<PAGE>
As filed with the Securities and Exchange Commission
on June 24, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FOOTE, CONE & BELDING
COMMUNICATIONS, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 36-1088161
- -------------------- -------------------
(State or other juris- (IRS Employer
diction of incorporation Identification No.)
or organization)
101 East Erie Street
Chicago, Illinois 60611-2897
- --------------------- -----------
(Address of Principal (Zip Code)
Executive Office)
FOOTE, CONE & BELDING COMMUNICATIONS, INC.
STOCK PURCHASE PLAN
-------------------------------------------
(Full title of the plans)
Dale F. Perona
Vice President, Controller and Secretary
FOOTE, CONE & BELDING COMMUNICATIONS, INC.
101 East Erie Street
Chicago, Illinois 60611-2897
---------------------------------------
(Name-and address of agent for service)
(312) 751-7000
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
=============================================================================================
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------
Proposed Proposed maximum Amount of
Securities to be Amount to be maximum offering aggregate offering registration
registered registered price per share(1) price(1) fee(1)
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 350,000 $44.0625 $15,421,875 $5,317.89
- ---------------------------------------------------------------------------------------------
Preferred Stock
Purchase Rights 350,000 (2) (2) (2)
=============================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933 solely
for the purpose of calculating the amount of the registration fee based upon
the average of the high and low sales prices reported for shares of the
Common Stock in the New York Stock Exchange Composite Transactions on June
21, 1994, which was $44.0625.
(2) The Company's Preferred Stock Purchase Rights initially are carried and
traded with the shares of Common Stock of the Company being registered
hereunder. Value attributable to such Preferred Stock Purchase Rights, if
any, is reflected in the market price of the Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities
and Exchange Commission (the "Commission") are incorporated by reference herein
and made a part hereof:
(a) Annual Report on Form 10-K of the Registrant for the fiscal year
ended December 31, 1993;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 1993.
(c) The description of the Common Stock and the Rights contained in a
registration statement filed under the Exchange Act including any subsequent
amendment or any report or other filing filed with the Commission updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
There is no provision in the Registrant's Certificate of Incorporation
relating to indemnification.
The directors and officers of the Registrant may be indemnified under
certain circumstances against liability which they may incur in their capacities
as such pursuant to Section 145 of the General Corporation Law of Delaware.
Reference is made with regard to such indemnification to Article V, Section 9 of
the By-Laws of the Registrant, which has been filed as an exhibit to this
registration statement. The Registrant has secured standard form insurance
covering the Registrant and its directors and officers and those of its
principal subsidiaries against certain liabilities.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
- ----------- -----------
4(a) Foote, Cone & Belding Communications, Inc. Stock Purchase Plan
(as amended and restated effective January 1, 1987).
Incorporated by reference to Exhibit 28.1 to Registrant's
Registration Statement on Form S-8, filed with the Securities and
Exchange Commission on June 13, 1991 (Registration No. 33-41129)
(the "1991 S-8").
4(b) Amendment Number One to Foote, Cone & Belding Communications,
Inc. Stock Purchase Plan dated November 10, 1987. Incorporated
by reference to Exhibit 28.2 to the 1991 S-8.
4(c) Supplement to Foote, Cone & Belding Communications, Inc. Stock
Purchase Plan dated May 26, 1989. Incorporated by reference to
Exhibit 28.3 to the 1991 S-8.
4(d) Amendment Number Two to Foote, Cone & Belding Communications,
Inc. Stock Purchase Plan dated November 15, 1989. Incorporated
by reference to Exhibit 28.4 to the 1991 S-8.
4(e)* Registrant's Restated Certificate of Incorporation, as amended on
May 19, 1993 and further amended on May 18, 1994.
4(f)* Registrant's By-laws, as amended.
4(g) Rights Agreement dated as of November 16, 1988, between
Registrant and Harris Trust and Savings Bank as Rights Agent.
Incorporated by reference to Exhibit 1 to Registrant's
Registration Statement on Form 8-A under the Exchange Act, filed
with the Securities and Exchange Commission on November 18, 1988.
5* Opinion of Sidley & Austin.
23(a)* Consent of Independent Accountants.
23(b) Consent of Sidley & Austin is included in its opinion filed as
Exhibit 5 hereto.
II-2
<PAGE>
Exhibit No. Description
- ----------- -----------
24* Power of Attorney.
______________________
* Filed herewith.
ITEM 9. UNDERTAKINGS
1. The Registrant hereby undertakes: (i) to file, during any period
in which offers or sales are being made, a post-effective amendment to this
registration statement to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; (ii)
that, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (iii) to remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
2. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
II-3
<PAGE>
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-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on the 24th day of June,
1994.
FOOTE, CONE & BELDING COMMUNICATIONS, INC.
By Bruce Mason
------------------------------------
Bruce Mason
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 24th day of June, 1994.
