make any payment by the end of the applicable grace period after maturity of indebtedness, the status of any such event and what action the issuers are taking or propose to take with respect thereto. 25 If the trustee collects any money as a result of an event of default, it shall pay out the money in the following order: first: to the trustee for amounts due as compensation, reimbursement or indemnification; second: to holders for amounts due and unpaid on the notes for the principal amount at maturity, initial principal amount at maturity plus contingent additional principal, redemption price, purchase price, change in control purchase price or contingent cash interest, if any, as the case may be, and ratably, without preference or priority of any kind, according to such amounts due and payable on the notes; and third: pro rata to the issuers, if any balance remains. The trustee may fix a record date and payment date for any payment to holders. At least 15 days before such record date, the trustee is required to mail to each holder and to the issuers a notice that states the record date, the payment date and the amount to be paid. Mergers and Sales of Assets The indenture provides that the issuers may not consolidate with or merge into any person or convey, transfer or lease their respective properties and assets substantially as an entirety to another person, unless, among other things: o the resulting, surviving or transferee person is a corporation organized under the laws of the United States, any state thereof or the District of Columbia and such entity assumes all such issuer's obligations under the notes and the indenture; and o such issuer or successor entity will not immediately following the transaction be in default under the indenture. Upon the assumption of such issuer's obligations by a successor corporation in such circumstances, subject to limited exceptions contained in the indenture, the issuers will be discharged from all obligations under the notes and the indenture. Although these types of transactions are permitted under the indenture, some of these types of transactions occurring on or prior to June 15, 2010 could constitute a change in control of Omnicom Group Inc. as described above for purposes of the notes. In this circumstance, holders could require the issuers to purchase their notes as described above. Modification The issuers and the trustee may modify or amend the indenture or the notes with the consent of the holders of not less than a majority in aggregate principal amount at maturity of the notes then outstanding. However, the consent of the holders of each outstanding note would be required to: o alter the obligations of the issuers to pay contingent cash interest (except that the issuers may increase the amount thereof without the consent of the trustee or the holders); o make any note payable in money or securities other than that stated in the note; o alter the stated maturity of any note; o reduce the principal amount at maturity, contingent additional principal, redemption price, purchase price or change in control purchase price with respect to any note; o make any change that adversely affects the right of a holder to receive shares of common stock of Omnicom Group Inc. upon surrendering a note for conversion; o make any change that adversely affects the right to require the issuers to purchase a note; o impair the right to institute suit for the enforcement of any payment with respect to, or conversion of, the notes; and o change the provisions in the indenture that relate to modifying or amending the indenture. Without the consent of any holder of notes, the issuers and the trustee may enter into supplemental indentures for any of the following purposes: o to evidence a successor to either of the issuers and the assumption by that successor of such issuer's obligations under the indenture and the notes; o to add covenants for the benefit of the holders of the notes or to surrender any right or power conferred upon the issuers; 26 o to secure the issuers' obligations in respect of the notes; o to make any changes or modifications to the indenture necessary in connection with the registration of the notes under the Securities Act and the qualification of the notes under the Trust Indenture Act of 1939 as contemplated by the indenture; o to cure any ambiguity or inconsistency in the indenture; or o to make any change that does not adversely affect the rights of any holder of the notes. The holders of a majority in aggregate principal amount at maturity of the notes then outstanding may, on behalf of the holders of all notes: o waive compliance by the issuers with restrictive provisions of the indenture, as detailed in the indenture; and o waive any past default under the indenture and its consequences, except a default in the payment of the principal amount at maturity, contingent additional principal, redemption price, purchase price, change in control purchase price or obligation to deliver common stock of Omnicom Group Inc. upon conversion with respect to any note or in respect of any provision which under the indenture cannot be modified or amended without the consent of the holder of each outstanding note affected. Calculations in Respect of Notes The issuers will be responsible for making all calculations called for under the notes. See "--Conversion Rights" on page 16. These calculations include, but are not limited to, determination of the market prices of the notes and of Omnicom Group Inc.'s common stock, amounts of tax original issue discount, and amounts of contingent cash interest and contingent additional principal, if any, payable on the notes. The issuers will make all these calculations in good faith and, absent manifest error, these calculations will be final and binding on holders of notes. The issuers will provide a schedule of their calculations to the trustee, and the trustee is entitled to rely upon the accuracy of our calculations without independent verification. Information Concerning the Trustee JPMorgan Chase Bank, an affiliate of J.P. Morgan Securities Inc., one of the initial purchasers, is the trustee, registrar, paying agent and conversion agent. The indenture provides that, except during the continuance of an event of default, the trustee will perform only those duties as are specifically set forth in the indenture. During the existence of an event of default, the trustee is required to exercise the rights and powers vested in it by the indenture, and to use the same degree of care and skill in its exercise of those rights and powers as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. The indenture and the provisions of the Trust Indenture Act contain limitations on the rights of the trustee, should it become a creditor of either of the issuers, to obtain payments of claims in certain cases or to realize on certain property received in respect of any such claim as security or otherwise. Subject to the Trust Indenture Act, the trustee will be permitted to engage in other transactions, provided that if the trustee acquires any conflicting interests, as described in the Trust Indenture Act, the trustee must eliminate the conflict or resign. The trustee is required to deliver notice of all defaults to the holders within 90 days after the occurrence, unless the defaults shall have been cured before the giving of the notice. However, in the case of a default in the payment of principal of, or interest on, or other similar obligation with respect to, the notes, the trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors or trustees and/or responsible officers of the trustee in good faith determines that the withholding of the notice is in the interest of holders of the notes. A trustee may at any time resign by giving written notice of resignation to the issuers and to the holders. Upon receiving a notice of resignation, the issuers will be required to promptly appoint a successor trustee. If no successor trustee is appointed within 30 days after the mailing of the notice of resignation, the resigning trustee or any holder who has been a bona fide holder of a note for at least six months may, subject to the provisions of the indenture, petition any court of competent jurisdiction for the appoint of a successor trustee. 27 The issuers may remove a trustee and appoint a successor trustee if: o the trustee fails to comply with the provisions relating to any conflict of interest after written request made by the issuers or by any holder who has been a bona fide holder of notes for at least six months; o the trustee ceases to be eligible in accordance with the provisions contained in the indenture and the trustee fails to resign after requested to by the issuers or any holder; o the trustee becomes incapable of acting or is adjudged a bankrupt or insolvent, or a receiver or liquidator for the trustee or its property is appointed, or any public officer takes charge or control of the trustee or its property or affairs for the purpose of rehabilitation, conservation or liquidation; or o the issuers determine that the trustee has failed to perform its obligations under the indenture in any material respect. If the issuers fail to remove the trustee, any holder who has been a bona fide holder of a note for at least six months may petition a court of competent jurisdiction for the removal of the trustee and the appointment of a successor trustee. In addition, the holders of a majority in aggregate principal amount at maturity of the notes outstanding may at any time remove a trustee and appoint a successor trustee by delivering notice to the trustee to be removed, the successor trustee and the issuers. Any resignation or removal of the trustee and any appointment of a successor trustee will become effective upon acceptance of appointment by the successor trustee. Governing Law The indenture and the notes are governed by, and construed in accordance with, the law of the State of New York. Miscellaneous The issuers or their affiliates may from time to time purchase the securities offered in this prospectus which are then outstanding by tender, in the open market or by private agreement. DESCRIPTION OF OMNICOM GROUP INC.'S CAPITAL STOCK The following briefly summarizes the material terms of Omnicom Group Inc.'s capital stock. You should read its certificate of incorporation, a copy of which may be obtained as described under "Where You Can Find More Information" on page 37, for more detailed information that may be important to you. Omnicom Group Inc. is authorized to issue 1.0 billion shares of common stock, par value $0.15 per share, of which 190.0 million shares were outstanding on July 31, 2003, and 7.5 million shares of preferred stock at $1.00 per share, none of which is outstanding. Each share of common stock entitles the holder to one vote for the election of directors and for all other matters to be voted on by holders of Omnicom Group Inc.'s common stock. Holders of Omnicom Group Inc.'s common stock may not cumulate their votes in the election of directors. All shares of Omnicom Group Inc.'s common stock have equal rights and are entitled to such dividends as may be declared by the board of directors out of funds legally available therefor, but only after payment of dividends required to be paid on any outstanding shares of preferred stock. All shares of common stock share ratably upon liquidation in the assets available for distribution to shareholders after payments to creditors and provision for the preference of any preferred stock. Omnicom Group Inc. is not aware of any restrictions on its present or future ability to pay dividends. However, in connection with certain borrowing facilities entered into by Omnicom Capital, Omnicom Group Inc. is subject to certain covenants requiring that it satisfy certain financial tests in order to pay dividends. The shares of Omnicom Group Inc.'s common stock are not subject to call or assessment, have no preemptive or other subscription rights or conversion rights and cannot be redeemed. Omnicom Group Inc.'s shareholders can remove a director only by an affirmative two-thirds vote of all outstanding voting shares. A two-thirds vote of all outstanding voting shares is also required to amend its by-laws or some of the 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. Omnicom Group Inc. may issue preferred stock in series having whatever rights and preferences the board of directors may determine without the approval of its shareholders. One or more series of preferred stock may 28 be made convertible into common stock at rates determined by the board of directors, and preferred stock may be given priority over common stock in payment of dividends, rights on liquidation, voting and other rights. As of June 30, 2003, Omnicom Group Inc. had a total of $2,347.0 million aggregate principal amount of convertible notes outstanding, including $847.0 million of senior unsecured debentures with a scheduled maturity in 2031, $900.0 million of senior unsecured debentures with a scheduled maturity of 2032 and the $600.0 million of senior unsecured debentures with a scheduled maturity of 2033 being registered pursuant to the registration statement of which this prospectus is a part. The 2031 notes and the 2032 notes are convertible into shares of Omnicom Group Inc.'s common stock at a conversion price of $110.01 per share, subject to adjustment in certain events. The 2033 notes are convertible into shares of Omnicom Group Inc.'s common stock at a conversion price of $103.00 per share, subject to adjustment in certain events. The transfer agent and registrar for Omnicom Group Inc.'s common stock is ChaseMellon Shareholder Services. Omnicom Group Inc.'s common stock is listed on the New York Stock Exchange under the symbol "OMC." FEDERAL INCOME TAX CONSIDERATIONS This is a summary of material United States federal income tax considerations relevant to holders of notes. This summary is based upon the Internal Revenue Code of 1986 (which the issuers refer to as the Code), Treasury Regulations, Internal Revenue Service ("IRS") rulings and judicial decisions now in effect, all of which are subject to change, possibly with retroactive effect, or different interpretations. No statutory, regulatory, administrative or judicial authority directly addresses the treatment of the notes for United States federal income tax purposes, although a published IRS ruling on the treatment of notes similar to the notes offered hereby is consistent with the treatment described herein. However, there can be no assurance that the IRS will not challenge one or more of the conclusions described herein, and the issuers have not obtained, nor do they intend to obtain, a ruling from the IRS with respect to the United States federal income tax consequences of acquiring or holding notes, nor except as specifically stated below, have the issuers obtained, nor do they intend to obtain, an opinion of counsel with respect to the tax consequences of acquiring or holding notes. This summary does not purport to deal with all aspects of United States federal income taxation that may be relevant to a holder, such as a holder subject to the alternative minimum tax provisions of the Code. Also, it is not intended to address specific considerations relevant to persons in special tax situations, such as financial institutions, insurance companies, regulated investment companies, tax exempt investors, dealers in securities and currencies, U.S. expatriates or persons holding notes as hedges or as positions in a "straddle," "hedge," "conversion" or other integrated transaction for tax purposes. This summary also does not discuss the tax consequences arising under tax laws other than the federal income tax laws, including the laws of any state, local or foreign jurisdiction. In addition, this summary is limited to original purchasers of notes who acquire notes at the "issue price," as defined below, and who hold the notes and common stock into which the notes may be converted as "capital assets" within the meaning of the federal income tax laws. Persons considering the purchase, ownership, conversion or other disposition of notes should consult their own tax advisors regarding the federal income tax consequences to them in their particular circumstances, and consequences arising under the laws of any state, local or foreign taxing jurisdiction. For purposes of this summary, a "U.S. Holder" is a beneficial owner of the notes who or which is: o a citizen or individual resident of the United States, as defined in Section 7701(b) of the Code; o a corporation or other entity treated as a corporation for United States federal income tax purposes, created or organized in or under the laws of the United States, any state thereof or the District of Columbia; o an estate if its income is subject to United States federal income taxation regardless of its source; or o a trust if (1) a United States court can exercise primary supervision over its administration and (2) one or more United States persons have the authority to control all of its substantial decisions. Notwithstanding the preceding sentence, certain trusts in existence on August 20, 1996, and treated as a U.S. trust prior to such date, may also be treated as U.S. Holders. A Non-U.S. Holder is a beneficial owner of notes other than a U.S. Holder. 