As filed with the Securities and Exchange Commission on March 17, 1999
Registration Number 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------
OMNICOM GROUP INC.
(Exact name of registrant as specified in its charter)
New York 13-1514814
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
437 Madison Avenue
New York, New York 10022
(Address of Principal Executive Offices) (Zip Code)
OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN
(Full title of the plan)
Barry J. Wagner, Esq.
Secretary and General Counsel
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
(212) 415-3600
(Name, address and telephone number,
including area code, of agent for service)
-----------------
Copies to:
Linda E. Ransom, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
(212) 259-6570
-----------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
Proposed Maximum
Title of Proposed Maximum Aggregate Amount of
Securities to Amount to be Offering Price Offering Registration Fee
be Registered (1) Registered Per Share (2) Price (2) (2)
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock of
Omnicom Group
Inc., par value
$.50 per share ..... 1,500,000 $70.21875 $105,328,125 $29,281.22
==============================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Estimated for the sole purpose of computing the registration fee. Pursuant
to Securities Act Rules 457(c) and (h), the proposed maximum offering
price per share is calculated as the average of the high and low prices,
reported by the New York Stock Exchange, Inc., of the common stock of the
registrant as of March 11, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Omnicom Group Inc. (the
"Company") (File No. 1-10551) with the Securities and Exchange Commission (the
"Commission") and are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
(c) the Company's Current Reports on Form 8-K dated January 20, 1998,
March 4, 1998 and March 6, 1998; and
(d) the description of the Company's Common Stock contained in the
Registration Statement filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and any amendment or report filed for purposes of updating that
description.
All documents filed by the Company or the Omnicom Group
Profit-Sharing Retirement Plan (the "Plan") with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and 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 in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in any
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as modified or superseded, to constitute
a part of this Registration Statement.
The consolidated financial statements and financial statement
schedules of the Company and its subsidiaries included in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997 have been
incorporated herein by reference in reliance on the reports, also incorporated
herein by reference, of Arthur Andersen LLP, independent certified public
accountants, given on their authority as experts in auditing and accounting.
II-1
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation contains a provision
limiting the liability of directors (except for approving statutorily prohibited
dividends, share repurchases or redemptions, distributions of assets on
dissolution or loans to directors) to acts or omissions in bad faith, involving
intentional misconduct or a knowing violation of the law, or resulting in
personal gain to which the director was not legally entitled. The Company's
By-Laws provide that an officer or director will be indemnified against any
costs or liabilities, including attorneys fees and amounts paid in settlement
with the consent of the Company 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 which any director or officer of the corporation served in any
capacity at the request of the corporation, because he was a director or officer
of the corporation, or served such other corporation or other enterprise in any
capacity, against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorney's 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 which is settled or otherwise disposed of, or (2)
any claim, issue or matter as to which such
II-2
<PAGE>
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 in its discretion,
that the person is fairly and reasonably entitled to indemnity for such portion
of the settlement and expenses as the court deems proper.
Section 723 of the New York Business Corporation Law provides that
an officer or director who has been successful on the merits or otherwise in the
defense of a civil or criminal action of the character set forth in Section 722
is entitled to indemnification as permitted in such section. Section 724 of the
New York Business Corporation Law permits a court to award the indemnification
required by Section 722.
The Company has entered into agreements with its directors to
indemnify them for liabilities or costs arising out of any alleged or actual
breach of duty, neglect, errors or omissions while serving as a director. The
Company also maintains and pays premiums for directors' and officers' liability
insurance policies.
Section 15.6 of the Plan provides that the duties, powers and
responsibilities reserved to the Administrative Committee appointed to
administer the Plan (the "Committee") may be allocated among the members (if
there be more than one), in which case, except as may be required by the
Employee Retirement Income Security Act of 1974, as amended (or any successor
statute) (the "Act"), no member of the Committee shall have any liability with
respect to any duties, powers or responsibilities not allocated to him, or for
the acts or omissions of any other member. Section 15.6 of the Plan provides
that the Company may indemnify, to the extent permitted by the Act, the members
of the Committee against all loss and/or expense arising out of their actions
and omissions in that capacity.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
- -------------- -----------
4.1 Omnicom Group Profit-Sharing Retirement Plan.
4.2 Agreement and Declaration of Trust.
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on Signature Page).
II-3
<PAGE>
The Company has caused or will cause the Plan and any amendment
thereto to be submitted to the Internal Revenue Service ("IRS") in a timely
manner and has caused or will cause to be made all changes required by the IRS
in order to qualify such plan.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
(c) 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-5
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, as amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on March 17, 1999.
OMNICOM GROUP INC.
By: /s/ John Wren
------------------------------------
John Wren
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated. Each person whose signature appears
below does hereby constitute and appoint John Wren and Barry J. Wagner, and each
of them, with full powers of substitution, his or her true and lawful
attorneys-in-fact and agents to do any and all acts and things and to execute
any and all instruments which said attorneys-in-fact and agents may deem
necessary or advisable to enable the registrant to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under said Act of shares of Common Stock and interests registered
pursuant hereto, including specifically, but without limitation thereof, power
and authority to sign his or her name, in any and all capacities set forth
beneath his or her name, to any amendment to this Registration Statement in
respect of said shares and interests and to any documents filed as part of or in
connection with said Registration Statement or amendments; and the undersigned
does hereby ratify and confirm all that said attorneys-in-fact and agents shall
do or cause to be done by virtue hereof.
Date: March 17, 1999 By: /s/ John Wren
-------------------------------------
John Wren
Chief Executive Officer and Director
(Principal Executive Officer)
Date: March 17, 1999 By: /s/ Randall Weisenburger
-------------------------------------
Randall Weisenburger
Chief Financial Officer
(Principal Financial Officer)
<PAGE>
Date: March 17, 1999 By: /s/ Philip J. Angelastro
-------------------------------------
Philip J. Angelastro
Controller
(Principal Accounting Officer)
Date: March 17, 1999 By: /s/ Bernard Brochand
-------------------------------------
Bernard Brochand
Director
Date: March 17, 1999 By: /s/ Robert J. Callander
-------------------------------------
Robert J. Callander
Director
Date: March 17, 1999 By: /s/ James A. Cannon
-------------------------------------
James A. Cannon
Director
Date: March 17, 1999 By: /s/ Leonard S. Coleman, Jr.
-------------------------------------
Leonard S. Coleman, Jr.
Director
Date: March 17, 1999 By: /s/ Bruce Crawford
-------------------------------------
Bruce Crawford
Director
Date: March 17, 1999 By: /s/ Susan S. Denison
-------------------------------------
Susan S. Denison
Director
Date: March 17, 1999 By: /s/ John R. Murphy
-------------------------------------
John R. Murphy
Director
Date: March 17, 1999 By: /s/ John R. Purcell
-------------------------------------
John R. Purcell
Director
<PAGE>
Date: March 17, 1999 By: /s/ Keith L. Reinhard
-------------------------------------
Keith L. Reinhard
Director
Date: March 17, 1999 By: /s/ Allen Rosenshine
-------------------------------------
Allen Rosenshine
Director
Date: March 17, 1999 By: /s/ Gary L. Roubos
-------------------------------------
Gary L. Roubos
Director
Date: March 17, 1999 By: /s/ Quentin I. Smith, Jr.
-------------------------------------
Quentin I. Smith, Jr.
Director
Date: March 17, 1999 By: /s/ Egon P.S. Zehnder
-------------------------------------
Egon P.S. Zehnder
Director
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, the Administrative Committee for the Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on March 17, 1999.
OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN
By: /s/ Leslie Chiocco
---------------------------------------
Name: Leslie Chiocco
Title: Authorized Signatory for the
Administrative Committee
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
4.1 Omnicom Group Profit-Sharing Retirement Plan.
4.2 Agreement and Declaration of Trust.
5 Opinion and Consent of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (included in Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on Signature Page).
Exhibit 4.1
OMNICOM GROUP
PROFIT-SHARING RETIREMENT PLAN
<PAGE>
TABLE OF CONTENTS
Page No.
--------
ARTICLE 1 NAME, PURPOSE AND EFFECTIVE DATE ......................... 2
ARTICLE 2 DEFINITIONS AND CONSTRUCTION ............................. 3
ARTICLE 3 PARTICIPATION AND COMPUTATION ............................ 9
OF SERVICE
ARTICLE 4 COMPANY CONTRIBUTIONS .................................... 17
ARTICLE 5 EMPLOYEE CONTRIBUTIONS ................................... 19
ARTICLE 6 ALLOCATION AND VALUATION ................................. 24
ARTICLE 7 RETIREMENT ............................................... 31
ARTICLE 8 DEATH BENEFITS ........................................... 33
ARTICLE 9 TERMINATION OF EMPLOYMENT ................................ 34
ARTICLE 10 LOANS .................................................... 39
ARTICLE 11 METHODS OF DISTRIBUTION .................................. 41
ARTICLE 12 INTERNAL REVENUE SERVICE
QUALIFICATION ............................................ 46
ARTICLE 13 TRUST .................................................... 47
ARTICLE 14 AMENDMENT AND TERMINATION ................................ 51
ARTICLE 15 ADMINISTRATION AND THE COMMITTEE ......................... 55
ARTICLE 16 MULTI-EMPLOYER PROVISIONS ................................ 61
ARTICLE 17 TOP HEAVY PROVISIONS ..................................... 66
ARTICLE 18 MISCELLANEOUS ............................................ 71
<PAGE>
OMNICOM GROUP
PROFIT-SHARING RETIREMENT PLAN
W I T N E S S E T H :
WHEREAS, OMNICOM GROUP INC. (hereinafter sometimes referred to as
"OMNICOM") has been formed by the affiliations, by merger or otherwise, of BBDO
INTERNATIONAL, INC. (hereinafter "BBDO"), DOYLE DANE BERNBACH GROUP INC.
(hereinafter "DDB"), and NEEDHAM HARPER WORLDWIDE, INC. (hereinafter "NHW"); and
WHEREAS, each of BBDO, DDB and NHW maintained its own profit sharing
plan, qualified under Section 401, et seq., of the Internal Revenue Code, for
itself, and in certain cases, for certain of its subsidiaries and affiliates;
and
WHEREAS, OMNICOM desires to adopt one profit sharing plan for the
benefit of certain of its employees and the employees of those other corporate
entities now carrying on the business of BBDO, DDB and NHW and their affiliated
companies which had adopted their respective profit sharing plans;
NOW THEREFORE, in consideration of the premises, OMNICOM has
established the following as its Profit-Sharing Retirement Plan for itself, and
for those other corporate entities carrying on the business of BBDO, DDB and
NHW, and their affiliated companies which had adopted their respective profit
sharing plans or which may hereafter adopt this Plan.
-1-
<PAGE>
ARTICLE 1
NAME, PURPOSE AND EFFECTIVE DATE
1.1 Name. This Plan is designated as the Omnicom Group Profit-Sharing Retirement
Plan (hereinafter "Plan").
1.2 Purpose. The purpose of the Plan is to provide retirement benefits and prior
to retirement, certain death and termination benefits, for eligible employees
through a fund created by contributions from the net profits and surplus of the
Company's business. The Plan shall be for the exclusive benefit of the employees
and their beneficiaries, as a plan which qualifies under Sections 401(a) and
501(a) of the Internal Revenue Code, as same may be hereafter amended.
1.3 Non-Applicability. Nothing in the Plan shall be deemed an agreement,
consideration, inducement or condition of employment, nor shall the rights or
obligations of the Employer, or any employee employed by the Employer, to
continue or terminate employment at any time be affected hereby.
1.4 Effective Date. The Effective Date of this Plan is January 1, 1988, and, as
amended, is January 1, 1990.
-2-
<PAGE>
ARTICLE 2
DEFINITIONS AND CONSTRUCTION
2.1 Definitions. The following words and phrases as used in this Plan shall have
the following meaning, unless a different meaning is clearly required by the
context:
(a) Act - The Employee Retirement Income Security Act of 1974, as it may
be amended from time to time, or any successor statute.
(b) Age - The age at last birthday.
(c) Beneficiary - Any person, estate, or trust entitled to receive any
payments due under this Plan upon the death of a Participant. Each unmarried
Participant may advise the Committee, in the manner and by the form specified by
the Committee, of the name of the Beneficiary or Beneficiaries to receive
benefits, if any, payable under the Plan after the death of the Participant;
each such Participant may similarly change his primary and contingent
Beneficiaries. The Beneficiary of a married Participant shall be the surviving
spouse unless a different Beneficiary has been designated, with the consent of
such spouse, or otherwise in accordance with the procedure authorized by U.S.
Treasury regulations. Should any Participant die without having designated a
Beneficiary who survives him, payment shall be made to his surviving spouse, or,
if none, to his surviving children in equal shares, or, if none, to his
surviving parents in equal shares, or, if none, to his estate.
(d) Break in Service - The failure by a Participant to work,
-3-
<PAGE>
in any Plan Year more than 500 hours, including overtime. Absence for military
service, sick leave, maternity leave, vacation leave or other special leave
approved in writing by the Company which (except military service) does not
exceed twenty-four (24) months shall not be deemed a Break in Service, provided
such Participant returns to employment not later than the expiration of the
authorized leave of absence, but failing such return, the Participant shall be
deemed to have terminated his employment as of the commencement of said absence
or leave.
Absence for military service will not be deemed a Break in Service
if the Participant returns to employment with the Company within such period
during which his employment rights are protected by law.
A Participant's absence by reason of her pregnancy or childbirth, or
by reason of adoption of a child, or caring for the Participant's child for a
period beginning immediately following birth or adoption (if not approved in
writing by the Company) shall not be deemed a Break in Service in the year in
which the absence begins if the Participant, because of such absence, does not
work more than 500 hours; otherwise, such absence shall not be deemed a Break in
Service in the immediately following year.
All Participants under similar circumstances shall be treated alike.
A Break in Service shall be deemed to have commenced on the first
day of the Plan Year in which it occurs.
(e) Code - The Internal Revenue Code of 1986, as it may be
-4-
<PAGE>
amended from time to time.
(f) Company - Omnicom Group Inc. and any successor thereto by
consolidation, merger, reorganization, transfer of assets, or otherwise, which
shall, as hereinafter provided, continue this Plan. The term shall also apply,
as the sense of the Plan shall require, to any corporation or business
organization which, as hereinafter provided, shall assume the obligations of the
Plan and Trust with respect to its employees, or any affiliated or subsidiary
corporation or business organization of the Company which shall agree to become
a party to this Plan and Trust, but the capitalized term "Company", as used in
Articles 14, 15 and 16, shall apply only to the corporation named in the first
sentence of this paragraph (f).
(g) Compensation - All regular salary payments made to or accrued for an
Employee by the Company for the Employee's services for the Fiscal Year,
including contributions made to a qualified cash or deferred arrangement that
qualifies under Section 402(a)(8) of the Code and any non-taxable benefits
provided as compensation under a plan qualifying under Section 125 of the Code,
but excluding bonuses, deferred compensation, imputed income and the cost of
fringe benefits, provided, however, that Compensation, with respect to an
Employee who becomes a Participant on an Entry Date other than the first day of
a Plan Year, shall include, for that year, only those sums attributable to the
period beginning on his Entry Date. A Participant's compensation in excess of
$200,000 (indexed as provided in the Code) shall not be "Compensation". If an
-5-
<PAGE>
Employee is employed by more than one participating company, "Compensation" as
above defined shall include the aggregate compensation received from all
participating companies in that Fiscal Year.
(h) Committee - The Administrative Committee as constituted under Article
15, which shall be the named fiduciary for purposes of the Act.
(i) Credited Service - Service with the Company as provided in Section 3.1
and 3.4.
(j) Employee - Any person who is a common law employee who, for the period
with respect to which determination of such status is made, is subject to the
direction and control of and is compensated by, the Company, including, but only
to the extent required by the Code, leased employees.
(k) Entry Date - January 1 or July 1 of any Plan Year.
(1) Fiscal Year - The fiscal year of the Company.
(m) Fund or Trust Fund - All money and property paid to the Trustee
pursuant to this Plan, together with all investments purchased by the Trustee
pursuant to the provisions of the Trust Agreement, and all interest or other
income thereon, less all proper disbursements therefrom, at any particular time,
including all trust funds held pursuant to the Prior Plans.
(n) Hours - Hours of employment or service for the purposes of the minimum
participation and vesting standards of the Act, as defined in Section 3.3.
(o) Limitation Year - For purposes of Section 415 of the Code,
-6-
<PAGE>
as same may be hereafter amended, shall be the Plan Year.
(p) Retirement Age - The earliest of (i) attainment by the Participant of
age 60 and his completion of 3 years of service, or (ii) attainment by the
Participant of age 70, or (iii) the date of the Participant's actual retirement
under and pursuant to a nondiscriminatory early retirement program offered by
the Company for a short determinable period to its employees, for which he was
eligible.
(q) Retirement Date - The day of the attainment by the Participant of his
Retirement Age, or any day thereafter, on which the Participant retires.
(r) Participant - An Employee who is eligible to be and becomes covered
under this Plan as provided in Article 3 hereof, who is not in an ineligible
class of employment for participation in this Plan, or a former Employee or
Beneficiary whose benefits hereunder have not been fully distributed.
(s) Participant's Account or Accounts - Referring to a Participant's
interest, shall mean at any time the portion of the Trust Fund held by the
Trustee on behalf of such Participant, which shall include his account, if any,
as maintained in a Prior Plan.
(t) Plan - Omnicom Group Profit-Sharing Retirement Plan established by
this instrument as it may be amended from time to time.
(u) Plan Administrator - Omnicom Group Inc., which shall also be the agent
for service of legal process upon the Plan.
(v) Plan Year - The calendar year.
(w) Trust or Trust Agreement - Any agreement or agreements now
-7-
<PAGE>
or hereafter executed with one or more Trustees selected by the Company, to
implement the Plan.
(x) Trustee - The trustee or trustees named in a Trust Agreement, to which
the Company is a party, to implement the Plan, and any duly appointed successor
trustee or trustees.
(y) Valuation Date - The last day of each calendar month.
(z) Voluntary Contribution Account - That portion of the Trust Fund,
attributable to the Participant's contributions made under Section 5.1 below,
and held by the Trustee on his behalf, plus that portion of the Trust Fund, if
any, attributable to his contributions under a Prior Plan.
(aa) Merger Date - August 29, 1986, being the date of the mergers of BBDO,
DDB and NHW into Omnicom Group Inc.
(bb) Prior Plan - A profit sharing plan, qualified under Section 401 et.
seq. of the Code, of BBDO, DDB or NHW or any of their subsidiaries, as each
existed immediately prior to the effective date of this Plan.
(cc) Investment Fund - One of the investment methods or vehicles chosen or
designated by the Committee, pursuant to Article 13 below, for the investment of
the Fund.
2.2 Plurals and Genders. The masculine gender shall include the feminine and
neuter genders, and the singular, the plural, and vice versa, unless the context
clearly indicates a different meaning.
-8-
<PAGE>
ARTICLE 3
PARTICIPATION AND COMPUTATION OF SERVICE
3.1 (a) An Employee shall be eligible to become a Participant when he has
completed 12 months of continuous employment commencing on his employment date
(i.e. the first day on which he is credited with an hour of service), during
which he shall have been credited with at least 1,000 hours worked, and failing
same, upon the completion of a Plan Year thereafter (commencing with the first
Plan Year to begin within his first year of employment), during which he shall
have been credited with at least 1,000 hours worked, provided however that any
employee, employed on the Merger Date by BBDO, DDB or NHW, or their affiliated
companies, but not yet a participant in a Prior Plan, shall be credited with
such service for eligibility purposes hereunder.
(b) An Employee, who has satisfied the eligibility requirements of
paragraph (a) above, shall become a Participant on the first Entry Date
subsequent to the satisfaction of those requirements.
(c) (i) For purposes of determining years of credited service and breaks
in service for purposes of eligibility, the initial twelve-month period shall
commence on the employee's date of employment. If the employee fails to complete
a year of credited service in the initial twelve-month period, all subsequent
twelve-month periods, for purposes of determining eligibility, shall be Plan
Years, beginning with the Plan Year that includes the first
-9-
<PAGE>
anniversary of employment.
(ii) The following shall be Participants as of the date of
reemployment, (or if not previously Participants, on the first Entry Date
following reemployment):
(1) A person who satisfied the requirements of Paragraph (a) above
for Participant status, whose employment terminated prior to the Entry
Date on which he would have become a Participant and who subsequently
again becomes an Employee without experiencing a Break in Service.