Signature Position
--------- --------
Bruce Mason Chairman and Chief Executive
- --------------------- Officer and Director
Bruce Mason (Principal Executive Officer)
Terry M. Ashwill Executive Vice President and Chief
- --------------------- Financial Officer and Director
Terry M. Ashwill (Principal Financial Officer)
Dale F. Perona Vice President, Controller and
- --------------------- Secretary (Controller)
Dale F. Perona
* Director
- ---------------------
Louis E. Scott
* Director
- ---------------------
Stephen T. Vehslage
II-5
<PAGE>
* Director
- --------------------
Newton N. Minow
* Director
- ---------------------
William A. Schreyer
* Director
- ---------------------
Craig R. Wiggins
* Director
- ---------------------
John B. Balousek
* Director
- ---------------------
Maurice Levy
* Director
- ---------------------
Gregory W. Blaine
* Director
- ---------------------
Laurel Cutler
* By Terry M. Ashwill
----------------
Terry M. Ashwill
Attorney-in-Fact
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit No. Description Page No.
- ----------- ----------- ----------
<C> <S> <C>
4(a) Foote, Cone & Belding Communications, Inc. Stock
Purchase Plan (as amended and restated effective
January 1, 1987). Incorporated by Registration
reference to Exhibit 28.1 to Registrant's Registration
Statement on Form S-8, filed with the Securities and
Exchange Commission on June 13, 1994 (Registration No.
33-41129) (the "1991 S-8").
4(b) Amendment Number One to Foote, Cone & Belding
Communications, Inc. Stock Purchase Plan dated
November 10, 1987. Incorporated by reference to
Exhibit 28.2 to the 1991 S-8.
4(c) Supplement to Foote, Cone & Belding Communications,
Inc. Stock Purchase Plan dated May 26, 1989.
Incorporated by reference to Exhibit 28.3 to the 1991
S-8.
4(d) Amendment Number Two to Foote, Cone & Belding
Communications, Inc. Stock Purchase Plan dated
November 15, 1989. Incorporated by reference to
Exhibit 28.4 to the 1991 S-8.
4(e)* Registrant's Restated Certificate of Incorporation, as
amended on May 19, 1993 and further amended on May 18,
1994.
4(f)* Registrant's By-laws, as amended.
4(g) Rights Agreement dated as of November 16, 1988,
between Registrant and Harris Trust and Savings Bank
as Rights Agent. Incorporated by reference to Exhibit
1 to Registrant's Registration Statement on Form 8-A
under the Exchange Act, filed with the Securities and
Exchange Commission on November 18, 1988.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Sequential
Exhibit No. Description Page No.
- ----------- ----------- ----------
<C> <S> <C>
5* Opinion of Sidley & Austin.
23(a)* Consent of Independent Accountants.
23(b) Consent of Sidley & Austin is included in its opinion
filed as Exhibit 5 hereto.
24* Power of Attorney.
</TABLE>
______________________
* Filed herewith.
<PAGE>
Exhibit 4(e)
RESTATED CERTIFICATE OF INCORPORATION
OF
FOOTE, CONE & BELDING COMMUNICATIONS, INC.
This Restated Certificate of Incorporation was duly adopted by the board
of directors in accordance with the provisions of Section 245 of the General
Corporation Law of the State of Delaware. This Restated Certificate of
Incorporation only restates and integrates and does not further amend the
provisions of the corporation's Certificate of Incorporation as heretofore
amended or supplemented, and there is no discrepancy between those provisions
and the provisions of this Restated Certificate of Incorporation. The original
Certificate of Incorporation was filed with the Secretary of State of Delaware
on December 29, 1942 under the name Foote, Cone & Belding, Inc.
FIRST: The name of the corporation is
FOOTE, CONE & BELDING COMMUNICATIONS, INC.
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
is as follows:
(a) To carry on the business of a general advertising agency, to deal in
advertising in all its forms, and to do all things that may be convenient,
useful, auxiliary or incidental to the carrying on of a general advertising
agency business; and
(b) To conduct any lawful business, to exercise any lawful purpose or
power, and to engage in any lawful act or activity for which a corporation
may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is fifteen million one hundred thousand (15,100,000),
divided into two classes as follows:
(a) One hundred thousand (100,000) shares shall be of the par value of
one dollar ($1.00) per share and shall be designated as Preferred Stock;
and
(b) Fifteen million (15,000,000) shares shall be of the par value of
thirty-three and one-third cents (33-1/3c) per share and shall be designated
as Common Stock.
The Preferred Stock may be issued from time to time in one or more
series, which series may have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue of such stock adopted by the board of
directors pursuant to the authority which is hereby expressly vested in the
board of directors.
<PAGE>
The authority of the board of directors with respect to each series shall
include, but not be limited to, determination of the following:
(a) The distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased
(except where otherwise provided by the board of directors) or decreased
(but not below the number of shares thereof then outstanding) from time
to time by like action of the board of directors;
(b) The rate of dividends, if any, payable on the shares of such series,
the conditions upon which and the dates when such dividends shall be
payable, whether such dividends shall be cumulative (and, if so, from
which date or dates), and whether payable in preference to dividends payable
on any other class or classes or any other series of stock;
(c) Whether or not the shares of such series shall have voting powers
and, if voting powers are granted, the extent of such voting powers;
(d) Whether or not the shares of such series shall be redeemable and,
if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(e) Whether or not the shares of such series shall be entitled to the
benefit of a retirement fund or sinking fund and, if so, the terms and
conditions of such fund;
(f) Whether or not the shares of such series shall be convertible into
or exchangeable for shares of any other class or classes of stock of the
corporation or of any series thereof and, if made convertible or
exchangeable, the conversion price or prices or the rate or rates of
exchange and the adjustments thereof, if any, at which such conversion or
exchange may be made, and any other terms and conditions of such conversion
or exchange;
(g) The rights of the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding up, or merger,
consolidation or distribution or sale of assets of the corporation;
(h) The conditions and restrictions, if any, on the payment of dividends
or on the making of other distributions on, or the purchase, redemption
or other acquisition by the corporation of the Common Stock or of any
other class or series of stock of the corporation ranking junior to the
shares of such series as to dividends or upon liquidation;
(i) The conditions and restrictions, if any, on the creation of
indebtedness of the corporation or any subsidiary, or on the authorization
or issue of any additional stock of the corporation ranking on a parity
with or prior to the shares of such series as to dividends or upon
liquidation; and
(j) Any other preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof.
