As filed with the Securities and Exchange Commission on April 26, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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
(212) 415-3600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------------
BARRY J. WAGNER, ESQ.
Secretary
Omnicom Group Inc.
437 Madison Avenue
New York, New York l0022
(212) 415-3600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
Please send copies of all communications and notices to:
MICHAEL D. DITZIAN, ESQ.
Davis & Gilbert LLP
1740 Broadway
New York, New York 10019
(212) 468-4800
----------------------
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of the Registration Statement.
----------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box: [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
Registration Statement for the same offering: [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered (1) price per share (2) offering price (2) registration fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.50 par value 110,000 shs. $89.53125 $9,848,437.50 $2,600
=====================================================================================================================
</TABLE>
(1) Plus such additional indeterminate number of shares as may become issuable
upon exchange of the exchangeable shares of TAI Acquisition Inc. as a
result of the antidilution provisions contained in the charter documents of
TAI Acquisition Inc. with respect to such exchangeable shares.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c), based upon the average of the high and low prices
of the Common Stock of Omnicom on April 26, 2000, as reported by the New
York Stock Exchange.
----------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
================================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time when the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or the
solicitation of any offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED April 26, 2000
PROSPECTUS
OMNICOM GROUP INC.
Common Stock
110,000 Shares
------------------
This is an offering of 110,000 shares of common stock at $0.50 per share of
Omnicom Group Inc. The registered shares will be offered for the account of the
selling shareholders. We will issue each share offered here upon the exchange of
an exchangeable share of TAI Acquisition Inc. TAI Acquisition Inc. issued
exchangeable shares to the selling shareholders, all of whom are residents of
Canada, as partial consideration for the shares of Tudhope Associates Inc. Under
this Canadian transaction, the shares to be acquired upon the exchange of
exchangeable shares will be issued from time to time to the selling
shareholders.
We are registering shares to permit public secondary trading by the
shareholders from time to time after the date of this Prospectus. We have agreed
to bear all expenses (other than underwriting discounts and commissions and fees
and expenses of counsel and other advisors to the shareholders) in connection
with the registration and sale of the shares covered by this prospectus.
However, we have not agreed to provide, or incur any expenses in connection with
accountants' "cold comfort" letters, opinions of counsel, or to enter into
underwriting agreements, as would be customary in an underwritten offering.
We will not receive any of the sale proceeds from the sales of shares by
the selling shareholders. Our shares may be offered in negotiated transactions
or otherwise at market prices prevailing at the time of sale or at negotiated
prices. The selling shareholders may be deemed to be underwriters within the
meaning of the Securities Act of 1933, as amended. If any broker-dealers
purchase any shares as principals, any profits received by them on the resale of
such shares may be deemed to be underwriting discounts or commissions under the
Securities Act. In addition, any profits realized by the selling shareholders
may be deemed to be underwriting commissions.
Our shares currently trade on the New York Stock Exchange under the symbol
OMC. On April 26, 2000, the last reported sale price for such shares, as
reported by the New York Stock Exchange, was $89.94 per share.
-----------------
Neither the Securities and Exchange Commission nor any State Securities
Commission has approved or disapproved these securities or determined
if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
Prospectus dated April 26, 2000.
<PAGE>
TABLE OF CONTENTS
AVAILABLE INFORMATION ...................................................... 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ............................ 3
THE COMPANY ................................................................ 4
USE OF PROCEEDS ............................................................ 4
DESCRIPTION OF CAPITAL STOCK ............................................... 4
DESCRIPTION OF EXCHANGEABLE SHARES ......................................... 5
SELLING SHAREHOLDERS ....................................................... 7
PLAN OF DISTRIBUTION ....................................................... 7
EXPERTS .................................................................... 8
LEGAL MATTERS .............................................................. 8
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No person is authorized to give any information or to make any representations,
other than those contained or incorporated by reference in this prospectus, in
connection with the offering contemplated hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the company or the selling shareholder. This prospectus does not constitute
an offer to sell or a solicitation of an offer to buy any securities other than
the registered securities to which it relates. This prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
in any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this prospectus nor
any sale made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the company since the date
hereof or that the information contained or incorporated by reference herein is
correct as of any time subsequent to its date.
