-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, e5Y0dv/sLZRZ+AcrGRi4twl/TLYVb/G4OeqI76BJ8Bmi9AiE0Rpdej6Yjdo9eMAq K4juGu8J+zm36lnjq9HsRQ== 0000950131-94-001031.txt : 19940629 0000950131-94-001031.hdr.sgml : 19940629 ACCESSION NUMBER: 0000950131-94-001031 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19940624 EFFECTIVENESS DATE: 19940713 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FOOTE CONE & BELDING COMMUNICATIONS INC CENTRAL INDEX KEY: 0000037931 STANDARD INDUSTRIAL CLASSIFICATION: 7311 IRS NUMBER: 361088161 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-54279 FILM NUMBER: 94535581 BUSINESS ADDRESS: STREET 1: 101 E ERIE ST CITY: CHICAGO STATE: IL ZIP: 60611 BUSINESS PHONE: 3127517000 MAIL ADDRESS: STREET 2: 101 E ERIE ST CITY: CHICAGO STATE: IL ZIP: 60611 FORMER COMPANY: FORMER CONFORMED NAME: FOOTE CONE & BELDING INC DATE OF NAME CHANGE: 19720824 S-8 1 STOCK OPTION PLAN As filed with the Securities and Exchange Commission on June 24, 1994 Registration No. 33- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 FOOTE, CONE & BELDING COMMUNICATIONS, INC. ______________________________________________________ (Exact name of registrant as specified in its charter) Delaware 36-1088161 - -------------------- ----------------------- (State or other juris- (IRS Employer diction of incorporation Identification No.) or organization) 101 East Erie Street Chicago, Illinois 60611-2897 - --------------------- ----------- (Address of Principal (Zip Code) Executive Office) FOOTE, CONE & BELDING COMMUNICATIONS, INC. STOCK OPTION PLAN AND OUTSIDE DIRECTOR STOCK OPTION PLAN ------------------------------------------ (Full title of the plans) Dale F. Perona Vice President, Controller and Secretary FOOTE, CONE & BELDING COMMUNICATIONS, INC. 101 East Erie Street Chicago, Illinois 60611-2897 _______________________________________ (Name-and address of agent for service) (312) 751-7000 ____________________________________________________________ (Telephone number, including area code, of agent for service)
============================================================================================ CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------------------- Amount to Proposed Proposed maximum Amount of Securities to be be maximum offering aggregate offering registration registered registered price per share(1) price(1) fee(1) - -------------------------------------------------------------------------------------------- Common Stock 1,200,000 $44.0625 $52,875,000 $18,232.76 - -------------------------------------------------------------------------------------------- Preferred Stock Purchase Rights 1,200,000 (2) (2) (2) ============================================================================================
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933 solely for the purpose of calculating the amount of the registration fee based upon the average of the high and low sales prices reported for shares of the Common Stock in the New York Stock Exchange Composite Transactions on June 21, 1994, which was $44.0625. (2) The Company's Preferred Stock Purchase Rights initially are carried and traded with the shares of Common Stock of the Company being registered hereunder. Value attributable to such Preferred Stock Purchase Rights, if any, is reflected in the market price of the Common Stock. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by the Registrant with the Securities and Exchange Commission (the "Commission") are incorporated by reference herein and made a part hereof: (a) Annual Report on Form 10-K of the Registrant for the fiscal year ended December 31, 1993; (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 31, 1993. (c) The description of the Common Stock and the Rights contained in a registration statement filed under the Exchange Act including any subsequent amendment or any report or other filing filed with the Commission updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post- effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS There is no provision in the Registrant's Certificate of Incorporation relating to indemnification. The directors and officers of the Registrant may be indemnified under certain circumstances against liability which they may incur in their capacities as such pursuant to Section 145 of the General Corporation Law of Delaware. Reference is made with regard to such indemnification to Article V, Section 9 of the By-Laws of the Registrant, which has been filed as an exhibit to this registration statement. The Registrant has secured standard form insurance covering the Registrant and its directors and officers and those of its principal subsidiaries against certain liabilities. II-1 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS
Exhibit No. Description - ----------- ----------- 4(a) Foote, Cone & Belding Communications, Inc. Stock Option Plan. Incorporated by reference to Appendix A to Registrant's Proxy Statement dated March 31, 1994 for the Annual Meeting of Stockholders held on May 18, 1994. 4(b) Foote, Cone & Belding Communications, Inc. Outside Director Stock Option Plan. Incorporated by reference to Appendix A to Registrant's Proxy Statement dated March 31, 1992 for the Annual Meeting of Stockholders held on May 20, 1992. 4(c)* Registrant's Restated Certificate of Incorporation, as amended on May 19, 1993 and further amended on May 18, 1994. 4(d)* Registrant's By-laws, as amended. 4(e) Rights Agreement dated as of November 16, 1988, between Registrant and Harris Trust and Savings Bank as Rights Agent. Incorporated by reference to Exhibit 1 to Registrant's Registration Statement on Form 8-A under the Exchange Act, filed with the Securities and Exchange Commission on November 18, 1988. 5* Opinion of Sidley & Austin. 23(a)* Consent of Independent Accountants. 23(b) Consent of Sidley & Austin is included in its opinion filed as Exhibit 5 hereto. 24* Power of Attorney.