Shares of stock of any class of the corporation may be issued by the
corporation from time to time for such consideration, not less than the par
value thereof, as may be fixed from time to
<PAGE>
time by the board of directors, and any and all shares so issued, the full
consideration for which shall have been paid or delivered, shall be deemed fully
paid and non-assessable stock and not liable to any further call or assessment
thereon.
No holder of stock of any class of the corporation, whether now or
hereafter authorized, shall have any preemptive or preferential right to
subscribe to any shares of stock of the corporation of any class, now or
hereafter authorized, or to any obligations convertible into stock of the
corporation, issued or sold, or any right to subscribe to any thereof other than
such, if any, as the board of directors of the corporation from time to time may
fix pursuant to the authority hereby conferred by this Restated Certificate of
Incorporation, and the board of directors may issue stock of the corporation, or
obligations convertible into stock, without offering such issue of stock or such
obligations, either in whole or in part, to the stockholders of the corporation.
Subject to the provisions of any applicable law or of the by-laws of the
corporation, as from time to time amended, with respect to the fixing of a
record date for determination of stockholders entitled to vote, and except as
otherwise provided by law or by this Restated Certificate of Incorporation or by
the resolution or resolutions providing for the issue of any series of Preferred
Stock, each holder of shares of Common Stock shall be entitled at any and all
meetings of the stockholders of the corporation to one vote for each share of
such stock standing in his name on the books of the corporation.
Subject to any limitations contained in the resolution or resolutions
providing for the issue of any series of Preferred Stock, the holders of the
Common Stock shall be entitled to receive, when and as declared by the board of
directors, out of the assets of the corporation which are by law available
therefor, dividends payable in cash, in property or in shares of Common Stock.
No dividends other than dividends payable only in shares of Common Stock shall
be paid on the Common Stock if cash dividends in full to which all outstanding
shares of Preferred Stock of all series shall then be entitled for the then
current dividend period and (where such dividends are cumulative) for all past
dividend periods shall not have been paid or declared and set apart in full.
Except as otherwise provided by the resolution or resolutions providing for
the issue of any series of Preferred Stock, the number of authorized shares of
any class or classes of stock may be increased or decreased by the affirmative
vote of the holders of a majority of the stock of the corporation entitled to
vote.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the corporation, the holders of the Common Stock shall be
entitled, after payment or provisions for payment of the debts and other
liabilities of the corporation and the amounts to which the holders of the
Preferred Stock shall be entitled, to share ratably in the remaining net assets
of the corporation. Neither a consolidation or merger of the corporation with or
into any other corporation, nor a merger of any other corporation into the
corporation, nor a reorganization of the corporation, nor the purchase or
redemption of all or part of the outstanding shares of stock of any class or
classes of the corporation, nor a sale or transfer of the property and business
of the corporation as or substantially as an entirety, shall be considered a
liquidation, dissolution or winding up of the corporation for purposes of the
preceding sentence.
FIFTH: The number of directors of the corporation shall be fixed from time
to time by or in the manner provided in the by-laws, and may be increased or
decreased as therein provided, but the number thereof may not be less than
three.
<PAGE>
In furtherance and not in limitation of the powers conferred by statute,
the board of directors is expressly authorized:
(a) To make, alter or repeal the by-laws of the corporation;
(b) To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation;
(c) To issue bonds, debentures and other obligations, either
non-convertible or convertible into the corporation's stock, upon such terms,
in such manner and under such conditions in conformity with law as may be
fixed by the board of directors prior to the issuance of such bonds,
debentures and other obligations;
(d) To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
such reserve;
(e) To remove at any time any officer elected or appointed by the board of
directors whenever in its judgment the best interests of the corporation
would be served thereby;
(f) By resolution passed by a majority of the whole board, to designate one
or more committees, each committee to consist of two or more of the directors
of the corporation. The board may designate one or more directors as
alternate members of any committee who may replace any absent or disqualified
member at any meeting of the committee. Any such committee, to the extent
provided in the resolution or in the by-laws of the corporation, shall have
and may exercise the powers of the board of directors in the management of
the business and affairs of the corporation, and may authorize the seal of
the corporation to be affixed to all papers which may require it; provided,
however, the by-laws may provide that in the absence or disqualification of
any member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board
of directors to act at the meeting in the place of any such absent or
disqualified member; and
(g) To exercise all such powers and do all such acts and things as may be
exercised or done by the corporation, subject to the provisions of the laws
of the State of Delaware, of this Restated Certificate of Incorporation and
of the by-laws of the corporation.