(2) A person who experienced a Break in Service, but who had a
vested interest in his account pursuant to Article 9 hereof by reason of a
prior period of participation.
(3) A person who has not incurred five consecutive one-year breaks
in service, or, if he has incurred such breaks in service, whose most
recent period of uninterrupted service (i.e., service since the most
recent prior break in service) is greater in length than the number of
consecutive one-year breaks in service experienced since such prior period
of service, provided that such person has satisfied the requirements of
paragraph (a) above for participation under the Plan.
(iii) Any other individual, upon reemployment, shall be considered a
new Employee and shall be required to satisfy the requirements of paragraph (a)
above without regard to service prior to a break in service or employment
termination.
(d) The provisions of this paragraph shall be in addition to, but not in
limitation of, the provisions of paragraph (c) above.
-10-
<PAGE>
(i) Any person who, as of the Merger Date, was a participant in a
Prior Plan, or in the qualified plan of any corporation which, on August 28,
1986, formed part of a controlled group, as defined in Section 414(b) of the
Code, with BBDO, DDB or NHW, shall be credited, as of that date, with the
service to which he was entitled under the Prior Plan, or the qualified plan
within the controlled group in which he was then employed.
(ii) Any person, employed on the Merger Date by the Company or by
any corporation which forms part of a controlled group, as defined in Section
414(b) of the Code, with the Company, will be credited, as of the Merger Date,
with service, for eligibility and vesting purposes, for continuous time
previously spent, immediately prior to the Merger Date, in the employ of a
corporation which, on the Merger Date, became part of a controlled group with
the Company.
(e) In the event a Participant becomes ineligible to participate because
he is no longer a member of an eligible class of Employees, but has not incurred
a break in service, such Employee shall participate immediately upon his return
to an eligible class of employees.
3.2 The Committee shall notify each Employee of the date on which he will be
eligible for participation in the Plan. The Committee shall adopt and pursue
uniform policies and rules applicable to all Employees. The adoption of such
policies and rules shall be within the exclusive discretion of the Committee.
-11-
<PAGE>
3.3 "Hours worked" as used in computing breaks in service and in computing
Credited Service for benefit accrual, vesting, and all other purposes of this
Plan shall mean:
(a) each hour for which an Employee is directly or indirectly paid, or
entitled to payment by the Company for the performance of duties.
These hours shall be credited to the Employee for the computation
period in which the duties are performed; and
(b) each hour for which an Employee is directly or indirectly paid, or
entitled to payment, by the Company on account of a period of time
during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), lay-off, jury duty,
military duty or leave of absence. These hours shall be calculated
and credited pursuant to Section 2530.200b-2 of the Department of
Labor regulations; and
(c) each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Company. These hours shall be
credited to the Employee for the computation period or periods to
which the award or agreement pertains rather than the computation
period in which the award, agreement or payment is made, provided
however, that in each case, the number of hours to be credited shall
be the minimum required under applicable regulation of the
Department of Labor at the relevant
-12-
<PAGE>
time.
The definition herein contained shall at all times be construed in a
manner consonant with, and no more broadly than required by the aforesaid
regulations, or any regulations amendatory thereof or supplementary thereto, all
of which regulations are incorporated into this Plan by reference.
3.4 Each Employee shall receive Credited Service for benefit accrual and vesting
purposes under this Plan in accordance with the following provisions:
(a) For benefit accrual purposes, unless otherwise required under Section
16.8, a Participant shall be credited with one (1) year of service for each Plan
Year in respect of which he or she is a Participant in accordance with Section
3.1, above, and who is credited with at least one thousand (1,000) hours worked.
(b) For vesting purposes under this Plan, which includes eligibility for
retirement, disability and deferred vested benefits, a Participant shall be
credited with one year of service for each Plan Year in which he is credited
with the lesser of 6 months employment or one thousand (1,000) hours worked,
provided, however, that years of service prior to his last break in service
shall be excluded, as permitted by the remaining provisions of this Article 3.
(c) If an Employee is, upon leaving the employ of the Company, immediately
employed by a subsidiary, affiliated or associ-
-13-
<PAGE>
ated corporation of the Company, he shall continue to accrue Credited Service
for benefit accrual purposes under this Plan and be eligible for an allocable
share of contributions or forfeitures hereunder; and he shall also continue to
earn Credited Service for the purpose of determining eligibility and his vested
percentage of his Account balance earned as of the date of his transfer, in
accordance with the vesting provisions set forth in Article 9. Unless the
Committee determines otherwise, such transfer or reemployment shall not be
deemed to be a termination of employment with the Company requiring a
distribution.
(d) If a Participant has no vested interest in his Account, prior to a
one-year (or longer) break in service, and if the number of his consecutive
one-year breaks in service (determined on a Plan Year basis) equals or exceeds
the greater of five or the number of years of service such Participant had
completed prior to such break(s), the years of service completed by the
Participant prior to such break(s) in service shall be disregarded in computing
the Participant's vested interest. However, if the said number of one-year
breaks does not equal or exceed the greater of five or the said prior service,
then the said years completed prior to the break(s) shall not be so disregarded.
In applying the foregoing paragraph, the aggregate number of years of
service completed before a break in service shall not include years of service
that need not be counted, under the principles of the foregoing paragraph,
because of earlier breaks in service.
-14-
<PAGE>
For purposes of computing years of Credited Service included in the
determination of the vested percentage of any Participant who, under Article 9,
has a vested right to a portion of his Account, and who has five consecutive
one-year breaks in service, years of Credited Service after such five-year
period shall not be taken into account for purposes of determining the
nonforfeitable percentage of his Account, which accrued before such five-year
period. However, such Participant's Credited Service prior to such period will
be credited for determining his nonforfeitable percentage of that portion of his
Account accrued after his resumption of employment.
(e) If a terminated Participant resumes employment as an Employee eligible
to participate in the Plan before he incurs five consecutive breaks in service,
and he has not received any distribution of all or a portion of his Account, his
Credited Service shall be restored as if there had been no termination of
employment and the forfeitable portion of his Account, representing
contributions prior to termination, shall remain credited to his Account.
3.5 Notwithstanding anything contained in this Plan to the contrary, if
Employees are in a unit which now or hereafter is covered by a collective
bargaining agreement between an Employee representative and the Company, and if
retirement benefits for employees in such a unit have been the subject of good
faith bargaining between said employee representative and the Company, the
Employees in such
-15-
<PAGE>
unit shall not be eligible to be and/or remain Participants in this Plan without
agreement of Company and employee representative.
-16-
<PAGE>
ARTICLE 4
COMPANY CONTRIBUTIONS
4.1 The Company shall make a contribution or contributions to the Trustee for
each Plan Year in such an amount, if any, as is determined by its Board of
Directors. In no event shall the contribution for any year exceed the maximum
amount deductible from the Company's income for such year as prescribed by the
Code, or any statute of similar import, including all carryovers.
If by reason of mistake, the aggregate payments made by the Company
to the Trustee for any year exceed the amount of contribution properly payable
hereunder, the excess shall be credited to contributions that may be made in the
following year or years, provided, however, that such excess contribution shall
be allocated in accordance with Article 6 for the year for which the
contribution was originally made or, at the election of the Company, shall be
returned to the Company within one year after the later of the date the
contribution was made, or the date a final determination is made disallowing
said excess contribution as a deduction.
If the Company shall have in effect, or hereafter adopt, any
additional plan or plans which qualify under the Code, for the benefit of its
Employees, the amounts to be contributed by the Company under the Plan
established hereunder and under such additional plan or plans shall not exceed
the amount which is deductible by the Company in computing its Federal income
taxes under any applicable limitations of the Code and the contribution made
under this
-17-
<PAGE>
Plan shall be deemed automatically reduced to the extent necessary to effectuate
this provision; any excess contribution thereby created shall be applied against
the next year's contribution or, at the election of the Company, shall be
returned to the Employer within one year after the later of the date the
contribution was made, or the date a final determination is made disallowing
said excess contribution as a deduction. In no event will Omnicom permit any
company participating herein to make a contribution hereunder if the effect of
such contribution would be to cause this Plan to violate Section 401(a)(16) of
the Code with respect to said company.
-18-
<PAGE>
ARTICLE 5
EMPLOYEE CONTRIBUTIONS
5.1 (a) No Participant shall be required to make any contribution under the
Plan, but each Participant may, with the consent of the Committee, which shall
be given or withheld in a uniform and nondiscriminatory manner, and subject to
Section 5.2 below, make voluntary contributions to the Trustee for a Plan Year,
not exceeding an amount equal to ten percent (10%) of the gross compensation of
such Participant for said year. All such contributions shall be held and
invested pursuant to the terms of this Plan and the Trust.
(b) If the Company shall maintain more than one plan qualified under
Section 401 of the Internal Revenue Code, then the Participant may voluntarily
contribute, under all such plans in which he participates, an amount, in any
Plan Year, not to exceed 10% of the gross compensation received by him from the
Company for said year, provided however that his voluntary contribution under
any one such plan may not exceed the amount of which he could contribute under
said plan under the immediately preceding subparagraph, if said plan was the
only qualified plan maintained by the Company.
(c) The Committee shall establish and maintain, or cause to be established
and maintained, a separate account in the name of each Participant, called his
voluntary contribution account to which shall be credited his voluntary
contributions under this Plan or any Prior Plan, and the increment or decrement
allocable there-
-19-
<PAGE>
to. The Trustee shall account separately for the aggregate of voluntary
contributions, whether or not they are separately invested.
(d) The Company may, if it shall institute a payroll deduction system,
withhold from a Participant's salary for transmittal to the Trustee, such sum as
the Participant, by written authorization, may specify. Promptly after receipt
or withholding of the Participant's contributions, the Company shall remit same
to the Trustee, and shall deliver to the Committee an itemized list of the
contributing Participants and the amount of their contributions; the Committee
shall credit such contributions to the accounts of the respective Participants.
(e) A Participant may elect to withdraw, once in each Plan Year, from the
portion of his Account attributable to his voluntary contributions, the then
value of that portion of his Account, based on the value as of a Valuation Date
not more than ninety (90) days preceding his request for withdrawal, provided
however, that no withdrawal shall exceed the total amount contributed by him as
decreased by his prior withdrawals and any decrement allocated to his Account
and as increased by any increment allocated to his Account. If the amount to be
withdrawn is invested in more than one investment fund, the Committee shall
specify the investment fund or funds from which the withdrawal is to be made.
(f) The Committee may, in a non-discriminatory manner, establish rules
governing all aspects of both the receipt of contributions and disbursement of
distributions hereunder, including,
-20-
<PAGE>
without limitation, rules governing the timing, frequency and minimum amount of
such contributions or distributions.
5.2 No employee contribution is eligible for acceptance under Section 5.1 unless
the acceptance thereof shall be in conformity with Section 401(m) of the Code
and regulations pursuant thereto, including, without limitation, Reg. 1.401(m)-1
and 1.401(m)-2. The Committee may limit, revoke or amend its agreement to accept
employee contributions under Section 5.1 on behalf of any Participant at any
time, but only if it determines that such limitation, revocation or amendment is
necessary under one of the following circumstances:
(a) in the case of a Participant's after-tax contributions, to insure
that the discrimination tests of Section 401(m) of the Code, and regulations
pursuant thereto, are met for such Plan Year;
(b) to insure that a Participant's Annual Additions for any calendar year
will not exceed the limitations of Section 6.3; or
(c) to insure deductibility of the Company's entire contribution to the
Plan for federal income tax purposes.
If, notwithstanding the provisions of this Section or a prohibition
under the Code or Regulations, an employee contribution is made in an excess
amount, such excess amount and any increment allocable thereto shall be returned
to the Participant.
5.3 Notwithstanding anything contained herein, a Participant shall
-21-
<PAGE>
be fully vested in his voluntary contribution account and shall be entitled to
receive payment thereof as soon as practicable after termination of employment.
5.4 (a) Notwithstanding anything to the contrary contained in this Plan, the
Committee may, in its discretion, direct the Trustee to accept from an Employee
amounts which will constitute a "rollover contribution" or "rollover amount"
pursuant to Sections 402(a)(5), 403(a)(4), or 408(d)(3) of the Code as part of
that Employee's voluntary contribution account, and said Employee shall be
deemed a Participant herein, at least to the extent of said contribution by him.
Furthermore, the Committee may, in its discretion, but subject to the last
sentence of this paragraph, direct the Trustee to accept, from a funding agency
or fiduciary of any qualified employee benefit plan of a former employer of an
Employee, a direct transfer constituting such Employee's entire interest in the
distributing plan, exclusive of after-tax contributions made by the Employee
therein, provided that such a direct transfer shall be comprised only of cash or
of cash equivalents. The amount so transferred shall also become or shall be
part of that Employee's voluntary contribution account, and said Employee shall
be deemed a Participant herein, at least to the extent of said transferred
amount.
(b) This section shall be construed so that it shall comply with the
aforesaid provisions of the Internal Revenue Code.
(c) The Committee may adopt such rules governing the acceptance of the
aforesaid amounts from employees as it deems neces-
-22-
<PAGE>
sary.
(d) Section 5.1 (e) hereof shall not apply to any amount accepted by the
Trustee under this Section 5.4, but Section 5.3 hereof shall apply to any such
amount.
(e) Any amount contributed under this Section 5.4 shall not reduce in any
way the amount which a Participant may contribute under Section 5.1.
-23-
<PAGE>
ARTICLE 6
ALLOCATIONS AND VALUATION
6.1 The Committee shall maintain a separate account for each Participant, and
shall credit or debit, as required, all appropriate amounts, including
investment appreciation and depreciation, forfeitures and distributions. The
Committee shall keep records which shall indicate the account balance of each
Participant.
6.2 (a) A Company contribution and forfeitures, if any, for each Plan Year shall
be credited to the accounts of Participants (i) who are entitled to a year of
service for benefit accrual purposes under Section 3.4(a) and who were Employees
on the last day of such year, or (ii) who either died or attained their
Retirement Dates during such year, in the ratio which the Compensation of each
such Participant bears to the Compensation of all Participants of such Company.
(b) Except as otherwise provided herein, the contribution of each Company
participating herein shall be allocated only to its employees who are
Participants herein. Similarly, forfeitures shall be allocated only among
Participants employed by the same Company as employed the Participant whose
account was forfeited, unless otherwise agreed among the various companies which
adopt this Plan.
(c) Notwithstanding the provisions of paragraph (a) above, the Board of
Directors of the Company may, with the consent of the
-24-
<PAGE>
Committee and by application of uniform criteria consistently applied in any
Plan Year, determine that the operations of any discrete office or division of
the Company have not been sufficiently profitable so as to justify an allocation
of profits to the employees thereof, and in that event, such employees shall not
receive an allocation of contribution hereunder in said Plan Year. The
provisions of this paragraph shall be applied in a non-discriminatory manner in
compliance with Section 401(a) and Section 410(b) of the Code.
(d) All allocations shall be made subject to Section 6.3 below and, if the
Board of Directors shall, to comply with Section 6.3, limit the contribution on
an individual basis for each Participant, then the amount allocated to the
Account of each Participant shall be the contribution fixed by the Board for
him. Contributions shall be allocated after the allocation of forfeitures,
pursuant hereto.
6.3 Notwithstanding any other provisions of this Plan, annual additions as a
result of allocations made pursuant to this Article to each Participant under
the Plan for each Limitation Year shall not exceed the lesser of $30,000 (as
increased by cost of living adjustment permitted by applicable governmental
regulation) or 25% of a Participant's total annual compensation, as defined in
regulations issued pursuant to Section 415 of the Code. Annual additions mean
the sum for any Plan Year of (a) Company contributions, (b) forfeitures and (c)
the Participant's contributions made pursuant
-25-
<PAGE>
to Section 5.1 above.
Notwithstanding the foregoing, the otherwise permissible annual
additions for any Participant under this Plan may be further reduced to the
extent necessary, as determined by the Committee, to prevent disqualification of
the Plan under Section 415 of the Code, which imposes the following additional
limitations on the benefits payable to Participants who also may be
participating in another tax qualified pension, profit sharing, savings or stock
bonus plan maintained by the Company or any of the members of the controlled
group of corporations of which the Company is a part (hereinafter collectively
"employers"). If an individual is a Participant at any time in both a defined
benefit plan and a defined contribution plan maintained by the employers, the
sum of the defined benefit plan fraction and the defined contribution plan
fraction for any Plan Year may not exceed 1.0. The defined plan fraction for any
Plan Year is a fraction, the numerator of which is the Participant's projected
annual benefit under the Plan (determined at the close of the Plan Year) and the
denominator of which is the lesser of 1.25 multiplied by $90,000 or such greater
amount permitted by U.S. Treasury regulations to reflect cost-of-living
adjustments; or 1.4 multiplied by 100% of the Participant's average monthly
compensation, as defined pursuant to Section 415 of the Code, during the three
consecutive years when the total compensation paid to him was highest. The
defined contribution plan fraction for any Plan Year is a fraction, the
numerator of which is the sum of the annual additions to the Participant's
accounts in such Plan Year
-26-
<PAGE>
and for all prior plan Years and the denominator of which is the sum of the
applicable maximum amounts of annual additions which could have been made under
Section 415(c) of the Code for such Plan Year and for all prior years of such
Participant's employment (assuming for this purpose, that said Section 415(c)
had been in effect during such prior years). This applicable maximum amount for
any Plan Year shall be equal to the lesser of 1.25 multiplied by the dollar
limitation in effect for such Plan Year under Subsection 415(c)(1)(A) of the
Code, or 1.4 multiplied by 25% of the Participant's Compensation for such Plan
Year. At the election of the Committee, special transitional rules may apply for
both the defined benefit fraction and the defined contribution fraction for
employees who were Participants as of December 31, 1982.
For purposes of this limitation, all defined benefit plans of the
employers, whether or not terminated, are to be treated as one defined benefit
plan and all defined contribution plans of the employers, whether or not
terminated, are to be treated as one defined contribution plan. The extent to
which annual additions under the Plan shall be reduced as compared with the
extent to which the annual benefit under any defined benefit plans shall be
reduced in order to achieve compliance with the limitations of Section 415 of
the Code shall be determined by the Committee in such a manner so as to maximize
the aggregate benefits payable to such Participant. If such reduction is under
this Plan, the Committee shall advise affected Participants of any additional
limitation on their annual benefits required by this Paragraph.
-27-
<PAGE>
The above limitations are intended to comply with the provisions of
Section 415 of the Code as amended, so that the maximum benefits provided by
plans of the employers shall be exactly equal to the maximum amounts allowed
under Section 415 and regulations thereunder. If there is any discrepancy
between the provisions of this Section and the provisions of Section 415, such
discrepancy shall be resolved in such a way as to give full effect to the
provisions of Section 415 of the Code.
6.4 Forfeitures, available for allocation pursuant to Section 9.5 in any Plan
Year, shall be allocated thereunder without contravening Section 6.3 above. The
aggregate of forfeitures which may not be allocated to particular Participants,
because of the prohibitions of Section 6.3, shall be reallocated among all
remaining Participants as provided in Section 6.2.
6.5 (a) The Trustee, as of each Valuation Date (and, with respect to the
Valuation Date at the end of each Plan Year, prior to the allocation of
contributions and forfeitures as provided under Section 6.2) shall determine the
net value of the Trust Fund assets and the amount of net income or net loss and
shall report such value to the Committee in writing. In determining such value
the Trustee shall value all assets at fair market value as of such Valuation
Date. The determination of such value shall not include any contributions made
by the Company or Participants for such Plan Year. The resulting net income or
loss of the Trust Fund shall
-28-
<PAGE>
then be credited or debited to each Participant's Account in the same ratio as
each Account bears to the aggregate of all such Accounts, provided however that,
if the timing of the contributions and employee contributions made hereunder
would, in the opinion of the Committee, result in an inequitable allocation
under the foregoing formula, then the Trustee shall, at the direction of the
Committee, ascribe such weight to such timing as will result in a more equitable
allocation, and provided further that such directions by the Committee shall be
given in a non-discriminatory manner. After such crediting or debiting with
respect to the Valuation Date which is the last day of a Plan Year,
contributions and forfeitures shall be allocated to each Account as set forth in
Section 6.2.