29 Opinion as to Federal Income Tax Treatment The issuers have been advised by their counsel, Jones Day, that, in their opinion, the notes will be treated as debt instruments that are subject to United States federal income tax regulations governing contingent payment debt instruments (which are referred to as the CPDI regulations) for United States federal income tax purposes. Based on that opinion, pursuant to the terms of the indenture, the issuers and each noteholder agree to treat the notes as debt instruments with original issue discount under the CPDI regulations as described below. Original Issue Discount Under the CPDI regulations, for United States federal income tax purposes, U.S. Holders of notes will be required to accrue interest income on the notes, regardless of whether the holder uses the cash or accrual method of accounting, in amounts described below for each taxable year the holder holds the note. Accordingly, U.S. Holders may be required to include interest in taxable income in each year in excess of the accruals on the notes for non-tax purposes and in excess of any contingent cash interest payments actually received in that year. The CPDI regulations provide that a U.S. Holder must accrue an amount of ordinary interest income, as original issue discount, for United States federal income tax purposes for each accrual period prior to and including the maturity date of the notes. The amount required to be accrued equals the sum of the daily portions of original issue discount with respect to the note for each day during the taxable year or portion of a taxable year on which the holder holds the note, adjusted if necessary as described below. In general, the daily portion is (1) the sum of the issue price of the note plus all accrued interest, determined without regard to any adjustments to interest accruals described below, and minus the amounts of projected scheduled payments for prior periods at the beginning of each six-month accrual period (as defined below), multiplied by (2) the comparable yield to maturity (as defined below) on the note, divided by (3) the number of days in the accrual period. Under these rules, holders may have to include in gross income increasingly greater amounts of original issue discount in each successive accrual period. Any amount included in income as original issue discount will increase a holder's tax basis in the note. The "issue price" is the initial price at which a substantial amount of notes are sold to investors (excluding bond houses, brokers or similar persons acting in the capacity of underwriters, placement agents or wholesalers) for money. Based on the advice of their counsel, Jones Day, the issuers intend to treat the "comparable yield" as the greater of the annual yield they would pay, as of the initial issue date, on a fixed-rate nonconvertible debt security with no contingent payments, but with terms and conditions otherwise comparable to those of the notes, or the applicable federal rate (based on the overall maturity of the notes offered hereby), which is currently 4.60%. Accordingly, the issuers intend to take the position that the comparable yield for the notes is 4.60%, compounded semi-annually. Presently, the specific yield, however, is not entirely clear, and the actual rate reported could vary from 4.60%. If this determination of the comparable yield were successfully challenged by the IRS, the redetermined yield could be materially greater or less than the comparable yield which the issuers have determined. The issuers will be required to furnish annually to the IRS and to certain noncorporate U.S. Holders information regarding the amount of the original issue discount on the notes attributable to that year. The issuers will calculate and report original issue discount on the notes based upon six-month accrual periods ending on the maturity day of the notes. The issuers will also be required to furnish to holders a schedule of projected payments which the issuers will use in computing the amounts of original issue discount on the notes. In this schedule, the issuers will include estimates (for purposes of computing the original issue discount only) of payments of contingent cash interest that the issuers will make, and of a payment at maturity, taking into account the conversion feature and the contingent additional principal. Under the CPDI regulations, this schedule must produce the comparable yield. The issuers' determination of the schedule of projected payments is set forth in the indenture. For United States federal income tax purposes, a U.S. Holder must use the comparable yield and the schedule of projected payments in determining its interest accruals, and the adjustments thereto described below, in respect of the notes, unless such U.S. Holder timely discloses and justifies the use of other estimates to the IRS. A U.S. Holder that determines its own comparable yield or schedule of projected payments must also establish that the issuers' comparable yield or schedule of projected payments is unreasonable. 30 THE COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE ARE NOT DETERMINED FOR ANY PURPOSE OTHER THAN FOR DETERMINATION OF YOUR INTEREST ACCRUALS AND ADJUSTMENTS THEREOF IN RESPECT OF THE NOTES FOR U.S. FEDERAL INCOME TAX PURPOSES AND DO NOT CONSTITUTE A PROJECTION OR REPRESENTATION REGARDING THE ACTUAL AMOUNTS PAYABLE TO HOLDERS OF NOTES. Adjustments to Interest Accruals on the Notes If, during any taxable year, a U.S. Holder receives actual payments with respect to the notes for that taxable year that in the aggregate exceed the total amount of projected payments for that taxable year, and/or the amount of a future contingent payment is established in an amount greater than the projected amount, the U.S. Holder will incur a "positive adjustment" under the CPDI regulations. If a U.S. Holder receives in a taxable year actual payments with respect to the notes for that taxable year that in the aggregate were less than the amount of projected payments for that taxable year, and/or the amount of a future contingent payment is established in an amount less than the projected amount, the U.S. Holder will incur a "negative adjustment" under the CPDI regulations. The difference between the positive adjustments and the negative adjustments for any year is the "net positive adjustment" (if positive) or the "net negative adjustment" (if negative). The U.S. Holder will treat a "net positive adjustment" as additional interest income for the taxable year. For this purpose, the payments in a taxable year include the fair market value of property (including shares of common stock of Omnicom Group Inc.) received in that year. A net negative adjustment will (1) reduce the U.S. Holder's interest income on the notes for that taxable year, and (2) to the extent of any excess after the application of (1), give rise to an ordinary loss to the extent of the U.S. Holder's interest income on the notes during prior taxable years, reduced to an extent such interest was offset by prior net negative adjustments. Disposition or Conversion Generally, the sale, exchange or conversion of a note, or the redemption of a note for cash, will result in taxable gain or loss to a U.S. Holder. As described above, the issuers' calculation of the comparable yield and the schedule of projected payments for the notes takes into account the receipt of stock upon conversion and contingent additional principal as contingent payments with respect to the notes. Accordingly, the issuers intend to treat the receipt of our common stock of Omnicom Group Inc. by a U.S. Holder upon the conversion of a note, as well as any contingent additional principal, as contingent payments under the CPDI regulations. Pursuant to the issuers' treatment of the notes as contingent payment debt instruments under the CPDI regulations as described above and the holders' agreement to be bound by the issuers' determination, gain or loss upon a sale, exchange, redemption or conversion of a note will generally be recognized as ordinary income or loss, except that loss, if any, realized in excess of the amount of previously accrued original issue discount will be capital loss. Capital loss deductions are subject to limitations under the United States federal income tax laws. In the event of an exchange of notes for common stock of Omnicom Group Inc., upon conversion or otherwise, it is possible that any such capital loss might not be deductible. Holders should consult their tax advisors regarding the deductibility of any such capital loss. The holder's realized gain or loss will be measured by the difference between the total value of the consideration received for the note (including the fair market value of our common stock) and the holder's tax basis in the note, as previously adjusted to reflect accrued original issue discount and the amounts of any projected payments. In general, a holder's tax basis in any common stock of Omnicom Group Inc. received in exchange for a note (including any fractional shares for which cash is received) will be the fair market value of the stock at the time of the exchange. While the matter is not entirely certain, the holding period for common stock received in the exchange may commence on the day following the date of the exchange. Holders should consult their tax advisors as to the application of the holding period rules to an exchange of a note for common stock of Omnicom Group Inc. 31 Constructive Dividend If at any time Omnicom Group Inc. makes a distribution of property to their shareholders that would be taxable to the shareholders as a dividend for United States federal income tax purposes and, in accordance with the anti-dilution provisions of the notes, the conversion rate of the notes is increased or if the conversion rate is increased at the issuers' discretion, such increase may be deemed to be the payment of a taxable dividend to holders of the notes. For example, an increase in the conversion rate in the event of distributions of evidences of indebtedness or assets of the issuers or in the event of an extraordinary cash dividend will generally result in deemed dividend treatment to holders of the notes, but generally an increase in the event of stock dividends or the distribution of rights to subscribe for common stock will not. However, there will be no deemed dividend treatment for regular cash dividends because there will be no adjustment therefor under the anti-dilution provisions of the notes. Treatment of Non-U.S. Holders All payments on the notes made to a Non-U.S. Holder, including a payment in common stock of Omnicom Group Inc. pursuant to a conversion, and any gain realized on a sale or exchange of the notes, will be exempt from United States federal income or withholding tax, provided that: (1) such Non-U.S. Holder does not own, actually or constructively, 10% or more of the total combined voting power of all classes of Omnicom Group Inc.'s stock entitled to vote and is not a controlled foreign corporation related, directly or indirectly, to Omnicom Group Inc. through stock ownership; (2) the statement requirement set forth in Section 871(b) or section 881(c) of the Code has been fulfilled with respect to the beneficial owner, as discussed below; (3) such payments and gain are not effectively connected with the conduct by such Non-U.S. Holder of a trade or business in the United States; (4) common stock of Omnicom Group Inc. continues to be actively traded within the meaning of section 871(h)(4)(C)(v)(I) of the Code (which, for these purposes and subject to certain exceptions, includes trading on the NYSE); and (5) Omnicom Group Inc. is not and has not been a U.S. real property holding corporation ("USRPHC") within the meaning of section 897(c)(2) of the Code. Omnicom Group believes that it is not and never has been a USRPHC, nor do we anticipate becoming one. The statement requirement referred to in the preceding paragraph will be fulfilled if the beneficial owner of a note certifies on IRS Form W-8BEN, under penalties of perjury, that it is not a United States person and provides its name and address. If a Non-U.S. Holder of notes is engaged in a trade or business in the United States, and if interest on the notes is effectively connected with the conduct of such trade or business, the Non-U.S. Holder, although exempt from the withholding tax discussed in the preceding paragraphs, will generally be subject to regular U.S. federal income tax on the interest and on any gain realized on the sale or exchange of the notes in the same manner as if it were a U.S. Holder. In lieu of the certificate described in the preceding paragraph, such a Non-U.S. Holder will be required to provide to the withholding agent a properly executed IRS Form W-8ECI (or successor form) in order to claim an exemption from withholding tax. In addition, if such a Non-U.S. Holder is a foreign corporation, such Holder may be subject to a branch profits tax equal to 30% (or such lower rate provided by an applicable treaty) of its effectively connected earnings and profits for the taxable year, subject to certain adjustments. Backup Withholding and Information Reporting Information reporting will apply to any payments (including a payment of shares of common stock of Omnicom Group Inc. pursuant to a conversion or of interest), the issuers may make on, or the proceeds of the sale or other disposition or retirement of, the notes or dividends on shares of common stock of Omnicom Group Inc. with respect to certain noncorporate holders, and backup withholding may apply unless the recipient of such payment supplies a taxpayer identification number, certified under penalties of perjury, as well as certain other information, or otherwise establishes an exemption from backup withholding. Any amount withheld under the backup withholding rules will be allowable as a credit against the holder's federal income tax, if the required information is provided to the IRS. 32 SELLING SECURITYHOLDERS The notes were originally issued by Omnicom Group Inc. and sold to J.P. Morgan Securities Inc., Goldman, Sachs & Co., Citigroup Global Markets, Inc., HSBC Securities (USA) Inc., SG Cowen Securities Corp., ABN AMRO Rothschild LLC and Barclays Capital Inc., to whom the issuers refer to elsewhere in this prospectus as the "initial purchasers," in transactions exempt from the registration requirements of the federal securities laws. The initial purchasers resold the notes to persons reasonably believed by them to be "qualified institutional buyers" as defined in Rule 144A under the Securities Act. The selling securityholders, which term includes their transferees, pledges, donees or successors, may from time to time offer and sell pursuant to this prospectus any and all of the notes and the shares of common stock issuable upon conversion and/or redemption of the notes. Set forth below are the names of each selling securityholder, the principal amount of the notes that may be offered by such selling securityholder pursuant to this prospectus and the number of shares of common stock of Omnicom Group Inc. into which such notes are convertible, each to the extent known to the issuers as of the date of this prospectus. Unless set forth below, none of the selling securityholders has had a material relationship with the issuers or any of their respective predecessors or affiliates within the past three years. Any or all of the notes or common stock of Omnicom Group Inc. listed below may be offered for sale pursuant to this prospectus by the selling securityholders from time to time. Accordingly, no estimate can be given as to the amounts of notes or common stock of Omnicom Group Inc. that will be held by the selling securityholders upon consummation of any such sales. In addition, the selling securityholders identified below may have sold, transferred, or otherwise disposed of all or a portion of their notes since the date on which the information regarding their notes was provided in transactions exempt from the registration requirements of the Securities Act.