SIXTH: The corporation shall indemnify each present or former director,
officer, employee or agent of the corporation and each person who is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, and the heirs, executors and administrators of the foregoing
persons, in the manner and to the extent provided in the by-laws of the
corporation as the same may be amended from time to time.
SEVENTH: No contract or transaction between the corporation and one or more
of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
<PAGE>
(a) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the board of directors or the
committee, and the board or committee in good faith authorizes the
contract or transaction by a vote sufficient for such purpose without
counting the vote of the interested director or directors; or
(b) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is specifically approved
in good faith by vote of the stockholders; or
(c) The contract or transaction is fair to the corporation as of the
time it is authorized, approved or ratified by the board of directors,
a committee thereof, or the stockholders.
Interested directors may be counted in determining the presence of a
quorum at a meeting of the board of directors or of a committee which
authorizes the contract or transaction.
EIGHTH: No person who was at any time a director of the corporation
shall be personally liable to the corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such person as a director, except
for liability (i) for breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this Article Eighth to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the corporation shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or modification.
NINTH: (1) Any action required or permitted to be taken by the
stockholders of the corporation may be effected solely at a duly called annual
or special meeting of stockholders of the corporation and may not be effected
by any consent in writing by such stockholders.
(2) Meetings of stockholders of the corporation may be called only by
the board of directors pursuant to a resolution adopted by the affirmative vote
of a majority of the entire board of directors, by the Chairman of the Board,
or by the President. As used in this Restated Certificate of Incorporation,
the term "entire board of directors" means the total authorized number of
directorships of the corporation, whether or not the directorships are filled
at the time.
TENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
The capital of the corporation will not be reduced under or by reason
of this Restated Certificate of Incorporation.
<PAGE>
IN WITNESS WHEREOF, FOOTE, CONE & BELDING COMMUNICATIONS, INC.
has caused its corporate seal to be hereunto affixed and this Restated
Certificate of Incorporation to be signed by its Chairman of the Board
and attested by its Secretary this 21st day of August, 1991.
FOOTE, CONE & BELDING COMMUNICATIONS, INC.
By /s/ Bruce Mason
---------------------------------
Bruce Mason
Chairman of the Board
(Corporate Seal)
ATTEST:
/s/ Charles H. Gunderson
- ----------------------------
Charles H. Gunderson
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
************************
Foote, Cone & Belding Communications, Inc., a corporation organized
and existing under and by virtue of the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Foote, Cone &
Belding Communications, Inc. (the "Corporation") held on February 17, 1993
resolutions were duly adopted setting forth a proposed amendment to the
Restated Certificate of Incorporation of the Corporation, filed with the
Delaware Secretary of State on August 27, 1991, declaring said amendment
to be advisable and directing that said amendment be considered at the
annual meeting of the stockholders of the Corporation to be held on
May 19, 1993. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the first paragraph of Article Fourth of the
Restated Certificate of Incorporation of the Corporation be amended
to read as set forth below and that such amendment be submitted to
the stockholders of the corporation for approval, all in accordance
with the requirements of the Delaware General Corporation Law:
"Fourth: The total number of shares of stock which
the corporation shall have authority to issue is thirty
million one hundred thousand (30,100,000), divided into
two classes as follows:
(a) One hundred thousand (100,000) shares shall be
of the par value of one dollar ($1.00) per share and
shall be designated as Preferred Stock; and
(b) Thirty million (30,000,000) shares shall be of
the par value of thirty-three and one-third cents
(33-1/3c) per share and shall be designated as Common
Stock."
<PAGE>
SECOND: That thereafter the annual meeting of the stockholders of the
Corporation was duly called, and held on May 19, 1993, at which meeting the
necessary number of shares as required by statute were voted in favor of the
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Foote, Cone & Belding Communications, Inc. has
caused its corporate seal to be hereto affixed and this certificate to be
executed by Michael S. Duffey, its Vice President and Treasurer and attested by
Gregory W. Blaine, its Secretary, this 19th day of May, 1993.
/s/ Michael S. Duffey
----------------------------
Vice President and Treasurer
ATTEST:
/s/ Gregory W. Blaine
- ---------------------
Secretary
(CORPORATE SEAL)
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
********************
Foote, Cone & Belding Communications, Inc., a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Foote, Cone &
Belding Communications, Inc. (the "Corporation") held on February 16, 1994
resolutions were duly adopted setting forth a proposed amendment to the Restated
Certificate of Incorporation of the Corporation, filed with the Delaware
Secretary of State on August 27, 1991, declaring said amendment to be advisable
and directing that said amendment be considered at the annual meeting of the
stockholders of the Corporation to be held on May 18, 1994. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the first paragraph of Article Fourth of the Restated
Certificate of Incorporation of the Corporation be amended to read as set
forth below and that such amendment be submitted to the stockholders of the
corporation for approval, all in accordance with the requirements of the
Delaware General Corporation Law:
"Fourth: The total number of shares of stock which the
corporation shall have authority to issue is fifty million one hundred
thousand (50,100,000), divided into two classes as follows:
(a) One hundred thousand (100,000) shares shall be of the
par value of one dollar ($1.00) per share and shall be designated as
Preferred Stock; and
(b) Fifty million (50,000,000) shares shall be of the par
value of thirty-three and one-third cents (33-1/3c) per share and
shall be designated as Common Stock."