(b) Each trust fund maintained pursuant to a separate Trust Agreement, and
each investment fund therein, shall be treated separately, and the increase or
decrease in each such fund shall be computed separately.
(c) The net increase or decrease as of any Valuation Date in any
investment fund shall be credited or debited to each Participant proportionately
in accordance with the ratio which the amount in the Account of each Participant
invested in said investment fund as of the prior Valuation Date (less any
amounts paid from each such Account so invested to the participant or his
Beneficiary since said date) bears to the aggregate amount in the Accounts of
all such Participants invested in said investment fund as of such date (less the
aggregate amounts paid from all such Accounts so
-29-
<PAGE>
invested to the respective Participants or their Beneficiaries since said date).
(d) Increases or decreases shall be allocated as otherwise provided in the
Plan, subject however to all of the requirements of this section for separate
allocations in respect of all the investment funds. Such allocations to so much
of any Participant's Account as may be invested in any investment fund shall be
determined only by the performance of that investment fund.
6.6 A Participant, whose employment is terminated shall be credited or debited
with his share of any increase or decrease, attributable to investment
experience, in the value of the Fund occurring during the period beginning on a
Valuation Date following his termination, and ending on a Valuation Date
preceding, by no more than 180 days (in accordance with Article 11 below), the
commencement of distribution of his Account hereunder.
-30-
<PAGE>
ARTICLE 7
RETIREMENT
7.1 A Participant's Account shall be nonforfeitable when he attains his
Retirement Age.
7.2 A Participant who retires at his Retirement Date shall be entitled to
receive the value of the balance in such Participant's Account in the Trust Fund
determined as of the later of the Valuation Date coincident with or immediately
following his Retirement Date, or the Valuation Date coincident with or
immediately following an election to receive a distribution pursuant to Article
11 below.
7.3 If a Participant incurs, prior to his Retirement Date, a disability which,
in the opinion of a physician selected by the Committee, renders him permanently
unable to perform his duties satisfactorily, his employment shall be terminated
and this shall be considered as a disability retirement. The amount of
disability benefit payable on such disability retirement date shall be such as
will be provided by the value of the balance in his Account, determined as of
the later of the Valuation Date coincident with or immediately following such
date, or the Valuation Date coincident with or immediately following an election
to receive a distribution pursuant to Article 11 below.
-31-
<PAGE>
7.4 Notwithstanding anything to the contrary contained in any of the other
provisions of this Plan, should a Participant remain in the Company's service
after his Retirement Age, he shall for all purposes of this Plan continue as a
Participant.
-32-
<PAGE>
ARTICLE 8
DEATH BENEFITS
8.1 If a Participant should die before his actual retirement, he shall become
100% vested in his allocated share of the Trust Fund, valued as of the later of
the Valuation Date coincident with or immediately following date of death, or
the Valuation Date coincident with or immediately following an election to
receive distribution pursuant to Article 11 below. Said share shall be paid to
his Beneficiary, as provided in Section 2.1, upon receipt of satisfactory proof
of his death.
8.2 Any death benefit shall be distributed by the Trustee to the person entitled
thereto, in the manner selected by the Beneficiary from the options provided by
the Committee in accordance with Article 11 below.
-33-
<PAGE>
ARTICLE 9
TERMINATION OF EMPLOYMENT
9.1 If a Participant shall cease to be an Employee other than by death (as
provided in Article 8), disability or retirement (as provided in Article 7), the
Committee shall immediately give notice to the Trustee of that fact and of the
date such person ceased to be an Employee. Such terminated Participant's
Credited Service for such period of employment and his participation herein
shall cease, and he shall have a vested right in a percentage of the balance in
his Account determined as provided in Section 9.2, modified, if necessary, in
accordance with Article 10.
9.2 The vested interest of a Participant, whose employment with the Company
terminates, other than by death, disability or retirement, shall be a percentage
of the balance in his Account valued on the later of the Valuation Date
coincident with or immediately following his termination date, or a Valuation
Date coincident with or immediately preceding the commencement of distribution
pursuant to Article 11 below, in accordance with the following schedule:
Years of Credited Service Percentage
------------------------- ----------
Less than 3 years 0%
3 years but less than 4 years 20%
4 years but less than 5 years 40%
5 years but less than 6 years 60%
6 years but less than 7 years 80%
7 years or more 100%
Any portion of a Participant's Account to which the
-34-
<PAGE>
terminating Participant is not entitled shall be forfeited.
Notwithstanding the foregoing vesting schedule, during any Plan Year
in which the Plan is top heavy, as provided in Article 18 below, a Participant
shall have a vested interest in his Account, computed in accordance with the
following schedule (the "top heavy vesting schedule"):
Percentage of
Years of Credited Service Vested Interest
------------------------- ---------------
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
9.3 (a) If any vesting schedule under this Article 9, or any other Article of
this Plan, is amended, each Participant who has completed at least three (3)
years of Credited Service with the Company (determined under Section 3.4(b), but
without regard to the exceptions contained therein) may elect, during the
election period specified below, to have the vested percentage of his Account
determined without regard to such amendment.
(b) For purposes hereof, the election period shall begin as of the date on
which the amendment changing the vesting schedule is adopted, and shall end on
the latest of the following dates:
(1) The date occurring sixty (60) days after the Plan amendment is
adopted; or
(2) The date which is sixty (60) days after the day on which the
Plan amendment becomes effective; or
(3) The date which is sixty (60) days after the day the
-35-
<PAGE>
Participant is issued written notice of the Plan amendment by the Company;
or
(4) Such later date as may be specified by the Committee.
The election provided hereinabove shall be made in writing and shall
be irrevocable when made.
(c) If, after the Plan has become top heavy, it ceases to be top heavy for
a subsequent Plan Year, any part of the Participant's Account which was vested
prior to the end of the Plan Year in which the Plan ceases to be top heavy shall
continue to be vested. Furthermore, each Participant who has at least 3 years of
Credited Service within the last Plan Year in which the Plan was top heavy may
elect to have the top heavy vesting schedule continue to apply to him, provided
that such election is made within 60 days after the first day of the Plan Year
in which the Plan ceases to be top heavy, or if later, the date the Participant
is issued notice of the right to make the election by the Company.
9.4 Any amount, to be forfeited by a Participant hereunder, shall be forfeited
on the Valuation Date following his termination of employment, unless his vested
interest is determined on a Valuation Date coincident with his termination, and
if so, then the forfeiture shall occur on that Valuation Date.
9.5 (a) If a former Participant, who received a distribution and
-36-
<PAGE>
who again becomes an Employee, satisfies all of the conditions set forth in this
paragraph, he may repay to the Fund the amount of any distribution which he
received upon his previous separation from service. Upon such repayment, the
portion of his Account balance which was forfeited upon such separation from
service shall be restored to his Account unadjusted for any gains or losses
incurred by the Fund since the Valuation Date as of which the forfeiture was
computed. The right of repayment described in this Subsection (a) shall exist
only if -
(i) the Participant, following his previous separation from service,
received a distribution prior to incurring a break in service;
(ii) upon such separation from service, such Participant was not
fully (100%) vested in his Account balance; and
(iii) such repayment is made not later than the earlier of the last
day of the Plan Year in which the Participant has five consecutive
one-year breaks in service commencing after such distribution, or five
years after the first day of the Participant's re-employment by the
Company.
(b) Any restoration of forfeitures pursuant to this paragraph, or as
required under Section 3.4(e), shall me made:
(i) from amounts forfeited by other Participants during the Plan
Year of repayment or reemployment, respectively; or
(ii) if such forfeitures are insufficient for that
-37-
<PAGE>
purpose, from Company contributions prior to allocation thereof under
Article 6; or
(iii) in the discretion of the Committee, from increment, prior to
its allocation under Article 6; or
(iv) if there are no Company contributions in respect of said Plan
Year, then, after allocation of increment under Article 6, by deducting
the restored amount from that part of the Fund as represents Company
contributions, and allocating the deduction, in the same manner as
contributions are allocated, among all Participants who were such at the
beginning of said Plan Year.
Any such restoration shall be made by the end of the Plan Year in
which the repayment by the Participant occurs.
This paragraph (b) shall be applied separately among participating
companies in accordance with Section 6.2 above.
-38-
<PAGE>
ARTICLE 10
LOANS
10.1 The Committee may, in its sole discretion, direct the Trustee to loan to a
Participant, in the event of hardship, as hereinafter defined, an amount not to
exceed the lesser of (a) one-half of the balance in his Account that is vested
(under Section 9.2 of Article 9 and, if applicable, under Section 5.3) or (b)
$50,000, less the highest balance of the Participant's loans outstanding during
the immediately preceding twelve month period (ending on the day before any new
loan is granted). Any such loan shall be an investment of the Fund, and shall be
automatically secured by the vested balance of the borrowing Participant's
Account. The Trustee shall thereupon adjust the borrowing Participant's Account
to insure that a sum equal to the amount borrowed is invested in Fund I (as
hereinafter defined and, if there be more than one, then in the Fund I
maintained by the trust in which the funds attributed to the borrowing
Participant's employer are invested) and shall thereupon make such loan in such
amount and manner, from such Fund I, and upon such terms as may be directed from
time to time by the Committee, provided that the note securing any such loan
shall be allocated for all purposes hereunder exclusively to the Account of the
borrowing Participant as a sub-fund of Fund I and provided further that any such
loan issued after December 31, 1989 shall bear interest at a rate equal to one
percent in excess of the rate commonly referred to as the New York bank prime
rate.
-39-
<PAGE>
For purposes hereof, "hardship" shall include a financial emergency
or unexpected expense affecting the Participant, his family or dependents. The
Committee shall, in its sole discretion, determine whether hardship exists. Any
loan hereunder must be repaid in such manner and within such period as the
Committee shall specify, but not more than 5 years, and on a level amortization
basis no less frequently than quarter-annually.
The Committee may establish such rules and guidelines as it may
determine governing all aspects of the granting of loans hereunder, including,
without limitation, the maximum number of outstanding loans to be permitted, the
frequency and timing of loans, the minimum amount of a permissible loan, and the
methods of repayment.
If an event requiring distribution shall occur while a loan is
outstanding pursuant to this Section, the loan shall be automatically due and
payable, and the then outstanding loan balance, with interest owed to date of
distribution, shall be deducted from the Participant's Account, in order to
arrive at the amount actually to be distributed to him.
-40-
<PAGE>
ARTICLE 11
METHODS OF DISTRIBUTION
11.1 The Committee shall, upon the occurrence of the event requiring payment of
a benefit hereunder, direct the Trustee to make payment to the Participant of
such benefit at such time as the Participant (or his Beneficiary) may determine
(or, failing such determination, then as the Committee may determine), but
within the time periods set forth herein:
(a) Benefits payable under Article 7 hereof shall commence not later than
the 60th day after the latest of the close of the Plan Year in which (i) the
Participant reaches his Retirement Date, or (ii) the Participant terminates
service with the Company.
(b) Benefits payable under Article 8 hereof shall commence as soon as
administratively feasible.
(c) Benefits payable under Article 9 hereof shall commence as soon as
administratively feasible, but in no event later than the 60th day after the
latest of the close of the Plan Year in which the Participant reaches his
Retirement Date, or the Participant terminates service with the Company.
Notwithstanding the foregoing, and subject to the next succeeding
paragraph, a Participant may elect to defer distributions hereunder until a date
not beyond the last day of the calendar year in which he attains age seventy.
Prior to the complete distribution of his Account, it shall be invested as he
(or, in the event of his death, his Beneficiary) shall direct in
-41-
<PAGE>
accordance with Section 13.4 below, except that investment in Fund IV shall not
be permitted in any years following the year in which the Participant's
retirement, death or termination occurred, and except that any amount to be
distributed, whether or not deferred, shall cease to be invested for a period,
not to exceed 180 days, prior to the date that such distribution is made. The
amount due to a Participant who elects to defer distribution shall vary
according to the investment experience of the Fund. If, at the time of death,
retirement or termination, the Participant (or his Beneficiary) fails to give
investment direction, then his Account shall remain in the Fund or Funds in
which it was invested at the time of the event giving rise to the distribution,
except that any amounts then invested in Fund IV shall be invested in Fund I.
Notwithstanding anything hereinabove contained to the contrary in
this section, no distribution hereunder shall commence later than April 1
following the calendar year in which the Participant attains age seventy and
one-half (70-1/2) years, whether or not his employment terminated in such year.
All distributions under this Article 11 shall be at least equal to
or greater than the required minimum distributions under the Code.
11.2 Subject to Section 11.3, the Participant's benefit shall be distributed by
the Trustee, in one of the following ways, as the Participant (or his
Beneficiary) may elect or, failing such election, in a lump sum cash payment:
-42-
<PAGE>
(1) Lump sum cash payment.
(2) Payment of a number of periodic installments, or installments
over a period of years not to exceed ten, or such greater number as is necessary
to avoid imposition of tax under Section 4980A of the Code, or any successor
statute.
(3) Arrangement of a rollover life annuity or, if the Participant is
married, of a rollover joint and survivor annuity (unless the spouse consents to
another form of annuity), which shall provide an annuity for the life of the
Participant and a survivor annuity for the life of his spouse which is not less
than 50% nor more than 100% of the amount of the annuity which is payable during
the joint lives of the Participant and his spouse, and which is the amount of
benefit which can be purchased with the Participant's vested Account balance.
Upon the death of a Participant after payments have commenced
hereunder, but while an amount yet remains due, the remaining payments shall be
distributed at least as rapidly as under the method of distribution being used
as of the date of death.
Upon the death of a Participant before payments have commenced
hereunder, the Participant's interest shall be distributed within five years
after the Participant's death, except that, if any portion of the Participant's
interest is payable to or for the benefit of a surviving spouse or a designated
beneficiary, then such portion may be distributed over a period not to extend
beyond the life expectancy of such surviving spouse or beneficiary. In
-43-
<PAGE>
such circumstance, distributions must begin not later than one year after the
date of death unless the designated beneficiary is the Participant's surviving
spouse, and in that event, distributions must begin not later than the date the
Participant would have attained age seventy and one-half.
11.3 A distribution having a value of $3,500 or less shall be paid in a lump
sum.
11.4 Any final payment or distribution to any Participant or his Beneficiary or
other person to whom payment is made in accordance with this Plan shall be in
full satisfaction of all claims against the Trust Fund, the Trustee, the
Committee and the Company. The Trustee, the Company, the Committee or any of
them may require a Participant or his Beneficiary to execute a receipt and
release of all claims under this Plan upon a final payment or distribution, or a
receipt to the extent of any partial payment or distribution. The form of any
such receipt and release shall be determined by the Trustee, the Company, the
Committee or any of them that are concerned with the payment or distribution to
which the receipt and release is applicable.
11.5 Notwithstanding the foregoing provisions of this Article, if the
Participant made a designation as to the term of distribution prior to January
1, 1984, the Committee may make distribution in accordance with that
designation. The Committee shall not so
-44-
<PAGE>
distribute the Participant's Account in accordance with the distribution
designation if: (1) the distribution designation did not comply with the terms
of the Plan or a predecessor plan as stated on December 31, 1983; (2) the
distribution designation would have disqualified the Plan or a predecessor plan
in any Plan Year commencing prior to January 1, 1984; or (3) the Participant
revoked or modified the distribution designation after December 31, 1983.
-45-
<PAGE>
ARTICLE 12
INTERNAL REVENUE SERVICE QUALIFICATION
12.1 The Company shall submit this Plan and all necessary supporting documents
to the Internal Revenue Service, with a request for a determination letter that
the Plan and Trust meet the qualification requirements of Section 401(a) and
501(a) of the Internal Revenue Code.
-46-
<PAGE>
ARTICLE 13
TRUST
13.1 This Plan and any Trust shall be construed according to the Act and, to the
extent not pre-empted thereby, in accordance with the laws of the State of New
York, where they are made and where they shall be enforced.
13.2 The Fund shall be held in trust by one or more Trustees under one or more
Trust Agreements, entered into by the Company and said Trustees. No person shall
have any right to or interest in the Fund except as provided in this Plan and a
separate Trust Agreement. If the Company shall elect to utilize more than one
Trust Agreement, the Committee may, from time to time, designate which Trust
Agreement shall be utilized for the investment of contributions made in respect
of the employees of a participating company herein.
13.3 Any Trustee is explicitly empowered, at the direction of the Committee, to
invest any or all of the Fund, as the Committee may determine, in "qualifying
employer securities" (as defined in the Act) of the Company.
13.4 The Committee shall, for investment purposes, separate the Fund (or, if the
Fund is held under separate Trust Agreements, separate the parts held under the
various agreements) into invest-
-47-
<PAGE>
ment funds to be known and designated respectively as "Fund I", "Fund II", "Fund
III" and "Fund IV", and into such other investment funds as it may, in its
discretion, determine. Fund I will follow a more conservative investment policy
than Fund II, with a view toward achieving the preservation of capital together
with a reasonable return thereon. Fund I in general will therefore invest in
those securities and through those instrumentalities which will secure those
purposes, including, but not limited to, preferred stocks, fixed income
securities, mortgages, certificates of deposit and plans offered by insurance
companies and regulated investment companies. The investment emphasis of Fund II
will, as a general rule, be on common stocks, subject however, to the direction
of the Committee. Fund III will, in general, be invested as an indexed stock
fund. Fund IV will, to the maximum extent practicable, be invested in full
shares of the common stock of the Company.
On dates as selected by the Committee, each Participant may notify
the Committee in writing as to whether he wishes his account held in one or more
investment funds. When such written designation is filed by a Participant with
the Committee, it shall remain effective until changed in writing by the
Participant, provided however that the Committee shall determine, by uniform
non-discriminatory rules, the allowable frequency of such changes within each
Plan Year. In the absence of an effective designation, the account of a
Participant shall be placed in Fund I. Each designation shall become effective
in accordance with Committee guidelines, provided however, that the Committee
may, in its
-48-
<PAGE>
discretion, transfer funds among the funds in a non-discriminatory manner over
such period of time as it may determine to be desirable to preserve the value of
the funds from which transfer is to be made, and the interest of each
Participant shall be subject to the effect of any delays thus occurring in the
actual transfers among funds.
The Account of a Participant may be partly in more than one
investment fund, provided however that the Committee may, by uniform
non-discriminatory rules, require that a Participant's election to participate
in one of the funds involve a stated minimum or maximum amount, or minimum or
maximum percentage of his Account, and/or be in multiples of a stated amount or
percentage of his Account. In the event of the death of a Participant, his
Account will remain in the fund or funds in which it was at the time of his
death until distribution shall commence, or until his Beneficiary shall
otherwise elect in accordance with this Section.
13.5 The provisions of this Section shall govern the operation of Fund IV.
The common stock of the Company required for Fund IV from time to
time shall be purchased by the Trustee in the open market pursuant to a
non-discriminatory purchasing program, provided however that the Trustee may, in
its discretion, match purchases and sales being made at the direction of the
Committee, acting under instructions of Participants or as otherwise required
under the Plan, at prices determined by the Trustee to be as near as
-49-
<PAGE>
practicable to prices obtaining in the open market.
The Trustee shall exercise the right to vote shares held in Fund IV.
-50-
<PAGE>
ARTICLE 14
AMENDMENT AND TERMINATION
14.1 The Company shall have the right to amend this Plan in any and all respects
at any time and from time to time, including the right to reduce or suspend
contributions, subject to the limitations below, provided however:
(a) that no amendment shall increase the duties or liabilities of the
Trustee and/or Committee without their consent;
(b) that no amendment shall deprive any Participant of any of the accrued
vested benefits to which he is entitled under this Plan;
(c) that no amendment shall provide for the use of the Fund other than for
the benefit of Participants and Beneficiaries, and the amounts contributed under
the Plan and the Fund held by the Trustee shall, under no circumstances, revert
to the Company, except as contemplated by Article 19 below;
(d) that, subject to the foregoing, any amendment may be made
retroactively.
l4.2 Any such amendment shall be by resolution of the Board of Directors of the
Company, or the Board may delegate the power to amend to the Committee, in which
event the resolution shall be the resolution of the Committee, and a copy of
such amendment shall be filed with the Trustee and all participating employers.
Any amendment shall be effective as of the date specified therein.
-51-
<PAGE>
14.3 The Company reserves the right to terminate the Plan at any time. Such
termination shall be effected by a resolution of its Board of Directors, and a
copy of this resolution shall be delivered to the Trustee, Committee and all
participating employers.