AVAILABLE INFORMATION
We have filed a Registration Statement which includes this prospectus.
While this prospectus covers this offering with the Securities and Exchange
Commission, it does not contain all of the information contained in the
Registration Statement. You can request a copy of the Registration Statement and
the exhibits from us to get a more complete description of our company and this
offering. We have provided our address and telephone number in the section
captioned "Incorporation of Certain Documents by Reference" if you wish to
obtain free copies of the Registration Statement and exhibits.
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any reports, statements or other information we file at the Securities and
Exchange Commission's public reference room in Washington, D.C., New York, New
York and Chicago, Illinois. The specific addresses of these locations are
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; 7 World Trade
Center, 13th Floor, New York, New York 10048; and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661, respectively. You can also
request copies of these documents, upon payment of a duplicating fee, by writing
to the Securities and Exchange Commission. Please call the Securities and
Exchange Commission at 1-800-SEC-0330 for further information on the operation
of the public reference rooms. Our Securities and Exchange Commission filings
are also available to the public on the Securities and Exchange Commission
Internet site at http\\www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring to those documents. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the Commission will automatically update and
supersede this information.
We incorporate by reference the following documents filed by us with the
Securities and Exchange Commission:
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
o Our unaudited Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
o Our unaudited Quarterly Report on Form 10-Q for the quarter ended June
30, 1999;
o Our unaudited Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999;
o Our definitive Proxy Statement dated April 10, 2000 for the annual
meeting of shareholders to be held on May 16, 2000;
o All other reports and other documents filed by us pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since December
31, 1998;
o Our description of shares contained in the Registration Statement
filed under Section 12 of the Exchange Act and any amendment or
reports filed for the purposes of updating that description;
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o All documents and reports subsequently filed by us pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the filing of a post-effective amendment which
indicates that all securities which may be offered hereby have been
sold or which deregisters all securities then remaining unsold.
At your request, we will provide you, without charge, with a copy of any
information incorporated by reference in this prospectus. If you want more
information, write or call us at:
Barry J. Wagner, Secretary
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022;
Telephone Number (212) 415-3600.
THE COMPANY
Through our wholly and partially-owned companies, we operate advertising
agencies which plan, create, produce and place advertising in various media such
as television, radio, newspaper, magazines and the internet. We also offer our
clients additional services such as public relations, specialty advertising,
direct response and promotional marketing, strategic media planning and buying,
and internet and digital media development. We offer these services to clients
worldwide on a local, national, pan-regional and global basis. Operations cover
the major regions of North America, the United Kingdom, Continental Europe,
Latin America, the Far East, Australia, the Middle East and Africa. In both 1998
and 1999, approximately 50% of our commissions and fees came from our non-U.S.
operations.
The unaudited industry-wide figures published in 1999 by the trade journal
Advertising Age ranked us as the largest advertising agency group worldwide
according to the unaudited industry wide figures.
We provide services to clients through numerous independent agency brands.
These brands include, among others, BBDO Worldwide, DDB Worldwide, TBWA
Worldwide, Abbott Mead Vickers, Adelphi Group, Alcone Marketing Group, Bernard
Hodes Advertising, Brodeur Worldwide, Case Dunlap, Clark & Weinstock, Claydon
Heeley, CPM International, Diversified Healthcare Communications Group, Doremus
& Company, Fleishman-Hillard, Gavin Anderson & Company, GMR Marketing, Goodby,
Silverstein & Partners, GPC International, Griffin Bacal, GSD&M, Health &
Medical Communications Group, Integer Group, Interbrand, InterOne Marketing
Group, Ketchum, Ketchum Directory Advertising, M/A/R/C Inc., Martin-Williams,
Merkley Newman Harty, Moss Dragoti, Optimum Media Direction, PhD, Porter Novelli
International, Porter Novelli Convergence Group, Rapp Collins Worldwide, Steve
Cram & Associates, TARGIS Healthcare Communications Worldwide, The Designory,
TicToc, TLP, Inc., and Zimmerman & Partners Advertising. In addition, through
our wholly-owned subsidiary Communicade, we have minority equity investments in
several interactive marketing agencies, including, but not limited to,
AGENCY.COM, Ltd.