______________________ * Filed herewith. ITEM 9. UNDERTAKINGS 1. The Registrant hereby undertakes: (i) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of II-2 distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (ii) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (iii) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 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 the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on the 24th day of June, 1994. FOOTE, CONE & BELDING COMMUNICATIONS, INC. By Bruce Mason ------------------------------------ Bruce Mason Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on the 24th day of June, 1994.
Signature Position --------- -------- Bruce Mason Chairman and Chief Executive - --------------------- Officer and Director Bruce Mason (Principal Executive Officer) Terry M. Ashwill Executive Vice President and Chief - --------------------- Financial Officer and Director Terry M. Ashwill (Principal Executive Officer) Dale F. Perona Vice President, Controller and - --------------------- Secretary (Controller) Dale F. Perona * Director - --------------------- Louis E. Scott * Director - --------------------- Stephen T. Vehslage
II-4 * Director - -------------------- Newton N. Minow * Director - --------------------- William A. Schreyer * Director - --------------------- Craig R. Wiggins * Director - --------------------- John B. Balousek * Director - --------------------- Maurice Levy * Director - --------------------- Gregory W. Blaine * Director - --------------------- Laurel Cutler * By Terry M. Ashwill ---------------- Terry M. Ashwill Attorney-in-Fact
II-5 EXHIBIT INDEX
Sequential Exhibit No. Description Page No. - ----------- ----------- ---------- 4(a) Foote, Cone & Belding Communications, Inc. Stock Option Plan. Incorporated by reference to Appendix A to Registrant's Proxy Statement dated March 31, 1994 for the Annual Meeting of Stockholders held on May 18, 1994. 4(b) Foote, Cone & Belding Communications, Inc. Outside Director Stock Option Plan. Incorporated by reference to Appendix A to Registrant's Proxy Statement dated March 31, 1992 for the Annual Meeting of Stockholders held on May 20, 1992. 4(c)* Registrant's Restated Certificate of Incorporation, as amended on May 19, 1993 and further amended on May 18, 1994. 4(d)* Registrant's By-laws, as amended. 4(e) Rights Agreement dated as of November 16, 1988, between Registrant and Harris Trust and Savings Bank as Rights Agent. Incorporated by reference to Exhibit 1 to Registrant's Registration Statement on Form 8-A under the Exchange Act, filed with the Securities and Exchange Commission on November 18, 1988. 5* Opinion of Sidley & Austin. 23(a)* Consent of Independent Accountants. 23(b) Consent of Sidley & Austin is included in its opinion filed as Exhibit 5 hereto. 24* Power of Attorney.
______________________ * Filed herewith. EX-4.C 2 CERT OF INCORPORATION Exhibit 4(c) RESTATED CERTIFICATE OF INCORPORATION OF FOOTE, CONE & BELDING COMMUNICATIONS, INC. This Restated Certificate of Incorporation was duly adopted by the board of directors in accordance with the provisions of Section 245 of the General Corporation Law of the State of Delaware. This Restated Certificate of Incorporation only restates and integrates and does not further amend the provisions of the corporation's Certificate of Incorporation as heretofore amended or supplemented, and there is no discrepancy between those provisions and the provisions of this Restated Certificate of Incorporation. The original Certificate of Incorporation was filed with the Secretary of State of Delaware on December 29, 1942 under the name Foote, Cone & Belding, Inc. FIRST: The name of the corporation is FOOTE, CONE & BELDING COMMUNICATIONS, INC. SECOND: The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business or purposes to be conducted or promoted is as follows: (a) To carry on the business of a general advertising agency, to deal in advertising in all its forms, and to do all things that may be convenient, useful, auxiliary or incidental to the carrying on of a general advertising agency business; and (b) To conduct any lawful business, to exercise any lawful purpose or power, and to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is fifteen million one hundred thousand (15,100,000), divided into two classes as follows: (a) One hundred thousand (100,000) shares shall be of the par value of one dollar ($1.00) per share and shall be designated as Preferred Stock; and (b) Fifteen million (15,000,000) shares shall be of the par value of thirty-three and one-third cents (33-1/3c) per share and shall be designated as Common Stock. The Preferred Stock may be issued from time to time in one or more series, which series may have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue of such stock adopted by the board of directors pursuant to the authority which is hereby expressly vested in the board of directors. The authority of the board of directors with respect to each series shall include, but not be limited to, determination of the following: (a) The distinctive designation of such series and the number of shares which shall constitute such series, which number may be increased (except where otherwise provided by the board of directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the board of directors; (b) The rate of dividends, if any, payable on the shares of such series, the conditions upon which and the dates when such dividends shall be payable, whether such dividends shall be cumulative (and, if so, from which date or dates), and whether payable in preference to dividends payable on any other class or classes or any other series of stock; (c) Whether or not the shares of such series shall have voting powers and, if voting powers are granted, the extent of such voting powers; (d) Whether or not the shares of such series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; (e) Whether or not the shares of such series shall be entitled to the benefit of a retirement fund or sinking fund and, if so, the terms and conditions of such fund; (f) Whether or not the shares of such series shall be convertible into or exchangeable for shares of any other class or classes of stock of the corporation or of any series thereof and, if made convertible or exchangeable, the conversion price or prices or the rate or rates of exchange and the adjustments thereof, if any, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange; (g) The rights of the holders of the shares of such series upon the voluntary or involuntary liquidation, dissolution or winding up, or merger, consolidation or distribution or sale of assets of the corporation; (h) The conditions and restrictions, if any, on the payment of dividends or on the making of other distributions on, or the purchase, redemption or other acquisition by the