14.4 If this Plan shall be terminated, each Participant will be fully vested,
and the Committee shall direct the Trustee to distribute to each Participant the
total value of his allocated share in cash. Said payment or payments shall be
made or begin in such manner as the Committee may determine, but no later than
his Normal Retirement Date or termination of employment, whichever shall occur
last.
14.5 Upon complete or partial termination of the Plan, or upon the Company's
complete and permanent discontinuance of contributions to the Plan, the amounts
credited to the Accounts of affected Participants shall be nonforfeitable.
14.6 The Plan shall also terminate upon the happening of any of the following
events:
(a) legal adjudication of the Company as a bankrupt; a general assignment
by the Company to or for the benefit of creditors; liquidation or dissolution of
the Company;
(b) in the event of the merger, consolidation, reorganization (divisive or
otherwise) or sale of all or substantially all of the assets of the Company
without the adoption of this Plan within one
-52-
<PAGE>
hundred eighty (180) days thereafter by such merged, consolidated, reorganized
or purchasing corporation or other business entity, unless such an adoption is
legally unnecessary by operation of law. Upon agreement with the Committee and
the Trustee within such one hundred eighty (180) day period, such corporation or
other business entity shall become the Company for purposes of this Plan,
provided that the original Company may, if it so desires, also continue as such
for the purposes of this Plan.
14.7 In the event of complete discontinuance of contributions hereunder, but
without terminating the Trust, all Participants' Accounts shall become fully
vested, and shall not thereafter be subject to forfeiture. However, complete
discontinuance of contributions shall not terminate the Trust as to the funds
then held by the Trustee, nor operate to accelerate any payments or
distributions to or for the benefit of Participants or their Beneficiaries or
estates, but the Trustee shall continue to administer the Trust in accordance
with the provisions thereof, and specifically, no distribution shall be made of
any amount so vested except upon the occurrence of any of the events which would
have controlled such distributions if there had been no discontinuance of
contributions. Upon the resumption of contributions by the Company,
contributions thereafter made shall be governed by the terms of the Plan without
regard to the prior discontinuance.
However, in the event the Company also terminates the Trust, the
Trustee, at the direction of the Committee, shall dis-
-53-
<PAGE>
tribute all assets remaining in the Trust, after payment of any expense properly
chargeable against the Trust, to the Participants or their Beneficiaries in
accordance with the value of the Accounts credited to such Participants as of
the date of such termination, in cash or in kind and in such manner as the
Committee shall determine. The Committee's determination shall be conclusive
upon all persons.
From and after the date of the termination of the Trust and until
the final distribution of the Fund, the Trustee shall continue to have all the
powers provided under the Trust as are necessary and expedient for the orderly
liquidation and distribution of the Trust.
-54-
<PAGE>
ARTICLE 15
ADMINISTRATION AND THE COMMITTEE
15.1 The Board of Directors of the Company shall appoint an Administrative
Committee (herein referred to as the "Committee") to administer the Plan. This
Committee shall consist of such number as the Board may determine, who may be
officers, or other employees of the Company, or any other individuals, and who
shall serve at the pleasure of the Board. Any member may resign by delivering
his written resignation to the Company. Vacancies in the Committee arising by
resignation, death, removal or otherwise, may be filled only by the Board.
15.2 The Committee shall administer the Plan in accordance with its terms, and
shall have all powers necessary to carry out its duties hereunder, which powers
it may exercise in its sole discretion, and its decisions shall be conclusive
and binding. Such powers shall include, but shall not be limited to the powers
to:
(a) Construe and interpret the Plan;
(b) Resolve any ambiguity, supply any omission, and resolve any
inconsistency;
(c) Determine all questions affecting the eligibility of any Employee to
participate herein;
(d) Maintain account records for each Participant;
(e) Compute the amount of benefits payable hereunder to any Participant or
Beneficiary;
-55-
<PAGE>
(f) Make rules and regulations for the implementation, administration and
interpretation of the Plan. Such rules and regulations as are adopted by the
Committee shall be binding upon any persons having an interest in or under the
Plan;
(g) Establish and communicate the funding policy to the Trustee and/or
other investment managers whose duties are to determine the investment policy of
the Fund;
(h) Appoint investment advisers, as provided in Section 15.8.
15.3 The Committee shall act by unanimous vote if their number is fewer than
three and by majority vote if their number is three or more, and such action may
be taken either by a vote at a meeting, in writing without a meeting, or in such
other manner as the Committee may determine.
15.4 The Committee may authorize any one or more of its members to execute any
document on behalf of the Committee, in which event the Committee shall notify
the Trustee in writing of such action and the name or names of its member or
members so designated. The Trustee thereafter shall accept and rely upon any
document executed by such member or members as representing action by the
Committee until the Committee shall file with the Trustee a written revocation
of such designation.
15.5 The members of the Committee may inspect the books and records of the
Employer to the extent that it may reasonably be
-56-
<PAGE>
necessary for them to determine any fact in connection with acts to be performed
by them under this Plan, but the members of the Committee shall not be required
to make such inspection but may rely conclusively upon any written statement or
other communication believed by them to be genuine and furnished by the Company.
In this connection, the Company shall furnish the Committee with such
information and data relative to the Plan as is necessary for the proper
administration thereof and of the Trust.
15.6 The duties, powers and responsibilities reserved to the Committee may be
allocated among the members (if there be more than one), in which case, except
as may be required by the Act, no member of the Committee shall have any
liability with respect to any duties, powers or responsibilities not allocated
to him, or for the acts or omissions of any other member.
15.7 The Committee shall have full power and authority to delegate powers and
duties and to delegate and appoint any persons or firms (including but not
limited to, accountants, counsel, actuaries, physicians, appraisers,
consultants, professional plan administrators and other specialists), or
otherwise act to secure specialized advice or assistance, as it deems necessary
or desirable in connection with the management of the Plan; to the extent not
prohibited by the Act, the Committee shall be entitled to rely conclusively upon
them, and shall be fully protected in any action taken, or omission to act by
them, in good faith reliance upon the advice or
-57-
<PAGE>
opinion of such persons or firms, provided such persons or firms were prudently
chosen by the Committee.
15.8 Unless precluded by the Trust Agreement, the Committee shall have the power
to retain the services of one or more persons or firms for the management,
investment and reinvestment (including the power of acquisition and disposition)
of all or any part of the Trust assets, provided that each of any such persons
or firms so retained is registered as an investment adviser under the Investment
Advisers Act of 1940, or is a bank, as defined in that Act, or is an insurance
company qualified to manage, acquire or dispose of trust assets under the laws
of more than one state, and provided that each of the persons or firms has
acknowledged in writing that he or it is a fiduciary with respect to the Plan.
The Committee shall have full power and authority to delegate to any such
investment adviser complete discretionary authority to direct the Trustee with
respect to the investment and reinvestment of the funds, without any requirement
that the Committee be consulted prior to the giving of any such directions to
the Trustee or the carrying out of any such directions by the Trustee. To the
extent not prohibited by the Act, the Committee shall be entitled to rely
conclusively upon them, and shall be fully protected in any action taken, or
omission to act by them, in good faith reliance on any such investment adviser
provided said investment adviser was prudently chosen by the Committee.
-58-
<PAGE>
15.9 The Committee shall keep a record of all its proceedings and acts, and
shall keep all such books of account, records, and other data as may be
necessary for proper administration of the Plan. The Committee shall, as
necessary, notify the Trustee and the Company of any action taken by the
Committee, and, when required, shall notify any other interested person or
persons.
15.10 Unless otherwise determined by the Company, the Committee shall serve
without compensation for services as such. However, the expenses of
administering the Plan, including, but not limited to, the printing of
literature and forms related thereto, the disbursement of benefits thereunder,
the compensation of professional plan administrative organizations, agents,
appraisers, actuary, consultants, counsel, investment advisers, the Trustee or
other specialists shall be paid by the Trust Fund, unless first paid by the
Company.
15.11 The members of the Committee shall use ordinary care and reasonable
diligence in the performance of their administrative duties.
15.12 In the event that the members of the Committee then serving are the same
as the Trustee then serving, references in this Plan to "Committee" shall also
include the Trustee, and vice versa, and such references shall be construed so
that such identical persons shall have all the powers, duties and exonerations
conferred herein
-59-
<PAGE>
upon them in both functions.
15.13 In the event that any dispute shall arise as to any act to be performed by
the Committee, the Committee may postpone the performing of such act until
actual adjudication of such dispute shall have been made in a court of competent
jurisdiction or until they shall be indemnified by the Company against loss to
their satisfaction.
15.14 The Company may indemnify, to the extent permitted by the Act, the members
of the Committee against all loss and/or expense arising out of their actions
and omissions in that capacity.
-60-
<PAGE>
ARTICLE 16
MULTI-EMPLOYER PROVISIONS
16.1 Any company which is designated by the Company as a subsidiary, affiliated
or associated company, may adopt this Plan by resolution of its Board of
Directors, and by separate resolution of the Company's Board approving such
adoption, and may participate hereunder and make contributions to the Trustee.
The Board of Directors of the Company is empowered to determine the contribution
for each Plan Year for each company which adopts this Plan pursuant to this
Article, and failing such determination, the Board of Directors of any such
participating company may determine the contribution for that participating
company.
16.2 It is intended that the provisions of this Plan shall apply separately to
each participating company, if there be more than one, and to the Participants
of each such participating company, and the term "Company" as used throughout
this Plan shall be so construed, unless the context otherwise requires, to the
end that, except as provided in Article 14 and in this Article 16, and except
for the common administration and investment of the assets contributed by all
participating companies in the single Trust Fund, this Plan shall constitute a
separate Plan for each participating company.
16.3 The concept of "employment" shall be deemed to refer equally
-61-
<PAGE>
to employment by the Company, any participating company, or any subsidiary,
affiliated or associated company of the Company, whether domestic of foreign, so
that, for purposes of measuring the Credited Service of a Participant, or for
any other purpose, other than benefit accrual, under this Plan, employment by
any such company shall be deemed to be the equivalent of employment by a
participating company, provided however that such employment shall be subject to
the provisions of Article 3 hereof, and provided further that service, rendered
prior to the time that any such company became a subsidiary, affiliated or
associated company of the Company, shall be counted for all purposes hereunder
at the discretion of the Board of Directors of the Company. It is intended that
the Plan shall treat all employees of all companies which are members of a
controlled group of corporations (as defined in Section 414(b) of the Code), all
employees of all trades or businesses (whether or not incorporated) which are
under common control (as defined in Section 414(c) of the Code), all employees
of an affiliated service group (as defined in Section 414(m) of the Code) and
all employees of any other entity required to be aggregated (pursuant to Section
414(o) of the Code) as employed by a single employer.
16.4 The terms "Company" and "Committee" as used in this Plan, pertaining to
administration, refer only to the Company and the Committee appointed by the
Board of Directors of the Company. Unless the Company otherwise so states in its
instructions to the
-62-
<PAGE>
Trustee, the Committee's directive to the Trustee shall apply to the entire
Trust Fund, without distinction as to the portion thereof contributed by any one
participating company.
16.5 The Board of Directors of the Company shall be vested with the sole power
to amend this Plan and Trust in any manner, except as provided in Section 16.6
and 16.7, by an instrument in writing delivered to the Trustee, the Committee
and each participating company, which amendment shall be binding on all
participating companies, provided, however, that no such amendment shall bind
any participating company which shall, upon ninety (90) days after its receipt
of notice of such amendment from the Company, have given notice pursuant to
Section 16.6 or 16.7 of its transfer of participation or termination of the
Plan.
16.6 With the consent of the Board of the Company, the board of directors of any
other participating company shall have the right to amend the Plan and Trust in
any manner which affects the Plan and Trust only as to the participating company
and in no way affects the Plan and Trust as to any other participating company.
16.7 By instrument in writing, duly executed and delivered to the Trustee, the
Committee and the Company (if such terminating company shall not be the
Company), the board of directors of any participating company shall have the
right, without the necessity of obtaining the consent of the Board of Directors
of the Company, to
-63-
<PAGE>
amend the Plan and Trust in such a way as to withdraw its participation in the
Plan and Trust. In such event, said company (hereinafter referred to as the
"Other Employer") shall forthwith cease to be a party to this Plan and Trust,
except that, in respect of the share of the assets allocable to its employees,
such Other Employer shall direct the Trustee to either (a) hold such assets
aside for the exclusive benefit of its Participants (subject to the approval of
the Company); or (b) deliver such assets to the Trustee(s) to be selected by
such Other Employer; or (c) distribute such assets to its Participants in a
manner provided herein.
16.8 Where an Employee is continuously employed by more than one company within
the company's controlled group, either simultaneously, or within the same Plan
Year, each participating company shall be responsible for that portion of such
Employee's benefit as is determined by applying the ratio, which the
contribution made by each participating company bears to the aggregate
Compensation paid by said company to its Participants, to the Compensation paid
by said company to the said Employee in said Plan Year. If the Employee is not
so continuously employed, then only his last employer shall be responsible for
his benefit, based only on the compensation paid by said employer and the
contribution made by said employer. For purposes of the preceding sentence, if
an Employee's employment is terminated by a participating company, then, even
should he immediately become employed by another participating company, he shall
not be deemed to have been continuously employed.
-64-
<PAGE>
16.9 Any termination of the Plan or discontinuance of contributions by any one
participating company shall operate only as to the Participants employed by that
participating company.
-65-
<PAGE>
ARTICLE 17
TOP HEAVY PROVISIONS
17.1 For purposes of applying the provisions of this Article 17:
(a) "Key Employee" shall mean, as of any Determination Date, any employee
who is a "key employee", as defined under Section 416 of the Code, and
regulations promulgated thereunder.
(b) "Non-Key Employee" is an employee who does not meet the definition of
Key Employee.
(c) "Compensation" shall mean the first $200,000 (or, beginning January 1,
1988, such larger amount as the Commissioner of Internal Revenue may prescribe)
of compensation.
(d) "Required Aggregation Group" means:
(1) each qualified plan of the Company (whether or not terminated)
in which at least one (1) Key Employee participates; and
(2) any other qualified plan of the Company which enables a plan
described in (1) to meet the requirements of Code Section 401(a) (4) or Code
Section 410.
(e) "Permissive Aggregation Group" is the Required Aggregation Group plus
any other qualified plans maintained by the Company, but only if such group
would satisfy in the aggregate the requirements of Code Section 401(a) (4) and
Code Section 410. The
-66-
<PAGE>
Committee shall determine which plan to take into account in determining the
Permissive Aggregate Group.
(f) "Determination Date" for any Plan Year is the Valuation Date of the
preceding Plan Year or, in the case of the first Plan Year of the Plan, the
Valuation Date of that Plan Year.
17.2 If the Plan is "top heavy" (as hereinafter defined) in any Plan Year
beginning after December 31, 1983, the Company shall make a minimum contribution
of three percent (3%) of compensation for each Non-Key Employee who is a
Participant on the Valuation Date of the Plan Year, without regard to the number
of hours completed during the Plan Year. The Plan shall satisfy these conditions
for the Non-Key Employee if the Non-Key Employee's contribution rate is at least
equal to the minimum contribution. For purposes of this paragraph, a Non-Key
Employee Participant includes any employee otherwise eligible to participate in
the Plan but who is not a Participant because his compensation does not exceed a
specified level.
If the contribution rate for the Key Employee with the highest
contribution rate is less than three percent (3%), the minimum contribution for
Non-Key Employees shall equal the highest contribution rate received by a Key
Employee. The contribution rate is the sum of Company contributions (including
Company contributions resulting from a salary reduction election by an employee,
but not including Company contributions to Social Security) and forfeitures
allocated to the Participant's Account for the Plan Year divided by
-67-
<PAGE>
his compensation for the Plan Year. To determine the contribution rate, the
Committee shall consider all qualified defined contribution plans maintained by
the Company, and included in a required aggregation group, as a single plan.
[Notwithstanding the preceding provisions of this Section 17.2, if a defined
benefit plan maintained by the Company which benefits a Key Employee depends on
this Plan to satisfy the anti-discrimination rules of Code Section 401(a)(4) or
the coverage rules of Code Section 410 (or another plan benefiting the Key
Employee so depends on such defined benefit plan), the minimum contribution of a
Non-Key Employee shall be three percent (3%) of his compensation regardless of
the contribution rate for the Key Employee.]
17.3 If the contribution rate for the Plan Year with respect to a Non-Key
Employee described in Section 17.2 is less than the minimum contribution, the
Company will increase its contribution for such Employee to the extent necessary
so his contribution rate for the Plan Year will equal the minimum contribution.
The Committee shall allocate the additional contribution to the Account of the
Non-Key Employee for whom the Company makes the contribution.
17.4 The Plan will be top heavy for a Plan Year if the top heavy ratio as of the
Determination Date exceeds sixty percent (60%). The top heavy ratio is a
fraction, the numerator of which is the sum of the present value of the accounts
and voluntary contribution accounts of all Key Employees as of the Determination
Date, the
-68-
<PAGE>
contributions due as of the Determination Date, and distributions made within
the five (5) year period ending on the Determination Date (except that there
shall be excluded from the calculation the value of the account of and
distributions to any individual who has not performed services for the Company
at any time during the five-year period ending on the Determination Date), and
the denominator of which is a similar sum determined for all employees. The
Committee shall calculate the top heavy ratio without regard to any Non-Key
Employee who was formerly a Key Employee. The Committee shall calculate the top
heavy ratio, including the extent to which it must take into account
distributions, rollovers and transfers, in accordance with Code Section 416 and
the regulations thereunder.
If the Company maintains other plans qualified under the Code, this Plan
is top heavy only if it is part of the Required Aggregation Group, and the top
heavy ratio for both the Required Aggregation Group and Permissive Aggregation
Group exceeds sixty percent (60%). The Committee will calculate the top heavy
ratio in the same manner as required by the first paragraph of this Section,
taking into account all plans within the aggregation group. The Committee shall
calculate the present value of the accrued benefits and the other amounts the
Committee must take into account, under defined benefit plans or simplified
employee pension plans included within the group in accordance with the terms of
those plans, Code Section 416 and the regulations under that section. The
Committee shall calculate the top heavy ratio with reference to the
Determination Dates that fall within the same calendar year.
-69-
<PAGE>
17.5 For any Plan Year in which the Plan is a top-heavy plan, Section 6.3 shall
be read by substituting the number "1.00" for the number "1.25" wherever it
appears therein, except such substitution shall not have the effect of reducing
any benefit accrued under a defined benefit plan prior to the first day of the
Plan Year in which this provision becomes applicable.
-70-
<PAGE>
ARTICLE 18
MISCELLANEOUS
18.1 (a) This Plan is created for the exclusive benefit of
Employees and shall be interpreted in the manner consistent with
its status as a qualified Plan, as defined in Section 401(a) of the
Code, or under any statute of similar import.
(b) All discretionary acts taken under any provisions of the Plan by the
Company, an Employer or the Committee shall be uniform in their nature, and
applicable to all persons similarly situated.
18.2 (a) Under no circumstances shall any contributions made under the Plan be
used other than for the benefit of Participants hereunder, and except as
otherwise provided specifically in the Plan, the Fund shall not revert to the
Company.
(b) If a contribution by Company is expressly conditioned on the initial
qualification of the Plan under Section 401 of the Code, and if the Plan does
not initially qualify, then paragraph (a) above shall not prohibit the return to
the Company at the direction of the Committee of such contribution within one
(1) year after the date of denial of qualification of the Plan.
(c) If a contribution by Company is expressly conditioned upon the
deductibility of the contribution under Section 404 of the Code, then, to the
extent the deduction is disallowed, paragraph (a) above shall not prohibit the
return to the Company of such contribution (to the extent disallowed) within one
(1) year after
-71-
<PAGE>
the disallowance of its deduction.
(d) In the case of a contribution that is made by the Company by a mistake
of fact, paragraph (a) above shall not prohibit the return to the Company, at
the direction of the Committee, of such contribution within one (1) year after
the payment of the contribution.
18.3 In case it becomes impossible for the Company, the Trustee or the Committee
to perform any act under this Plan, that act shall be performed which in the
judgement of the Committee will most nearly carry out the intent and purposes of
this Plan. All parties to and all persons having any interest in this Plan or in
any way interested herein shall be bound by acts performed under such
conditions.