Our principal executive offices are located at Omnicom Group Inc., 437
Madison Avenue, New York, New York 10022. Our telephone number is (212)
415-3600.
USE OF PROCEEDS
We will not receive any of the sale proceeds from sales of our stock by the
selling shareholders.
DESCRIPTION OF CAPITAL STOCK
We are authorized to issue 300,000,000 shares of common stock at $0.50 per
share, of which 177,746,323 shares were outstanding on March 31, 2000, and
7,500,000 shares of preferred stock at $1.00 per share, of which none is
outstanding. This aggregate number reflects the two-for-one stock split in the
form of a one hundred percent stock dividend on our outstanding shares payable
to shareholders of record on December 16, 1997.
Each share entitles the shareholder to one vote on all matters. All shares
have equal rights and are entitled to such dividends as may be declared by the
Board of Directors out of funds legally available therefor and to share ratably
upon liquidation in the assets available for distribution to stockholders. We
are not aware of any restrictions
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on its present or future ability to pay dividends. However, in connection with
certain borrowing facilities, we are subject to certain restrictions on the
ratio of net cash flow to consolidated indebtedness, the ratio of total
consolidated indebtedness to total consolidated capitalization and on our
ability to make investments in and loans to affiliates and unconsolidated
subsidiaries. The shares are not subject to call or assessment, have no
preemptive conversion or cumulative voting rights and are not subject to
redemption. Our shareholders elect a classified board of directors and can
remove a director only by an affirmative two-thirds vote of all outstanding
shares. Our shareholders also need a two-thirds vote to amend by-laws or certain
provisions of our charter documents, and to change the number of directors
comprising the full board.
We may issue preferred stock in series having whatever rights and
preferences the Board of Directors may determine. One or more series of
preferred stock may be made convertible into common stock at rates determined by
the Board of Directors, and preferred stock may be given priority over common
stock in payment of dividends, rights on liquidation, voting and other rights.
The Board of Directors may authorize an issuance of preferred stock from time to
time without action of the shareholders. Currently, we have no plans to issue
any preferred stock.
We currently have outstanding (i) $218,419,000 of 41/4% Convertible
Subordinated Debentures with a scheduled maturity in 2007, which are convertible
into Common Stock at a conversion price of $31.50, subject to adjustment in
certain events and (ii) $229,997,000 of 21/4% Convertible Subordinated
Debentures with a scheduled maturity in 2013, which are convertible into Common
Stock at a conversion price of $49.83, subject to adjustment in certain events.
ChaseMellon Shareholder Services, L.L.C., 450 West 33rd Street, New York,
New York 10001 is the transfer agent and the registrar of the common stock.
We mail annual reports containing audited financial statements to our
stockholders.
DESCRIPTION OF EXCHANGEABLE SHARES
We entered into the Combination Agreement dated as of March 31, 2000 with
TAI Acquisition Corp. and the shareholders of Tudhope Associates Inc., whereby
TAI Acquisition Inc. acquired all of the issued and outstanding shares of
capital stock of Tudhope Associates Inc.
The authorized capital of TAI Acquisition Inc. includes an unlimited number
of Class A Special Shares, or "exchangeable shares," which served as partial
consideration for the purchase of the issued and outstanding shares of Tudhope
Associates Inc.
The exchangeable shares will be adjusted or modified in the event of a
stock split or other changes to the capital structure of our company to maintain
the initial relationship between the exchangeable shares and our shares.
Retraction of Exchangeable Shares by Holder
At any time prior to January 1, 2010, holders of exchangeable shares have
the right at any time (subject to our call right discussed below) to "retract"
(i.e., require) TAI Acquisition Inc. to redeem any or all of their exchangeable
shares. In return, they would receive an equivalent number of our shares plus an
additional amount to cover any declared and unpaid dividends on the exchangeable
shares.
