As filed with the Securities and Exchange Commission on November 12, 1999.
Registration No.333-
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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 of (I.R.S. Employer Identification No.)
incorporation or organization)
437 Madison Avenue
New York, New York 10022
(Address of principal executive offices, including zip code)
The M/A/R/C Group 1997 Stock Option Plan
(With Limited Stock Appreciation Rights),
The M/A/R/C Group 1991 Executive Stock Plan
And
Certain Common Stock Warrants
(Full title of the plans)
Barry J. Wagner, Esq.
Secretary and General Counsel
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
(Name and address of agent for service)
(212) 415-3600
(Telephone number, including area code, of agent for service)
Copy to:
Brad J. Schwartzberg, Esq.
Davis & Gilbert LLP
1740 Broadway
New York, New York 10019
(212) 468-4966
Calculation of Registration Fee
<TABLE>
<CAPTION>
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Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered(1) offering aggregate offering registration fee
Price per share(2) price(2)
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<S> <C> <C> <C> <C>
Common Stock, par value $.50 per 8,194 $26.27 $215,256.38 $59.84
share, underlying outstanding 1,444 $44.62 $64,431.28 $17.91
substitute options and/or common 1,926 $45.65 $87,921.90 $24.44
stock warrants to acquire shares of 5,782 $46.36 $268,053.52 $74.52
Omnicom Group Inc. Common Stock 2,409 $46.69 $112,476.21 $31.27
under the following plans (which 1,204 $49.80 $59,959.20 $16.67
were assumed by Omnicom Group Inc. 14,457 $51.46 $743,957.22 $206.82
pursuant to the terms of a merger 1,444 $55.53 $80,185.32 $22.29
agreement between M/A/R/C Inc. and 9,154 $56.03 $512,898.62 $142.59
Omnicom Group Inc.): The M/A/R/C 2,166 $57.07 $123,613.62 $34.36
Group 1997 Stock Option Plan (With 2,166 $57.61 $124,783.26 $34.69
Limited Stock Appreciation Rights), 1,444 $58.10 $83,896.40 $23.32
The M/A/R/C Group 1991 Executive 3,614 $59.68 $215,683.52 $59.96
Stock Plan and certain M/A/R/C Inc. 92,046 $62.25 $5,729,863.50 $1,592.90
common stock warrants. 3,851 $63.29 $243,729.79 $67.76
8,433 $66.40 $559,951.20 $155.67
TOTALS: 159,734 $9,226,660.94 $2,565.01
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</TABLE>
(1) The shares of Common Stock being registered hereunder are reserved for
issuance pursuant to (i) the Registrant's assumed stock option plan, The
M/A/R/C Group 1997 Stock Option Plan (With Limited Stock Appreciation
Rights), in respect of which Omnicom Group Inc. has converted 460,150
shares underlying options to acquire M/A/R/C Inc. common stock into 110,820
shares underlying options to acquire Omnicom Group Inc. Common Stock, (ii)
the Registrant's assumed stock option plan, The M/A/R/C Group 1991
Executive Stock Plan, in respect of which Omnicom Group Inc. has converted
118,020 shares underlying options to acquire M/A/R/C Inc. common stock into
28,433 shares underlying options to acquire Omnicom Group Inc. Common
Stock, and (iii) the Registrant's assumed common stock warrants, being
certain common stock warrants to acquire shares of M/A/R/C Inc. common
stock, in respect of which Omnicom Group Inc. converted 85,000 shares
underlying such common stock warrants to acquire M/A/R/C Inc. common stock
into 20,481 shares underlying substitute common stock warrants to acquire
Omnicom Group Inc. Common Stock. Pursuant to Rule 416 of the Securities Act
of 1933, as amended, this Registration Statement also covers such number of
additional shares of Common Stock as may become available for issuance
pursuant to the foregoing plans in the event of certain changes in
outstanding shares, including changes resulting from reorganizations,
recapitalizations, stock splits, stock dividends, reverse stock splits and
similar transactions. Pursuant to Rule 457(h), the actual exercise prices
of the options and/or warrants to acquire Omnicom Group Inc. Common Stock
have been used in the calculation of the Registration Fee.
(2) The range of exercise prices relating to substitute options to acquire
Omnicom Group Inc. Common Stock in respect of The M/A/R/C Group 1997 Stock
Option Plan (With Limited Stock Appreciation Rights) is $44.62 - $63.29.