18.4 All persons claiming any interest whatsoever hereunder agree to perform any
and all acts and execute any and all documents and papers which may be necessary
for the carrying out of this Plan or any of its provisions.
18.5 The Plan shall be binding upon the heirs, executors, administrators,
successors and assigns of any and all parties hereto or interested herein,
present and future.
18.6 No Participant shall have the right to alienate or assign benefits provided
under this Plan. If any Participant shall at-
-72-
<PAGE>
tempt to alienate or assign his benefits or should anyone attempt to subject his
benefits to attachment, execution, garnishment or other legal or equitable
process, the Committee shall direct the Trustee to take the necessary steps so
that such benefits shall not be available to the Participant, but shall be used
by the Trustee for the benefit of the Participant or paid to members of the
Participant's family, as the Committee deems necessary for his or their
maintenance, support, comfort, education, medical care, emergency and general
welfare.
Notwithstanding the foregoing provisions of this section, the
prohibitions against assignment and alienation contained herein shall not apply
with respect to qualified domestic relations order, as defined in the Code, and
the Committee shall direct payment of benefits to an alternate payee in
accordance with applicable requirements of such an order.
18.7 The Committee shall make a reasonable effort to locate all persons entitled
to benefits under the Plan. Should the Committee be unable to locate any
Participant entitled to benefits, such benefits will remain in the Trust and
shall be payable to such Participant at any future date that such Participant is
located by the Committee. Before the Committee can deem that a Participant
cannot be located, the Committee shall send a certified letter to such
Participant at his last known address advising him that benefit payments shall
be suspended unless the Participant responds to such certified letter.
-73-
<PAGE>
18.8 Should this Plan be merged or consolidated with any other plan, or should
its assets or liabilities be transferred to any other plan, then each
Participant's accrued and vested benefit immediately after such merger or
consolidation or transfer must be equal to or greater than each Participant's
accrued and vested benefit immediately prior to the merger or consolidation or
transfer, assuming, in order to compute the benefits, that this Plan was
terminated prior to the merger, consolidation or transfer and that the surviving
plan is terminated subsequent to the merger, consolidation or merger.
18.9 (a) If a claim for benefits of a Participant or Beneficiary (hereinafter
referred to as "Claimant") is denied either partially or totally, the Committee
shall advise the Claimant, in writing within 90 days, of the computation of his
benefit, if any, and the specific reasons therefor. The Committee shall also
furnish in writing to the Claimant at that time:
(i) A specific reference to pertinent Plan provisions.
(ii) An explanation of any additional material or information
necessary for the Claimant to perfect his claim, if possible, and an
explanation of why such material or information is needed.
(iii) An explanation of the Plan's claim review procedure.
If special circumstances require an extension of the aforesaid 90
day period, written notice thereof, not to exceed
-74-
<PAGE>
another 90 days, shall be given to the Claimant before the expiration of the
first 90 day period.
(b) Within sixty (60) days after receipt of the information stated in (a)
above, the Claimant shall, if he desires further review, file a written request
for consideration with the Committee.
(c) So long as the Claimant's request for review is pending (including the
sixty (60) day period in (b) above), the Claimant or his duly authorized
representative may review pertinent plan documents and may submit issues and
comments in writing to the Committee.
(d) A final and binding decision shall be made by the Committee within
sixty (60) days of the filing by the Claimant of his request for consideration,
provided, however, that if the Committee, in its discretion, determines that
special circumstances require an extension of the aforesaid 60 day period, said
period may be extended by a period not exceeding an additional sixty (60) days,
and written notice thereof shall be given to the Claimant prior to the
commencement of said extension period.
(e) The Committee's decision shall be conveyed to the Claimant in writing
and shall include specific reasons for the decision, written in a manner
calculated to be understood by the Claimant, with specific references to the
pertinent provisions on which the decision is based.
(f) This section shall always be construed so as to comply with applicable
governmental regulation.
-75-
<PAGE>
18.10 This Plan shall not be construed as creating or changing any contract of
employment between the Company and its employees, whether participants hereunder
or not; and the Company retains the right to deal with employees, and to
terminate their respective employments at any time, to the same extent as
though this Plan had not been created.
18.11 The headings and sub-headings in this Plan are inserted for the
convenience of reference only, and are to be ignored in any construction and the
provisions thereof.
18.12 In case any provisions of this Plan shall be held illegal or void, such
illegality or invalidity shall not affect the remaining provisions of this Plan,
but shall be fully severable, and the Plan shall be construed and enforced as if
said illegal or invalid provisions had never been inserted herein.
IN WITNESS WHEREOF, the Company has caused these presents to be
executed by its duly authorized officers, and its Corporate seal to be affixed
hereto on this l3th day of February, 1991.
OMNICOM GROUP INC.
By /s/ Bruce Crawford
------------------------------------
Attest:
/s/ Raymond E. McGovern
- -----------------------------------------
Secretary
-76-
<PAGE>
AMENDMENT
TO
OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN
WHEREAS, The OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN (the
"Plan" herein) became effective as of January 1, 1988; and
WHEREAS, Article 2, Section 2.1(f) of the Plan identifies Omnicom
Group Inc. as the "Company" for purposes of Article 14 of the Plan; and
WHEREAS, Article 14, Section 14.1 states, in part:
"The Company shall have the right to amend this Plan in
any and all respects at any time . . ."
and Article 14, Section 14.2 of the Plan states, in part:
"Any such amendment shall be by resolution of the Board of
Directors of the Company . . ."; and
WHEREAS, The Board of Directors of the Company have taken steps to
amend the Plan in the manner and to the extent hereinafter set forth.
NOW, THEREFORE, effective as of January 1, 1991, the Plan is amended
as follows:
First. The title of Article 7 is amended to read:
"RETIREMENT AND IN-SERVICE BENEFITS"
<PAGE>
Second. Sections 7.2, 7.3 and 7.4 are redesignated, serially, as 7.3, 7.4
and 7.5.
Third: A new Section 7.2 is added to read as follows:
"Any Participant over the age of fifty-nine and one-half (59
1/2) years who has attained his or her Retirement Age shall be
entitled to receive a benefit of any amount up to the value of
his vested interest in his account. For purposes of this
section, a Participant's vested interest shall be computed as
of the valuation date coincident with or next following the
receipt by the Committee, in writing, of an election under
this Section. Any person eligible to make an election under
this section may do so no more than once in each year.
Fourth. Section 11.1(a) is amended by the addition of a second sentence to
read as follows:
"In-service benefits payable under Section 7.2 hereof shall
commence as soon as administratively feasible.
IN WITNESS WHEREOF, OMNICOM GROUP INC. has caused this Amendment to
be executed and its corporate seal to be hereunto affixed and attested to by its
officers thereunto duly authorized this 9th day of September, 1991.
OMNICOM GROUP INC.
By: /s/ Bruce Crawford
-----------------------------------
Attest:
/s/ Raymond E. McGovern
- ---------------------------
Secretary
<PAGE>
AMENDMENT
TO
OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN
WHEREAS, The OMNICOM GROUP PROFIT SHARING RETIREMENT PLAN (the
"Plan" herein) became effective as of January 1, 1988; and
WHEREAS, Article 2, Section 2.1(f) of the Plan identifies Omnicom
Group Inc. as the "Company" for purposes of Article 14 of the Plan; and
WHEREAS, Article 14, Section 14.1 states, in part:
"The Company shall have the right to amend this Plan in
any and all respects at any time . . ."
and Article 14, Section 14.2 of the Plan states, in part:
"Any such amendment shall be by resolution of the Board of
Directors of the Company . . ."; and
WHEREAS, The Board of Directors of the Company have taken steps to
amend the Plan in the manner and to the extent hereinafter set forth.
NOW, THEREFORE, effective as of January 1, 1990, the Plan is amended
as follows:
<PAGE>
First. Section 2.1 (bb) is amended by the addition of the following
sentence at the end thereof:
"The profit-sharing plans qualified under Section 401 et seq
of the Code on September 1, 1986 were: Doyle Dane Bernbach
Profit Sharing Plan, BBDO Worldwide Inc. & Subsidiaries Profit
Sharing Plan, BBDO Health & Medical Communications Inc. &
Subsidiaries Profit Sharing Plan, Bernard Hodes Advertising
Inc. Profit Sharing Plan, Blair Advertising, Inc. Profit
Sharing Plan, Direct Response Group, Inc. Profit Sharing Plan,
GM DuBois Corporation Profit Sharing Plan, KPR Profit Sharing
Trust, Marcoa Direct Advertising, Inc. Employees' Profit
Sharing Plan and Trust, Needham Harper Worldwide, Inc. Profit
Sharing Retirement Trust, Tracy-Locke, Inc. Employee Stock
Ownership Trust."
Second. Section 2.1 is amended by the addition of the following
paragraph (dd) to read as follows:
"(dd) Highly-Compensated Employee - An Employee described in
Section 414(q) of the Code."
Third. Section 2.1 (g) is amended by the insertion of the
following immediately before the last sentence of the Section:
"In applying this limitation, the family group of a Highly
Compensated Employee who is a participant who is subject to
the Family Member aggregation rules of Code Section 414(q)(6)
because such Participant is either a 'five-percent owner' of
the Company or one of the ten Highly Compensated Employees
paid the greatest compensation during the year, shall be
treated as a single participant, except that for this purpose
Family Members shall include only the affected participant's
spouse and any lineal descendants who have not attained age
nineteen before the close of the year. If, as a result of the
application of such rules the adjusted $200,000 limitation is
exceeded, then the limitation shall be pro-rated among the
affected Family Members in proportion to each such Family
Member's
-2-
<PAGE>
Compensation prior to the application of this limitation. As
used herein, Family Member means, with respect to an affected
Participant, such Participant's spouse, such Participant's
lineal descendants and ascendants and their spouses, all as
described in Section 414(q)(6)(B) of the Code.
Fourth. Section 3.1(a) is amended by deleting the second
parenthetical phrase therein and substituting the following:
"(commencing with the first Plan Year which includes the
anniversary of the date on which the Employee first performed
an Hour of Service),"
Fifth. Section 3.1 (c) (i) is amended by adding the following at the
end thereof:
"An Employee who is credited with the required Hours of
Service in both the initial computation period (or the
computation period beginning after a 1-Year Break in Service)
and the Plan Year which includes the anniversary of the date
on which the Employee first performed an Hour of Service,
shall be credited with two (2) Years of Service for purposes
of eligibility to participate."
Sixth. The fourth sentence of Section 9.2 is amended by striking the
number "18" and substituting the number "17."
Seventh. Section 10.1 is amended by adding the following paragraph
after the first paragraph of the Section
"In the event that a participant has made an irrevocable
election to receive any distribution to which he is entitled
in the form of an annuity, in accordance with Article 11,
application to the Com-
-3-
<PAGE>
mittee for any such loan shall contain a consent to the making
of such loan to the Participant, signed by such Participant's
spouse, if any."
Eighth. Section 11.1 is amended by amending the last paragraph
thereof to read in its entirety as follows:
"All distributions under this Article 11 shall be at least
equal to or greater than the required minimum distributions
under the Code, including the minimum distribution incidental
benefit requirements of Section l.401(a)(9)-2 of the proposed
Treasury Department regulations, or any regulations successor
thereto."
IN WITNESS WHEREOF, OMNICOM GROUP INC. has caused this Amendment to
be executed and its corporate seal to be hereunto affixed and attested to by its
officers thereunto duly authorized this 7th day of December, 1992.
OMNICOM GROUP INC.
By /s/ Bruce Crawford
------------------------------------
Attest:
/s/ Raymond E. McGovern
- -----------------------------------------
Secretary
-4-
<PAGE>
AMENDMENT
TO
OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN
WHEREAS, The OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN (the
"Plan" herein) became effective as of January 1, 1988; and
WHEREAS, Article 2, Section 2.1(f) of the Plan identifies Omnicom
Group Inc. as the "Company" for purposes of Article 14 of the Plan; and
WHEREAS, Article 14, Section 14.1 states, in part:
"The Company shall have the right to amend this Plan in
any and all respects at any time . . .
and Article 14, Section 14.2 of the Plan states, in part:
"Any such amendment shall be by resolution of the Board of
Directors of the Company . . ."; and
WHEREAS, The Board of Directors of the Company has taken steps to
amend the Plan in the manner and to the extent hereinafter set forth.
NOW, THEREFORE, effective as of July 1, 1993, the Plan is amended as
follows:
First. Article 13, Section 13.5 is amended by deleting the last
sentence thereof and substituting the following:
<PAGE>
"Each Participant having any portion of his or her account
held in Fund IV as of the date fixed of record for any
vote of shareholders, shall have the right to direct the
Trustee as to the manner in which shares of the common
stock of the Company allocated to his account as of such
record date are to be voted on each matter brought before
an annual or special shareholders' meeting. Before each
such meeting, the Trustee shall furnish to each
Participant a copy of the proxy solicitation material,
together with a form requesting direction on how such
shares of the common stock of the Company allocated to
such Participant's account shall be voted on each such
matter. Upon timely receipt of such direction, the Trustee
shall on each such matter vote as directed the number of
shares of the common stock of the Company allocated to
such Participant's account, and the Trustee shall have no
discretion in such matter. The directions received by the
Trustee from the Participant shall be held by the Trustee
in confidence and shall not be divulged or released to any
person, including officers or employees of the Company. A
Trustee shall vote shares for which it has not received
direction and any unallocated shares of the common stock
of the Company held in Fund IV in the same proportion as
directed shares are voted, and shall have no discretion in
such matter."
IN WITNESS WHEREOF, OMNICOM GROUP INC. has caused this Amendment to
be executed and its corporate seal to be hereunto affixed and attested to by its
officers thereunto duly authorized this 14th day of October, 1993.
OMNICOM GROUP INC.
By /s/ Bruce Crawford
------------------------------------
Attest:
/s/ Raymond E. McGovern
- -----------------------------------------
Secretary
-2-
<PAGE>
AMENDMENT
TO
OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN
WHEREAS, the OMNICOM GROUP PROFIT-SHARING RETIREMENT PLAN (the
"Plan" herein) became effective as of January 1, 1988; and
WHEREAS, Article 2, Section 2.1(f) of the Plan identifies Oimnicom
Group Inc. as the "Company" for purposes of Article 14 of the Plan; and
WHEREAS, Article 14, Section 14.1 states, in part:
"The Company shall have the right to amend this Plan in
any and all respects at any time . . ."
and Article 14, Section 14.2 of the Plan states, in part:
"Any such amendment shall be by resolution of the Board of
Directors of the Company . . ."; and
WHEREAS, the Board of Directors of the Company has resolved:
". . . pursuant to the provisions of Article 14.2 of the
Plan, the Board delegated to the Committee the power to
amend the Plan to conform to legislative changes, clarify
ambiguities and facilitate the operation of the Plan
provided any such amendment does not increase the
corporation's commitments or level of contributions under
the Plan, subject to the condition that any such amendment
by the Committee must first be approved in writing by the
Chief Financial Officer of the Corporation as being within
the scope of the Committee's authority."
and
<PAGE>
WHEREAS, the Chief Financial Officer of the Corporation has approved
the steps taken to amend the Plan in the manner and to the extent hereinafter
set forth.
NOW, THEREFORE, effective as of December 1, 1994, or as otherwise
required by law or regulation, the Plan is amended as follows:
FIRST. Section 1.4 of Article 1 is amended to read in its entirety
as follows:
"1.4 Effective Date. This Plan became effective on January
1, 1988."
SECOND. paragraph (g) of Section 2.1 of Article 2 is amended by the
substitution of "$150,000" for "$200,000" where the latter sum appears therein.
THIRD. Paragraph (r) of Section 2.1 of Article 2 is amended in its
entirety to read as follows:
"(r) Participant - An Employee who is eligible to be and
becomes covered under this Plan as provided in Article 3
hereof or any person for whom an account is maintained
under this Plan, including a former Employee or
Beneficiary whose benefits hereunder have not been fully
distributed."
FOURTH. Article 3, Section 3.1, is amended by the deletion therefrom
of paragraph (e).
FIFTH. Section 3.1(b) of Article 3 is amended in its entirety to
read as follows:
"(b) An Employee of a participating company, who has
satisfied the eligibility requirements of paragraph (a)
above, shall become a Parti-
-2-
<PAGE>
cipant on the first Entry Date subsequent to the
satisfaction of those requirements."
SIXTH. Article 3 is amended by the deletion therefrom of Section
3.5.
SEVENTH. The first sentence of Paragraph (a) of Section 5.4 of
Article 5 is amended in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in
this Plan, the Committee may, in its discretion, direct
the Trustee to accept from any Employee an amount which
constitutes an eligible rollover distribution, as defined
in Section 11.6, or a rollover contribution pursuant to
Section 408(d)(3) of the Code.
EIGHTH. Article 6, Section 6.3, second paragraph, fourteenth line,
is amended by insertion of the word "benefit" following the word "defined."
NINTH. Article 7, Section 7.2, is amended by substituting the word
"the" for the word "his" in the third line.
TENTH. Article 7, Section 7.3, is amended to read in its entirety as
follows:
"7.3 A Participant who retires at his Retirement Date
shall be entitled to receive the balance in his account
determined as of the Valuation Date coincident with or
immediately following the receipt by the Committee of an
election to receive a distribution pursuant to Article 11
below."
ELEVENTH. Article 8, Section 8.1, is amended by insertion of the
words "the receipt by the Committee of" following the word "following" in the
fifth line.
-3-
<PAGE>
TWELFTH. Article 9, Section 9.2, first paragraph, is amended to read
in its entirety as follows:
"9.2 The vested interest of a Participant, whose
employment with the Company terminates, other than by
death, disability or retirement, shall be a percentage of
the balance in his account valued on the Valuation Date
coincident with or immediately following his termination
date, in accordance with the following schedule:
Years of Credited Service Percentage
------------------------- ----------
Less than 3 years 0%
3 years but less than 4 years 20%
4 years but less than 5 years 40%
5 years but less than 6 years 60%
6 years but less than 7 years 80%
7 years or more 100%
Any portion of a terminating Participant's Account to which the
Participant is not entitled shall be forfeited."
THIRTEENTH. Paragraph (b) of Section 9.5 of Article 9 is amended by
substituting the word "be" for the word "me" in the second line.
FOURTEENTH. Article 11, Sections 11.1, 11.2 and 11.3 are amended to
read in their entirety as follows:
"11.1 The Committee shall, upon the occurrence of an event
requiring payment of a benefit hereunder, direct the
Trustee to make a payment to the Participant of such
benefit not later than the sixtieth day after the close of
the Plan Year in which shall occur the latest of the
following: (i) attainment by the Participant of his Normal
Retirement Age, (ii) the tenth anniversary of the entry of
the Participant into the Plan or (iii) the event requiring
payment.
Notwithstanding the foregoing, and subject to the next
succeeding paragraph, a Participant may elect to defer
distributions hereunder until & date not beyond April 1 of
the calendar
-4-
<PAGE>
year following the year in which he attains age seventy
and one-half years (70 1/2) years. Prior to the complete
distribution of his Account, it shall be invested as he
(or, in the event of his death, his Beneficiary) shall
direct in accordance with Section 13.4 below, except that
any amount to be distributed, whether or not deferred,
shall cease to be invested for a period not to exceed 180
days, prior to the date that such distribution is made.
The amount due to a Participant who elects to defer
distribution shall vary according to the investment
experience of the Fund. If at the time of death,
retirement or termination, the Participant (or his
Beneficiary) fails to give investment direction, then his
Account shall remain in the Fund or Funds in which it was
invested at the time of the event giving rise to the
distribution.
11.2 Subject to Section 11.3, the Participant's benefit
shall be distributed by the Trustee, in one of the
following ways, as the Participant (or his Beneficiary)
may elect or, failing such election, in a lump sum cash
payment:
(1) Lump sum cash payment.
(2) Payment of a number of periodic installments, or
installments over a period of years not to exceed
ten, or, with respect to any benefit payable under
Article 7, any payment which equals or exceeds the
required distribution amount computed in accordance
with the provisions of Code Section 401(a)(9) or any
successor statute.
(3) Arrangement of a rollover life annuity or, if
the Participant is married, of a rollover joint and
survivor annuity (unless the spouse consents to
another form of annuity), which shall provide an
annuity for the life of the Participant and a
survivor annuity for the life of his spouse which is
not less than 50% nor more than 100% of the amount
of the annuity which is payable during the joint
lives of the Participant and his spouse, and which
is the amount of benefit which can be purchased with
the participant's vested Account balance.