SECOND: That thereafter the annual meeting of the stockholders of the
Corporation was duly called, and held on May 18, 1994, at which meeting the
necessary number of shares as required by statute were voted in favor of the
amendment.
<PAGE>
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Foote, Cone & Belding Communications, Inc.
has caused its corporate seal to be hereto affixed and this certificate to be
executed by Michael S. Duffey, its Vice President and Treasurer and attested by
Dale F. Perona, its Secretary, this 18th day of May, 1994.
/s/ Michael S. Duffey
----------------------------
Vice President and Treasurer
ATTEST:
/s/ Dale F. Perona
- ------------------
Secretary
(CORPORATE SEAL)
<PAGE>
Exhibit 4(f)
As Amended Effective 5/18/87
BY-LAWS
-------
OF
--
FOOTE, CONE & BELDING COMMUNICATIONS, INC.
------------------------------------------
ARTICLE I.
----------
Stockholders' Meetings
----------------------
Section 1. Annual Meeting. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may properly
come before it shall be held at such hour as shall be determined by the Board of
Directors on the second Wednesday in May of each year, or at such other time as
shall be determined by the Board of Directors. If the day fixed for the annual
meeting is a legal holiday, such meeting shall be held on the next succeeding
business day. The annual meeting shall be held at such place as shall be
determined by the Board of Directors.
Section 2. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors, the Chairman of the Board or the President and
may be held at such places, within or without the State of Delaware, as may be
specified in the call of any meeting.
Section 3. Notice of Meetings. Written notice of every meeting of
stockholders stating the place, date, hour and purposes thereof, shall, except
when otherwise required by law, be mailed at least ten but not more than fifty
days prior to the meeting to each stockholder of record entitled to vote
thereat. Any meeting at which a quorum of stockholders is present, in person or
by proxy, may adjourn from time to time until its business is completed. At the
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 4. Quorum. The holders of a majority of the shares of stock
issued and outstanding and entitled to vote, present in person or by proxy,
shall, except as otherwise provided by law, constitute a quorum for the
transaction of
<PAGE>
business at all meetings of stockholders. If at any meeting a quorum is not
present, the chairman of the meeting or the holders of the majority of the
shares of stock present or represented may adjourn the meeting from time to
time. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. The stockholders
present or represented at a duly called or held meeting at which a quorum is
present may continue to transact business until adjournment notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
Section 5. Voting. Each holder of stock entitled to vote at a
stockholders' meeting shall, as to all matters in respect of which such stock
has voting rights, be entitled to one vote in person or by written proxy for
each share of stock owned of record by him, but no proxy shall be voted or acted
upon after three years from its date unless the proxy provides for a longer
period. No vote upon any matter, except the election of directors, need be by
ballot unless demanded by the holders of at least ten per cent of the shares
represented and entitled to vote at the meeting. All elections and questions
shall be decided by a plurality of the votes cast, except as otherwise required
by the laws of Delaware.
Section 6. List of Stockholders. At least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder, and the number of shares registered in the name of each
stockholder, shall be prepared by the Secretary. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The original or duplicate stock
ledger shall be the only evidence as to who are stockholders entitled to examine
the stock ledger, the list required by this section or the books of the
corporation, or to vote in person or by proxy at any meeting of stockholders.
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<PAGE>
ARTICLE II.
-----------
Directors
---------
Section 1. Number, Election and Term of Office. A Board of Directors
consisting of not less than 9 nor more than 21 directors (as shall from time to
time be determined by the Board of Directors) shall be elected at every annual
stockholders' meeting. Each director elected shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Directors need not be stockholders.
Nominations for the election of directors may be made by the Board of
Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of directors at the particular
meeting at which the nomination is to occur. However, any stockholder entitled
to vote at such meeting may nominate one or more persons for election as
directors only in person or by proxy at such meeting and only if written notice
of such stockholder's intent to make such nomination or nominations has been
delivered personally to or otherwise received by the Secretary of the
corporation at least fifty days but no more than ninety days prior to the
meeting of stockholders; provided, that in the event that less than sixty days'
notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made, whichever first occurs; provided further that, in the case of the 1986
annual meeting of stockholders, such notice shall have been so delivered at
least twenty days prior to the date of such meeting. Each such notice shall
contain a representation that: (i) the stockholder is, and will be on the
record date, a beneficial owner or a holder of record of stock of the
corporation entitled to vote at such meeting; (ii) the stockholder has, and will
have on the record date, full voting power with respect to such shares; and
(iii) the stockholder intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice. Additionally, each such
notice shall set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (b) a
description of all arrangements or understandings between the stockholder and
each proposed nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the
stockholder; (c) the number and kinds of securities of the corporation held
beneficially or of record by each proposed nominee; (d) such other information
regarding each proposed nominee as would be required to be included in a proxy
statement filed pursuant to
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<PAGE>
the proxy rules of the Securities and Exchange Commission for the initial
election of such proposed nominee for director; and (e) the consent of each
proposed nominee to serve as a director if so elected. The presiding officer of
the meeting may refuse to acknowledge the nomination of any person if any of the
information supplied is false or misleading or if any of the foregoing
requirements are not satisfied.
Section 2. Vacancies. Any vacancy occurring in the Board and any
directorship to be filled by reason of an increase in the authorized number of
directors may be filled by a majority of the directors then in office, although
less than a quorum. A director elected to fill a vacancy shall hold office
until the next annual election of directors. When one or more directors shall
resign from the Board, effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each director so chosen shall hold
office as provided in this section in the filling of other vacancies.