Aggregate Principal Amount of Notes at Percentage Common Stock Common Stock Maturity that of Notes Owned Prior Registered Name may be sold Outstanding to Conversion Hereby(1) - ---- ----------- ----------- ------------- --------- ADI Alternative Investments............................... 16,500,000 2.75 -- 160,193 Advisory Convertible Arbitrage (I) L.P.................... 1,000,000 * -- 9,708 AG Domestic Convertibles, L.P............................. 9,800,000 1.63 -- 95,145 AG Offshore Convertibles, Ltd............................. 18,200,000 3.03 -- 176,698 Akanthos Arbitrage Master Fund, L.P....................... 7,500,000 1.25 -- 72,815 Allstate Insurance Company................................ 1,000,000 * 215,600(2) 9,708 Allstate Life Insurance Company........................... 2,000,000 * 215,600(3) 19,417 Amaranth L.L.C............................................ 39,800,000 6.63 2,600 386,406 American Investors Life Insurance Co...................... 500,000 * -- 4,854 Amerisure Mutual Insurance Company........................ 600,000 * -- 5,825 AmerUs Life Insurance Co.................................. 2,500,000 * -- 24,271 Arbitex Master Fund, L.P.................................. 14,500,000 2.42 -- 140,776 Aristeia International Limited............................ 24,225,000 4.04 -- 235,193 Aristeia Trading LLC...................................... 5,775,000 * -- 56,067 Bancroft Convertible Fund, Inc............................ 1,000,000 * -- 9,708 Bank of America Pension Plan.............................. 2,000,000 * -- 19,417 Barclays Global Investors Ltd............................. 500,000 * -- 4,854 Bear, Stearns & Co. Inc................................... 7,750,000 1.29 -- 75,242 Canadian Imperial Holdings Inc............................ 12,500,000 2.08 -- 121,358 Canyon Capital Arbitrage Master Fund, Ltd................. 5,850,000 * -- 56,795 Canyon Value Realization Fund (Cayman), Ltd............... 7,995,000 1.33 -- 77,621 Canyon Value Realization Fund, L.P........................ 2,925,000 * -- 28,397 Canyon Value Realization MAC 18, Ltd. (RMF)............... 1,170,000 * -- 11,359 CGNU Life Fund............................................ 700,000 * -- 6,796 Clinton Convertible Managed Trading Account I Limited..... 735,000 * -- 7,135 Clinton Multistrategy Master Fund, Ltd.................... 6,780,000 1.13 -- 65,824 Clinton Riverside Convertible Portfolio Limited........... 6,845,000 1.14 -- 66,456 CNH CA Master Account, L.P................................ 1,000,000 * -- 9,708 Commercial Union Life Fund................................ 800,000 * -- 7,766 Consulting Group Capital Market Funds..................... 500,000 * -- 4,854 CQS Convertible & Quantitative Strategies Master Fund Limited ........................................... 5,750,000 * -- 55,825 Credit Suisse First Boston Europe Limited................. 4,000,000 * -- 38,834 Credit Suisse First Boston LLC............................ 4,000,000 * -- 38,834 DBAG London............................................... 5,000,000 * -- 48,543 Deeprock & Co............................................. 1,000,000 * -- 9,708 Duckbill & Co............................................. 1,000,000 * -- 9,708 Ellsworth Convertible Growth and Income Fund, Inc......... 1,000,000 * -- 9,708 Gaia Offshore Master Fund Ltd............................. 10,700,000 1.78 -- 103,883 General Motors Welfare Benefit Trust...................... 1,000,000 * -- 9,708 Global Bermuda Limited Partnership........................ 1,400,000 * -- 13,592 GMAM Group Pension Trust I................................ 500,000 * -- 4,854 Goldman Sachs & Co. Profit Sharing Master Trust........... 170,000 * -- 1,650 Hamilton Multi-Strategy Master Fund, LLC.................. 9,500,000 1.58 -- 92,232 Hamilton Multi-Strategy Master Fund, LP................... 9,500,000 1.58 -- 92,232
(footnotes on next page) 33
Aggregate Principal Amount of Notes at Percentage Common Stock Common Stock Maturity that of Notes Owned Prior Registered Name may be sold Outstanding to Conversion Hereby(1) - ---- ----------- ----------- ------------- --------- HFR TQA Master Trust...................................... 864,000 * -- 8,388 Highbridge International LLC.............................. 10,000,000 1.67 -- 97,087 IL Annuity and Insurance Co............................... 23,000,000 3.83 -- 223,300 Innovest Finanzdienstle................................... 1,750,000 * -- 16,990 JMG Triton Offshore Fund, Ltd. ........................... 5,000,000 * -- 48,543 J.P. Morgan Securities Inc.(4)............................ 43,725,000 7.29 -- 424,512 Lakeshore International, Limited.......................... 5,600,000 * -- 54,368 Laurel Ridge Capital, LP.................................. 2,500,000 * -- 24,271 LDG Limited............................................... 1,142,000 * -- 11,087 Lehman Brothers Inc....................................... 6,450,000 1.08 -- 62,621 Lexington Vantage Fund.................................... 182,000 * -- 1,766 Lyxor/Gaia II Fund Ltd.................................... 3,400,000 * -- 33,009 McMahan Securities Co. L.P................................ 3,075,000 * -- 29,854 Meadow IAM Limited........................................ 640,000 * -- 6,213 Nicholas Applegate Capital Management Investment Grade Convertible 20,000 * -- 194 Nomura Securities International, Inc...................... 47,500,000 7.92 152,549 461,163 Norwich Union Life & Pensions............................. 1,200,000 * -- 11,650 Onyx Fund Holdings, LDC................................... 3,000,000 * -- 29,126 OZ Convertible Master Fund, Ltd........................... 629,000 * -- 6,106 OZ MAC 13 Ltd............................................. 194,000 * -- 1,883 OZ Master Fund, Ltd....................................... 7,007,000 1.17 -- 68,028 Peoples Benefit Life Insurance Company Teamsters.......... 8,000,000 1.33 -- 77,669 RBC Alternative Assets LP................................. 100,000 * -- 970 Retail Clerks Pension Trust............................... 1,000,000 * -- 9,708 Retail Clerks Pension Trust 2............................. 1,000,000 * -- 9,708 Sage Capital.............................................. 1,900,000 * -- 18,446 Silverback Master, Ltd.................................... 14,275,000 2.38 -- 138,591 Sphinx Fund............................................... 284,000 * -- 2,757 St. Albans Partners Ltd................................... 5,000,000 * -- 48,543 Sunrise Partners Limited Partnership...................... 4,423,000 -- 42,941 Teachers Insurance and Annuity Association of America..... 15,000,000 2.50 -- 145,630 Thrivent Financial for Lutherans.......................... 6,000,000 1.00 4,700 58,252 Topanga XI................................................ 2,900,000 * -- 28,155 TQA Master Fund, Ltd...................................... 10,702,000 1.78 -- 103,902 TQA Master Plus Fund, Ltd................................. 8,530,000 1.42 -- 82,815 Wachovia Securities International LTD. ................... 6,000,000 1.00 -- 58,252 Waterstone Market Neutral Fund, LP........................ 406,000 * -- 3,941 Waterstone Market Neutral Offshore Fund, Ltd.............. 1,623,000 * -- 15,757 White River Securities L.L.C.............................. 7,750,000 1.29 -- 75,242 XAVEX Convertible Arbitrage 7 Fund........................ 971,000 * -- 9,427 Yield Strategies Fund I, L.P.............................. 2,000,000 * -- 19,417 Yield Strategies Fund II, L.P............................. 1,000,000 * -- 9,708 Zurich Institutional Benchmarks Master Fund Ltd........... 1,325,000 * -- 12,864 All other holders of Notes or future transferees, pledgees, donees or successors of any such holders(5)(6) 75,463,000 30.68 -- 732,648 ------------ ------ --------- --------- Total(7)..................................................600,000,000 100.00 375,449(8) 5,825,220 ============ ====== ========= =========
* Less than 1% - ---------- (1) Assumes conversion of all of the holder's notes at a conversion rate of 9.7087 shares of common stock of Omnicom Group Inc. per $1,000 initial principal amount at maturity of the notes. However, this conversion rate will be subject to adjustment as described under "Description of the Notes--Conversion Rights" on page 16. As a result, the number of shares of common stock of Omnicom Group Inc. issuable upon conversion of the notes may increase or decrease in the future. (2) Allstate Insurance Company directly owns 139,800 shares of Omnicom Group Inc.'s common stock and is the beneficial owner of an additional 75,800 shares of Omnicom Group Inc.'s common stock through its affiliates Allstate New Jersey Insurance Company (10,500 shares), Agents Pension Plan (15,800 shares) and Allstate Retirement Plan (49,500 shares). Additionally, Allstate Insurance Company, through its affiliate Allstate Life Insurance Company, is the beneficial owner of $4,000,000 aggregate principal amount of the issuers' Zero Coupon Zero Interest Convertible Notes due 2032. As described in footnote 3 below, Allstate Insurance Company, through its affiliate Allstate Life Insurance Company, is also the beneficial owner of $2,000,000 aggregate principal amount of the notes being registered pursuant to the registration statement of which this prospectus is a part. The 2032 Notes are convertible into 36,360 shares of Omnicom Group Inc.'s common stock and the notes registered hereby are convertible into 19,417 shares of Omnicom Group Inc.'s common stock. (3) Allstate Life Insurance Company is the beneficial owner of 215,600 shares of Omnicom Group Inc.'s common stock. These shares are beneficially owned through its affiliates Allstate Insurance Company (139,800 shares), Allstate New Jersey Insurance Company (10,500), Agents Pension Plan (15,800 shares) and Allstate Retirement Plan (49,500 shares). Allstate Life Insurance Company directly owns $4,000,000 aggregate principal amount of the issuers' 2032 Notes. As described in footnote 2 above, Allstate Life Insurance Company, through its affiliate Allstate Insurance Company, is also the beneficial owner of $1,000,000 aggregate principal amount of the notes being registered pursuant to the registration statement of which this prospectus is a part. The 2032 Notes are convertible into 36,360 shares of Omnicom Group Inc.'s common stock and the notes registered hereby are convertible into 9,709 shares of Omnicom Group Inc.'s common stock. (4) J.P. Morgan Securities Inc. was one of the initial purchasers of the notes and its affiliate, JPMorgan Chase Bank, acts as trustee under the senior indenture dated as of June 10, 2003 that governs the notes. (5) Information about other selling securityholders will be set forth in prospectus supplements, if required. (6) Assumes that any other holders of notes, or any future transferees, pledgees, donees or successors of or from any such other holders of the notes, do not beneficially own any common stock of Omnicom Group Inc. other than the common stock issuable upon conversion of the notes at the initial conversion rate. (7) Amounts may not sum due to rounding. (8) Does not include the 215,600 shares of Omnicom Group Inc.'s common stock beneficially owned by Allstate Life Insurance Company, as those shares are the same shares also beneficially held by its affiliate, Allstate Insurance Company, which are already included in this number. 34 The preceding table has been prepared based upon information furnished to the issuers by the selling securityholders named in the table. From time to time, additional information concerning ownership of the notes and common stock may be known by certain holders thereof not named in the preceding table, with whom the issuers believe they have no affiliation. Information about the selling securityholders may change over time. Any changed information will be set forth in prospectus supplements. Plan of Distribution The notes and the common stock of Omnicom Group Inc. issuable on conversion or redemption of the notes are being registered to permit public secondary trading of these securities by the holders thereof from time to time after the date of this prospectus. Omnicom Group Inc. have agreed, among other things, to bear all expenses (other than underwriting discounts and selling commissions) in connection with the registration and sale of the notes and the common stock covered by this prospectus. The issuers will not receive any of the proceeds from the sale of notes or the common stock of Omnicom Group Inc. by the selling securityholders. The issuers have been advised by the selling securityholders that the selling securityholders may sell all or a portion of the notes and common stock of Omnicom Group Inc. beneficially owned by them and offered hereby from time to time on any exchange on which the securities are listed on terms to be determined at the times of such sales. The selling securityholders may also make private sales directly or through a broker or brokers. Alternatively, any of the selling securityholders may from time to time offer the notes or the common stock beneficially owned by them through underwriters, dealers or agents, who may receive compensation in the form of underwriting discounts, commissions or concessions from the selling securityholders and the purchasers of the notes and the common stock for whom they may act as agent. The aggregate proceeds to the selling securityholders from the sale of the notes or common stock offering will be the purchase price of such notes or common stock less discounts and commissions, if any. The notes and common stock may be sold from time to time in one or more transactions at fixed offering prices, which may be changed, or at varying prices determined at the time of sale or at negotiated prices. These prices will be determined by the holders of such securities or by agreement between these holders and underwriters or dealers who may receive fees or commissions in connection therewith. These transactions may include block transactions or crosses. Crosses are transactions in which the same broker acts as an agent on both sides of the trade. In connection with sales of the notes and the underlying common stock or otherwise, the selling securityholders may enter into hedging transactions with broker-dealers. These broker-dealers may in turn engage in short sales of the notes and the underlying common stock in the course of hedging their positions. The selling securityholders may also sell the notes and underlying common stock short and deliver notes and the underlying common stock to close out short positions, or loan or pledge notes and the underlying common stock to broker-dealers that in turn may sell the notes and the underlying common stock. In connection with their purchase of notes from the initial purchasers in the private placements, the selling securityholders were required to represent that they were purchasing the notes in the ordinary course of business and that they had no plans, arrangements or understandings, with any underwriter, broke-dealer, agent or any other person regarding the resale of the notes or the underlying common stock. Selling securityholders may sell any or all of the notes and the underlying common stock offered by them pursuant to this prospectus. In addition, the issuers cannot assure you that any such selling securityholder will not transfer, devise or gift the notes and the underlying common stock by other means not described in this prospectus. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 or Rule 144A of the Securities Act may be sold under Rule 144 or Rule 144A rather than pursuant to this prospectus. Omnicom Group Inc.'s outstanding common stock is listed for trading on the New York Stock Exchange. The selling securityholders and any broker and any broker-dealers, agents or underwriters that participate with the selling securityholders in the distribution of the notes or the common stock may be deemed to be "underwriters" within the meaning of the Securities Act, in which event any commission received by such broker-dealers, agents or underwriters and any profit on the resale of the notes or the common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. 