-5-
<PAGE>
(4) Upon the death of a Participant after payments
have commenced hereunder, but while an amount yet
remains due, the remaining payments shall be
distributed as least as rapidly as under the method
of distribution being used as of the date of death.
(5) Upon the death of a Participant before payments
have commenced hereunder, the Participant's interest
shall be distributed within five years after the
Participant's death, except that, if (i) any portion
of the Participant's interest is payable to or for
the benefit of a surviving spouse, then such portion
may be distributed over a period not to extend
beyond the life expectancy of such surviving spouse
or (ii) if any portion of the Participant's interest
is payable to or for the benefit of a designated
beneficiary other than a surviving spouse, such
portion may be distributed over a period not to
exceed ten years or the life expectancy of such
beneficiary, whichever is shorter. In such
circumstances, distributions must begin not later
than one year after the date of death unless the
designated beneficiary is the Participant's
surviving spouse, and in that event, distributions
must begin not later than the date the Participant
would have attained age seventy and one-half.
11.3 A distribution having a value of $3,500 or less
may, at the discretion of the Committee, be paid in
a lump sum."
FIFTEENTH. Article 11 is amended by the addition of new
Section 11.6 as follows:
"11.6 (a) This Section applies to distributions made
on or after January 1, 1993. Notwithstanding any
provision of the Plan to the contrary that would
otherwise limit a distributee's election under this
Article, a distributee may elect, at the time and in
the manner prescribed by the Committee, to have any
portion of an 'eligible rollover distribution' paid
directly to an 'eligible retirement plan'
-6-
<PAGE>
specified by the distributee in a 'direct
rollover.'"
(b) For purposes of this Section the following
definitions shall apply:
(1) An eligible rollover distribution is any
distribution of all or any portion of the
balance to the credit of the distributee,
except that an eligible rollover distribution
does not include: any distribution that is one
of a series of substantially equal periodic
payments (not less frequently than annually)
made for the life (or life expectancy) of the
distributee or the joint lives (or joint life
expectancies) of the distributee and the
distributee's designated beneficiary, or for a
specified period of ten years or more; any
distribution to the extent such distribution
is required under Section 401(a) (9) of the
Code; and the portion of any distribution that
is not includible in gross income (determined
without regard to the exclusion for net
unrealized appreciation with respect to
employer securities).
(2) An eligible retirement plan is an
individual retirement account described in
Section 408(a) of the Code, an annuity plan
described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of
the Code, that accepts the distributee's
eligible rollover distribution. However, in
the case of an eligible rollover distribution
to the surviving spouse, an eligible
retirement plan is an individual retirement
account or individual retirement annuity.
(3) A distributee includes an Employee or
former Employee. In addition, the Employee's
or former Employee's surviving spouse and the
Employee's or former Employee's spouse or
former spouse who is the alternate payee under
a qualified domestic relations order, as
defined in Section 414(p) of the Code, are
distributees with regard to the interest of
the spouse or former spouse.
-7-
<PAGE>
(4) A direct rollover is a payment by the Plan
to the eligible retirement plan specified by
the distributee."
SIXTEENTH. The first sentence of Article 16.3 is amended
by deleting from the fifth line thereof the phrase "or for any other
purpose, other than benefit accrual, under this Plan" and substituting
"for vesting purposes".
SEVENTEENTH. Article 17, Section 17.1 is amended by the
deletion therefrom of Paragraph (c) and subsequent Paragraphs (d), (e)
and (f) are redesignated as (c), (d) and (e) respectively.
EIGHTEENTH. The second paragraph of Section 18.6 of
Article 18 is amended by the addition of the following sentence at the
end of the paragraph:
"Further, a distribution to an alternate payee shall be permitted if
such distribution is authorized by a qualified domestic relations
order, notwithstanding that the affected Participant may not have
separated from service or reached the 'earliest retirement age' as
defined in Section 414(p) of the Code."
IN WITNESS WHEREOF, OMNICOM GROUP INC. has caused this
Amendment to be executed and its corporate seal to be hereunto affixed
and attested to by its officers thereunto duly authorized this 1st day
of December, 1994.
OMNICOM GROUP INC.
By /s/ Bruce Crawford
------------------------------------
Attest:
/s/ Barry J. Wagner
- ----------------------------------
Secretary
-8-
Exhibit 4.2
Agreement and Declaration of Trust made as of this 1st day of January,
1989, by and between Omnicom Group Inc., a New York corporation, and BANKERS
TRUST COMPANY, a New York banking corporation.
W I T N E S S E T H:
WHEREAS, Omnicom Group Inc., wishes to establish a master trust to serve
as a funding medium for eligible employee benefit plans of Omnicom and its
subsidiaries and affiliates; and
WHEREAS, Bankers Trust Company is willing to act as trustee of such trust
upon all of the terms and conditions hereinafter set forth.
NOW, THEREFORE, Omnicom and Bankers Trust Company declare and agree that
Bankers Trust Company will receive, hold and administer all sums of money and
such other property acceptable to Bankers Trust Company as shall from time to
time be contributed, paid or delivered to it hereunder, IN TRUST, upon all of
the following terms and conditions:
ARTICLE I
Title-Purpose-Policy-Effect
1.1. Name. The master trust established hereunder shall be known as the
Omnicom Group Inc. Master Trust and is sometimes hereinafter referred to as the
"Trust".
1.2. Definitions. Where used in this Agreement and Declaration of Trust,
unless the context otherwise requires or unless otherwise expressly provided:
(a) "Account Party" shall mean the Person designated by the Company to
represent the Company for this purpose, the Named Fiduciary and any Person to
whom the Trustee shall be instructed by the Named Fiduciary to deliver its
annual or other periodic account under
<PAGE>
Section 8.2 or Section 8.3, except, that with respect to any filings, notices,
reports or accountings required to be given under the General Trust, "Account
Party" shall be limited to that officer designated herein to represent the
Company.
(b) "Accounting Period" shall mean either the twelve consecutive month
period coincident with the calendar year or, if different, the common fiscal
year of the Participating Plans or the shorter period in any year in which the
Trustee accepts appointment as Trustee hereunder or, with respect to any
Participating Plan or Plans, ceases to act as Trustee for any reason.
(c) "Administrative Committee" shall mean, with respect to each
Participating Plan, the Committee or other Person responsible for benefit
administration under such Participating Plan, including any representative
(designated in writing as such) or designee thereof authorized to act on behalf
of such Committee.
(d) "Agreement" shall mean all of the provisions of this instrument and of
all other written instruments amendatory hereof.
(e) "Asset Manager" shall mean the Trustee (other than for purposes of
Article VI), Named Fiduciary or Investment Manager, individually or collectively
as the context shall require, with respect to those assets held in any
Investment Fund established hereunder over which it exercises, or to the extent
it is authorized to exercise, discretionary investment authority or control.
(f) "Bank business day" shall mean a day on which the Trustee is open for
business.
(g) "Bankers" shall mean Bankers Trust Company.
(h) "Board of Directors" shall mean the board of directors of the Company.
(i) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and Regulations issued thereunder.
(j) "Common Stock Fund" shall mean an Investment Fund consisting of common
stock of the Company.
(k) "Company" shall mean Omnicom Group Inc. or any successor thereto.
Page 2
<PAGE>
(l) "Company Stock" shall mean the common stock of the Company and
securities convertible into common stock of the Company.
(m) "Directed Fund" shall mean any Investment Fund, or part thereof,
subject to the discretionary management and control of the Named Fiduciary or
any Investment Manager, other than the Trustee.
(n) "Discretionary Fund" shall mean any Investment Fund, or part thereof,
subject to the discretionary management and control of the Trustee.
(o) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
(p) "General Trust" shall mean the BT Pyramid Trust created by Bankers
Trust Company under Declaration of Trust effective June 30, 1991, as heretofore
or hereafter amended.
(q) "Insurance Contract" shall mean any contract or policy (including any
annuity contract) of any kind issued by an insurance company, whether or not
providing for the allocation of amounts received by the insurance company
thereunder solely to the general account or solely to one or more separate
accounts (including separate accounts maintained for the collective investment
of qualified retirement plans), or a combination thereof, and whether or not any
such allocation may be made in the discretion of the insurance company.
(r) "Investment Fund" shall mean each pool of assets established for
investment purposes pursuant to Section 5.1 in the Trust in which one or more
Participating Plans has an interest during an Accounting Period. The term shall
also include for all purposes hereof any sub-fund or account into which an
Investment Fund shall be divided from time to time at the direction of the Named
Fiduciary.
(s) "Investment Manager" shall mean a bank, insurance company or
investment adviser satisfying the requirements of Section 3(38) of ERISA.
(t) "Investment Vehicle" shall mean any common, collective or commingled
trust (other than the General Trust or an Investment Fund), investment company,
corporation
Page 3
<PAGE>
functioning as an investment intermediary, Insurance Contract, partnership,
joint venture or other entity or arrangement to which, or pursuant to which,
assets of an Investment Fund within the Trust may be transferred or in which the
Trust has an interest, beneficial or otherwise (whether or not the underlying
assets thereof are deemed to constitute "plan assets" for any purpose under
ERISA).
(u) "Master Fund" shall mean all cash and other property contributed, paid
or delivered to the Trustee hereunder, all investments made therewith and
proceeds thereof and all earnings and profits thereon, less payments, transfers
or other distributions which, at the time of reference, shall have been made by
the Trustee, as authorized herein. The Master Fund shall include each Investment
Fund and all evidences of ownership, interest or participation in an Investment
Vehicle, but shall not, solely by reason of the Master Fund's investment
therein, be deemed to include any assets of such Investment Vehicle.
(v) "Named Fiduciary" shall mean the Person or its designee with respect
to a Participating Plan, who, within the meaning of Section 402(a)(2), 402(c)(3)
or 403(a)(1) of ERISA, has the authority to perform the separate functions
allocated to that "Named Fiduciary" under this Agreement. Unless otherwise
specifically provided to the contrary, the Named Fiduciary shall mean the
Administrative Committee appointed pursuant to the Participating Plans.
(w) "Participating Plan" shall mean any employee benefit plan which meets
the requirements for eligibility specified in Section 2.1. [All Participating
Plans are listed on Appendix A attached hereto.]
(x) "Person" shall mean a natural person, trust, estate, corporation of
any kind or purpose, mutual company, joint-stock company, unincorporated
organization, association, partnership, joint venture, employee organization,
committee, board, participant, beneficiary, trustee, partner, or venturer acting
in an individual, fiduciary or representative capacity, as the context may
require.
(y) "Section" shall mean any Section of this Agreement.
Page 4
<PAGE>
(z) "Share" shall mean the interest of any Participating Plan in the
Master Fund, and where appropriate any Investment Fund, the accounting for which
will be maintained by the Trustee in a manner agreed upon between the Company
and the Trustee and may be expressed in "units".
(aa) "Trustee" shall mean Bankers Trust Company, as Trustee of the Trust.
(bb) "Valuation Date" shall mean the last day of the Accounting Period,
calendar quarter, or calendar month for reporting and/or investment purposes as
may be required by the terms of any of the Participating Plans.
The plural of any term shall have a meaning corresponding to the singular
thereof as so defined and any neuter pronoun used herein shall include the
masculine or feminine, as the context may require.
1.3. Purpose. The Trust is established to fund the benefits payable to
participants and their beneficiaries under each Participating Plan.
1.4. Exclusive Benefit. Except as may otherwise be permitted by law and
the terms of the Participating Plan, at no time prior to the satisfaction of all
liabilities with respect to participants and their beneficiaries under any
Participating Plan shall any part of the Share of such Participating Plan be
used for, or diverted to, any purposes other than for the exclusive benefit of
such participants and their beneficiaries, and for defraying the reasonable
expenses of administering such Plan. No provision herein designed to provide for
the pooling of assets of Participating Plans for investment purposes shall be
deemed or construed to authorize the utilization of the assets of any
Participating Plan to discharge the obligations and liabilities of any other
Plan.
1.5. Effect. All Persons at any time interested in any Participating Plan
shall be bound by the provisions of this Agreement, notwithstanding the
existence of any contrary provisions of a Participating Plan or any instrument
or agreement forming part of such Plan other than this Agreement.
Page 5
<PAGE>
1.6. Domestic Trust. The Trust shall at all times be maintained as a
domestic trust in the United States.
1.7. Trustee Not Responsible for Enforcing Contributions or for
Sufficiency. The Trustee shall have no responsibility for enforcing payment of
any contribution to any Participating Plan, for the timing or amount thereof, or
for the adequacy of the Master Fund or the funding standards adopted for any
Participating Plan to meet or discharge any pension or other liabilities of such
Plan.
ARTICLE II
Participation
2.1. Eligibility. Any employee benefit plan established by the Company, or
a subsidiary or an affiliate or business organization of the Company, may be
funded, in whole or in part, through the Trust if (i) the plan is qualified
under Section 401(a) of the Code, (ii) the Trust is exempt from taxation under
Section 501(a) of the Code, and (iii) this Agreement has been duly adopted as
the trust under the Plan by the Board of Directors or by the board of directors
of a subsidiary or affiliate of the Company or by the managers of a business
organization of the Company and, in the case of such subsidiary or affiliate or
business organization, the Company has consented thereto.
2.2. Effect on Adopting Company. When the Master Trust has been adopted by
any subsidiary or affiliate of the Company, such subsidiary or affiliate shall
be bound by the decisions, instructions, actions and directions of the Company,
the Administrative Committee or the Named Fiduciary under or affecting this
Agreement, and the Trustee shall be fully protected by the Company and such
subsidiary or affiliate in relying upon the decisions, instructions, actions and
directions of the Company, the Administrative Committee or the Named Fiduciary.
Except as may be hereafter specifically provided, the Trustee shall not be
required to give notice to or to obtain the consent of any subsidiary or
affiliate with respect to any action to be taken by
Page 6
<PAGE>
the Trustee pursuant to this Agreement, and the Company shall have the sole
authority to enforce this Agreement on behalf of any subsidiary or affiliate.
2.3. Shares. The Trustee shall maintain a separate account and such
sub-accounts as it and the Company shall deem advisable to reflect the Share of
each Participating Plan, or part thereof. The Named Fiduciary shall provide the
Trustee with current information in order that the Trustee may determine such
Shares. An Investment Fund may be divided into such one or more sub-funds or
accounts or described in a different manner on any books kept or reports
rendered by the Trustee without in any way affecting the duties or
responsibilities of the Trustee under the provisions of this Agreement;
provided, however, the books and records of the Trustee shall at all times be
maintained so that the interest of each Participating Plan may be determined.
2.4. Valuations. The Trustee shall determine the value of the assets of
the Master Fund and each Investment Fund as of each Valuation Date. Except in
the case of an Investment Fund in which amortized cost is the valuation method
designated, assets will be valued at their market values at the close of
business on the Valuation Date, or, in the absence of readily ascertainable
market values, at such values as the Trustee shall determine in accordance with
methods consistently followed and uniformly applied. Anything in this Agreement
to the contrary notwithstanding, with respect to assets constituting part of a
Directed Fund, the Trustee may rely for all purposes of this Agreement on the
latest valuation and transaction information submitted to it by the Person
responsible for the investment of such assets even if such information predates
the Valuation Date. The Named Fiduciary will cause such Person to provide the
Trustee with all information needed by the Trustee to discharge its obligations
to value such assets and to account under this Agreement.
2.5. Participant Records and Accounts. The Trustee shall maintain separate
accounts for each Participant to which shall be credited units of participation
in the Master Fund in accordance with the provisions of the Participating Plan.
The Trustee shall render a statement to each Participant at least annually, or
more often if requested by the Administrative Committee, with respect to such
accounts in accordance with the Plan. The Administrative Committee shall
Page 7
<PAGE>
certify to the Trustee the names of Participants, the respective contributions
to be credited to the account of each, the directions of Participants,
beneficiaries or legal representatives, and other data required by the Trustee
to maintain a record of the accounts of Participants, to determine the amounts
to be invested in the respective Investment Fund, and to make distributions
therefrom. The Trustee may rely absolutely on all certifications by the
Administrative Committee and shall not be obligated to act on any information or
direction unless certified by the Administrative Committee. The Trustee shall be
under no duty or obligation to question such certification or to verify the
accuracy of such certification by reference to the records of the Company or
Administrative Committee.
The Trustee shall establish and maintain, through an affiliate of the
Trustee (the Trustee's Affiliate"), a telephone line which will permit each
Participant to access his or her account by means of a confidential personal
identification number. Participants shall be allowed to make inquiries
concerning Participating Plan provisions and to effect certain Participating
Plan transactions as may be agreed to in writing by the Company and the Trustee.
The Trustee's Affiliate will answer questions concerning Participating Plan
provisions, including Participant statements, advices, 1099R forms and advice on
information necessary to compute the taxability of distributions, provided
however, that the Trustee's Affiliate shall not provide investment or tax
advice.
The undertaking of the foregoing administrative functions by the Trustee
is neither intended to nor shall be inferred to confer any other power or
responsibility, discretionary or otherwise, upon the Trustee, individually or as
Trustee, or upon any employee of the Trustee with respect to the administration
of the Participating Plan by the Administrative Committee, the determination of
any Participant's rights thereunder, or the investment of any Participant's
account by an Investment Manager.
Page 8
<PAGE>
ARTICLE III
Administration of Participating Plans
3.1. Payment of Benefits. On the direction of the Administrative
Committee, the Trustee shall pay moneys out of the share of a Participating Plan
directly to or for the benefit of participants in such Plan and their
beneficiaries, or to an insurance company to provide for the payment of such
benefits by the purchase of an Insurance Contract, or to a paying or disbursing
agent (which may be the Administrative Committee). Any assets disbursed or paid
over by the Trustee pursuant to this Section 3.1 shall no longer be part of the
Master Fund.
3.2. Reliance on Administrative Committee. Any directions pursuant to
Section 3.1 may, but need not, specify the application to be made of moneys so
ordered. The Trustee shall charge such transfer against the Share of such one or
more of the Participating Plans as the Administrative Committee shall direct.
Each direction to the Trustee under Section 3.1 shall constitute a certification
by the Administrative Committee that such direction is in accordance with
applicable law, the terms of any relevant Participating Plan and the terms of
this Agreement, and the Trustee shall have no duty to make any independent
inquiry or investigation as to any of the foregoing before acting upon such
direction, or to see to the application of any moneys paid over.
3.3. Trustee Not Responsible for Plan Administration. The Trustee shall
not be responsible under this Agreement, or otherwise, in any way respecting the
determination, computation, payment or application of any benefit, for the form,
terms, payment provisions or issuer of any Insurance Contract which it is
directed to purchase to provide for the payment of benefits under any
Participating Plan, for performing any functions under any such Insurance
Contract which it may be directed to purchase and/or hold as contract holder
thereunder (other than the execution of any documents incidental thereto and
transfer or receipt of funds thereunder), or for any other matter affecting the
administration of a Participating Plan, by the Company or the Administrative
Committee or any other Person to whom such responsibility is allocated or
delegated pursuant to the terms of the Participating Plan.
Page 9
<PAGE>
ARTICLE IV
Investment of Trust Assets
4.1. Asset Managers. Discretionary authority for the management and
control of assets of a Participating Plan from time to time held in the Master
Fund may be retained, allocated or delegated, as the case may be, for one or
more purposes, to and among the Asset Managers by the Named Fiduciary, in its
absolute discretion. The terms and conditions of appointment, authority and
retention of any Asset Manager shall be the sole responsibility of the Named
Fiduciary. The Named Fiduciary shall promptly notify the Trustee in writing of
the appointment or removal of an Asset Manager. Any notice of appointment
pursuant to this Section 4.1 shall constitute a representation and warranty that
the Asset Manager has been appointed in accordance with the provisions of the
Participating Plan and that any Asset Manager (other than the Trustee or the
Named Fiduciary) is an Investment Manager.
4.2. Investment Discretion. Subject to Section 5.1, the assets of the
Trust shall be invested and reinvested, without distinction between principal
and income, at such time or times in such investments and pursuant to such
investment strategies or courses of action and in such shares and proportions,
as the Asset Managers, in their sole discretion, shall deem advisable.