Section 3. Place of Meetings. Directors' meetings may be held at
such places, within or without the State of Delaware, as the Board may from time
to time determine or as may be specified in the call of any meetings.
Section 4. Regular Meetings. A regular annual meeting of the Board
shall be held without call or notice immediately after and at the same general
place as the annual meeting of the stockholders, for the purpose of organizing
the Board, electing officers and transacting any other business that may
properly come before the meeting. Additional regular meetings of the Board may
be held without call or notice at such place and at such time as shall be fixed
by resolution of the Board.
Section 5. Special Meetings. Special meetings of the Board may be
called by the Chairman of the Board, the President, or by a majority of the
directors then in office. Notice of special meetings shall either be mailed by
the Secretary to each director at least three days before the meeting or shall
be given personally or telegraphed to each director at least one day before the
meeting. Such notice shall set forth the time and place of such meeting but
need not, unless otherwise required by law, state the purposes of the meeting.
A majority of the directors present at any meeting may adjourn the meeting from
time to time without further notice other than announcement at the meeting.
Section 6. Quorum. One third of the total number of directors shall
constitute a quorum for the transaction of business at any meeting of the Board.
If at any meeting a quorum is not present, a majority of the directors present
may adjourn
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<PAGE>
the meeting from time to time without notice other than announcement at the
meeting until a quorum is present.
Section 7. Committees of the Board. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, including, but not limited to, an Executive Council and a Finance
Committee. Each such committee shall consist of two or more of the directors of
the corporation and, to the extent provided in the resolution designating such
committee, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers which may require it.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of such absent or disqualified member.
Section 8. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board, or of such
committee, as the case may be, consent thereto in writing, and such written
consent is filed with the minutes of the proceedings of the Board or of such
committee.
Section 9. Compensation. Directors shall not receive any stated
compensation for their service as such, but by resolution of the Board of
Directors, a fixed sum and expenses of attendance may be allowed for attendance
at meetings of the Board or of committees of the Board, provided that nothing
herein contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
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<PAGE>
ARTICLE III.
------------
Officers and Employees
----------------------
Section 1. Number, Qualification, Election and
Term of Office. (a) The officers of the corporation shall be a Chairman of the
Board of Directors, a Chairman of the Finance Committee, a President, a
Secretary, a Treasurer, a Controller, one or more Vice-Presidents (who may be
designated by different classes) and such other officers as the Board of
Directors may from time to time deem advisable. No officer need be a director
except the Chairman of the Board, the Chairman of the Finance Committee and the
President. The same person may hold two or more offices, except that if one
person shall hold the offices of President and Secretary, he shall not hold any
other office.
(b) Each officer of the corporation shall be elected by the Board of
Directors and shall hold office until the annual meeting of the Board of
Directors next succeeding his election and until his successor shall have been
elected and qualified, or until his resignation or removal.
Section 2. Appointments. In addition to the elected officers
provided above, who shall be corporate officers, the President may appoint one
or more Assistant Secretaries, Assistant Treasurers and Assistant Controllers.
Section 3. Removal and Vacancies. All officers shall serve at the
pleasure of the Board. Any officer may be removed by the Board at any time with
or without cause. A vacancy in any office shall be filled by the Board of
Directors.
Section 4. Bonding. The Board may, in its discretion, require any
officer to give the corporation a bond in a sum and with one or more sureties
satisfactory to the Board for the faithful performance of his duties and for the
restoration to the corporation, in the case of death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 5. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of stockholders and at all meetings of the Board of
Directors and shall be the chief executive officer of the corporation. He may
sign, execute and deliver in the name of the corporation powers of attorney,
contracts, bonds and other obligations, and shall have such further duties as
are prescribed by law or as shall from time to time be designated by the Board.
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<PAGE>
Section 6. Vice Chairman of the Board. The Vice Chairman of the
Board shall have such duties as are designated by the Chairman of the Board of
Directors, and shall report to the Chairman.
Section 7. President. The President shall be the chief operating
officer of the corporation, and as such shall have general and active
supervision over the property, business and affairs of the corporation subject
to the authority of the Chairman of the Board. He shall preside, in the absence
of the Chairman of the Board, at all meetings of stockholders and at all
meetings of the Board of Directors. He may sign, execute and deliver in the name
of the corporation powers of attorney, contracts, bonds and other obligations,
and shall have such further duties as shall from time to time be designated by
the Board.
Section 8. Chairman of the Finance Committee. The Chairman of the
Finance Committee shall be the principal financial officer of the corporation;
he shall, if present, preside at all meetings of the Finance Committee, and
shall have such further duties as shall from time to time be designated by the
Board.
Section 9. Vice-Presidents. The elected Vice-Presidents, which may
be designated by different classes, shall have such duties as shall from time to
time be designated by the Board.
Section 10. Secretary. The Secretary shall be the keeper of the
corporate seal and records (except those kept by the Treasurer), and shall give
notice of, attend, and record minutes of meetings of stockholders and directors.
The Secretary or any Assistant Secretary shall have authority to affix the
corporate seal to any instrument requiring it, and when so affixed, the
corporate seal may be attested by the signature of the Secretary or any
Assistant Secretary.