The range of exercise prices relating to substitute options to acquire
Omnicom Group Inc. Common Stock in respect of The M/A/R/C Group 1991
Executive Stock Plan is $26.27 - $51.46. The range of exercise prices
relating to substitute common stock warrants to acquire Omnicom Group Inc.
Common Stock is $62.25 - $66.40.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The document(s) containing the information specified in Part I of this
Registration Statement will be sent or given to (i) participants in The M/A/R/C
Group 1997 Stock Option Plan (With Limited Stock Appreciation Rights), (ii)
participants in The M/A/R/C Group 1991 Executive Stock Plan, and (iii) common
stock warrant holders (collectively, the "Plans"), as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Act"). In
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"), such documents are not required to be filed with
the Commission as part of this Registration Statement. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Act.
Item 2. Registrant Information and Employee Plan Annual Information
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(a) or
additional information about the Plans are available without charge by
contacting:
Barry J. Wagner, Esq.
Secretary and General Counsel
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
(212) 415-3600
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission are incorporated into
this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(e) The description of the Registrant'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; and
(f) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act.
All reports and other documents filed by the Registrant pursuant to
sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement but prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of each such
report or other document. 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 modified 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, 1998 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.
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 provisions
limiting the liability of directors (except for approving statutorily prohibited
dividends, share repurchases or redemption, 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
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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 attorneys' fees actually and necessarily incurred as a
result of such action, or any appeal therein, if such director or officer acted
in good faith, for a purpose which he reasonably believed to be in, or in the
case of service for any other corporation or other enterprise, not opposed to,
the best interests of the corporation and, in criminal actions, in addition, had
no reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the New York Business Corporation Law provides that
a corporation may indemnify any officer of 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 defenses or settlement of such action, or
in connection with an appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for another corporation or other enterprise, not opposed to, the best
interests of the corporation. The corporation may not, however, indemnify any
officer or director pursuant to Section 722(c) in respect of (1) a threatened
action, or a pending action which is settled or otherwise disposed of, or (2)
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation, unless and only to the extent that the court in
which the action was brought or, if no action was brought, any court of
competent jurisdiction, determines 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.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
4.1 The M/A/R/C Group 1997 Stock Option Plan (With Limited Stock
Appreciation Rights)(Incorporated by reference to M/A/R/C Inc.'s
Registration Statement on Form S-8 filed on September 17, 1999).
4.2 The M/A/R/C Group 1991 Executive Stock Plan (Incorporated by reference
to Exhibit 10.11 to M/A/R/C Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1992).
4.3 Warrant Certificate No. 30 (Incorporated by reference to Exhibit 4.4 to
M/A/R/C Inc.'s Registration Statement on Form S-8 filed on September
17, 1999).
4.4 Warrant Certificate No. 32 (Incorporated by reference to Exhibit 4.6 to
M/A/R/C Inc.'s Registration Statement on Form S-8 filed on September
17, 1999).
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5 Opinion of Davis & Gilbert LLP, filed herewith.
23.1 Consent of Arthur Andersen LLP, filed herewith.
23.2 Consent of Davis & Gilbert LLP (contained in the opinion previously
filed as Exhibit 5).
25 Power of Attorney (appearing on page II-4).
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Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(b) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(c) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described in Item 6 above, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York in the State of
New York on November 12, 1999.
OMNICOM GROUP INC.
By: /s/ John Wren
------------------------------------
John Wren
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
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 and 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 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 name, to any amendment to this Registration Statement in respect of said
shares 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: November 12, 1999 By: /s/ John Wren
----------------------------------------
John Wren
President, Chief Executive Officer and
Director
(Principal Executive Officer)
Date: November 12, 1999 By: /s/ Randall Weisenburger
-----------------------------------
Randall Weisenburger
Chief Financial Officer
(Principal Financial Officer)
Date: November 12, 1999 By: /s/ Philip J. Angelastro
----------------------------------------
Philip J. Angelastro
Controller
(Principal Accounting Officer)
Date: November 12, 1999 By: /s/ Bernard Brochand
----------------------------------------
Bernard Brochand
Director
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Date: November 12, 1999 By: /s/ Robert J. Callander
----------------------------------------
Robert J. Callander
Director
Date: November 12, 1999 By: /s/ James A. Cannon
----------------------------------------
James A. Cannon
Director
Date: November 12, 1999 By: /s/ Leonard S. Coleman, Jr.
----------------------------------------
Leonard S. Coleman, Jr.