4.3. Limitations on Investment Discretion. In addition to the limitations
imposed by Section 5.1, the Named Fiduciary may limit, restrict or impose
guidelines affecting the exercise of the discretion hereinabove conferred on any
Asset Manager. Any limitations, restrictions or guidelines applicable to the
Trustee, as Asset Manager, shall be communicated in writing to the Trustee. The
Trustee shall have no responsibility with respect to the formulation of any
funding policy or any investment or diversification policies embodied therein.
The Named Fiduciary shall be responsible for communicating, and monitoring
adherence to, any limitations or guidelines imposed on any other Asset Manager
by Section 5.1 or Section 7.3 or the guidelines described above.
4.4. Responsibility for Diversification. The Named Fiduciary shall be
responsible for determining the diversification policy (if required) of the
Master Fund, for monitoring adherence
Page 10
<PAGE>
by the Asset Managers to such policy, and for advising the Asset Managers with
respect to limitations on employer or other securities or property contained in
any Participating Plan or imposed on such Plan by applicable law or by the Named
Fiduciary.
ARTICLE V
Investment Funds Within the Master Fund
5.1. Participating Investment Funds. At the direction of the Named
Fiduciary, the interest of a Participating Plan in the Master Fund may be
allocated and held and invested in one or more Investment Funds established
hereunder by the Named Fiduciary as required or permitted by the terms of each
Participating Plan. As of the date hereof, the Master Fund shall be held and
invested in the Investment Funds listed and described in [Appendix B] attached
hereto. The Named Fiduciary, to the extent permitted by a Participating Plan,
may establish additional Investment Funds, or freeze, terminate or modify the
description of any Investment Fund. The determination of the Named Fiduciary of
investments eligible for inclusion in any Investment Fund shall be conclusive
and binding on all Persons interested in the Participating Plans. Such
Investment Funds shall include, where applicable, a Common Stock Fund which
shall consist of Company Stock. The income of each Investment Fund shall be
accumulated and invested in such Fund. To the extent that any cash shall be
allocated to the Common Stock Fund, the Trustee shall regularly purchase the
Company Stock in the open market pursuant to a non-discriminatory purchasing
program, provided, however, that the Trustee may, in its discretion, match
purchases and sales being made at the discretion of the Administrative
Committee, acting under instructions of Participants or as otherwise required
under a Participating Plan, at prices determined by the Trustee to be as near as
practicable to prices in the open market.
The Trustee shall have no authority or obligation to invest or reinvest
cash balances of any Directed Fund in the General Trust or otherwise pursuant to
this Agreement unless and until it receives appropriate directions from the
Asset Manager. Cash balances (including interim investment thereof) in the
Common Stock Fund shall be limited to the administrative needs of
Page 11
<PAGE>
such Investment Fund. For the purpose of this Section 5.1 and Section 5.2.,
"administrative needs" shall mean needs consistent with the Trustee's
implementation of the regular purchasing program described herein, anticipated
distributions and withdrawals from such Investment Fund, and transfers among the
Investment Funds at the election of participants. Any investment limitation
affecting Company securities shall not be applicable to the extent any
Investment Fund is invested in units of the General Trust.
5.2. The Company Stock Fund. Notwithstanding the unrestricted powers
conferred on the Trustee in this Agreement, the Trustee shall purchase and
retain the Company Stock in the Common Stock Fund regardless of market
fluctuations and, subject to Article XVI, the Trustee shall sell such stock only
to meet administrative needs of the Participating Plan. The Company shall
undertake the responsibility to inform Participating Plan participants of the
unique nature of the Common Stock Fund.
ARTICLE VI
Responsibility for Directed Funds
6.1. Responsibility for Selection of Agents. All transactions of any kind
or nature in or from a Directed Fund shall be made upon such terms and
conditions and from or through such brokers, dealers and principals and other
agents as the Asset Manager shall direct. No such transactions shall be executed
through the facilities of the Trustee except where the Trustee shall make
available its facilities solely for the purpose of temporary investment of cash
reserves of a Directed Fund. However, nothing in the preceding sentence shall
confer any authority upon the Trustee to invest the cash balances of any
Directed Fund unless and until it receives directions from the Asset Manager.
6.2. Trustee Not Responsible for Investments in Directed Funds. The
Trustee shall be under no duty or obligation to review or to question any
direction of any Asset Manager, or to review securities or any other property
held in any Directed Fund with respect to prudence or proper diversification or
compliance with any limitation on the Asset Manager's authority under
Page 12
<PAGE>
this Agreement or the terms of a Participating Plan, any agreement entered into
between the Company or the Named Fiduciary and the Asset Manager or imposed by
applicable law, or to make any suggestions or recommendation to the Company, the
Named Fiduciary or the Asset Manager with respect to the retention or investment
of any assets of any Directed Fund, and shall have no authority to take any
action or to refrain from taking any action with respect to any asset of a
Directed Fund unless and until it is directed to do so by the Asset Manager.
6.3. Investment Vehicles. Any Investment Vehicle, or interest therein,
acquired by or transferred to the Trustee upon the directions of the Asset
Manager shall be allocated to a designated Directed Fund, and the Trustee's
duties and responsibilities under this Agreement shall not be increased or
otherwise affected thereby. The Trustee shall be responsible solely for the
safekeeping of the physical evidence, if any, of the Trust's ownership of or
interest or participation in such Investment Vehicle.
6.4. Reliance on Asset Manager. The Trustee shall be required under this
Agreement to execute documents, to settle transactions, to take action on behalf
of or in the name of the Trust and to make and receive payments on the direction
of the Asset Manager. Any direction of the Asset Manager shall constitute a
certification to the Trustee (i) that the transaction will not constitute a
prohibited transaction under ERISA or the Code, (ii) that the investment is
authorized under the terms of this Agreement and any other agreement or law
affecting the Asset Manager's authority to deal with the Directed Fund, (iii)
that any contract, agency, joinder, adoption, participation or partnership
agreement, deed, assignment or other document of any kind which the Trustee is
requested or required to execute to effectuate the transaction has been reviewed
by the Asset Manager and, to the extent it deems advisable and prudent, its
counsel, (iv) that such instrument or document is in proper form for execution
by the Trustee, (v) that, where appropriate, insurance protecting the Trust
against loss or liability has been or will be maintained in the name of or for
the benefit of the Trustee, and (vi) that all other acts to perfect and protect
the Trust's rights have been taken, and the Trustee shall have no duty to make
any independent inquiry or investigation as to any of the foregoing before
acting upon such direction.
Page 13
<PAGE>
In addition, the Trustee shall not be liable for the default of any Person with
respect to any Investment Vehicle or any investment in a Directed Fund or for
the form, genuineness, validity, sufficiency or effect of any document executed
by, delivered to or held by it for any Directed Fund on account of such
investment, or if, for any reason (other than the negligence or willful
misconduct of the Trustee) any rights of the Trust therein shall lapse or shall
become unenforceable or worthless.
6.5. Merger of Funds. The Trustee shall not have any discretionary
responsibility or authority to manage or control any asset held in a Directed
Fund upon the resignation or removal of an Asset Manager unless and until it has
been notified in writing by the Named Fiduciary that the Asset Manager's
authority has terminated and that such Directed Fund's assets are to be
integrated with the Discretionary Fund. Such notice shall not be deemed
effective until two bank business days after it has been received by the
Trustee. The Trustee shall not be liable for any losses to the Master Fund
resulting from the disposition of any investment made by the Asset Manager or
for the retention of any illiquid or unmarketable investment or any investment
which is not widely publicly traded or for the holding of any other investment
acquired by the Asset Manager if the Trustee is unable to dispose of such
investment because of any restrictions imposed by the Securities Act of 1933 or
other Federal or state law, or if an orderly liquidation of such investment is
impractical under prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 4.3 or 5.1, or for any other
violation of the terms of this Agreement, the Participating Plans or applicable
law as a result of the addition of Directed Fund assets to the Discretionary
Fund.
6.6. Notification of Named Fiduciary in Event of Breach. If the Trustee
has knowledge of a breach committed by an Asset Manager, it shall notify the
Named Fiduciary thereof, and the Named Fiduciary shall thereafter assume full
responsibility to all Persons interested in the Participating Plans to remedy
such breach.
6.7. Definition of Knowledge. The parties hereto acknowledge that while
the Trustee will perform certain duties (such as custodial, reporting,
recording, valuation and bookkeeping
Page 14
<PAGE>
functions) with respect to Directed Funds, such duties will not involve the
exercise of any discretionary authority to manage or control the assets of the
Directed Funds and will be the responsibility of officers or other employees of
the Trustee who are unfamiliar with and have no responsibility for investment
management. Therefore, in the event that knowledge of the Trustee shall be a
prerequisite to imposing a duty upon or to determining liability of the Trustee
under this Agreement or any statute regulating the conduct of the Trustee with
respect to such Directed Funds or relieving the Company of its undertakings
under Section 16.2, the Trustee will not be deemed to have knowledge of, or to
have participated in, any act or omission of an Asset Manager involving the
investment of assets allocated to the Directed Funds as a result of the receipt
and processing of information in the course of performing such duties.
6.8. Duty to Enforce Claims. The Trustee shall have no duty to commence or
maintain any action, suit or legal proceeding on behalf of the Trust on account
of or growing out of any investment made in or for a Directed Fund unless the
Trustee has been directed to do so by the Asset Manager or the Named Fiduciary
and unless the Trustee is either in possession of funds sufficient for such
purpose or has been indemnified to its satisfaction for counsel fees, costs and
other expenses and liabilities to which it, in its sole judgment, may be
subjected by beginning or maintaining such action, suit or legal proceeding.
6.9. Restrictions on Transfer. Nothing herein shall be deemed to empower
any Asset Manager to direct the Trustee to transfer any asset of a Directed Fund
to itself except for purposes enumerated in paragraph (j), (l) or (m) of Section
7.1.
ARTICLE VII
Powers of Asset Managers
7.1. General Powers. Without in any way limiting the powers and
discretions conferred upon any Asset Manager by the other provisions of this
Agreement or by law, each Asset Manager shall be vested with the following
powers and discretions with respect to the assets of the Trust subject to its
management and control, and, upon the directions of the Asset
Page 15
<PAGE>
Manager of a Directed Fund, the Trustee shall make, execute, acknowledge and
deliver any and all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to enable such Asset Manager to
carry out such powers and discretions:
(a) to sell, exchange, convey, transfer or otherwise dispose of any
property by private contract or at public auction, and no person dealing with
the Asset Manager shall be bound to see to the application of the purchase money
or to inquire into the validity, expediency or propriety of any such sale or
other disposition;
(b) to enter into contracts or to make commitments either alone or in
company with others to sell or acquire property;
(c) to purchase or sell, write or issue, puts, calls or other options,
covered or uncovered, to enter into financial futures contracts, forward
placement contracts and standby contracts, and in connection therewith, to
deposit, hold (or direct Bankers, as Trustee or in its individual capacity, to
deposit or hold) or pledge assets of the Master Fund;
(d) to purchase part interests in real property or in mortgages on real
property, wherever such real property may be situated;
(e) to lease to others for any term without regard to the duration of the
Trust any real property or part interest in real property;
(f) to delegate to a manager or the holder or holders of a majority
interest in any real property or mortgage on real property or in any oil,
mineral or gas properties, the management and operation of any part interest in
such property or properties (including the authority to sell such part interests
or otherwise carry out the decisions of such manager or the holder or holders of
such majority interest);
(g) to vote upon any stocks, bonds or other securities (but subject to the
suspension of any voting rights as a result of any broker loan or similar
agreement and subject further, with respect to the voting of Company Stock, to
the provisions of any Participating Plan); to give general or special proxies or
powers of attorney with or without power of substitution; to exercise any
conversion privileges, subscription rights or other options and to make any
Page 16
<PAGE>
payments incidental thereto; to consent to or otherwise participate in corporate
reorganizations or other changes affecting corporate securities and to delegate
discretionary powers and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an owner with respect
to stocks, bonds, securities or other property;
(h) to organize corporations under the laws of any state for the purpose
of acquiring or holding title to property (or, in the case of a Directed Fund,
to direct the Trustee to organize such corporations or to appoint an ancillary
trustee acceptable to the Trustee for such purpose);
(i) to invest in a fund consisting of securities issued by corporations
and selected and retained solely because of their inclusion in, and in
accordance with, one or more commonly used indices of such securities, with the
objective of providing investment results for the fund which approximate the
overall performance of such designated index;
(j) to enter into any partnership, as a general or limited partner, or
joint venture;
(k) to purchase units or certificates issued by an investment company or
pooled trust or comparable entity;
(l) to transfer money or other property to an insurance company issuing an
Insurance Contract;
(m) to transfer assets of a Discretionary or Directed Fund to a common,
collective or commingled trust fund exempt from tax under the Code maintained by
an Asset Manager or an affiliate of an Asset Manager or by another trustee who
is designated by the Named Fiduciary, to be held and invested subject to all of
the terms and conditions thereof, and such trust shall be deemed adopted as part
of the Trust and the Participating Plans to the extent that assets of the Trust
are invested therein; provided, however, that any transfer from a Directed Fund
to the General Trust may be made only with the prior approval of the Trustee and
shall be invested only in one or more short term investment funds or other
special purpose funds established from time to time thereunder; and
Page 17
<PAGE>
(n) to be reimbursed for the expenses incurred in exercising any of the
foregoing powers or to pay the reasonable expenses incurred by any agent,
manager or trustee appointed pursuant hereto.
7.2. Additional Powers of Trustee. In addition, the Trustee is hereby
authorized:
(a) to register any securities held in the Master Fund in its own name or
in the name of a nominee and to hold any securities in bearer form, and to
combine certificates representing such securities with certificates of the same
issue held by the Trustee in other fiduciary or representative capacities or as
agent for customers, or to deposit or to arrange for the deposit of such
securities in any qualified central depository even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depository with other securities deposited therein by other depositors, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve Bank, but the books and records of the Trustee shall at all times show
that all such investments are part of the Master Fund;
(b) to employ suitable agents, depositories and counsel, domestic or
foreign, and to charge their reasonable expenses and compensation against the
Master Fund, and to confer upon any such depository the powers conferred upon
the Trustee by paragraph (a) of this Section 7.2 as well as the power to appoint
subagents and depositories, wherever situated, in connection with the retention
of securities or other property;
(c) to borrow money from any source as may be necessary or advisable to
effectuate the purposes of the Trust on such terms and conditions as the
Trustee, in its absolute discretion, may deem advisable;
(d) to deposit funds in interest bearing account deposits maintained by or
savings certificates issued by Bankers, in its separate corporate capacity, or
in any other banking institution affiliated with Bankers;
(e) to compromise, compound, submit to arbitration or settle any debt or
obligation owing to or from or otherwise adjust all claims in favor of or
against the Master Fund other than
Page 18
<PAGE>
claims solely affecting the right of any Person to benefits under a
Participating Plan; to reduce or increase the rate of interest or extend, or
otherwise modify, foreclose upon default, or enforce any such debt or
obligation; to sue or defend suits or legal proceedings to protect any interest
in the Trust and to represent the Trust in all suits or legal proceedings in any
court or before any other administrative agency, body or tribunal;
(f) to make any distribution or transfer of assets as of a Valuation Date
authorized under Article X or XI or to effectuate participants' rights under a
Participating Plan in cash or in kind, or partly in cash or kind, and, in
furtherance thereof, to value such assets, which valuation shall be conclusive
and binding on all Persons;
(g) upon the direction of the Named Fiduciary, to maintain and operate one
or more market inventory funds as a vehicle to exchange securities among
Discretionary and Directed Funds without alienating the property from the Trust;
(h) with the consent of the Named Fiduciary, to loan securities held in
the Master Fund to brokers or dealers or other borrowers under such terms and
conditions as the Trustee, in its absolute discretion, deems advisable, to
secure the same in any manner permitted by law and the provisions of this
Agreement, and during the term of any such loan, to permit the loaned securities
to be transferred into the name of and voted by the borrowers or others, and, in
connection with the exercise of the powers hereinabove granted, to hold any
property deposited as collateral by the borrower pursuant to any master loan
agreement in bulk, either as provided in paragraph (a) of this Section 7.2 or
otherwise, together with the unallocated interests of other lenders, and to
retain any such property upon the default of the borrower, whether or not
investment in such property is authorized under this Agreement, and to receive
compensation therefor out of any amounts paid by or charged to the account of
the borrower;
(i) to enroll the Master Fund in a program maintained by Bankers to permit
customer's accounts to participate in dividend reinvestment plans offered by
issuers of securities held in accounts, such as the Master Fund, in order to
realize upon the discount from market value offered shareholders without impact
on the managed assets in the Master Fund, and to
Page 19
<PAGE>
receive compensation therefor (including reimbursement for certain of its
out-of-pocket costs associated therewith) out of the income received by the
Master Fund from participation in such program;
(j) to hold uninvested cash awaiting investment and such additional cash
balances as it shall deem reasonable or necessary, without incurring any
liability for the payment of interest thereon; and
(k) generally, consistent with the provisions of this Agreement to perform
all acts (whether or not expressly authorized herein) which it may deem
necessary and prudent for the protection of the assets of the Trust.
7.3. Limitation of Powers. The foregoing provisions of this Article VII
shall not be deemed to expand the permissible investments for any Investment
Fund under Section 5.1 or to limit the Named Fiduciary's power to restrict the
exercise of such powers by an Asset Manager as provided in Section 4.3. In
addition, any powers conferred on the Trustee or any other Asset Manager
thereunder may be suspended or revoked at any time by the Named Fiduciary upon
notice to the Asset Manager or the Trustee, as the case may be. Any oral notice
hereunder shall be promptly confirmed in writing to the Trustee and the Asset
Manager, but the Trustee shall have no responsibility hereunder unless and until
it has received notice in accordance with Section 15.6.
ARTICLE VIII
Records and Accounts of Trustee
8.1. Records. The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions in the Master Fund
and all accounts, books and records relating thereto shall be open to inspection
and audit at all reasonable times during normal business hours by any Person
designated by the Named Fiduciary.
8.2. Annual Account. Within ninety (90) days following the close of each
Accounting Period, the Trustee shall file with the Account Party, in accordance
with Section 15.6, a written
Page 20
<PAGE>
account setting forth the receipts and disbursements of the Master Fund and the
investments and other transactions effected by it upon its own authority or
pursuant to the directions of any Person as herein provided during the
Accounting Period.
8.3. Periodic Account. If so required by the terms of any Participating
Plan and agreed to by the Trustee, within thirty (30) days following the close
of each calendar month, calendar quarter or other time period (but not more
frequently than monthly) the Trustee shall provide the Account Party with, in
accordance with Section 15.6, a written account for any such Participating Plan,
setting forth the receipts and disbursements of the Master Fund and the
investments and other transactions effected by it upon its own authority or
pursuant to the directions of any Person as herein provided during such period;
provided, however, that such written account shall be limited to an accounting
of investments and transactions in the Master Fund and shall not affect the
responsibilities of the parties, if any, under Section 2.5 herein.
8.4. Account Stated. Upon the expiration of ninety (90) days from the date
of filing its annual account with the Account Party, the Trustee shall be
forever released and discharged from all liability and further accountability to
the Company, the Account Party or any other Person with respect to the accuracy
of such accounting and the propriety of all acts and failures to act of the
Trustee reflected in such account, except with respect to any such acts or
transactions as to which the Account Party shall, within such 90-day period,
file with the Trustee specific written objections.
8.5. Judicial Accountings. Nothing herein shall in any way limit the
Trustee's right to bring any action or proceeding in a court of competent
jurisdiction to settle its account or for such other relief as it may deem
appropriate.
8.6. Necessary Parties. Except to the extent that Sections 502 and 504 of
ERISA may provide otherwise, in order to protect the Master Fund from the
expense of litigation, no Person other than the Company shall be a necessary
party in any proceeding under Section 8.5 or may require the Trustee to account
or may institute any other action or proceeding against the Trustee or the
Trust.
Page 21
<PAGE>
ARTICLE IX
Compensation, Taxes and Expenses
9.1. Compensation and Expenses. Any expenses incurred by the Trustee in
connection with its administration of the Master Trust including, but not
limited to, fees for legal services rendered to the Trustee (whether or not
rendered in connection with a judicial or administrative proceeding), such
compensation to the Trustee as shall be agreed upon from time to time between
the Trustee and the Company, and all other proper charges and disbursements of
the Trustee, shall be paid from the Master Fund, unless paid by the Company.