35 In addition, in connection with any resales of the notes, any broker-dealer who acquired the notes for its own account as a result of market-making activities or other trading activities must deliver a prospectus meeting the requirements of the Securities Act. Broker-dealers may fulfill their prospectus delivery requirements with respect to the notes other than a resale of an unsold allotment from the original sale of the outstanding notes with this prospectus. The notes were initially issued and sold by Omnicom Group Inc. on June 10, 2003 and June 20, 2003 in transactions exempt from the registration requirements of the federal securities laws to the initial purchasers. Omnicom Group Inc. has agreed to indemnify the initial purchasers and each selling securityholder, including each person, if any, who controls any of them within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each selling securityholder had agreed severally and not jointly, to indemnify Omnicom Group Inc., the initial purchasers and each other selling shareholder, including each person, if any, who controls Omnicom Group Inc. or any of them within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against certain liabilities arising under the Securities Act. The selling securityholders and any other persons participating in the distribution will be subject to the provisions of the federal securities laws, including Regulation M, which may limit the timing of purchases and sales of the notes and the underlying common stock by the selling securityholders and any other such person. In addition, Regulation M may restrict the ability of any person engaged in the distribution of the notes and the underlying common stock to engage in market-making activities with respect to the particular notes and the underlying common stock being distributed for a period of up to five business days prior to the commencement of such distribution. This may affect the marketability of the notes and the underlying common stock and the ability of any person or entity to engage in market-making activities with respect to the notes and the underlying common stock. Omnicom Group Inc. has agreed to use its reasonable best efforts to keep the registration statement of which this prospectus is a part effective until the earlier of: o the sale pursuant to the registration statement of all the securities registered thereunder; and o the expiration of the holding period applicable to such securities held by persons that are not our affiliates under Rule 144(k) under the Securities Act or any successor provision, which will be on June 10, 2005, in the case of the notes sold on June 10, 2003, and June 20, 2005 in the case of the notes sold on June 20, 2003. This obligation is subject to a number of exceptions and qualifications. In some circumstances, Omnicom Group Inc. has the right to suspend use of this prospectus and offers and sales of notes and common stock pursuant to the registration statement to which this prospectus relates. LEGAL MATTERS The validity of the notes and the shares of common stock of Omnicom Group Inc. issuable on conversion or redemption of the notes has been passed upon for the issuers by Jones Day, New York, New York. EXPERTS The consolidated financial statements and related 2002 financial statement schedule of Omnicom Group Inc. as of December 31, 2002, and for the year then ended, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The consolidated financial statements of Omnicom Group Inc. and subsidiaries for the years ended December 31, 2000 and 2001 incorporated by reference herein have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of said firm as experts in giving said report. Arthur Andersen has ceased auditing public companies in the United States and has not consented to their inclusion or incorporation of their report in the prospectus. Because Arthur Andersen has not consented to the inclusion or incorporation of their report in the prospectus, it may become more difficult for you to seek remedies against Arthur Andersen in connection 36 with any material misstatement or omission that may be contained in Omnicom Group Inc.'s consolidated financial statements and schedules for such periods. In particular, and without limitation, you will not be able to recover against Arthur Andersen under Section 11 of the Securities Act for any untrue statement of a material fact contained in the financial statements audited by Arthur Andersen or any omission of a material fact required to be stated in those financial statements. In June 2002, Omnicom Group Inc.'s Board of Directors, upon the recommendation of its Audit Committee, determined not to rehire Arthur Andersen LLP as its independent accountants and authorized the engagement of KPMG LLP to serve as its independent accountants for 2002. KPMG has not audited the financial statements that were audited by Arthur Andersen and incorporated herein by reference. WHERE YOU CAN FIND MORE INFORMATION Omnicom Group Inc. files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document Omnicom Group Inc. files at the SEC's public reference room in Washington, D.C. You can also request copies of the documents, upon payment of a duplicating fee, by writing to the Public Reference Section of the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. These SEC filings are also available to the public from the SEC's web site at http://www.sec.gov. Reports, proxy statements and other information filed by Omnicom Group Inc. may also be inspected at the offices of the New York Stock Exchange at 20 Broad Street, New York, New York 10005. Omnicom Group Inc. is incorporating by reference into this prospectus certain information it files with the SEC, which means that Omnicom Group Inc. is disclosing important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, except for any information superseded by information contained directly in this prospectus. Information that Omnicom Group Inc. 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 or incorporated by reference into this prospectus. Omnicom Group Inc. incorporates by reference into this prospectus the following documents: o Annual Report on Form 10-K for the year ended December 31, 2002 (SEC File No. 001-10551); o Quarterly Report on Form 10-Q for the quarter ended June 30, 2003 (SEC File No. 001-10551); o Quarterly Report on Form 10-Q for the quarter ended March 31, 2003 (SEC File No. 001-10551); o Current Report on Form 8-K dated June 10, 2003 (SEC File No. 1-10551); and o The description of its common stock contained in the Registration Statement on Form 8-A filed with the SEC pursuant to Section 12 of the Securities Exchange Act of 1934 (SEC File No. 001-10551), including any subsequently filed amendments and reports updating such description. All future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until completion of the resale of all of the notes by the selling securityholders under this prospectus are also incorporated by reference. You may request a copy of these filings, or any other documents or other information referred to in, or incorporated by reference into, including a schedule of projected payments for U.S. federal income tax purposes, this prospectus, at no cost, by writing or telephoning Omnicom Group Inc. at the following address: Barry J. Wagner Secretary and General Counsel Omnicom Group Inc. 437 Madison Avenue New York, NY 10022 (212) 415-3600 Omnicom Group Inc.'s website is located at http://www.omnicomgroup.com. However, the information on the website is not part of this prospectus. 37 OmnicomGroup 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 registrants, are as follows: SEC Registration Fee ...................................... $ 48,108 Legal Fees and Expenses ................................... 25,000 Accounting Fees and Expenses .............................. 6,500 Miscellaneous Expenses .................................... 50,000 -------- Total ................................................ $129,608 ======== Item 15. Indemnification of Directors and Officers. Omnicom Group Inc. Omnicom Group Inc.'s certificate of incorporation contains a provision limiting the liability of 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, resulting in personal gain to which the director was not legally entitled or where such director's acts violated section 719 of the New York Business Corporation Law (approval of statutorily prohibited dividends, share repurchases or redemptions, distributions of assets on dissolution or loans to directors). Omnicom Group Inc.'s by-laws provide that an officer or director will be indemnified against any costs or liabilities, including attorney's fees and amounts paid in settlement with the consent 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 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, that 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 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, 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 an officer or director of the corporation, or is or was serving at the request of the corporation as a director or officer of any other corporation, 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 that is settled or otherwise disposed of, or (2) any claim, issue or matter for which the 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 that 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. Omnicom Group Inc. 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. Omnicom Group Inc. also maintains and pay premiums for directors' and officers' liability insurance policies. Omnicom Capital Inc. Sections 33-770 through 33-776 of the Business Corporation Act of the State of Connecticut provide that a corporation may indemnify a director or officer against judgments, fines, penalties, amounts paid in settlement and reasonable expenses actually incurred by him or her, including attorneys' fees, for actions brought or threatened to be brought against him or her in his or her capacity as a director or officer, other than actions brought by or in the right of the corporation, when it is determined by certain disinterested parties that he or she acted in good faith in a manner he or she reasonably believed to be in the corporation's best interest (or in the case of conduct not in his or her official capacity, at least not opposed to the best interests of the corporation). In any criminal action or proceeding, it also must be determined that the director or officer had no reasonable cause to believe that his or her conduct was unlawful. A director or officer must be indemnified when he or she is wholly successful on the merits or otherwise in the defense of a proceeding or in circumstances where a court determines that he or she is fairly and reasonably entitled to be indemnified. In connection with shareholder derivative suits, a director or officer may not be indemnified unless he or she is finally adjudged (a) to have met the relevant standard of conduct described above and(b) not to have received a financial benefit to which he or she was not entitled, whether or not he or she was acting in his or her official capacity. Omnicom Capital maintains and pays premiums for its directors' and officers' liability insurance policies. Omnicom Finance Inc. Section 145 of the General Corporation Law of the State of Delaware contains provisions permitting (and, in some situations, requiring) Delaware corporations such as Omnicom Finance to provide indemnification to their officers and directors for losses and litigation expenses incurred in connection with, among other things, their service to the corporation in those capacities. Our certificate of incorporation contains provisions requiring Omnicom Finance to indemnify and hold harmless our directors, officers and employees to the fullest extent permitted or required by law. Among other things, these provisions provide that Omnicom Finance is required to indemnify any person who is or was a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that the indemnitee is or was acting in an official capacity as our director, officer, employee or agent, or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including service with respect to any employee benefit plan) against all expenses, liabilities and losses, including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by the indemnitee in connection with such proceeding to the fullest extent permitted by the General Corporation Law of the State of Delaware, as the same exists or may be amended (but, in the case of any amendment, only to the extent that the amendment permits us to provide broader indemnification rights than law permitted Omnicom Finance to provide prior to the amendment). These provisions also provide for the advance payment of fees and expenses incurred by the indemnitee in defense of any such proceeding, subject to reimbursement by the indemnitee if it is ultimately determined that the indemnitee is not entitled to be indemnified by Omnicom Finance. Omnicom Finance maintains and pays premiums for directors' and officers' liability insurance policies. II-2 Item 16. Exhibits and Financial Statement Schedules. Exhibit Number Description of Exhibit ------- ---------------------- 3.1 Certificate of Incorporation of Omnicom Capital Inc. 3.2 By-laws of Omnicom Capital Inc. 3.3 Certificate of Incorporation of Omnicom Finance Inc. 3.4 By-laws of Omnicom Finance Inc. 4.1* Indenture, dated as of June 10, 2003, between Omnicom Group Inc. and JP Morgan Chase Bank. 4.2* Form of the Zero Coupon Zero Yield Convertible Note due 2033 (included in Exhibit 4.1 above). 4.3* Registration Rights Agreement, dated June 10, 2003, by and between Omnicom Group Inc. and J.P. Morgan Securities Inc., Goldman, Sachs & Co., Citigroup Global Markets Inc., ABN AMRO Rothschild LLC, HSBC Securities (USA) Inc., SG Cowen Securities Inc. and Barclays Capital Inc. 4.4 First Supplemental Indenture, dated as of November 5, 2003, between Omnicom Group Inc., Omnicom Capital Inc., Omnicom Finance Inc. and JP Morgan Chase Bank. 5.1* Opinion of Jones Day as to certain legal matters. 8.1* Opinion of Jones Day as to certain U.S. federal income tax considerations. 12.1 * Computation of Ratio of Earnings to Fixed Charges. 23.1 Consent of KPMG. 23.2 * Consent of Jones Day (included in Exhibit 5.1). 24.1 * Power of Attorney (included on signature pages of the Registration Statement as originally filed). 25.1 * Form of T-l Statement of Eligibility of the Trustee under the Indenture. - ---------- * Previously filed. Item 17. Undertakings. The registrants undertake: (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) that, individually or in the aggregate, represent a fundamental change in the information in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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. II-3 However, paragraphs (l)(i) and (l)(ii) will not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by us 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 will be deemed to be a new registration statement relating to the securities offered therein, and the offering of the 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 any of the securities being registered that remain unsold at the termination of the offering. The registrants further undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of Omnicom Group Inc.'s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 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 the 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, may be permitted to directors, officers or persons controlling the registrants, pursuant to the provisions described under Item 15 above or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission the 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 registrants of expenses incurred or paid by a director, officer or controlling person of the registrants 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 registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 registration statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, in the State of New York on November 5, 2003. OMNICOM GROUP INC., as Registrant By: /s/ Randall J. Weisenburger ------------------------------------ Randall J. Weisenburger Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed below by the following persons in the capacities and on the date indicated.
Signature and Title Date ------------------- ---- * ____________________________________ Chairman of the Board and Director November 5, 2003 Bruce Crawford * ____________________________________ President, Chief Executive Officer November 5, 2003 John D. Wren and Director (Principal Chief Executive Officer) /s/ Randall J. Weisenburger ____________________________________ Executive Vice President and November 5, 2003 Randall J. Weisenburger Chief Financial Officer (Principal Financial Officer) /s/ Philip J. Angelastro ____________________________________ Senior Vice President and Controller November 5, 2003 Philip J. Angelastro (Principal Accounting Officer) * ____________________________________ Director November 5, 2003 Robert Charles Clark * ____________________________________ Director November 5, 2003 Leonard S. Coleman, Jr. * ____________________________________ Director November 5, 2003 Errol M. Cook * ____________________________________ Director November 5, 2003 Susan S. Denison * ____________________________________ Director November 5, 2003 Michael A. Henning ____________________________________ Director John R. Murphy * ____________________________________ Director November 5, 2003 John R. Purcell * ____________________________________ Director November 5, 2003 Linda Johnson Rice * ____________________________________ Director November 5, 2003 Gary L. Roubos
*By: /s/ Barry J. Wagner ---------------------------- Barry J. Wagner Pursuant to Powers of Attorney filed herewith or previously with the Securities and Exchange Commission II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 registration statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, in the State of New York on November 5, 2003. OMNICOM CAPITAL INC., as Registrant By: /s/ Dennis E. Hewitt ----------------------------------- Dennis E. Hewitt Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed below by the following persons in the capacities and on the date indicated.
Signature and Title Date ------------------- ---- /s/ Dennis E.Hewitt ____________________________________ Chief Executive Officer and Director November 5, 2003 Dennis E. Hewitt (Principal Executive Officer) /s/ Eric Huttner ____________________________________ Chief Financial Officer and Director November 5, 2003 Eric Huttner (Principal Financial Officer) /s/ Maeve C. Robinson ____________________________________ Treasurer and Director November 5, 2003 Maeve C. Robinson (Principal Accounting Officer) /s/ Randall J. Weisenburger ____________________________________ Director November 5, 2003 Randall J. Weisenburger /s/ Will Lee ____________________________________ Director November 5, 2003 Will Lee /s/ Barry J. Wagner ____________________________________ Director November 5, 2003 Barry J. Wagner
II-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 registration statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, in the State of New York on November 5, 2003. OMNICOM FINANCE INC., as Registrant By: /s/ Dennis E. Hewitt ----------------------------------- Dennis E. Hewitt Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed below by the following persons in the capacities and on the date indicated.