Director
Date: November 12, 1999 By: /s/ Bruce Crawford
----------------------------------------
Bruce Crawford
Director
Date: November 12, 1999 By: /s/ Susan S. Denison
----------------------------------------
Susan S. Denison
Director
Date: November 12, 1999 By: /s/ Peter Foy
----------------------------------------
Peter Foy
Director
Date: November 12, 1999 By: /s/ Thomas L. Harrison
----------------------------------------
Thomas L. Harrison
Director
Date: November 12, 1999 By: /s/ John R. Murphy
----------------------------------------
John R. Murphy
Director
Date: November 12, 1999 By: /s/ John R. Purcell
----------------------------------------
John R. Purcell
Director
Date: November 12, 1999 By: /s/ Keith L. Reinhardt
----------------------------------------
Keith L. Reinhardt
Director
Date: November 12, 1999 By: /s/ Allen Rosenshine
----------------------------------------
Allen Rosenshine
Director
Date: November 12, 1999 By: /s/ Gary L. Roubos
----------------------------------------
Gary L. Roubos
Director
Date: November 12, 1999 By: /s/ Quentin I. Smith, Jr.
----------------------------------------
Quentin I. Smith, Jr.
Director
Date: November 12, 1999 By: /s/ Egon P.S. Zehnder
----------------------------------------
Egon P.S. Zehnder
Director
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EXHIBIT INDEX
4.1 The M/A/R/C Group 1997 Stock Option Plan (With Limited Stock
Appreciation Rights)(Incorporated by reference to M/A/R/C Inc.'s
Registration Statement on Form S-8 filed on September 17, 1999).
4.2 The M/A/R/C Group 1991 Executive Stock Plan (Incorporated by reference
to Exhibit 10.11 to M/A/R/C Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1992).
4.3 Warrant Certificate No. 30 (Incorporated by reference to Exhibit 4.4 to
M/A/R/C Inc.'s Registration Statement on Form S-8 filed on September 17,
1999).
4.4 Warrant Certificate No. 32 (Incorporated by reference to Exhibit 4.6 to
M/A/R/C Inc.'s Registration Statement on Form S-8 filed on September 17,
1999).
5 Opinion of Davis & Gilbert LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Davis & Gilbert LLP (contained in the opinion previously
filed as Exhibit 5).
25 Power of Attorney (appearing on page II-4).
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Exhibit 5
[Davis & Gilbert Letterhead]
November 12, 1999
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
Re: The M/A/R/C Group 1997 Stock Option Plan (With Limited Stock
Appreciation Rights), The M/A/R/C Group 1991 Executive Stock
Plan, and common stock warrant holders
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Ladies and Gentlemen:
We have acted as counsel to Omnicom Group Inc. (the "Company")
in connection with the preparation of a Registration Statement on Form S-8 (the
"Registration Statement') under the Securities Act of 1933, as amended (the
"Act"), to be filed with the Securities and Exchange Commission with respect to
an aggregate of 159,734 shares of Common Stock, par value $.50 per share (the
"Shares"), issuable pursuant to the conversion of options to acquire shares of
M/A/R/C Inc. ("MARC") under The M/A/R/C Group 1997 Stock Option Plan (With
Limited Stock Appreciation Rights) and The M/A/R/C Group 1991 Executive Stock
Plan into options to acquire shares of the Company, and the conversion of
certain common stock warrants to acquire MARC into common stock warrants to
acquire the Company (The M/A/R/C Group 1997 Stock Option Plan (With Limited
Stock Appreciation Rights), The M/A/R/C Group 1991 Executive Stock Plan and the
common stock warrants are hereinafter collectively referred to as the "Plans").
We have examined such certificates, records, statutes and
other documents as we have deemed relevant in rendering this opinion. As to
matters of fact, we have relied on representations of officers of the Company.
In our examination, we have assumed the genuineness of documents submitted to us
as originals and the conformity with the original of all documents submitted to
us as copies thereof.
Based upon and subject to the foregoing, we are of the opinion
that when issued by the Company in accordance with the terms and conditions of
the Plans and following the receipt of consideration therefor in accordance with
the terms of the Plans, such Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving such consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
DAVIS & GILBERT LLP
/s/ Davis & Gilbert LLP
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Exhibit 23.1
[Arthur Andersen LLP Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 16, 1999
included in Omnicom Group Inc.'s Form 10-K for the year ended December 31, 1998
and to all references to our Firm included in this Registration Statement.
Arthur Andersen LLP
/s/ Arthur Andersen LLP
New York, New York
November 12, 1999
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