To exercise the right of retraction, holders of exchangeable shares must
present to TAI Acquisition Inc. the certificate or certificates representing the
exchangeable shares that they want TAI Acquisition Inc. to purchase. They must
also submit any other documents reasonably required to effect the retraction,
including, but not necessarily limited to, a written request providing the
number of exchangeable shares, desired date for the retraction and an
acknowledgement of our overriding right to buy all of the retracted shares
directly from the holder.
TAI Acquisition Inc. must immediately notify us when it has received a
request for retraction. We then have until the date specified in the retraction
request to exercise our "call right" to purchase all but not less than all of
the exchangeable shares directly from the holder. If we choose not to exercise
our call right, then TAI Acquisition Inc. must deliver the number of our shares
equal to the number of exchangeable shares submitted by the holder for
retraction.
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Redemption of Exchangeable Shares by TAI Acquisition Corp.
Subject to applicable law and the exercise of our call right (discussed
below), at any time on or after January 1, 2010, TAI Acquisition Inc. has the
right to redeem all but not less than all of the then outstanding exchangeable
shares in exchange for an equal number of our shares, plus an additional amount
to cover any declared and unpaid dividends on such exchangeable shares.
If TAI Acquisition Inc. decides to exercise its right to redeem the
exchangeable shares, it shall give written notice to us and to each holder of
exchangeable shares of its intentions at least 90 days before the proposed
redemption date.
Notwithstanding any proposed redemption of the exchangeable shares by TAI
Acquisition Inc., we have the overriding "call right" unilaterally to purchase
all but not less than all of the outstanding exchangeable shares. For each
exchangeable share, we will give one share of our common stock, plus an
additional amount to cover any declared and unpaid dividends on such
exchangeable shares, less any tax required to be deducted and withheld by us.
Voting, Dividend and Liquidation Rights of Holders of Exchangeable Shares
Holders of the exchangeable shares will not be entitled to receive notice
of, to attend or to vote at, any shareholder meetings of TAI Acquisition Inc.
other than with respect to (i) the addition to, the change of, or the removal
of, any rights, privileges, restrictions and conditions attaching to the
exchangeable shares and (ii) applicable law.
Holders of the exchangeable shares have the right to receive dividends of
cash or other property from TAI Acquisition Inc. equivalent to any dividends
distributed by us to our shareholders. If TAI Acquisition Inc. determines in
good faith that any dividend payment may incur a tax liability to it, it may
defer payment of such dividend for up to 24 months provided, that it will pay to
the holders of the exchangeable shares interest on the principal amount of such
outstanding dividend to the date of actual payment of such dividend.
Upon the liquidation, dissolution or winding-up of TAI Acquisition Inc.,
holders of the exchangeable shares have preferential rights to receive, prior to
any distribution of TAI Acquisition Inc.'s assets, one share of our company's
common stock for each exchangeable share they hold, plus an additional amount
equivalent to the full amount of any declared and unpaid dividends on each such
exchangeable share.
We have the overriding right, notwithstanding any proposed liquidation,
dissolution or winding up of TAI Acquisition Inc., to purchase all but not less
than all of the outstanding exchangeable shares in exchange for one share of our
common stock for each such exchangeable share, plus an additional amount
equivalent to the full amount of all declared and unpaid dividends on such
exchangeable share, less any tax to be deducted or withheld therefrom by us,
from the holders of the exchangeable shares, at the effective time of any such
liquidation, dissolution or winding up.