Section 11. Treasurer. The Treasurer shall be responsible for (i)
the custody and safekeeping of all of the funds of the corporation, (ii) the
receipt and deposit of all moneys paid to the corporation, (iii) where necessary
or appropriate, the endorsement for collection on behalf of the corporation of
all checks, drafts, notes, and other obligations payable to the corporation,
(iv) the disbursement of funds of the corporation under such rules as the Board
may from time to time adopt, (v) keeping full and accurate records of all
receipts and disbursements, and (vi) the performance of such further duties as
are incident to his office or as may from time to time be designated by the
Board.
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<PAGE>
Section 12. Controller. The Controller shall be the principal
accounting officer of the corporation. He shall prescribe the system of
accounts of the corporation and the books for keeping the same. The general
books of account of the corporation shall be kept in his office and under his
immediate supervision. He shall perform such further duties as are incident to
his office or as may from time to time be designated by the Board.
ARTICLE IV.
-----------
Stock Certificates and Transfer Books
-------------------------------------
Section 1. Certificates. Every stockholder shall be entitled to have
a certificate in such form as the Board shall from time to time approve, signed
by, or in the name of the corporation by the Chairman of the Board, the
President or any elected Vice-President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, certifying the number of
shares owned by him. During the time in which the corporation is authorized to
issue more than one class of stock or more than one series of any class, there
shall be set forth on the face or back of each certificate issued a statement
that the corporation will furnish without charge to each stockholder who so
requests, the designations, preferences and relative, par-ticipating, optional
or other special rights of each class of stock or series thereof of the
corporation and the quali-fications, limitations or restrictions of such
preferences and/or rights.
Section 2. Facsimile Signatures. Where a certificate is
countersigned (l) by a transfer agent other than the corporation or its
employee, or, (2) by a registrar other than the corporation or its employee, any
other signature on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 3. Record Ownership. A record of the name and address of the
holder of each certificate, the number of shares represented thereby, and the
date of issue thereof shall be made on the corporation's books. The corporation
shall be entitled to treat the holder of record of any share or shares of stock
as the holder in fact thereof, and accordingly shall not be bound to recognize
any equitable or other claim to or interest in any
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<PAGE>
share on the part of any other person whether or not it shall have express or
other notice thereof, except as required by the laws of Delaware.
Section 4. Lost Certificates. Any person claiming a stock
certificate in lieu of one lost, stolen, mutilated or destroyed shall give the
corporation an affidavit as to his ownership of the certificate and of the facts
which go to prove its loss, theft, mutilation or destruction. He shall also, if
required by the Board, give the corporation a bond, in such form as may be
approved by the Board, sufficient to indemnify the corporation against any claim
that may be made against it on account of the alleged loss or theft of the
certificate or the issuance of a new certificate.
Section 5. Transfer Agent or Registrar. The corporation shall
maintain one or more transfer offices or agencies, each in charge of a transfer
agent designated by the Board, where the shares of stock of the corporation
shall be transferable. The corporation shall also maintain one or more registry
offices, each in charge of a registrar designated by the Board, wherein such
shares of stock shall be registered.
Section 6. Transfers of Stock. Transfer of shares shall, except as
provided in Section 4 of this ARTICLE IV, be made on the books of the
corporation only by direction of the person named in the certificate or his
attorney, lawfully constituted in writing, and only upon the surrender for
cancellation of the certificate therefor, duly endorsed or accompanied by a
written assignment of the shares evidenced thereby.
Section 7. Fixing Date for Determination of Stockholders of Record.
(a) In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more
than sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action.
(b) If no record date is fixed:
(l) The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held.
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<PAGE>
(2) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
ARTICLE V.
----------
General Provisions
------------------
Section 1. Offices. The registered office of the corporation in
Delaware shall be in the City of Wilmington, County of New Castle. The
corporation may have such other offices as the Board may from time to time
determine. The books of the corporation may be kept outside the State of
Delaware.
Section 2. Seal. The corporation's seal shall be circular in form
with the words "FOOTE, CONE & BELDING COMMUNICATIONS, INC. - DELAWARE" around
the periphery and the figures and words "1942 - CORPORATE SEAL" within.
Section 3. Fiscal Year. The fiscal year of
the corporation shall begin on January 1 and end on December 31.
Section 4. Inspection of Books. Subject to laws of the State of
Delaware, the directors shall determine from time to time whether, and, if
allowed, when and under what conditions and regulations the accounts and books
of the corporation (except such as may by statute be specifically open to
inspection) or any of them, shall be open to the inspection of the stockholders,
and the stockholders' rights in this respect are and shall be restricted and
limited accordingly.
Section 5. Reliance on Records. Each director and officer shall in
the performance of his duties be fully protected in relying in good faith upon
the books of account or reports made to the corporation by any of its officials,
or by an independent certified public accountant, or by an appraiser selected
with reasonable care by the Board, or in relying in good faith upon other
records of the corporation.
Section 6. Annual Report. The Board shall publish and submit to the
stockholders annually a summary of the consolidated income of the corporation
and its consolidated subsidiaries for the previous fiscal year and a full or
condensed consolidated
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<PAGE>
balance sheet of the corporation and its consolidated subsidiaries at the end of
the previous fiscal year.