Signature and Title Date ------------------- ---- /s/ Randall J. Weisenburger ____________________________________ Chief Executive Officer and Director November 5, 2003 Randall J. Weisenburger (Principal Executive Officer) /s/ Dennis E. Hewitt ____________________________________ Chief Financial Officer and Director November 5, 2003 Dennis E. Hewitt (Principal Financial Officer) /s/ Philip J. Angelastro ____________________________________ Treasurer and Director November 5, 2003 Philip J. Angelastro (Principal Accounting Officer) /s/ Maeve C. Robinson ____________________________________ Director November 5, 2003 Maeve C. Robinson
II-7 INDEX TO EXHIBITS Exhibit Number Description of Exhibit - ------- ---------------------- 3.1 Certificate of Incorporation of Omnicom Capital Inc. 3.2 By-laws of Omnicom Capital Inc. 3.3 Certificate of Incorporation of Omnicom Finance Inc. 3.4 By-laws of Omnicom Finance Inc. 4.4 First Supplemental Indenture, dated as of November 5, 2003, between Omnicom Group Inc., Omnicom Capital Inc., Omnicom Finance Inc. and JP Morgan Chase Bank. 23.1 Consent of KPMG. II-8 EX-3.1 3 e15731ex3-1.txt STOCK CORPORATION Exhibit 3.1 CERTIFICATE OF INCORPORATION STOCK CORPORATION Office of the Secretary of the State 30 Trinity Street / P.O. Box 150470 / Hartford, CT 06115-04 / new 1-97 - -------------------------------------------------------------------------------- FILING #0002080988 PG 01 OF 02 VOL B-00321 FILED 03/07/2000 02:07 PM PAGE 03504 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1. NAME OF CORPORATION: Omnicom Capital Inc. - -------------------------------------------------------------------------------- 2. TOTAL NUMBER OF AUTHORIZED SHARES: 100 If the corporation has more than one class of shares, it must designate each class and the number of shares authorized within each class below - -------------------------------------------------------------------------------- Class Number of shares per class - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 3. TERMS, LIMITATIONS, RELATIVE RIGHTS AND PREFERENCES OF EACH CLASS OF SHARES AND SERIES THEREOF PURSUANT TO CONN. GEN. STAT. SECTION 33-665: [SEAL] - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- FILING #0002080988 PG 02 OF 02 VOL B-00321 FILED 03/07/2000 02:07 PM PAGE 03505 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE - -------------------------------------------------------------------------------- 4. APPOINTMENT OF REGISTERED AGENT - -------------------------------------------------------------------------------- Print or type name of agent: United Corporate Services, Inc. - -------------------------------------------------------------------------------- Business/initial registered office address: 66 Cedar Street Newington, CT 06111 - -------------------------------------------------------------------------------- Residence address: - -------------------------------------------------------------------------------- Acceptance of appointment /s/ Michael A. Barr ---------------------------------------- Michael A. Barr, Pres. Signature of agent - -------------------------------------------------------------------------------- 5. OTHER PROVISIONS: - -------------------------------------------------------------------------------- 6. EXECUTION Dated this 2nd day of March, 2000 Certificate must be signed by each incorporator. - -------------------------------------------------------------------------------- PRINT OR TYPE NAME OF INCORPORATOR(S) SIGNATURE(S) COMPLETE ADDRESS(ES) - -------------------------------------------------------------------------------- Raymond E. McGovern, Jr. /s/ Raymond E. McGovern, Jr. 69 Midland Avenue, Tarrytown, NY 10591 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- EX-3.2 4 e15731ex3_2.txt BY-LAWS Exhibit 3.2 BYLAWS OF OMNICOM CAPITAL INC. ARTICLE I SHAREHOLDERS 1.CERTIFICATE REPRESENTING STOCK. Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of, the corporation by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation certifying the number of shares owned by the holder in the corporation. Any and all signatures on any such certificate may be facsimiles. The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of any lost, stolen, or destroyed certificate, or such owner's legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance any such new certificate. 2. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon. 3. RECORD DATE FOR SHAREHOLDERS. For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion, or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than seventy days before the date of such meeting, nor more than seventy days prior to any other action. The record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders shall apply to any adjournment of the meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred twenty days after the date fixed for the original meeting. 4.SHAREHOLDER MEETINGS. a. TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the Board of Directors, provided, that the first annual meeting shall be held on a date within the earlier of six months after the end of the corporation's first fiscal year or fifteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within the earlier of six months after the end of the corporation's fiscal year or fifteen months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the time fixed by the Board of Directors. b. PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Connecticut, as the Board of Directors may, from time to time, fix. c. CALL. Annual meetings and special meetings may be called by the Board of Directors or by any officer instructed by the Board of Directors to call the meeting. d. NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall he given, stating the place, date, and hour of the meeting and stating the place at which the list of shareholders of the corporation may be examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before the meeting, and shall, (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. Except as otherwise provided by the Connecticut Business Corporation Act, a copy of the notice of any meeting shall be given, personally or by mail, no fewer than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each shareholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in the United States mail. If a meeting is adjourned to another time and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the Board of Directors, after adjournment, fix a new record date for the adjourned meeting. Attendance of a shareholder at a meeting of shareholders shall constitute a waiver of notice of such meeting, except when the shareholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. e. SHAREHOLDER LIST. The list of shareholders shall be open to the examination of any shareholder during ordinary business hours, beginning two business days after notice of any -2- shareholders' meeting is given and continuing through the meeting, at the principal office of the corporation or at a place identified in the meeting notice in the city where the meeting is to be held. The stock ledger shall be the only evidence as to who are the shareholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote at any meeting of shareholders. f. CONDUCT OF MEETING. Meetings of the shareholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the shareholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the presiding officer or chairman of the meeting shall appoint a secretary of the meeting. g. QUORUM. The holders of a majority of the outstanding shares of stock shall constitute a quorum at a meeting of shareholders for the transaction of any business. The shareholders present may adjourn the meeting despite the absence of a quorum. h. VOTING. Each share of stock shall entitle the holder thereof to one vote. Action shall be authorized by a majority of the votes cast except where the Connecticut Business Corporation Act prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the certificate of incorporation and these Bylaws. 5. SHAREHOLDER ACTION WITHOUT MEETINGS. Any action required by Connecticut Business Corporation Act to be taken at any annual or special meeting of shareholders, or any action which may be taken at any annual or special meeting of shareholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the persons who would be entitled to vote upon such action at a meeting, or by their duly authorized attorneys. ARTICLE II DIRECTORS 1. FUNCTIONS AND DEFINITION. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors of the corporation. The Board of Directors shall have the authority to fix the compensation of the members thereof. The use of the phrase "whole board" herein refers to the total number of directors which the corporation would have if there were no vacancies. 2. NUMBER. The initial Board of Directors shall consist of five (5) persons. Thereafter, such number may be fixed from time to time by action of the shareholders or of the -3- directors, or, if the number is not fixed, the number shall be five (5). The number of directors may be increased or decreased by action of the shareholders or of the directors. 3. ELECTION AND TERM. The first Board of Directors shall be elected by the incorporator and shall hold office until the first annual meeting of shareholders and until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. Thereafter, directors who are elected at an annual meeting of shareholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of shareholders and until their successors are elected and qualified or until their earlier resignation or removal. In the interim between annual meetings of shareholders or of special meetings of shareholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause or without cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director. 4. MEETINGS a. TIME. Meetings shall be held at such time as the Board of Directors shall fix, except that the first meeting of a newly elected Board of Directors shall be held as soon after its election as the directors may conveniently assemble. b. PLACE. Meetings shall be held at such place within or without the State of Connecticut as shall be fixed by the Board of Directors. c. CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, or by a majority of the directors in office. d. NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Not less than two days notice of the time and place shall be given for special meetings. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. e. QUORUM ACTION. A majority of the whole Board of Directors shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute at least one-third of the whole Board of Directors. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, and except as otherwise provided by the Connecticut Business Corporation Act, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of the Connecticut Business -4- Corporation Act and these Bylaws which govern a meeting of directors held to fill vacancies and newly created directorships in the Board of Directors or action of disinterested directors. Any member or members of the Board of Directors or of any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. 5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the Connecticut Business Corporation Act, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. A director may only be removed by the shareholders at a meeting called for the purpose of removing him and the notice of such meeting must state that the purpose, or one of the purposes, of the meeting is the removal of such director. 6. COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation with the exception of any authority the delegation of which is prohibited by Section 33-753(f) of the Connecticut Business Corporation Act. 7. WRITTEN ACTION. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. ARTICLE III OFFICERS The officers of the corporation may consist of a President. a Secretary, a Treasurer, and such other officers as deemed necessary or expedient or desirable by the Board of Directors. 1. PRESIDENT. The President shall have general charge and direction of the business of the corporation and shall perform such other duties as are properly required of him by the Board of Directors. 2. SECRETARY. The Secretary shall keep the minutes of the meetings of shareholders and the Board of Directors and shall give notice of all such meetings as required by these Bylaws. The Secretary shall have custody of such minutes, the seal of the corporation and the stock certificate records of the corporation, except to the extent some other person is authorized to have custody and possession thereof by a resolution of the Board of Directors. -5- 3. TREASURER. The Treasurer shall keep the fiscal accounts of the corporation, including an account of all moneys received or disbursed. ARTICLE IV CORPORATE SEAL The corporate seal shall be in such form as the Board of Directors shall prescribe. ARTICLE V FISCAL YEAR The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors. ARTICLE VI CONTROL OVER BYLAWS Subject to the provisions of the Certificate of Incorporation and the provisions of the Connecticut Business Corporation Act, the power to amend, alter or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of Directors or by the shareholders. -6- EX-3.3 5 e15731ex3_3.txt CERTIFICATE OF INCORPORATION Exhibit 3.3 CERTIFICATE OF INCORPORATION OF OMNICOM FINANCE INC. I, THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, do hereby certify as follows: FIRST: The name of the corporation is Omnicom Finance Inc. SECOND: Its registered office is to be located at 229 South State Street, in the City of Dover, in the County of Kent, in the State of Delaware. The name of its registered agent at that address is The Prentice-Hall Corporation System, Inc. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation is authorized to issue is ONE HUNDRED (100) shares. The par value of each of such shares is ONE ($1.00) dollar. All such shares are of one class and are shares of Common Stock. FIFTH: The name and address of the single incorporator are: Raymond E. McGovern, Jr. BBDO Worldwide Inc. 1285 Avenue of the Americas New York, NY 10019 SIXTH: the By-Laws of the corporation may be made, altered, amended, changed, added to or repealed by the Board of Directors without the assent or vote of the stockholders. Elections of directors need not be by ballot unless the By-Laws so provide. SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Soc. 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. EIGHTH: The corporation shall, to the full extent permitted by Section 145 of the Delaware Corporation Law, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto. NINTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power. IN WITNESS WHEREOF, I have hereunto set my hand and seal, the 8th day of June, 1988. /s/ Raymond E. McGovern, Jr. -------------------------------- Raymond E. McGovern, Jr. -2- EX-3.4 6 e15731ex3_4.txt BY-LAWS Exhibit 3.4 BY-LAWS of OMNICOM FINANCE INC. A Delaware Corporation Adopted June 24, 1988 ARTICLE I Offices Section 1. The registered office of the Corporation shall be in the City of Dover, County of Kent, State of Delaware. Section 2. The Corporation may also have offices at such other places, within or outside the State of Delaware, as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II Meetings of Stockholders Section 1. All meetings of stockholders shall be held at the registered office of the Corporation, or at such other place within or outside of the State of Delaware as may be fixed from time to time by the Board of Directors. Section 2. Annual meetings of stockholders shall be held within five months of the end of the Corporation's fiscal year, or at such other date and time as may be fixed by the Board of Directors. At each annual meeting of stockholders the stockholders shall elect directors and transact such other business as may properly be brought before the meeting. Section 3. Written notice of each annual meeting of stockholders, stating the place, date and hour of the meeting, shall be given in the manner set forth in Article VI of these By-Laws not less than twenty nor more than sixty days before the date of the meeting to each stockholder entitled to vote at the meeting. Section 4. Special meetings of stockholders may be called at any time for any purpose or purposes by the Board of Directors or by the Chief Executive Officer, and shall be called by the Chief Executive Officer or the Secretary upon the written request of the majority of the directors or upon the written request of the holders of at least 10% of all outstanding shares entitled to vote on the action proposed to be taken. Such written requests shall state the time, place and purpose or purposes of the proposed meeting. A special meeting of stockholders called by the Board of Directors or the Chief Executive Officer, other than one required to be called by reason of a written request of stockholders, may be cancelled by the Board of Directors at any time not less than 24 hours before the scheduled commencement of the meeting. Section 5. Written notice of each special meeting of stockholders shall be given in the manner set forth in Article VI of these By-Laws not less than twenty nor more than 2 sixty days before the date of the meeting, to each stockholder entitled to vote at the meeting. Each such notice of a special meeting of stockholders shall state the place, date and hour of a meeting and the purpose or purposes for which the meeting is called. Section 6. Except as otherwise required by law or the Certificate of Incorporation, the presence in person or by proxy of holders of a majority of the shares entitled to vote at a meeting of stockholders shall be necessary, and shall constitute a quorum, for the transaction of business at such meeting. If a quorum is not present or represented by proxy at any meeting of stockholders, the holders of a majority of the shares entitled to vote at the meeting who are present in person or represented by proxy may adjourn the meeting from time to time until a quorum is present. An adjourned meeting may be held later without notice other than announcement at the meeting, except that if the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given in the manner set forth in Article VI to each stockholder of record entitled to vote at the adjourned meeting. Section 7. At any meeting of stockholders each stockholder having the right to vote shall be entitled to vote in person or by proxy. Except as otherwise provided by law or in the Certificate of Incorporation, each stockholder shall be 3 entitled to one vote for each share of stock entitled to vote standing in his name on the books of the Corporation. All elections shall be determined by plurality votes. Except as otherwise provided by law or in the Certificate of Incorporation or By-Laws, any other matter shall be determined by the vote of a majority of the shares voting on it at a meeting where a valid quorum is present. Section 8. Whenever the vote of stockholders at a meeting is required or permitted in connection with any corporate action, the meeting and vote may be dispensed with if the action taken has the written consent of the holders of shares having at least the minimum number of votes required to authorize the action at a meeting at which all shares entitled to vote were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous consent shall be given to those stockholders who have not consented in writing. ARTICLE III Directors Section 1. The Board of Directors shall manage the business of the Corporation, except as otherwise provided by law, the Certificate of Incorporation or these By-Laws. Section 2. The number of directors constituting the entire Board of Directors, which number shall be at least 4 one (1), shall be determined by the Board of Directors from time to time. Until further action by the Board of Directors, the number of directors which shall constitute the entire Board of Directors shall be six. As used in these By-Laws, the term "entire Board of Directors" means the total number of directors which the Corporation would have if there were no vacancies. Section 3. Except as provided in Section 5 of this Article, the directors shall be elected at the annual meeting of stockholders. Except as otherwise provided by law, the Certificate of Incorporation, or these By-Laws, each director elected shall serve until the next succeeding annual meeting of stockholders and until his successor is elected and qualified. Section 4. Any or all of the directors may be removed with or without cause by vote of the holders of a majority of the outstanding shares of each class of voting stock of the Corporation voting as a class. Section 5. Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by vote of a majority of the directors then in office, even if less than a quorum exists. A director elected to fill a vacancy, including a vacancy created by a newly created directorship, shall serve until the next succeeding annual meeting of stockholders and until his successor is elected and qualified. 5 Section 6. The books of the Corporation, except such as are required by law to be kept within the State of Delaware, may be kept at such place or places within or without the State of Delaware as the Board of Directors may from time to time determine. Section 7. The Board of Directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of any or all directors for services to the Corporation as directors or officers or otherwise. ARTICLE IV Meetings of the Board of Directors Section 1. The first meeting of each newly elected Board of Directors shall be held immediately following the annual meeting of stockholders. If the meeting is held at the place of the meeting of stockholders, no notice of the meeting need be given to the newly elected directors. If the first meeting is not so held, it shall be held at a time and place specified in a notice given in the manner provided for notice of special meetings of the Board of Directors. Section 2. Regular meetings of the Board of Directors may be held upon such notice, or without notice, at such times and at such places within or outside the State of Delaware as shall from time to time be determined by the Board. 6 Section 3. Special meetings of the Board of Directors may be called by the Chief Executive Officer on at least forty-eight hours' notice to each director and shall be called by the Chief Executive Officer or the Secretary on like notice at the written request of any two directors. Section 4. Whenever notice of a meeting of the Board of Directors is required, the notice shall be given in the manner set forth in Article VI of these By-Laws and shall state the place, date and hour of the meeting. Except as provided by law, the Certificate of Incorporation, or other provisions of these By-Laws, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice thereof. Section 5. Except as otherwise required by law or the Certificate of Incorporation or other provisions of these By-Laws, a majority of the directors in office shall constitute a quorum for the transaction of business, and the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum is not present at any meeting of directors, a majority of the directors present at the meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting. 7 Section 6. Any action of the Board of Directors may be taken without a meeting if one or more written consents to the action are signed by all of the members of the Board of Directors and filed with the minutes of the proceedings of the Board of Directors. Section 7. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar equipment by means of which all persons participating in the meeting can hear each other, and such participation in the meeting shall constitute presence in person at the meeting. ARTICLE V Committees Section 1. The Board of Directors may designate from among its members an Executive Committee and other committees, each consisting of one or more directors, and may also designate one or more of its members to serve as alternates on these committees. To the extent permitted by law, the Executive Committee shall have all the authority of the Board of Directors, except as the Board otherwise provides, and the other committees shall have such authority as the Board 8 grants them. The Board of Directors shall have power at any time to change the membership of any committees, to fill vacancies in their membership and to discharge any committees. All resolutions establishing or discharging committees, designating or changing members of committees, or granting or limiting authority of committees, may be adopted only by the affirmative vote of a majority of the entire Board. Section 2. Each committee shall keep regular minutes of its proceedings and report to the Board of Directors as and when the Board shall require. Unless the Board otherwise provides, a majority of the members of any committee may determine its actions and the procedures to be followed at its meetings (which may include a procedure for participating in meetings by conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other), and may fix the time and place of its meetings. Section 3. Any action of a committee may be taken without a meeting if one or more written consents to the action are signed by all of the members of the committee and filed with the minutes of the proceedings of the committee. 9 ARTICLE VI Notices Section 1. Any notice to a stockholder shall be given personally or by mail. If mailed, a notice will be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of stockholders. Section 2. Any notice to a director may be given personally, by telephone or by telex, rapidfax or telegraph. A notice will be deemed given when actually given in person or by telephone, or when deposited with the communications company through which it is given, directed to the director at his business address or at such other address as the director may have designated to the Secretary in writing as the address to which notices should be sent. Section 3. Any person may waive notice of any meeting by signing a written waiver, whether before or after the meeting. In addition, attendance at a meeting will be deemed a waiver of notice unless the person attends for the purpose, expressed to the meeting at its commencement, of objecting to the transaction of any business because the meeting is not lawfully called or convened. 10 ARTICLE VII Officers Section 1. The officers of the Corporation shall be a Chief Executive Officer, a Secretary and a Director of Treasury Operations. In addition, the Board of Directors may elect a Chairman of the Board and one or more Vice-Chief Executive Officers, Assistant Secretaries or Assistant Directors of Treasury Operations, and such other officers as it may from time to time deem advisable. Any two or more offices may be held by the same person. No officer except the Chairman of the Board need be a director of the Corporation. Section 2. Each officer shall be elected by the Board of Directors and shall hold office for such term, if any, as the Board of Directors shall determine. Any officer may be removed at any time, either with or without cause, by the vote of a majority of the entire Board of Directors. Section 3. Any officer may resign at any time by giving written notice to the Board of Directors or to the Chief Executive Officer. Such resignation shall take effect at the time specified therein or, if no time is specified therein, at the time of receipt thereof, and the acceptance of such resignation shall not be necessary to make it effective. Section 4. The compensation of officers shall be fixed by the Board of Directors or in such manner as it may provide. 11 Section 5. The Chairman of the Board, if any, shall preside at all meetings of the stockholders and of the Board of Directors and shall have such other duties as from time to time may be assigned to him by the Board of Directors. Section 6. The Chief Executive Officer of the Corporation, subject to the Board of Directors, shall have charge of the affairs of the Corporation. He shall keep the Board of Directors fully informed and shall freely consult them concerning the business of the Corporation in his charge. He may sign, execute and deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or other instruments authorized by the Board of Directors, except in cases where the signing, execution or delivery thereof shall be expressly delegated by the Board of Directors or by these By-Laws to some other officer or agent of the Corporation or where any of them shall be required by law otherwise to be signed, executed or delivered and he may affix the seal of the Corporation to any instrument which shall require it. Except as otherwise provided by these By-Laws, the Chief Executive Officer shall appoint and remove, employ and discharge and fix the compensation of all servants, agents, employees and clerks of the Corporation. He shall, if present, preside in the absence of the Chairman of the Board at all meetings of the Board of Directors and of the shareholders and shall have the power to call special meetings of the shareholders and of the Board of 12 Directors and in addition to the powers usually incident to the office of Chief Executive Officer as herein provided, shall have such other powers and shall perform such other duties as may be assigned to him by the Board of Directors. Section 7. The Vice-Chief Executive Officers, if any, shall perform such duties as shall from time to time be assigned to them by the Board of Directors or the Chief Executive Officer. The Board may designate a seniority among Vice-Chief Executive Officers. In the absence of or in the event of the disability of the Chief Executive Officer, the Vice-Chief Executive Officers shall, in the order designated by the Board, perform the duties of the Chief Executive Officer. Section 8. The Secretary shall keep the minutes of all meetings of the shareholders and of the Board of Directors in books provided for that purpose. He shall attend to the giving and serving of all notices of the Corporation. He shall affix the seal of the Corporation to all contracts and instruments requiring the same unless such function is performed by the Chief Executive Officer. He shall have charge of the seal of the Corporation and of such books and papers as the Board of Directors may direct, all of which shall at all reasonable times be open to the examination by any director upon application at the office of the Corporation during business hours, and shall in general perform all the duties incident to the office of the Secretary, or which may from time to time be assigned to him by the Board of Directors. 13 Section 9. The Assistant Secretaries, if any, shall assist the Secretary in the performance of his duties and perform such duties as shall from time to time be assigned to them by the Board of Directors or the Chief Executive Officer. In the absence of or in the event of the disability of the Secretary, the Assistant Secretaries shall, in the order designated by the Board, perform the duties of the Secretary. Section 10. The Director of Treasury Operations shall have custody of all funds, securities and other property of the Corporation, and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Director of Treasury Operations shall disburse the funds of the Corporation as may be ordered by the Chief Executive Officer or the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the Board of Directors, when the Chief Executive Officer or the Board of Directors so requires, an account of all his transactions as Director of Treasury Operations and of the financial condition of the Corporation. In general the Director of Treasury Operations shall perform all the duties incident to the office of Director of Treasury Operations and such other duties as from time to time may be assigned to him by the Board of Directors. 14 Section 11. The Assistant Directors of Treasury Operations, if any, shall assist the Director of Treasury operations in the performance of his duties and perform such duties as shall from time to time be assigned to them by the Board of Directors or the Chief Executive Officer. In the absence of or in the event of the disability of the Director of Treasury Operations, the Assistant Directors of Treasury Operations shall, in the order designated by the Board, perform the duties of the Director of Treasury Operations. Section 12. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his duties. ARTICLE VIII Certificates for Shares Section 1. The shares of stock of the Corporation shall be represented by certificates, in such form as the Board of Directors may from time to time prescribe, signed by the Chief Executive Officer or a Vice-Chief Executive Officer and by the Director of Treasury Operations or an Assistant Director of Treasury operations, or the Secretary or an Assistant Secretary. Section 2. Any or all signatures upon a certificate may be a facsimile. If an officer, transfer agent or registrar who has signed or whose facsimile signature has 15 been placed upon a certificate shall cease to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or it were such officer, transfer agent or registrar at the date of issue. Section 3. The Board of Directors may direct that a new certificate be issued in place of any certificate issued by the Corporation which is alleged to have been lost, stolen or destroyed. When doing so, the Board of Directors may prescribe such terms and conditions precedent to the issuance of the new certificate as it deems expedient, and may require a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft or destruction to the certificate or the issuance of the new certificate. Section 4. The Corporation or a transfer agent of the Corporation, upon surrender to it of a certificate representing shares, duly endorsed and accompanied by proper evidence of lawful succession, assignment or authority of transfer, shall issue a new certificate to the person entitled thereto, and shall cancel the old certificate and record the transaction upon the books of the Corporation. Section 5. The Board of Directors may fix in advance a date as the record date for determination of the stockholders entitled to notice of or to vote at any meeting of 16 stockholders, or to express consent to, or dissent from, any proposal without a meeting, or to receive payment of any dividend or allotment of any rights, or to take or be the subject of any other action. Such date shall be not less than twenty nor more than sixty days before the date of such meeting, nor more than sixty days prior to any other action. If no record date is so fixed, the record date shall be provided by law. A determination of stockholders entitled to notice of or to vote at any meeting of stockholders which has been made as provided in this Section shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date for the adjourned meeting. Section 6. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and the Corporation shall be entitled to hold a person registered on its books as the owner of shares liable for calls and assessments, if any may legally be made, and shall not be bound to recognize any equitable or other claim to or interest in shares of its stock on the part of any other person, whether or not the Corporation shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. 