Registration Rights of the Holders of Exchangeable Shares
Pursuant to the Registration Rights Agreement dated as of March 31, 2000,
the Company filed the shelf Registration Statement, of which this prospectus
forms a part, with the Securities and Exchange Commission. The shelf
Registration Statement discusses resales by holders of the shares. We have
agreed to use reasonable efforts to keep the Registration Statement effective
until the earlier of (i) the sale pursuant to the Registration Statement of all
of our shares registered thereunder, (ii) the expiration of the holding period
applicable to such shares under Rule 144(k) under the Securities Act of 1933, as
amended, or any successor provision and (iii) the sale pursuant to Rule 144
under the Securities Act of all of our shares. The Registration Rights Agreement
provides that the Company may suspend the use of this prospectus one time in any
three-month period, or two times in any 12-month period, each such suspension
period not to exceed 15 days without extension and in no event to exceed 30
days, under certain circumstances relating to pending corporate developments,
certain public filings with the Securities and Exchange Commission and similar
events. The Registration Rights Agreement provides for selling shareholders to
(i) be named as a selling shareholder in a supplement to this prospectus and
(ii) deliver this prospectus together with the relevant prospectus supplement to
purchasers. Furthermore, the Registration Rights Agreement binds the selling
shareholders to all provisions therein that apply to them (including
indemnification provisions). We have
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agreed to pay all expenses of the Registration Statement, to provide to each
selling shareholder with copies of this prospectus and the relevant prospectus
Supplement, notify each selling shareholder when the Registration Statement has
become effective and take certain other actions required to permit unrestricted
resales of our shares.
SELLING SHAREHOLDERS
We are registering our shares pursuant to the Registration Rights
Agreement. This agreement provides that we will file a Registration Statement
within 30 days following the date thereof. Before being used in connection with
an offering of shares, this prospectus will be supplemented to set forth the
name and number of shares beneficially owned by the selling shareholder
intending to sell such shares and the number of shares to be offered. The
prospectus supplement will also disclose whether any selling shareholder selling
in connection with such prospectus supplement has held any position or office
with, been employed by or otherwise has had a material relationship with, our
company or any of its affiliates during the three years prior to the date of the
prospectus supplement.
PLAN OF DISTRIBUTION
We are registering our shares to permit public secondary trading by the
holders of those shares from time to time after the date of this prospectus. We
have agreed to bear all expenses (other than underwriting discounts and selling
commissions and fees and expenses of counsel and other advisors to holders of
shares) in connection with the registration and sale of the shares covered by
this prospectus; provided, however, we have not agreed to provide, or incur any
expenses in connection with, accountants' "cold comfort" letters, opinions of
counsel, or to enter into underwriting agreements, such as would be customary in
an underwritten offering.
We will not receive any of the proceeds from the offering of our shares by
the selling shareholders. The selling shareholders may sell or distribute some
or all of the our common stock from time to time through dealers or brokers or
other agents or directly to one or more purchasers in transactions (which may
involve crosses and block transactions) on the New York Stock Exchange,
privately negotiated transactions (including sales pursuant to pledges) or in
the over-the-counter market, or in a combination of such transactions. The
selling shareholders may effect transactions at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at negotiated
prices, or at fixed prices, which may be changed. Brokers, dealers or agents
participating in such transactions as agent may receive compensation in the form
of discounts, concessions or commissions from the selling shareholders (and, if
they act as agent for the purchaser of such shares, from such purchaser). Such
discounts, concessions or commissions as to a particular broker, dealer or agent
might be in excess of those customary in the type of transaction involved. This
prospectus may also be used, with our consent, by donees of the selling
shareholders, or by other persons who are acquiring our shares and wish to offer
and sell such shares under circumstances requiring its use.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states our
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling shareholders and any broker-dealers or agents that participate
with the selling shareholders in the distribution of the shares may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933, as amended,
in which event any commissions received by such broker-dealers or agents and any
profits realized by the selling shareholders on the resales of the shares
purchased by them may be deemed to be underwriting commissions or discounts.
In addition, any securities covered by this Prospectus which qualify for
sale pursuant to Rule 144, Rule 144A or any other available exemption from
registration under the Securities Act may be sold under Rule 144, Rule 144A or
such other available exemption rather than pursuant to this prospectus. There is
no assurance that any selling shareholder will sell any or all of the shares
described herein, and any selling shareholder may transfer, devise or gift such
securities by other means not described herein.
We have advised each of the selling shareholders that in the event of a
distribution of its shares, the selling shareholders and any broker, agent or
dealer who participates in the distribution may be subject to applicable
provisions of the Securities Exchange Act of 1934 and its rules and regulations,
including Regulation M.