corporation of the Common Stock or of any other class or series of stock of the corporation ranking junior to the shares of such series as to dividends or upon liquidation; (i) The conditions and restrictions, if any, on the creation of indebtedness of the corporation or any subsidiary, or on the authorization or issue of any additional stock of the corporation ranking on a parity with or prior to the shares of such series as to dividends or upon liquidation; and (j) Any other preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof. Shares of stock of any class of the corporation may be issued by the corporation from time to time for such consideration, not less than the par value thereof, as may be fixed from time to time by the board of directors, and any and all shares so issued, the full consideration for which shall have been paid or delivered, shall be deemed fully paid and non-assessable stock and not liable to any further call or assessment thereon. No holder of stock of any class of the corporation, whether now or hereafter authorized, shall have any preemptive or preferential right to subscribe to any shares of stock of the corporation of any class, now or hereafter authorized, or to any obligations convertible into stock of the corporation, issued or sold, or any right to subscribe to any thereof other than such, if any, as the board of directors of the corporation from time to time may fix pursuant to the authority hereby conferred by this Restated Certificate of Incorporation, and the board of directors may issue stock of the corporation, or obligations convertible into stock, without offering such issue of stock or such obligations, either in whole or in part, to the stockholders of the corporation. Subject to the provisions of any applicable law or of the by-laws of the corporation, as from time to time amended, with respect to the fixing of a record date for determination of stockholders entitled to vote, and except as otherwise provided by law or by this Restated Certificate of Incorporation or by the resolution or resolutions providing for the issue of any series of Preferred Stock, each holder of shares of Common Stock shall be entitled at any and all meetings of the stockholders of the corporation to one vote for each share of such stock standing in his name on the books of the corporation. Subject to any limitations contained in the resolution or resolutions providing for the issue of any series of Preferred Stock, the holders of the Common Stock shall be entitled to receive, when and as declared by the board of directors, out of the assets of the corporation which are by law available therefor, dividends payable in cash, in property or in shares of Common Stock. No dividends other than dividends payable only in shares of Common Stock shall be paid on the Common Stock if cash dividends in full to which all outstanding shares of Preferred Stock of all series shall then be entitled for the then current dividend period and (where such dividends are cumulative) for all past dividend periods shall not have been paid or declared and set apart in full. Except as otherwise provided by the resolution or resolutions providing for the issue of any series of Preferred Stock, the number of authorized shares of any class or classes of stock may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation, the holders of the Common Stock shall be entitled, after payment or provisions for payment of the debts and other liabilities of the corporation and the amounts to which the holders of the Preferred Stock shall be entitled, to share ratably in the remaining net assets of the corporation. Neither a consolidation or merger of the corporation with or into any other corporation, nor a merger of any other corporation into the corporation, nor a reorganization of the corporation, nor the purchase or redemption of all or part of the outstanding shares of stock of any class or classes of the corporation, nor a sale or transfer of the property and business of the corporation as or substantially as an entirety, shall be considered a liquidation, dissolution or winding up of the corporation for purposes of the preceding sentence. FIFTH: The number of directors of the corporation shall be fixed from time to time by or in the manner provided in the by-laws, and may be increased or decreased as therein provided, but the number thereof may not be less than three. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized: (a) To make, alter or repeal the by-laws of the corporation; (b) To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation; (c) To issue bonds, debentures and other obligations, either non-convertible or convertible into the corporation's stock, upon such terms, in such manner and under such conditions in conformity with law as may be fixed by the board of directors prior to the issuance of such bonds, debentures and other obligations; (d) To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve; (e) To remove at any time any officer elected or appointed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby; (f) By resolution passed by a majority of the whole board, to designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board 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 or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; provided, however, the by-laws may provide that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member; and (g) To exercise all such powers and do all such acts and things as may be exercised or done by the corporation, subject to the provisions of the laws of the State of Delaware, of this Restated Certificate of Incorporation and of the by-laws of the corporation. SIXTH: The corporation shall indemnify each present or former director, officer, employee or agent of the corporation and each person who 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, and the heirs, executors and administrators of the foregoing persons, in the manner and to the extent provided in the by-laws of the corporation as the same may be amended from time to time. SEVENTH: No contract or transaction between the corporation and one or more of its directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (a) The material facts as to his interest and as to the contract or transaction are disclosed or are known to the board of directors or the committee, and the board or committee in good faith authorizes the contract or transaction by a vote sufficient for such purpose without counting the vote of the interested director or directors; or (b) The material facts as to his interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) The contract or transaction is fair to the corporation as of the time it is authorized, approved or ratified by the board of directors, a committee thereof, or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorizes the contract or transaction. EIGHTH: No person who was at any time a director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for any breach of fiduciary duty by such person as a director, except for liability (i) for breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended after approval by the stockholders of this Article Eighth to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of the foregoing paragraph by the stockholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification. NINTH: (1) Any action required or permitted to be taken by the stockholders of the corporation may be effected solely at a duly called annual or special meeting of stockholders of the corporation and may not be effected by any consent in writing by such stockholders. (2) Meetings of stockholders of the corporation may be called only by the board of directors pursuant to a resolution adopted by the affirmative vote of a majority of the entire board of directors, by the Chairman of the Board, or by the President. As used in this Restated Certificate of Incorporation, the term "entire board of directors" means the total authorized number of directorships of the corporation, whether or not the directorships are filled at the time. TENTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. The capital of the corporation will not be reduced under or by reason of this Restated Certificate of Incorporation. IN WITNESS WHEREOF, FOOTE, CONE & BELDING COMMUNICATIONS, INC. has caused its corporate seal to be hereunto affixed and this Restated Certificate of Incorporation to be signed by its Chairman of the Board and attested by its Secretary this 21st day of August, 1991. FOOTE, CONE & BELDING COMMUNICATIONS, INC. By /s/ Bruce Mason --------------------------------- Bruce Mason Chairman of the Board (Corporate Seal) ATTEST: /s/ Charles H. Gunderson - ---------------------------- Charles H. Gunderson Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION ************************ Foote, Cone & Belding Communications, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of Foote, Cone & Belding Communications, Inc. (the "Corporation") held on February 17, 1993 resolutions were duly adopted setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, filed with the Delaware Secretary of State on August 27, 1991, declaring said amendment to be advisable and directing that said amendment be considered at the annual meeting of the stockholders of the Corporation to be held on May 19, 1993. The resolution setting forth the proposed amendment is as follows: RESOLVED, that the first paragraph of Article Fourth of the Restated Certificate of Incorporation of the Corporation be amended to read as set forth below and that such amendment be submitted to the stockholders of the corporation for approval, all in accordance with the requirements of the Delaware General Corporation Law: "Fourth: The total number of shares of stock which the corporation shall have authority to issue is thirty million one hundred thousand (30,100,000), divided into two classes as follows: (a) One hundred thousand (100,000) shares shall be of the par value of one dollar ($1.00) per share and shall be designated as Preferred Stock; and (b) Thirty million (30,000,000) shares shall be of the par value of thirty-three and one-third cents (33-1/3c) per share and shall be designated as Common Stock." SECOND: That thereafter the annual meeting of the stockholders of the Corporation was duly called, and held on May 19, 1993, at which meeting the necessary number of shares as required by statute were voted in favor of the amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said Foote, Cone & Belding Communications, Inc. has caused its corporate seal to be hereto affixed and this certificate to be executed by Michael S. Duffey, its Vice President and Treasurer and attested by Gregory W. Blaine, its Secretary, this 19th day of May, 1993. /s/ Michael S. Duffey ---------------------------- Vice President and Treasurer ATTEST: /s/ Gregory W. Blaine - --------------------- Secretary (CORPORATE SEAL) CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION ******************** Foote, Cone & Belding Communications, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of Foote, Cone & Belding Communications, Inc. (the "Corporation") held on February 16, 1994 resolutions were duly adopted setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, filed with the Delaware Secretary of State on August 27, 1991, declaring said amendment to be advisable and directing that said amendment be considered at the annual meeting of the stockholders of the Corporation to be held on May 18, 1994. The resolution setting forth the proposed amendment is as follows: RESOLVED, that the first paragraph of Article Fourth of the Restated Certificate of Incorporation of the Corporation be amended to read as set forth below and that such amendment be submitted to the stockholders of the corporation for approval, all in accordance with the requirements of the Delaware General Corporation Law: "Fourth: The total number of shares of stock which the corporation shall have authority to issue is fifty million one hundred thousand (50,100,000), divided into two classes as follows: (a) One hundred thousand (100,000) shares shall be of the par value of one dollar ($1.00) per share and shall be designated as Preferred Stock; and (b) Fifty million (50,000,000) shares shall be of the par value of thirty-three and one-third cents (33-1/3c) per share and shall be designated as Common Stock." SECOND: That thereafter the annual meeting of the stockholders of the Corporation was duly called, and held on May 18, 1994, at which meeting the necessary number of shares as required by statute were voted in favor of the amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said Foote, Cone & Belding Communications, Inc. has caused its corporate seal to be hereto affixed and this certificate to be executed by Michael S. Duffey, its Vice President and Treasurer and attested by Dale F. Perona, its Secretary, this 18th day of May, 1994. /s/ Michael S. Duffey ---------------------------- Vice President and Treasurer ATTEST: /s/ Dale F. Perona - ------------------ Secretary (CORPORATE SEAL) EX-4.D 3 BY-LAWS Exhibit 4(d) As Amended Effective 5/18/87 BY-LAWS ------- OF -- FOOTE, CONE & BELDING COMMUNICATIONS, INC. ------------------------------------------ ARTICLE I. ---------- Stockholders' Meetings ---------------------- Section 1. Annual Meeting. The annual meeting of stockholders for the election of directors and the transaction of such other business as may properly come before it shall be held at such hour as shall be determined by the Board of Directors on the second Wednesday in May of each year, or at such other time as shall be determined by the Board of Directors. If the day fixed for the annual meeting is a legal holiday, such meeting shall be held on the next succeeding business day. The annual meeting shall be held at such place as shall be determined by the Board of Directors. Section 2. Special Meetings. Special meetings of stockholders may be called by the Board of Directors, the Chairman of the Board or the President and may be held at such places, within or without the State of Delaware, as may be specified in the call of any meeting. Section 3. Notice of Meetings. Written notice of every meeting of stockholders stating the place, date, hour and purposes thereof, shall, except when otherwise required by law, be mailed at least ten but not more than fifty days prior to the meeting to each stockholder of record entitled to vote thereat. Any meeting at which a quorum of stockholders is present, in person or by proxy, may adjourn from time to time until its business is completed. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 4. Quorum. The holders of a majority of the shares of stock issued and outstanding and entitled to vote, present in person or by proxy, shall, except as otherwise provided by law, constitute a quorum for the transaction of business at all meetings of stockholders. If at any meeting a quorum is not present, the chairman of the meeting or the holders of the majority of the shares of stock present or represented may adjourn the meeting from time to time. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. The stockholders present or represented at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Section 5. Voting. Each holder of stock entitled to vote at a stockholders' meeting shall, as to all matters in respect of which such stock has voting rights, be entitled to one vote in person or by written proxy for each share of stock owned of record by him, but no proxy shall be voted or acted upon after three years from its date unless the proxy provides for a longer period. No vote upon any matter, except the election of directors, need be by ballot unless demanded by the holders of at least ten per cent of the shares represented and entitled to vote at the meeting. All elections and questions shall be decided by a plurality of the votes cast, except as otherwise required by the laws of Delaware. Section 6. List of Stockholders. At least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder, and the number of shares registered in the name of each stockholder, shall be prepared by the Secretary. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The original or duplicate stock ledger shall be the only evidence as to who are stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders. -2- ARTICLE II. ----------- Directors --------- Section 1. Number, Election and Term of Office. A Board of Directors consisting of not less than 9 nor more than 21 directors (as shall from time to time be determined by the Board of Directors) shall be elected at every annual stockholders' meeting. Each director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders. Nominations for the election of directors may be made by the Board of Directors or a committee appointed by the Board of Directors or by any stockholder entitled to vote in the election of directors at the particular meeting at which the nomination is to occur. However, any stockholder entitled to vote at such meeting may nominate one or more persons for election as directors only in person or by proxy at such meeting and only if written notice of such stockholder's intent to make such nomination or nominations has been delivered personally to or otherwise received by the Secretary of the corporation at least fifty days but no more than ninety days prior to the meeting of stockholders; provided, that in the event that less than sixty days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made, whichever first occurs; provided further that, in the case of the 1986 annual meeting of stockholders, such notice shall have been so delivered at least twenty days prior to the date of such meeting. Each such notice shall contain a representation that: (i) the stockholder is, and will be on the record date, a beneficial owner or a holder of record of stock of the corporation entitled to vote at such meeting; (ii) the stockholder has, and will have on the record date, full voting power with respect to such shares; and (iii) the stockholder intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice. Additionally, each such notice shall set forth: (a) the name and address of the stockholder who intends to make the nomination and of the person or persons to be nominated; (b) a description of all arrangements or understandings between the stockholder and each proposed nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (c) the number and kinds of securities of the corporation held beneficially or of record by each proposed nominee; (d) such other information regarding each proposed nominee as would be required to be included in a proxy statement filed pursuant to -3- the proxy rules of the Securities and Exchange Commission for the initial election of such proposed nominee for director; and (e) the consent of each proposed nominee to serve as a director if so elected. The presiding officer of the meeting may refuse to acknowledge the nomination of any person if any of the information supplied is false or misleading or if any of the foregoing requirements are not satisfied. Section 2. Vacancies. Any vacancy occurring in the Board and any directorship to be filled by reason of an increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum. A director elected to fill a vacancy shall hold office until the next annual election of directors. When one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies. Section 3. Place of Meetings. Directors' meetings may be held at such places, within or without the State of Delaware, as the Board may from time to time determine or as may be specified in the call of any meetings. Section 4. Regular Meetings. A regular annual meeting of the Board shall be held without call or notice immediately after and at the same general place as the annual meeting of the stockholders, for the purpose of organizing the Board, electing officers and transacting any other business that may properly come before the meeting. Additional regular meetings of the Board may be held without call or notice at such place and at such time as shall be fixed by resolution of the Board. Section 5. Special Meetings. Special meetings of the Board may be called by the Chairman of the Board, the President, or by a majority of the directors then in office. Notice of special meetings shall either be mailed by the Secretary to each director at least three days before the meeting or shall be given personally or telegraphed to each director at least one day before the meeting. Such notice shall set forth the time and place of such meeting but need not, unless otherwise required by law, state the purposes of the meeting. A majority of the directors present at any meeting may adjourn the meeting from time to time without further notice other than announcement at the meeting. Section 6. Quorum. One third of the total number of directors shall constitute a quorum for the transaction of business at any meeting of the Board. If at any meeting a quorum is not present, a majority of the directors present may adjourn -4- the meeting from time to time without notice other than announcement at the meeting until a quorum is present. Section 7. Committees of the Board. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, including, but not limited to, an Executive Council and a Finance Committee. Each such committee shall consist of two or more of the directors of the corporation and, to the extent provided in the resolution designating such committee, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. The Board 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. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of such absent or disqualified member. Section 8. Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board, or of such committee, as the case may be, consent thereto in writing, and such written consent is filed with the minutes of the proceedings of the Board or of such committee. Section 9. Compensation. Directors shall not receive any stated compensation for their service as such, but by resolution of the Board of Directors, a fixed sum and expenses of attendance may be allowed for attendance at meetings of the Board or of committees of the Board, provided that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor. -5- ARTICLE III. ------------ Officers and Employees ---------------------- Section 1. Number, Qualification, Election and Term of Office. (a) The officers of the corporation shall be a Chairman of the Board of Directors, a Chairman of the Finance Committee, a President, a Secretary, a Treasurer, a Controller, one or more Vice-Presidents (who may be designated by different classes) and such other officers as the Board of Directors may from time to time deem advisable. No officer need be a director except the Chairman of the Board, the Chairman of the Finance Committee and the President. The same person may hold two or more offices, except that if one person shall hold the offices of President and Secretary, he shall not hold any other office. (b) Each officer of the corporation shall be elected by the Board of Directors and shall hold office until the annual meeting of the Board of Directors next succeeding his election and until his successor shall have been elected and qualified, or until his resignation or removal. Section 2. Appointments. In addition to the elected officers provided above, who shall be corporate officers, the President may appoint one or more Assistant Secretaries, Assistant Treasurers and Assistant Controllers. Section 3. Removal and Vacancies. All officers shall serve at the pleasure of the Board. Any officer may be removed by the Board at any time with or without cause. A vacancy in any office shall be filled by the Board of Directors. Section 4. Bonding. The Board may, in its discretion, require any officer to give the corporation a bond in a sum and with one or more sureties satisfactory to the Board for the faithful performance of his duties and for the restoration to the corporation, in the case of death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 5. Chairman of the Board. The Chairman of the Board shall preside at all meetings of stockholders and at all meetings of the Board of Directors and shall be the chief executive officer of the corporation. He may sign, execute and deliver in the name of the corporation powers of attorney, contracts, bonds and other obligations, and shall have such further duties as are prescribed by law or as shall from time to time be designated by the Board. -6- Section 6. Vice Chairman of the Board. The Vice Chairman of the Board shall have such duties as are designated by the Chairman of the Board of Directors, and shall report to the Chairman. Section 7. President. The President shall be the chief operating officer of the corporation, and as such shall have general and active supervision over the property, business and affairs of the corporation subject to the authority of the Chairman of the Board. He shall preside, in the absence of the Chairman of the Board, at all meetings of stockholders and at all meetings of the Board of Directors. He may sign, execute and deliver in the name of the corporation powers of attorney, contracts, bonds and other obligations, and shall have such further duties as shall from time to time be designated by the Board. Section 8. Chairman of the Finance Committee. The Chairman of the Finance Committee shall be the principal financial officer of the corporation; he shall, if present, preside at all meetings of the Finance Committee, and shall have such further duties as shall from time to time be designated by the Board. Section 9. Vice-Presidents. The elected Vice-Presidents, which may be designated by different classes, shall have such duties as shall from time to time be designated by the Board. Section 10. Secretary. The Secretary shall be the keeper of the corporate seal and records (except those kept by the Treasurer), and shall give notice of, attend, and record minutes of meetings of stockholders and directors. The Secretary or any Assistant Secretary shall have authority to affix the corporate seal to any instrument requiring it, and when so affixed, the corporate seal may be attested by the signature of the Secretary or any Assistant Secretary. Section 11. Treasurer. The Treasurer shall be responsible for (i) the custody and safekeeping of all of the funds of the corporation, (ii) the receipt and deposit of all moneys paid to the corporation, (iii) where necessary or appropriate, the endorsement for collection on behalf of the corporation of all checks, drafts, notes, and other obligations payable to the corporation, (iv) the disbursement of funds of the corporation under such rules as the Board may from time to time adopt, (v) keeping full and accurate records of all receipts and disbursements, and (vi) the performance of such further duties as are incident to his office or as may from time to time be designated by the Board. -7- Section 12. Controller. The Controller shall be the principal accounting officer of the corporation. He shall prescribe the system of accounts of the corporation and the books for keeping the same. The general books of account of the corporation shall be kept in his office and under his immediate supervision. He shall perform such further duties as are incident to his office or as may from