Section 7. Voting of Stock. Unless otherwise ordered by the Board,
the Chairman of the Board, the President or the Chairman of the Finance
Committee, and each or any of them, shall have full power and authority, in the
name and on behalf of the corporation, to attend, act and vote at any meeting of
stockholders of any company in which the corporation may hold shares of stock,
and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such shares and which, as the holder
thereof, the corporation might possess and exercise if personally present, and
may exercise such power and authority through the execution of proxies or may
delegate such power and authority to any other officer, agent or employee of the
corporation.
Section 8. Waiver of Notice. Whenever any notice is required to be
given, a waiver thereof in writing, signed by the person or persons entitled to
the notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
Section 9. Indemnification. (a) The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the
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<PAGE>
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstance of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Article V, Section 9, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Article
V, Section 9 (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in subsections (a) and
(b). Such determination shall be made (l) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses incurred by an officer or director in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article V, Section 9. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
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<PAGE>
(f) The indemnification and advancement of expenses provided by or
granted pursuant to this Article V, Section 9 shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article V, Section 9.
(h) For purposes of this Article V, Section 9, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article V, Section
9 with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had continued.
(i) For purposes of this Article V, Section 9, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article V, Section 9.
-13-
<PAGE>
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article V, Section 9 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 10. Amendments to By-Laws. These By-Laws may be altered or
repealed by the stockholders or by the Board of Directors.
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<PAGE>
Exhibit 5
SIDLEY & AUSTIN
One First National Plaza
Chicago, Illinois 60603
June 24, 1994
Foote, Cone & Belding Communications, Inc.
101 East Erie Street
Chicago, Illinois 60611
Re: 350,000 Shares of Common Stock, $.33 1/3 par
value and 350,000 Preferred Stock Purchase
Rights
----------------------------------------------
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") being filed by Foote, Cone & Belding Communications, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the registration of 350,000 shares of Common Stock, $.33 1/3 par
value, of the Company (the "Registered Common Stock"), together with 350,000
Preferred Stock Purchase Rights of the Company (the "Registered Rights")
associated therewith, to be issued under the Foote, Cone & Belding
Communications, Inc. Stock Purchase Plan (the "Plan"). The terms of the Rights
are set forth in the Rights Agreement dated as of November 16, 1988 (the "Rights
Agreement") between the Company and Harris Trust and Savings Bank, as Rights
Agent.
We are familiar with the proceedings to date with respect to the
proposed issuance of the Registered Common Stock and the Registered Rights under
the Plan and have examined such records, documents and questions of law, and
satisfied ourselves as to such matters of fact, as we have considered relevant
and necessary as a basis for this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Delaware.
<PAGE>
Foote, Cone & Belding Communications, Inc.
June 24, 1994
Page 2
2. Any shares of the Registered Common Stock which are newly issued
in connection with the Plan will constitute shares of Common Stock of the
Company which have been duly authorized and validly issued and are fully paid
and non-assessable when (i) the Registration Statement shall have become
effective under the Securities Act; (ii) the Company's Board of Directors or a
duly authorized committee thereof shall have duly adopted final resolutions
authorizing the issuance and sale of such shares as contemplated by the Plan;
and (iii) certificates representing such shares shall have been duly executed,
countersigned and registered and duly delivered upon payment of the agreed
consideration therefor (not less than the par value thereof) determined in
accordance with the terms of the Plan.
3. The Registered Rights associated with the newly issued shares of
Registered Common Stock referred to in paragraph 2 will be legally issued when
(i) such Registered Rights have been duly issued in accordance with the terms of
the Rights Agreement and (ii) such associated shares have been duly issued and
paid for as set forth in paragraph 2.
This opinion is limited to the General Corporation Law of the State of
Delaware and the laws of the United States of America.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement or related prospectus.
Very truly yours,
Sidley & Austin
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our reports dated February
15, 1994 (except with respect to the matter discussed in Note 10, as to which
the date is March 16, 1994), included in or incorporated by reference in Foote,
Cone & Belding Communications, Inc.'s Form 10-K for the year ended December 31,
1993, and to all references to our Firm included in this Form S-8 Registration
Statement.
Arthur Andersen & Co.
Chicago, Illinois
June 23, 1994
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned does hereby constitute and appoint Bruce Mason and
Terry M. Ashwill, and each of them, his attorney-in-fact for the purpose of
signing in his name and on his behalf as a director of Foote, Cone & Belding
Communications, Inc. (the "Company"), the Company's Annual Report on Form 10-K
pursuant to the Securities Exchange Act of 1934 and any registration statement
filed during 1993 for the registration under the Securities Act of 1933 of
Common Stock of the Company to be issued or sold in connection with the
Company's Stock Option, Restricted Stock or Stock Purchase Plans, and of signing
any and all amendments to said registration statement and any and all amendments
thereto as each thereof is so signed for filing with the Securities and Exchange
Commission.
Dated: March 4, 1994
John B. Balousek William A. Schreyer
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John B. Balousek William A. Schreyer
Gregory W. Blaine Louis E. Scott
- ------------------------ ------------------------
Gregory W. Blaine Louis E. Scott
Laurel Cutler Stephen T. Vehslage
- ------------------------ ------------------------
Laurel Cutler Stephen T. Vehslage
Maurice Levy Craig R. Wiggins
- ------------------------ ------------------------
Maurice Levy Craig R. Wiggins
Newton N. Minow
- ------------------------
Newton N. Minow