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Under the Registration Rights Agreement, the selling shareholders and we
indemnify each other against certain liabilities arising under the Securities
Act of 1933, as amended.
We have agreed to use our best efforts to cause the Registration Statement
to which this prospectus relates to become effective as promptly as is
practicable and to keep the Registration Statement effective until the earlier
of (i) the sale pursuant to the Registration Statement of all the shares
registered thereunder, (ii) the expiration of the holding period applicable to
such shares under Rule 144(k) under the Securities Act or any successor
provision and (iii) the sale pursuant to Rule 144 under the Securities Act of
all the shares. The Registration Rights Agreement provides that the Company may
suspend the use of this Prospectus in connection with sales of shares by holders
one time in any three-month period, or two times in any 12-month period, each
such suspension period not to exceed 15 days without extension and in no event
to exceed an aggregate of 30 days, under certain circumstances relating to
pending corporate developments, certain public filings with the Securities and
Exchange Commission and similar events. We will bear all expenses in connection
with preparing and filing the Registration Statement and all post-effective
amendments.
EXPERTS
The consolidated financial statements and schedules incorporated by
reference in this p, have been audited by Arthur Andersen LLP, independent
public accountants as to the extent and for the periods indicated in their
report with respect thereto, and are included here in reliance on their
authority as experts in giving these reports.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus will be
passed upon by Davis & Gilbert LLP, 1740 Broadway, New York, New York 10019.
Members of Davis & Gilbert LLP participating in the legality of our shares own
an aggregate of 7,600 shares of common stock of our company.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable in connection with the distribution of the securities
being registered (estimated except for the registration fee), all of which will
be borne by the registrant, are as follows:
SEC Registration Fee .................................... $ 2,600
Legal Fees and Expenses ................................. $ 7,500*
Miscellaneous Expenses .................................. $ 1,000
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Total .............................................. $11,100
=======
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* Estimated
Item l5. Indemnification of Directors and Officers.
The registrant's Certificate of Incorporation contains a provision
limiting the liability of directors (except for approving statutorily prohibited
dividends, share repurchases or redemptions, distributions of assets on
dissolution or loans to directors) to acts or omissions in bad faith, involving
intentional misconduct or a knowing violation of the law, or resulting in
personal gain to which the director was not legally entitled. The registrant's
By-Laws provide that an officer or director will be indemnified against any
costs or liabilities, including attorney's fees and amounts paid in settlement
with the consent of the registrant in connection with any claim, action or
proceeding to the fullest extent permitted by the New York Business Corporation
Law.
Section 722(a) of the New York Business Corporation Law provides that a
corporation may indemnify any officer or director, made, or threatened to be
made, a party to an action 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 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 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 registrant has entered into agreements with its directors to indemnify
them for liabilities or costs arising out of any alleged or actual breach of
duty, neglect, errors or omissions while serving as a director. The registrant
also maintains and pays premiums for directors' and officers' liability
insurance policies.
II-1
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
Exhibit
Number Description of Exhibit
------ ----------------------
5.1 Opinion of Davis & Gilbert LLP, filed herewith
23.1 Consent of Arthur Andersen LLP, filed herewith
23.2 Consent of Davis & Gilbert LLP (included in the opinion
filed as Exhibit No. 5.1)
24.1 Power of Attorney (included on Signature Page)
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement.
Provided however, that paragraphs (1)(i) and (1)(ii) shall not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 (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 of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment to
this Registration Statement any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned registrant further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers or persons
controlling the registrant to the provisions described under Item 15 above, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy 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 and will be governed by the final adjudication of such issue.
II-2
<PAGE>
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-3 to be signed on its behalf by the
undersigned, hereunto duly authorized, in the City of New York, in the State of
New York on April 26, 2000.