time to time be designated by the Board. ARTICLE IV. ----------- Stock Certificates and Transfer Books ------------------------------------- Section 1. Certificates. Every stockholder shall be entitled to have a certificate in such form as the Board shall from time to time approve, signed by, or in the name of the corporation by the Chairman of the Board, the President or any elected Vice-President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, certifying the number of shares owned by him. During the time in which the corporation is authorized to issue more than one class of stock or more than one series of any class, there shall be set forth on the face or back of each certificate issued a statement that the corporation will furnish without charge to each stockholder who so requests, the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the corporation and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Facsimile Signatures. Where a certificate is countersigned (l) by a transfer agent other than the corporation or its employee, or, (2) by a registrar other than the corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased 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 were such officer, transfer agent, or registrar at the date of issue. Section 3. Record Ownership. A record of the name and address of the holder of each certificate, the number of shares represented thereby, and the date of issue thereof shall be made on the corporation's books. The corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in any -8- share on the part of any other person whether or not it shall have express or other notice thereof, except as required by the laws of Delaware. Section 4. Lost Certificates. Any person claiming a stock certificate in lieu of one lost, stolen, mutilated or destroyed shall give the corporation an affidavit as to his ownership of the certificate and of the facts which go to prove its loss, theft, mutilation or destruction. He shall also, if required by the Board, give the corporation a bond, in such form as may be approved by the Board, sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss or theft of the certificate or the issuance of a new certificate. Section 5. Transfer Agent or Registrar. The corporation shall maintain one or more transfer offices or agencies, each in charge of a transfer agent designated by the Board, where the shares of stock of the corporation shall be transferable. The corporation shall also maintain one or more registry offices, each in charge of a registrar designated by the Board, wherein such shares of stock shall be registered. Section 6. Transfers of Stock. Transfer of shares shall, except as provided in Section 4 of this ARTICLE IV, be made on the books of the corporation only by direction of the person named in the certificate or his attorney, lawfully constituted in writing, and only upon the surrender for cancellation of the certificate therefor, duly endorsed or accompanied by a written assignment of the shares evidenced thereby. Section 7. Fixing Date for Determination of Stockholders of Record. (a) In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or 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 may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. (b) If no record date is fixed: (l) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. -9- (2) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. (c) A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting. ARTICLE V. ---------- General Provisions ------------------ Section 1. Offices. The registered office of the corporation in Delaware shall be in the City of Wilmington, County of New Castle. The corporation may have such other offices as the Board may from time to time determine. The books of the corporation may be kept outside the State of Delaware. Section 2. Seal. The corporation's seal shall be circular in form with the words "FOOTE, CONE & BELDING COMMUNICATIONS, INC. - DELAWARE" around the periphery and the figures and words "1942 - CORPORATE SEAL" within. Section 3. Fiscal Year. The fiscal year of the corporation shall begin on January 1 and end on December 31. Section 4. Inspection of Books. Subject to laws of the State of Delaware, the directors shall determine from time to time whether, and, if allowed, when and under what conditions and regulations the accounts and books of the corporation (except such as may by statute be specifically open to inspection) or any of them, shall be open to the inspection of the stockholders, and the stockholders' rights in this respect are and shall be restricted and limited accordingly. Section 5. Reliance on Records. Each director and officer shall in the performance of his duties be fully protected in relying in good faith upon the books of account or reports made to the corporation by any of its officials, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the Board, or in relying in good faith upon other records of the corporation. Section 6. Annual Report. The Board shall publish and submit to the stockholders annually a summary of the consolidated income of the corporation and its consolidated subsidiaries for the previous fiscal year and a full or condensed consolidated -10- balance sheet of the corporation and its consolidated subsidiaries at the end of the previous fiscal year. Section 7. Voting of Stock. Unless otherwise ordered by the Board, the Chairman of the Board, the President or the Chairman of the Finance Committee, and each or any of them, shall have full power and authority, in the name and on behalf of the corporation, to attend, act and vote at any meeting of stockholders of any company in which the corporation may hold shares of stock, and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such shares and which, as the holder thereof, the corporation might possess and exercise if personally present, and may exercise such power and authority through the execution of proxies or may delegate such power and authority to any other officer, agent or employee of the corporation. Section 8. Waiver of Notice. Whenever any notice is required to be given, a waiver thereof in writing, signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Section 9. Indemnification. (a) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he 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 he acted in good faith and in a manner he 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 his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the -11- 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 him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and 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 Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstance of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) 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 subsections (a) and (b) of this Article V, Section 9, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) of this Article V, Section 9 (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 he has met the applicable standard of conduct set forth in subsections (a) and (b). Such determination shall be made (l) 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 a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. (e) Expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this Article V, Section 9. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. -12- (f) The indemnification and advancement of expenses provided by or granted pursuant to this Article V, Section 9 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-Law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. (g) The corporation shall have power to purchase and maintain insurance on behalf of any person who 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 any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article V, Section 9. (h) For purposes of this Article V, Section 9, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article V, Section 9 with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this Article V, Section 9, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article V, Section 9. -13- (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article V, Section 9 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 10. Amendments to By-Laws. These By-Laws may be altered or repealed by the stockholders or by the Board of Directors. -14- EX-5 4 OPINION OF SIDLEY & AUSTIN Exhibit 5 SIDLEY & AUSTIN One First National Plaza Chicago, Illinois 60603 June 24, 1994 Foote, Cone & Belding Communications, Inc. 101 East Erie Street Chicago, Illinois 60611 Re: 1,200,000 Shares of Common Stock, $.33 1/3 par value and 1,200,000 Preferred Stock Purchase Rights ---------------------------------------------- Ladies and Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") being filed by Foote, Cone & Belding Communications, Inc., a Delaware corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of an aggregate of 1,200,000 shares of Common Stock, $.33 1/3 par value, of the Company (the "Registered Common Stock"), together with 1,200,000 Preferred Stock Purchase Rights of the Company (the "Registered Rights") associated therewith, to be issued under the Foote, Cone & Belding Communications, Inc. Stock Option Plan (the "Stock Option Plan") or the Foote, Cone & Belding Communications, Inc. Outside Director Stock Option Plan (the "Outside Director Plan" and, together with the Stock Option Plan, the "Plans"). The terms of the Rights are set forth in the Rights Agreement dated as of November 16, 1988 (the "Rights Agreement") between the Company and Harris Trust and Savings Bank, as Rights Agent. We are familiar with the proceedings to date with respect to the proposed issuance of the Registered Common Stock and the Registered Rights under the Plans and have examined such records, documents and questions of law, and satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for this opinion. Based on the foregoing, we are of the opinion that: 1. The Company is duly incorporated and validly existing under the laws of the State of Delaware. Foote, Cone & Belding Communications, Inc. June 24, 1994 Page 2 2. Any shares of the Registered Common Stock which are newly issued in connection with the either of the Plans will constitute shares of Common Stock of the Company which have been duly authorized and validly issued and are fully paid and non-assessable when (i) the Registration Statement shall have become effective under the Securities Act; (ii) with respect to any such shares issued under the Stock Option Plan, the Company's Board of Directors or a duly authorized committee thereof shall have duly adopted final resolutions authorizing the issuance and sale of such shares as contemplated by the Stock Option Plan; and (iii) certificates representing such shares shall have been duly executed, countersigned and registered and duly delivered upon payment of the agreed consideration therefor (not less than the par value thereof) determined in accordance with the terms of the Stock Option Plan or the Outside Director Plan, as the case may be. 3. The Registered Rights associated with the newly issued shares of Registered Common Stock referred to in paragraph 2 will be legally issued when (i) such Registered Rights have been duly issued in accordance with the terms of the Rights Agreement and (ii) such associated shares have been duly issued and paid for as set forth in paragraph 2. This opinion is limited to the General Corporation Law of the State of Delaware and the laws of the United States of America. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to our firm included in or made a part of the Registration Statement or related prospectus. Very truly yours, Sidley & Austin EX-23.A 5 CONSENT Exhibit 23(a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Form S-8 Registration Statement of our reports dated February 15, 1994 (except with respect to the matter discussed in Note 10, as to which the date is March 16, 1994), included in or incorporated by reference in Foote, Cone & Belding Communications, Inc.'s Form 10-K for the year ended December 31, 1993, and to all references to our Firm included in this Form S-8 Registration Statement. Arthur Andersen & Co. Chicago, Illinois June 23, 1994 EX-24 6 POWER OF ATTORNEY EXHIBIT 24 POWER OF ATTORNEY The undersigned does hereby constitute and appoint Bruce Mason and Terry M. Ashwill, and each of them, his attorney-in-fact for the purpose of signing in his name and on his behalf as a director of Foote, Cone & Belding Communications, Inc. (the "Company"), the Company's Annual Report on Form 10-K pursuant to the Securities Exchange Act of 1934 and any registration statement filed during 1993 for the registration under the Securities Act of 1933 of Common Stock of the Company to be issued or sold in connection with the Company's Stock Option, Restricted Stock or Stock Purchase Plans, and of signing any and all amendments to said registration statement and any and all amendments thereto as each thereof is so signed for filing with the Securities and Exchange Commission. Dated: March 4, 1994 John B. Balousek William A. Schreyer - ------------------------ ------------------------ John B. Balousek William A. Schreyer Gregory W. Blaine Louis E. Scott - ------------------------ ------------------------ Gregory W. Blaine Louis E. Scott Laurel Cutler Stephen T. Vehslage - ------------------------ ------------------------ Laurel Cutler Stephen T. Vehslage Maurice Levy Craig R. Wiggins - ------------------------ ------------------------ Maurice Levy Craig R. Wiggins Newton N. Minow - ------------------------ Newton N. Minow -----END PRIVACY-ENHANCED MESSAGE-----