17 ARTICLE IX Indemnification Section 1. Actions by Third Parties. The Corporation shall indemnify any person who was or is made 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 Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the 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 person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best 18 interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the conduct was unlawful. Section 2. Actions By or in the Right of the Corporation. The Corporation shall indemnify any person who was or is made 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 Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of 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 Delaware Court of Chancery 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 19 reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 3. Indemnification as of Right. To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article, or in defense of any claim, issue or matter therein, the person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection therewith. Section 4. Determination that Indemnification is Proper. Any indemnification under Sections 1 and 2 of this Article (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because that person has met the applicable standard of conduct set forth in said Sections 1 and 2. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable and a quorum of disinterested directors so directs, by independent legal counsel (compensated by the Corporation) in a written opinion, or (3) by the stockholders. 20 EX-4.4 7 e15731ex4-4.txt FIRST SUPPLEMENTAL INDENTURE Exhibit 4.4 Execution Version FIRST SUPPLEMENTAL INDENTURE This FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") dated as of November 5, 2003 among OMNICOM GROUP INC., a New York corporation (the "Company"), OMNICOM CAPITAL INC., a Connecticut corporation ("OCI"), OMNICOM FINANCE INC., a Delaware corporation ("OFI"), and JPMORGAN CHASE BANK, as trustee under the indenture referred to below (the "Trustee"). W I T N E S S E T H: WHEREAS, the Company and the Trustee have heretofore executed and delivered to the Trustee an Indenture dated June 10, 2003 (the "Indenture"), providing for the issuance of an aggregate principal amount of up to $600,000,000 of Zero Coupon Zero Yield Convertible Notes due 2033 (the "Securities"), all of which have been issued and are outstanding on the date hereof; WHEREAS, the Company desires to cause each of OCI and OFI to become a co-issuer and co-obligor under the Indenture and the Securities, jointly and severally with each other and with the Company; WHEREAS, it is in the best interests of each of OCI and OFI to become a co-issuer and co-obligor under the Indenture and the Securities inasmuch as each of OCI and OFI will derive substantial direct and indirect benefits from so becoming a co-issuer and co-obligor under the Indenture and the Securities; WHEREAS, it is in the best interests of the Company to guarantee the obligations of each of OCI and OFI with respect to the Indenture and the Securities; WHEREAS, Section 9.01(4) of the Indenture provides that the Company and the Trustee may amend or supplement the Indenture without the consent of any Securityholder to make any change that does not, as evidenced by an Opinion of Counsel delivered to the Trustee, materially adversely affect the rights of any Securityholder; WHEREAS, an Opinion of Counsel has been delivered to the Trustee under Section 9.01(4); and WHEREAS, pursuant to Sections 9.01 and 9.06 of the Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture; NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Company, OCI, OFI and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Securities as follows: 1. Definitions. All capitalized terms used but not defined herein shall have the meanings given to such terms set forth in the Indenture. 2. Agreement to Become Co-Obligor. By its signature hereto, each of OCI and OFI agrees to become a co-issuer of the Securities and a co-obligor under the Indenture and the Securities, jointly and severally with each other and with the Company. Notwithstanding anything to the contrary contained in the Indenture, as amended by this Supplemental Indenture, each of OCI and OFI may, by execution and delivery to the Trustee of a supplemental indenture satisfactory to the Trustee, be released from their respective obligations hereunder and under the Indenture and the Securities upon (a) the sale or other transfer of its capital stock or of all or substantially all of its assets to an entity that is not the Company or a Subsidiary of the Company and which sale is otherwise in compliance with the Indenture, which release shall be effective without any action on the part of the Trustee or any Securityholder or (b) with the prior written consent of each applicable Rating Agency (which prior written consent will be deemed to have been given if each applicable Rating Agency approves a revised list of subsidiaries of the Company that are required to guarantee the Guaranteed Obligations (as defined below) or otherwise become an "obligor" in respect of the Indenture and the Securities that does not include OCI or OFI, as applicable), any such release to become effective upon receipt of notice of such consent (and, if any Subsidiary of the Company is required to become guarantor of the Guaranteed Obligations or an "obligor" in respect of the Indenture and the Securities in connection with the release of OCI or OFI, as applicable, pursuant to this Section 2, receipt of the required guarantee) by the Trustee. Upon any such release, the Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request by the Company, OCI or OFI accompanied by an Officers' Certificate certifying as to compliance with this Section 2. Any actions taken pursuant to this Section 2 shall not release the Company as a primary obligor under the Indenture or the Securities. 3. Amendments. The Indenture be and hereby is amended as follows: 3.1 The preamble to the Indenture is hereby amended to add each of OCI and OFI as a party to the Indenture as an issuer of the Securities. 3.2 Article 1 of the Indenture is hereby amended as follows: (a) Section 1.01 of the Indenture is hereby amended to insert the following new definition in its proper alphabetic place: "Issuers" means each of the parties named as such in the preamble to this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. (b) Section 1.01 of the Indenture is amended by amending and restating the following definitions in their entirety (changes are shown in bold italicized text; where only a deletion has been made, the deletion is shown in strikethrough italicized text): "Board of Directors" means, with respect to any Issuer, either the board of directors of such Issuer or any duly authorized committee of such board. "Company Request" or "Company Order" means, with respect to any Issuer, a written request or order signed in the name of such Issuer by any two Officers of such Issuer. -2- "Corporate Trust Office" means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 4 New York Plaza, 15th Floor, New York, NY 10004, Attention: Institutional Trust Services, or such other address as the Trustee may designate from time to time by notice to the Issuers, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Issuers). "Indebtedness" means, with respect to any Issuer at any date, without duplication, obligations of such Issuer (other than nonrecourse obligations) for borrowed money or evidenced by bonds, debentures, notes or similar instruments of such Issuer. "Officer" means, with respect to any Issuer, the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or the Secretary or any Assistant Treasurer or Assistant Secretary of such Issuer. "Officers' Certificate" means, with respect to any Issuer, a written certificate containing the information specified in Sections 12.04(1) and 12.05, signed in the name of such Issuer by any two Officers of such Issuer and delivered to the Trustee. An Officers' Certificate given pursuant to Section 4.03 needs only to be signed by the principal, executive, financial or accounting Officer of such Issuer and need not contain the information specified in Sections 12.04 and 12.05. "Opinion of Counsel" means a written opinion containing the information specified in Sections 12.04 and 12.05, from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of, or counsel to, the Issuers or the Trustee. "Securities" means any of the Company's Zero Coupon Zero Yield Convertible Notes due 2033 issued under this Indenture. "Subsidiary" means, with respect to any Issuer, (i) a corporation, a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is, at the date of determination, directly or indirectly owned by such Issuer, by one or more Subsidiaries of such Issuer or by such Issuer and one or more Subsidiaries of such Issuer, (ii) a partnership in which such Issuer or a Subsidiary of such Issuer holds a majority interest in the equity capital or profits of such partnership, or (iii) any other person (other than a corporation or partnership) in which such Issuer, a Subsidiary of such Issuer or such Issuer and one or more Subsidiaries of such Issuer, directly or indirectly, at the date of determination, has (x) at least a majority equity ownership interest or (y) the power to elect or direct the election of a majority of the directors or other governing body of such person. -3- (c) The definition of "obligor" in Section 1.03 of the Indenture is hereby amended and restated in its entirety to read as follows (changes are shown in bold italicized text): "obligor" on the indenture securities means each of Issuers. (d) Section 1.05(e) of the Indenture is hereby amended to replace each reference in said Section to the "Company" with the term "Issuers"; and all singular pronouns which referred to the "Company" are hereby amended to be plural pronouns referring to the "Issuers" and all singular verb forms used in a clause in which the "Company" was the sole subject are hereby amended to be in the plural verb forms referring to the "Issuers" as the subject. 3.3 Article 2 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.4 With the exception of Section 3.08(d)(iv), Section 3.08(f), the definition of "Change of Control" in Section 3.09 and the paragraph immediately following that definition (none of which shall be amended), Article 3 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.5 With the exception of Section 4.02 (which shall not be amended except for the last sentence thereof), Article 4 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.6 Section 5.01 of the Indenture is hereby amended and restated to read in its entirety as follows (changes are shown in bold italicized text): "SECTION 5.01 When the Issuers May Merge or Transfer Assets. An Issuer shall not consolidate with or merge with or into any other person or convey, transfer or lease its properties and assets substantially as an entirety to any person (except in the case of OCI or OFI, with, into or to the Company, each other or any other Subsidiary of the Company), unless: (a) either (1) such Issuer shall be the continuing corporation or (2) the person (if other than the Company) formed by such consolidation or into which the such Issuer is merged or the person which acquires by -4- conveyance, transfer or lease the properties and assets of such Issuer substantially as an entirety (i) shall be organized and validly existing under the laws of the United States or any State thereof or the District of Columbia and (ii) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of such Issuer under the Securities and this Indenture; (b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and (c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the conveyance, transfer or lease of the properties and assets of one or more Subsidiaries of an Issuer (other than to the Company or another Subsidiary of any of the Issuers), which, if such assets were owned by such Issuer, would constitute all or substantially all of the properties and assets of such Issuer, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Issuer, but a bona fide pledge or hypothecation will be deemed not to be prohibited by this Indenture. The successor person formed by such consolidation or into which such Issuer is merged or the successor person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer under this Indenture with the same effect as if such successor had been named as an Issuer herein; and thereafter, except in the case of a lease and obligations such Issuer may have under a supplemental indenture pursuant to Section 10.14, such Issuer shall be discharged from all obligations and covenants under this Indenture and the Securities. Subject to Section 9.06, such Issuer, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and such discharge and release of such Issuer." 3.7 Article 6 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.8 Article 7 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". -5- 3.9 Article 8 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.10 With the exception of Section 9.02 (which shall not be amended), Article 9 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.11 With the exception of Sections 10.05, 10.06, 10.07, 10.08, 10.12, 10.13, 10.14 and 10.20 (none of which shall be amended), Article 10 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". In addition, references in Article 10 to the term "Board of Directors" shall be deemed to be to the Board of Directors of the Company only, and not the Board of Directors of any other Issuer. 3.12 Article 11 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.13 Article 12 of the Indenture is hereby amended to replace each reference in said Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". 3.14 Exhibit A-1 to the Indenture is hereby amended as follows: (a) The fifth paragraph of the legend contained therein is hereby amended to replace the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY" with the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE INC. ("FINANCE" AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS") OR ANY AFFILIATE OF ANY OF THEM". (b) With the exception of the definitions of "Five-Day Period" and "Regular Cash Dividends" in Section 5 of said Exhibit, the first, fourth and seventh paragraphs of Section 9(d) of said Exhibit and the Conversion Notice contained in said Exhibit (none of -6- which shall be amended except as otherwise set forth in paragraph (c) below), said Exhibit is hereby amended to replace each reference in said Exhibit to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". (c) References to the term "Board of Directors" in the definitions of "Five-Day Period" and "Regular Cash Dividends" in paragraph 5 of said Exhibit shall be deemed to be to the Board of Directors of the Company only, and not the Board of Directors of any other Issuer. (d) The third page of said Exhibit is hereby amended to add additional signature blocks for Omnicom Capital Inc. and Omnicom Finance Inc. and the first paragraph on said page is hereby amended and restated to read in its entirety as follows (changes are shown in bold italicized text): "Each of OMNICOM GROUP INC., a New York corporation, OMNICOM CAPITAL INC., a Connecticut corporation, and OMNICOM FINANCE INC., a Delaware corporation, jointly and severally, promises to pay to Cede & Co. or registered assigns, the Initial Principal Amount at Maturity of [_______________________________ ($_________)], or if greater, the Principal Amount at Maturity, on June 15, 2033." 3.15 Exhibit A-2 to the Indenture is hereby amended as follows: (a) The fourth paragraph of the legend contained therein is hereby amended to replace the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY" with the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE INC. ("FINANCE" AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS") OR ANY AFFILIATE OF ANY OF THEM". (b) Said Exhibit is hereby amended to replace each reference in said Exhibit to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". (c) The third page of said Exhibit is hereby amended to add additional signature blocks for Omnicom Capital Inc. and Omnicom Finance Inc. and the first paragraph on said page is hereby amended and restated to read in its entirety as follows (changes are shown in bold italicized text): "Each of OMNICOM GROUP INC., a New York corporation, OMNICOM CAPITAL INC., a Connecticut corporation, and OMNICOM FINANCE INC., -7- a Delaware corporation, jointly and severally, promises to pay to Cede & Co. or registered assigns, the Initial Principal Amount at Maturity of [_______________________________ ($_________)], or if greater, the Principal Amount at Maturity, on June 15, 2033." 3.16 Exhibit B-1 to the Indenture is hereby amended to replace each reference in said Exhibit to the term "Company" with the term "Issuers". 3.17 Exhibit B-2 to the Indenture is hereby amended as follows: (a) The first paragraph of said Exhibit is hereby amended and restated to read in its entirety as follows (changes are shown in bold italicized text): "We are delivering this letter in connection with the proposed transfer of $_____________ Initial Principal Amount at Maturity of the Zero Coupon Zero Yield Convertible Notes due 2033 (the "Notes") of Omnicom Group Inc. (the "Company"), Omnicom Finance Inc. and Omnicom Finance Inc., as co-issuers and co-obligors on the Notes, which are convertible into shares of the Company's Common Stock, $0.15 par value per share (the "Common Stock") as specified in the Indenture." (b) Each reference in said Exhibit to the term "Company" is hereby replaced with the term "Issuers". 3.18 Any and all Securities issued and outstanding as of the date of this First Supplemental Indenture shall be deemed amended as follows without any further action (and the Company, OCI, OFI and the Trustee expressly so agree) with the same effect as if a new Security expressly including such provisions as so amended had been issued in exchange for such issued and outstanding securities: (a) The fifth paragraph of the legend contained thereon is hereby amended to replace the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY" with the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE INC. ("FINANCE" AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS") OR ANY AFFILIATE OF ANY OF THEM". (b) With the exception of the definitions of "Five-Day Period" and "Regular Cash Dividends" in Section 5 of each said Security, the first, fourth and seventh paragraphs of Section 9(d) of each said Security and the Conversion Notice contained in each said Security (none of which shall be amended except as otherwise set forth in paragraph (c) below), each said Security is hereby amended to replace each reference therein to (i) the "Company" with the term "Issuers", (ii) all singular pronouns which referred to the "Company" with plural pronouns referring to the "Issuers", (iii) all singular verb forms used in a clause in which the "Company" was the sole subject with a plural verb forms referring to the "Issuers" as the subject and (iv) the phrase "either of them" with the phrase "any of them". -8- (c) References to the term "Board of Directors" in the definitions of "Five-Day Period" and "Regular Cash Dividends" in paragraph 5 of each said Security shall be deemed to be to the Board of Directors of the Company only, and not the Board of Directors of any other Issuer. (d) Each of OCI and OFI shall be deemed, by their signature hereto, to have signed each of the outstanding Securities as if their signatures appeared thereon. 