Anything in the preceding sentence to the contrary notwithstanding, the Company
shall reimburse the Trustee for any such fees and expenses if for any reason
such expenses are not paid out of the Master Fund. The Trustee's entitlement to
reimbursement hereunder shall not be affected by the resignation or removal of
the Trustee or by the termination of the Trust. The Named Fiduciary may direct
the Trustee to pay from the Master Fund any other administration expenses of a
Participating Plan. Each direction to the Trustee under this Section and Section
9.3 shall constitute a certification by the Named Fiduciary that such direction
is in accordance with applicable law, the terms of any relevant Participating
Plan and the terms of this Agreement, and the Trustee shall have no duty to make
any independent inquiry or investigation as to any of the foregoing before
acting upon such direction, or to see to the application of any moneys paid
over.
9.2. Taxes. All taxes of any and all kinds whatsoever that may be levied
or assessed under existing or future laws, domestic or foreign, upon the Master
Fund or the income thereof shall be paid from the Master Fund.
The Trustee shall notify the Named Fiduciary of any taxes that may be
assessed. In the event that the Named Fiduciary shall determine that the taxes
are not lawfully assessed, it may elect to direct the Trustee at the expense of
the Trust, or may itself, contest such assessment.
9.3. Allocation. Any tax or expense paid from the Master Fund hereunder
which is determined by the Named Fiduciary to be specifically allocable to one
or more Investment Funds or Participating Plans, as the case may be, shall be
charged against such Investment Funds or the
Page 22
<PAGE>
Share of such Participating Plan or Plans, in such proportions as the Named
Fiduciary shall direct the Trustee. Any expense which is allocable to all of the
Investment Funds or all of the Participating Plans shall be charged against the
Master Fund as a whole.
ARTICLE X
Resignation or Removal of Trustee
10.1. Resignation or Removal. The Trustee may be removed by the Company at
any time upon sixty (60) days' notice in writing to the Trustee. The Trustee may
resign at any time upon sixty (60) days' notice in writing to the Company.
10.2. Designation of a Successor. Upon the removal or resignation of the
Trustee, the Company shall either appoint a successor trustee who shall have the
same powers and duties as those conferred upon the Trustee hereunder, and upon
acceptance of such appointment by the successor trustee, the Trustee shall
assign, transfer and pay over the Master Fund to such successor trustee, or the
Company shall direct the Trustee to assign, transfer and payover the Master Fund
to one or more insurance companies pursuant to insurance contracts issued to the
Participating Plans. If, for any reason, the Company cannot or does not act
promptly to appoint a successor trustee or designate an insurance company in the
event of the resignation or removal of the Trustee, the Trustee may apply to a
court of competent jurisdiction for the appointment of a successor trustee. Any
expenses incurred by the Trustee in connection therewith shall be charged to and
paid from the Master Fund as an expense of administration.
10.3. Reserve for Expenses. The Trustee is authorized to reserve such
amount as to it may deem advisable for payments of its fees and expenses in
connection with the settlement of its account or otherwise, and any balance of
such reserve remaining after the payment of such fees and expenses shall be paid
over in accordance with the directions of the Company under 10.2. The Trustee is
authorized to invest such reserves in any investment authorized under the terms
of this Agreement appropriate for the temporary investment of cash reserves of
trusts.
Page 23
<PAGE>
ARTICLE XI
Withdrawal of Participating Plans
11.1. Event of Withdrawal. Upon receipt of notice from the Company of the
termination (including any partial termination) and distribution of the assets
of a Participating Plan or of the withdrawal of any Participating Plan, or part
thereof, from the Trust, the Trustee shall segregate the share of the assets of
the Master Fund allocable to such Participating Plan, or part thereof, and shall
dispose of such assets in accordance with the directions of the Company.
11.2. Disqualification. The Company shall promptly notify the Trustee if
any Participating Plan has been or is likely to be disqualified under Section
401 of the Code. In that event, the Share of such Participating Plan shall be
treated as a Plan withdrawn pursuant to Section 11.1.
11.3. Approval of Appropriate Agencies. The Trustee may, in its absolute
discretion, condition delivery, transfer or distribution of any assets withdrawn
from the Master Fund under this Article XI upon the Trustee's receiving
assurances satisfactory to it that any notice which may be required to be given
under ERISA or the Code to any Person, the Department of Labor or the Internal
Revenue Service has been given, or that any filing which is required to be made
to determine that a termination has not affected the qualification of a
Participating Plan has been made, and that any plan to which such assets are to
be transferred is a qualified plan under Section 401(a) of the Code. The Trustee
shall not be responsible under any Participating Plan to give any such notice or
make any such filings or maintain any records required under ERISA or the Code,
all of which, for purposes of this Agreement, shall be the responsibility of the
Company.
11.4. Reversion to Company. Under no circumstances shall any contributions
made to the Master Trust Fund be used other than for the benefit of
Participants. Further, except as otherwise provided specifically in one or more
of the Participating Plans with respect to the return of contributions made by a
mistake of fact, or with respect to the return of contributions expressly
conditioned upon the deductibility of the contribution and such deduction is
Page 24
<PAGE>
disallowed, the Master Fund shall not revert to the Company or to any subsidiary
or affiliate thereof.
ARTICLE XII
Amendment or Termination
12.1. Amendment. Subject to Section 1.4, the Company reserves the right at
any time and from time to time to amend, in whole or in part, any or all of the
provisions of this Agreement by notice thereof in writing delivered to the
Trustee; provided, however, no amendment which affects the rights, duties or
responsibilities of the Trustee may be made without its prior written consent.
12.2. Termination. Subject to Section 1.4, the Company reserves the right
to terminate this Agreement by notice in writing thereof delivered to the
Trustee. In the event of termination, the Trustee shall dispose of the Master
Fund, after the payment of or other provision for all of its expenses (including
any compensation to which the Trustee may be entitled), all in accordance with
the written directions of the Company. In the event that termination results
from the removal of the Trustee or the withdrawal of all of the Participating
Plans, then such disposition shall be implemented in accordance with the
provisions of Article X or Article XI as the case may be.
12.3. Trustee's Authority to Survive Termination. Until the final
distribution of the Master Fund, the Trustee shall continue to have and may
exercise all of the powers and discretions conferred upon it by this Agreement.
ARTICLE XIII
Tender Offers
13.1. In General. In the event that any person (other than the Company or
any affiliate thereof) shall make a public offer for Company Stock held in the
Common Stock Fund, the Company undertakes to provide promptly a copy of the
offer, and any other material information concerning such offer, to each
Participating Plan participant (including, for the purposes of this
Page 25
<PAGE>
Article XIII, any beneficiary of a deceased participant) who has an interest in
the Common Stock Fund with a form for furnishing to the Trustee timely
instructions as to whether the Company Stock allocated to participants' accounts
for purposes of this Article XIII should be tendered. Each participant may elect
that all, but not less than all, of the Company Stock allocated to his account
be tendered by the Trustee on his behalf. Upon timely receipt of instructions
from a participant to so tender, the Trustee shall tender all such Company Stock
allocated to such participant's account. Any Company Stock held by the Trustee
as to which it receives either no instruction or incomplete instructions from a
participant to whose account such stock is allocated shall not be tendered. In
the event that participants' instructions cannot otherwise be returned to the
Trustee in a timely fashion, the Company agrees to collect and tabulate such
instructions in a manner that will assure a confidential and accurate tabulation
and timely tender by the Trustee. Any securities or other property received by
the Trustee as a result of having tendered Company Stock, as hereinabove
provided, shall be held, and any cash so received shall be invested in short
term investments, pending any further action which the Trustee may be required
or directed to take pursuant to the Plan. Notwithstanding anything in this
Agreement to the contrary, during the period of any public offer for Company
Stock, the Trustee shall refrain from making purchases of Company Stock under
this Agreement. In addition to any compensation or expenses provided under
Section 9.1, the Trustee shall be entitled to reasonable compensation and
reimbursement for its out-of-pocket expenses for any services attributable to
the duties and responsibilities described in this Section 13.1.
13.2. Trustee's Indemnification. In addition to any other claims the
Trustee may have under this Agreement or by law, the Company hereby agrees to
hold the Trustee harmless and to indemnify the Trustee from and against any and
all losses, claims, damages, liabilities or expenses whatsoever (including, but
not limited to, any and all expenses reasonably incurred in investigating,
preparing or defending against any litigation or proceeding, commenced or
threatened, or any claim whatsoever), (a) arising out of, relating to or in
connection with any public offer of the kind referred to above, whether in
respect of the solicitation of directions from
Page 26
<PAGE>
Participating Plan participants, or tabulating, reporting or acting upon such
directions or otherwise, or (b) arising out of or based upon any untrue
statement or alleged untrue statement contained in any instrument, document or
other material furnished by or through the Company to Participating Plan
participants, or otherwise used by the Company or authorized by it for use in
respect of, any such public offer or arising out of or based upon an omission or
alleged omission to state a material fact required to be stated or necessary to
make other statements made in any such material not misleading, except, solely
in the case of indemnification pursuant to clause (a), for a loss, claim,
damage, liability or expense primarily attributable to the bad faith or gross
negligence of the Trustee.
ARTICLE XIV
Authorities
14.1. Company. Whenever the provisions of this Agreement specifically
require or permit any action to be taken by "the Company", such action must be
authorized by the Board of Directors. Any resolution adopted by the Board of
Directors or other evidence of such authorization shall be certified to the
Trustee by the Secretary or an Assistant Secretary of the Company under
corporate seal, and the Trustee may rely upon any authorization so certified
until revoked or modified by a further action of the Board of Directors
similarly certified to the Trustee.
14.2. Subsidiary or Affiliate. Any action required or permitted to be
taken under this Agreement by a subsidiary or affiliate of the Company shall be
given by the Board of Directors thereof in the manner described in Section 14.1.
14.3. Named Fiduciary and Committee. The Company shall furnish the Trustee
from time to time with a list of the names and signatures of all Persons (other
than the Company) authorized hereunder: (i) to receive accountings under Section
1.2(a); (ii) to act as a Named Fiduciary; (iii) as members of the Administrative
Committee; or (iv) in any manner authorized to issue orders, notices, requests,
instructions and objections to the Trustee pursuant to the
Page 27
<PAGE>
provisions of this Agreement. Any such list and the form of the instructions
shall be certified to the Trustee by the Secretary or an Assistant Secretary of
the Company (or by the Secretary or an Assistant Secretary of any subsidiary or
affiliate of the Company which, in the opinion of counsel to the Company, has
not delegated that authority to the Company) and may be relied upon for accuracy
and completeness by the Trustee. Each such Person shall thereupon furnish the
Trustee with a list of the names and signatures of those individuals, if any,
who are authorized, jointly or severally or otherwise, to act for such Person
hereunder, and the Trustee shall be fully protected in acting upon any notices
or directions received from any of them.
14.4. Investment Manager. The Named Fiduciary shall cause each Investment
Manager to furnish the Trustee from time to time with the names and signatures
of those persons authorized to direct the Trustee on its behalf hereunder.
14.5. Form of Communications. Any agreement or understanding between the
Company and any Person (including an Investment Manager) or any other provision
of this Agreement to the contrary notwithstanding, all notices, directions and
other communications to the Trustee shall be in writing or in such other form,
including transmission by electronic means through the facilities of third
parties or otherwise, specifically agreed to in writing by the Trustee. The
Trustee shall be fully protected in acting in accordance therewith, but shall
not thereby assume responsibility for the failure or breakdown of any such means
of communication not due to its own negligence or willful misconduct.
14.6. Continuation of Authority. The Trustee shall have the right to
assume, in the absence of written notice to the contrary, that no event
constituting a change in the composition or authority of the Named Fiduciary or
membership of the Administrative Committee or terminating the authority of any
Person, including any Investment Manager, has occurred.
14.7. No Obligation to Act on Unsatisfactory Notice. The Trustee shall
incur no liability under this Agreement for any failure to act pursuant to any
notice, direction or any other communication from any Asset Manager, the
Company, the Named Fiduciary, the
Page 28
<PAGE>
Administrative Committee, or any other Person or the designee of any of them
unless and until it shall have received instructions in form specified in this
Article XIV.
ARTICLE XV
General Provisions
15.1. Governing Law. To the extent that state law shall not have been
preempted by the provisions of ERISA or any other law of the United States
heretofore or hereafter enacted, this Agreement shall be administered, construed
and enforced according to the laws of the State of New York.
15.2. Entire Agreement. The Trustee's duties and responsibilities to any
Participating Plan or any Person interested therein shall be limited to those
specifically set forth in this Agreement. No amendment to any Participating Plan
or agreement or instrument affecting any Participating Plan or any other
document shall affect the Trustee's duties or responsibilities hereunder without
its prior written consent.
15.3. Mistake. No mistake made in good faith and in the exercise of due
care in connection with the administration of the Master Fund shall be deemed to
be a breach of the Trustee's duties if, promptly after discovery of the mistake,
the Trustee takes whatever action may be practicable in the circumstances to
remedy the mistake.
15.4. Reliance on Experts. The Trustee may consult with experts (who may
be experts employed by the Company) including legal counsel, appraisers, pricing
services, accountants or actuaries, selected by it with due care with respect to
the meaning and construction of this Agreement or any provision hereof, or
concerning its powers and duties hereunder, and shall be protected for any
action taken or omitted by it in good faith pursuant to or on the basis of the
opinion of any such expert.
15.5. Successor to the Trustee. Any successor, by merger or otherwise, to
substantially all of the trust business of Bankers shall automatically and
without further action become the
Page 29
<PAGE>
Trustee hereunder, subject to all the terms and conditions and entitled to all
the benefits and immunities hereof.
15.6. Notices. All notices, reports, annual accounts and other
communications from the Trustee to the Company, the Named Fiduciary,
Administrative Committee, Investment Manager, or any other Person shall be
deemed to have been duly given if mailed, postage prepaid, or delivered in hand
to such Person at its address appearing on the records of the Trustee, which
address shall be filed with the Trustee at the time of the establishment of the
Trust and shall be kept current thereafter by the Named Fiduciary. All
directions, notices, statements, objections and other communications to the
Trustee shall be deemed to have been given when received by the Trustee at its
offices in the form provided in Article XIV.
15.7. Plan Documents. The Named Fiduciary shall provide the Trustee with
complete, current copies of all Participating Plans and the most recent tax
qualification letters relative thereto. The Trustee shall be entitled to rely
upon the Named Fiduciary's attention to this obligation and shall be under no
duty to inquire of any Person as to the existence of any documents not provided
hereunder.
15.8. No Waiver; Reservation of Rights. The rights, remedies, privileges
and immunities expressed herein are cumulative and are not exclusive, and the
Trustee shall be entitled to claim all other rights, remedies, privileges and
immunities to which it may be entitled under applicable law.
15.9. Descriptive Headings. The captions in this Agreement are solely for
convenience of reference and shall not define or limit the provisions hereof.
15.10. Spendthrift Provision. Except as may be required by law, no
interest or claim of interest of any kind of any participant in any
Participating Plan under the provisions of this Trust is assignable, nor may any
such interest or claim be subject to garnishment, attachment, execution or levy
of any kind, and no attempt to transfer, assign, pledge or otherwise encumber or
dispose of such interest by act of the Person involved or by operation of law
will be recognized.
Page 30
<PAGE>
ARTICLE XVI
Undertaking by Company
16.1. Undertaking. In consideration of Bankers' agreeing to enter into
this Agreement, the Company hereby agrees to hold harmless Bankers, individually
and as Trustee, and Bankers' directors, officers, and employees, from and
against all amounts, including without limitation taxes, expenses (including
reasonable counsel fees), liabilities, claims, damages, actions, suits or other
charges, incurred by or assessed against Bankers, individually or as Trustee, or
its directors, officers or employees (i) as a direct or indirect result of any
act or omission of any predecessor trustee or fiduciary appointed under any
Participating Plan; (ii) as a direct or indirect result of anything done in good
faith, or alleged to have been done, by or on behalf of Bankers in reliance upon
the directions of any Investment Manager, the Administrative Committee, the
Company, or the Named Fiduciary, or anything omitted to be done in good faith,
or alleged to have been omitted, in the absence of such directions; (iii) as a
direct or indirect result of any transaction effected by Bankers in accordance
with directions received by Bankers by or in the name of a Participant, or any
information provided by Bankers in good faith at the request of a Participant,
pursuant to Section 2.5 hereof, or (iv) as a direct or indirect result of the
failure of the Company, the Administrative Committee, or the Named Fiduciary,
directly or indirectly, to adequately, carefully and diligently discharge its
fiduciary responsibilities with respect to the Participating Plans.
16.2. Limitation on Undertaking. Anything hereinabove to the contrary
notwithstanding, the Company shall have no responsibility to Bankers under
Section 16.1 (ii) or (iv) if Bankers knowingly participated in or knowingly
concealed any act or omission of any Person described therein knowing that such
act or omission constituted a breach of such Person's fiduciary
responsibilities, or if Bankers fails to perform any of the duties specifically
undertaken by it under the provisions of this Agreement in the manner herein
provided, or if Bankers fails to act in conformity with duly given and
authorized directions hereunder.
Page 31
<PAGE>
16.3. Waiver of Defense. The Company expressly waives and shall be forever
estopped from asserting as a defense against Bankers, or any of its directors,
officers or employees, in any action to enforce this undertaking that any one of
them failed to discharge any obligation he, she or it may have or to be deemed
to have had under any statute governing the conduct of fiduciaries in following
the directions of the Company, the Named Fiduciary or Administrative Committee,
the Investment Manager or any Person duly authorized to act for any of them
under Article XIV.
16.4. Survival of Undertakings. The Company further agrees that the
undertakings made in this Article XVI shall be binding on its successors or
assigns and shall survive termination, amendment or restatement of this
Agreement, or the resignation or removal of the Trustee, and that this Article
shall be construed as a contract between the Company and the Trustee according
to the laws of the State of New York in effect from time to time.
Page 32
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and their
corporate seals to be hereunto affixed and attested to as of the day and year
first above written.
(Corporate Seal) OMNICOM GROUP INC.
Attest: By /s/ Bruce Crawford
-----------------------------------
(Title)
/s/ Barry J. Wagner
- ---------------------------------
(Title)
(Corporate Seal)
BANKERS TRUST COMPANY
Attest: By /s/ Yolanda I. Diaz
-----------------------------------
Yolanda I. Diaz
(Title) Vice President
/s/ Phaedra Boer
- ---------------------------------
(Title) Assistant Vice President
Page 33
<PAGE>
APPENDIX A
OMNICOM GROUP PROFIT SHARING RETIREMENT PLAN
<PAGE>
APPENDIX B
FIXED FUND
SOUTHEASTERN ASSET MANAGEMENT
BARING ASSET MANAGEMENT
BANKERS TRUST S&P 500 INDEX FUND
COMPANY STOCK FUND
Exhibit 5
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TEL 212 259-8000 FAX 212 259-6333
March 17, 1999
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
Re: Registration Statement on Form S-8 Filed with the Securities
and Exchange Commission on March 17, 1999
Gentlemen:
We are acting as counsel for Omnicom Group Inc., a New York
corporation ("Omnicom"), in connection with the registration by Omnicom under
the Securities Act of 1933, as amended (the "Act"), of 1,500,000 shares of
common stock, par value $.50 per share (the "Shares"), offered pursuant to the
Omnicom Group Profit-Sharing Retirement Plan (the "Plan") under the Registration
Statement on Form S-8 filed with the Securities and Exchange Commission on March
17, 1999 (the "Registration Statement").
We are familiar with the proceedings of Omnicom relating to the
authorization and issuance of the Shares. In addition, we have made such further
examinations of law and fact as we have deemed appropriate in connection with
the opinion hereinafter set forth. We express no opinion as to the law of any
jurisdiction other than the laws of the State of New York.
Based upon the foregoing, we are of the opinion that the Shares
offered pursuant to the Plan have been duly authorized and, when issued in
accordance with the resolutions of the Board of Directors of Omnicom authorizing
such issuance, will be validly issued, fully paid and nonassessable.
<PAGE>
Omnicom Group Inc.
March 17, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act, or under the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 18, 1998
(except for Note 14 as to which the date is March 24, 1998) included in Omnicom
Group Inc.'s Form 10-K for the year ended December 31, 1997 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
New York, New York
March 17, 1999