Omnicom Group Inc.,
as Registrant
By: /s/ JOHN D. WREN
-------------------------------------
John D. Wren
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John D. Wren and Barry J. Wagner, and each of
them, his true and lawful attorney-in-fact and agent, with full and several
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments, to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
they or he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature and Title Date
------------------- ----
<S> <C> <C>
/s/ JOHN D. WREN Chief Executive Officer and April 26, 2000
- ---------------------------------------- Director (Principal Executive
John D. Wren Officer)
/s/ RANDALL J. WEISENBURGER Chief Financial Officer April 26, 2000
- ---------------------------------------- (Principal Financial Officer)
Randall J. Weisenburger
/s/ PHILIP J. ANGELASTRO Controller (Principal April 26, 2000
- ---------------------------------------- Accounting Officer)
Philip J. Angelastro
/s/ BERNARD BROCHAND Director April 26, 2000
- ----------------------------------------
Bernard Brochand
/s/ ROBERT J. CALLANDER Director April 26, 2000
- ----------------------------------------
Robert J. Callander
/s/ JAMES A. CANNON Director April 26, 2000
- ----------------------------------------
James A. Cannon
/s/ LEONARD S. COLEMAN, JR. Director April 26, 2000
- ----------------------------------------
Leonard S. Coleman, Jr.
/s/ BRUCE CRAWFORD Director April 26, 2000
- ----------------------------------------
Bruce Crawford
/s/ SUSAN S. DENISON Director April 26, 2000
- ----------------------------------------
Susan S. Denison
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Signature and Title Date
------------------- ----
<S> <C> <C>
/s/ PETER FOY Director April 26, 2000
- ----------------------------------------
Peter Foy
/s/ THOMAS L. HARRISON Director April 26, 2000
- ----------------------------------------
Thomas L. Harrison
/s/ JOHN R. MURPHY Director April 26, 2000
- ----------------------------------------
John R. Murphy
/s/ JOHN R. PURCELL Director April 26, 2000
- ----------------------------------------
John R. Purcell
/s/ KEITH L. REINHARD Director April 26, 2000
- ----------------------------------------
Keith L. Reinhard
/s/ ALLEN ROSENSHINE Director April 26, 2000
- ----------------------------------------
Allen Rosenshine
/s/ GARY L. ROUBOS Director April 26, 2000
- ----------------------------------------
Gary L. Roubos
/s/ QUENTIN I. SMITH, JR. Director April 26, 2000
- ----------------------------------------
Quentin I. Smith, Jr.
/s/ EGON P.S. ZEHNDER Director April 26, 2000
- ----------------------------------------
Egon P.S. Zehnder
</TABLE>
II-4
Exhibit 5.1
DAVIS & GILBERT LLP
1740 Broadway
New York, New York 10019
April 26, 2000
Omnicom Group Inc.
437 Madison Avenue
New York, NY 10022
Re: Registration Statement on Form S-3
Gentlemen:
In our capacity as counsel to Omnicom Group Inc., a New York corporation
(the "Company"), we have been asked to render this opinion in connection with a
registration statement on Form S-3 (the "Registration Statement") being filed by
the Company contemporaneously herewith on behalf of the selling shareholders
named therein (the "Selling Shareholders") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, covering an aggregate
of 110,000 shares of common stock, $0.50 par value, of the Company being offered
for the respective accounts of the Selling Shareholders (the "Selling
Shareholders' Shares").
In that connection, we have examined the Certificate of Incorporation and
the By-Laws, both as amended, of the Company, the Registration Statement,
corporate proceedings relating to the issuance of the Selling Shareholders'
Shares, and such other instruments and documents as we deemed relevant under the
circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us as original or photostatic copies. We have also assumed that the corporate
records furnished to us by the Company include all corporate proceedings taken
by the Company to date.
Based upon and subject to the foregoing, we are of the opinion that the
Selling Shareholders' Shares when issued will be legally issued, fully paid and
non-assessable shares of common stock, $0.50 par value, of the Company.
We hereby consent to the use of our opinion as herein set forth as an
exhibit to the Registration Statement and to the use of our name under the
caption "Legal Matters" in the Prospectus forming part of the Registration
Statement.
Very truly yours,
DAVIS & GILBERT LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 17,
2000 included in the Omnicom Group Inc. Form 10-K for the year ended December
31, 1999 and to all references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
New York, New York
April 26, 2000