4. Company Guarantee. 4.1 The Company hereby, jointly and severally with any other Person who may also guarantee the Guaranteed Obligations (as defined below), unconditionally and irrevocably guarantees (the "Guarantee"), on a senior unsecured basis, as a primary obligor and not as a surety, to each Securityholder and to the Trustee and its successors and assigns the full and punctual payment when due, whether at maturity, by acceleration, redemption or otherwise, of the principal of and interest on, if any, the Securities, if lawful, and all other monetary obligations of each of OCI and OFI under the Indenture (as so amended by this Supplemental Indenture) and the Securities (collectively, the "Guaranteed Obligations"). The Company further agrees, in its capacity as a guarantor, that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from the Company, and the Company shall remain bound under its Guarantee and the Indenture, as amended hereby, notwithstanding any such extension or renewal. Failing payment when due of any amount so guaranteed for whatever reason, the Company will be obligated to pay the same in full, or cause to be duly and punctually paid in full, without any demand or notice whatsoever. 4.2 In its capacity as guarantor, the Company hereby waives presentation to, demand of payment from and protest to OCI or OFI, as the case may be, of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. In its capacity as guarantor, the Company also hereby waives notice of any default by OCI or OFI, as the case may be, under the Securities or the Indenture. The Company agrees that its obligations under its Guarantee shall be continuing, absolute, full and unconditional under any and all circumstances, to the fullest extent permitted by applicable law, and shall not be discharged except by payment in full of the Securities, irrespective of: (a) the value, genuineness, regularity, validity, enforceability, avoidance, subordination, discharge or disaffirmance of any of the Guaranteed Obligations, the Securities or the Indenture, or the absence of any action to enforce the same; (b) any extension or waiver, at any time or from time to time, without notice to the Company, of the time for compliance by OCI or OFI, as the case may be, with any of its obligations under the Securities or the Indenture; (c) any substitution, release or exchange of any other guarantee of or security for any obligations of OCI or OFI, as the case may be, under the Securities or the Indenture; -9- (d) any recission, amendment or modification to any of the terms or provisions of the Securities or the Indenture; (e) any law, regulation or order of any jurisdiction affecting any term of any of the Securities or the Indenture or the rights of any Securityholder or the Trustee with respect thereto; (f) any failure to obtain any authorization or approval from, or other action by, to notify, or to file anything with, any governmental authority or regulatory body required in connection with the performance of the Guarantee by the Company; (g) the failure by any Securityholder or the Trustee to assert any claim or demand or to exercise any right or remedy against OCI or OFI, as the case may be, or any other guarantor of the Guaranteed Obligations or any other Person; (h) the failure by any Securityholder or the Trustee to exercise any right or remedy against any collateral securing any of the Guaranteed Obligations; or (i) any other circumstance whatsoever that might otherwise constitute a defense to or a legal or equitable discharge of the Company's obligations, in its capacity as guarantor, under its Guarantee or of the Company's obligations, in its capacity as guarantor, under the Securities and the Indenture. 4.3 The Company's obligations under its Guarantee and the Indenture, as amended by this Supplemental Indenture, and the Securities, in each case in its capacity as guarantor, shall not be limited by any valuation, estimation or disallowance made in connection with any proceedings filed by or against the Company or the Company under the United States Bankruptcy Code of 1978, as amended (the "Bankruptcy Code"), whether pursuant to Section 502 of the Bankruptcy Code or any other section thereof. The Company further agrees that, it its capacity as guarantor, none of the Securityholders shall be under any obligation to marshall any assets in favor of or against or in payment of any or all of the Guaranteed Obligations or the Securities. To the extent that the Company makes a payment or payments on any or all of the Guaranteed Obligations and such payment or payments (or any part thereof) is or are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to the Company, its estate, trustee or receiver or any other party, including, without limitation, the Company, under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Guaranteed Obligations (or, if applicable, such part thereof as had been paid, reduced or satisfied by such amount), shall be reinstated and revived and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred. The Company waives, in its capacity as guarantor, all set-offs, counterclaims, reductions and diminutions of any obligation, and any defense of any kind or nature (other than, payment of the Guaranteed Obligations), that the Company may have or assert against OCI, OFI or any other Person, and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of its Guarantee. -10- 4.4 The Company, in its capacity as guarantor, hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Securityholder that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of the Company or other rights of the Company to proceed against OCI, OFI, any other guarantor or any other Person or collateral, if any, and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Guaranteed Obligations or the Securities of the Company under the Indenture, the Securities or this Supplemental Indenture. 4.5 The Company, in its capacity as guarantor, hereby waives any right to which it may be entitled to have its obligations under the Guarantee and the Indenture divided among it and other guarantor of the Guaranteed Obligations, if any, such that the Company's obligations would be less than the full amount claimed. The Company, in its capacity as guarantor, hereby waives any right to which it may be entitled to have the assets of OCI, OFI or any other Person who became an "obligor" under the Securites or the Indenture first be used and depleted as payment of the obligations of OCI, OPI or such other Person, respectively, under the Securities and the Indenture prior to any amounts being claimed from or paid by the Company under its Guarantee. The Company, in its capacity as guarantor, hereby waives any right to which it may be entitled to require that suit be instituted against OCI, OFI or any other guarantor of the Guaranteed Obligations or "obligor" under the Securities or the Indenture prior to an action being initiated against the Company. The Company further agrees that the Guarantee constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right, in its capacity as guarantor, to require that any resort be had by any Securityholder or the Trustee to any security held for payment of the Guaranteed Obligations. 4.6 The failure to endorse the Guarantee on any Security shall not affect or impair the validity thereof. 4.7 The Company's obligations under its Guarantee shall not be affected if any Securityholder is precluded for any reason (including, without limitation, the application of the automatic stay under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the Securities, and the Company shall pay to each affected Securityholder, upon demand, the amount that would otherwise have been due and payable had the exercise of such rights and remedies been permitted. In the event of any such application of the automatic stay under Section 362 of the Bankruptcy Code, the Securities shall forthwith become due and payable by the Company for purposes of the Guarantee. 4.8 The Company hereby agrees that, unless and until all obligations with respect to the Securities and the Indenture, as amended by this Supplemental Indenture, have been paid in full, in its capacity as guarantor, it shall have no right (whether direct or indirect) of subrogation (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) to the claims of any Securityholder or the Trustee against OCI, OFI or any other Person who became an "obligor" under the Securities or the Indenture in respect of any obligation with respect to the Securities or the Indenture, notwithstanding any payment or payments made by the Company hereunder or any set-off or application of funds of the Company by the Securityholder; and the Company hereby waives all contractual, statutory and common law rights of reimbursement, contribution or indemnity it may have against OCI, OFI or any other such Person as the case may be, and any and all other rights of payment or recovery from OCI, OFI or any other such Person, as the case may -11- be, that it may now have or hereafter acquire until all Securities and all obligations under the Indenture have been paid in full (in which event such rights of payment or recovery shall be deemed to be in the form of a loan or loans made from the Company to OCI, OFI or any other such Person, as the case may be. The Company further agrees that, in its capacity as guarantor, as between the Company, on the one hand, and the Securityholders and the Trustee, on the other hand, (1) the maturity of the Securities guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of the Company's Guarantee hereunder, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Securities guaranteed pursuant to this Section 4, and (2) in the event of any declaration of acceleration of such Securities as provided in Article 6 of the Indenture, such Securities (whether or not due and payable) will forthwith become due and payable by the Company for the purpose of its Guarantee hereunder. 4.9 Except as otherwise specifically provided in Section 4.12 hereof with respect to the release of the Company from its Guarantee hereunder, such Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Company and the successors thereof, and shall inure to the benefit of (and be enforceable by) the Trustee and the Securityholders from time to time, or their respective successors or assignees, until the Indenture shall have been terminated and the principal of and interest, if any, on the Securities, and the obligations of the Company in respect of the Guaranteed Obligations, have been satisfied by payment in full. 4.10 Payments made by the Company pursuant to its Guarantee hereunder will be made to each Securityholder in the same manner, and to the same location, as payments to such Securityholder are required to be made pursuant to the provisions of the Indenture. 4.11 The Company shall pay all reasonable costs and expenses (including reasonable attorneys' fees and expenses) paid or incurred by the Trustee or any Securityholder in connection with the enforcement of the Guarantee or any other rights of the Trustee or such Securityholder under this Supplemental Indenture with respect to such Guarantee and the prosecution or defense of any action by or against any of the Securityholders in connection with the Guarantee or this Supplemental Indenture with respect to such Guarantee, whether involving the Company or any other Person, including a trustee in bankruptcy; provided, however, that the Company shall have no such obligation in connection with any action brought by any Securityholder against the Company to the extent that the Company is the prevailing party in the judgment rendered in any such action; and provided further that the Company shall not be responsible for the fees and expenses of more than one firm of attorneys (in addition to any required local counsel). 4.12 The Company may, by execution and delivery to the Trustee of a supplemental indenture satisfactory to the Trustee, be released from its Guarantee upon the sale or other transfer of its capital stock or of all or substantially all of its assets to an entity that is not the Company or a subsidiary of the Company and which sale is otherwise in compliance with the Indenture, which release shall be effective without any action on the part of the Trustee or any Securityholder. Upon any such release, the Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request by the Company or the Company accompanied by an Officers' Certificate certifying as to compliance with this Section 4.12. Any actions taken -12- pursuant to this Section 4.12 shall not release the Company, OCI or OFI as a primary obligor under the Indenture or the Securities. 5. Separability Clause. In case any provision in this Supplemental Indenture 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. 6. Modification, Amendment and Waiver. The provisions of this Supplemental Indenture may not be amended, supplemented, modified or waived except by a execution of a Supplemental Indenture executed by OCI, OFI, the Company and, to the extent such amendment, supplement or waiver limits or impairs the rights of any Securityholder, by such Securityholder. Any such amendment shall comply with Article 9 of the Indenture. Until an amendment, waiver or other action by Securityholders becomes effective, a consent thereto by a Securityholder of a Security hereunder is a continuing consent by the Securityholder and every subsequent Securityholder of that Security or portion of the Security that evidences the same obligation as the consenting Securityholder's Security, even if notation of the consent, waiver or action is not made on the Security. However, any such Securityholder or subsequent Securityholder may revoke the consent, waiver or action as to such Securityholder's Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment, waiver or action becomes effective. After an amendment, waiver or action becomes effective, it shall bind every Securityholder. 7. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Supplemental Indenture, then the terms and conditions of this Supplemental Indenture shall prevail. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. 8. Trust Indenture Acts Controls. If any provision of this Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act of 1939, as amended ("TIA"), that is required under the TIA to be part of and govern any provision of this Supplemental Indenture, the provision of the TIA shall control. If any provision of this Supplemental Indenture modifies or excludes any provisions of the TIA that may be so modified or excluded, the provisions of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this Supplemental Indenture, as the case may be. 9. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW. -13- 10. Trustee Makes No Representation. The statements herein are deemed to be those of the Company, OCI or OFI, as applicable. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture. 11. Multiple Originals. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Supplemental Indenture. 12. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof. Notices. Any request, demand, authorization, notice, waiver, consent or communication to any of the parties shall be made as set forth in Section 12.02 of the Indenture, as said Section may be amended hereby. 13. Successors. All agreements of each of OCI and OFI in respect of this Supplemental Indenture shall bind its successor. -14- IN WITNESS WHEREOF, this Supplemental Indenture has been duly executed by the Company, OCI and the Trustee as of the date first written above. OMNICOM GROUP INC. By: /s/ Randall J. Weisenburger ----------------------------------------- Name: Randall J. Weisenburger Title: Executive Vice President and Chief Financial Officer OMNICOM CAPITAL INC. By: /s/ Dennis E. Hewitt ----------------------------------------- Name: Dennis E. Hewitt Title: Chief Executive Officer OMNICOM FINANCE INC. By: /s/ Randall J. Weisenburger ----------------------------------------- Name: Randall J. Weisenburger Title: Chief Executive Officer JPMORGAN CHASE BANK, as Trustee By: /s/ James D. Heaney ----------------------------------------- Name: James D. Heaney Title: Vice President EX-23.1 8 e15731ex23_1.txt INDEPENDENT AUDITORS' CONSENT Exhibit 23.1 Independent Auditors' Consent The Board of Directors Omnicom Group Inc.: We consent in this prospectus and the related registration statement to the use of our report dated February 21, 2003, with respect to the consolidated balance sheet of Omnicom Group Inc. as of December 31, 2002, and the related consolidated statements of income, shareholders' equity and cash flows for the year then ended, incorporated herein by reference and to the reference to our firm under the headings "Experts" and "Selected Consolidated Historical Financial Information" in the prospectus and the related registration statement. Our report refers to changes in the method of accounting for goodwill and other intangible assets in 2002. /s/ KPMG LLP New York, New York November 5, 2003 -----END PRIVACY-ENHANCED MESSAGE-----