<PAGE>
As filed with the Securities and Exchange Commission on July 8, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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TRUE NORTH COMMUNICATIONS INC.
(Exact name of registrant as specified in its charter)
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Delaware 7311 36-1088161
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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101 East Erie Street
Chicago, Illinois 60611-2897
(312) 425-6500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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Bruce Mason with a copy to:
Chief Executive Officer Theodore J. Theophilos
True North Communications Inc. Executive Vice President of Corporate
101 East Erie Street Development and Business Affairs
Chicago, Illinois 60611-2897 True North Communications Inc.
(312) 425-6500 101 East Erie Street
Chicago, Illinois 60611-2897
(312) 425-6500
</TABLE>
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
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Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective.
______________________
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] _________________________
<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [_] _________________________
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CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum
Title of Each Class of to Be Offering Price Aggregate Amount of
Securities to Be Registered Registered Per Share(1) Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
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Common Stock, $.33-1/3 par 4,000,000 shares $29.03125 $116,125,000 $34,257
value(2)(3)
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933 based on the average of the
high and low prices per share of the registrant's Common Stock on the New
York Stock Exchange as reported in the consolidated reporting system on
June 30, 1998.
(2) Includes 4,000,000 associated preferred stock purchase rights ("Rights") to
purchase 1/2,000 of a share of Series A Junior Participating Preferred
Stock, par value $1.00 per share. Rights initially are attached to and
trade with the Common Stock of the registrant. The value attributable to
such Rights, if any, is reflected in the market price of the Common Stock.
(3) Pursuant to Rule 416 under the Securities Act of 1933, there is also
registered hereby an indeterminate number of securities that may be issued
with respect to such shares of Common Stock as a result of stock splits,
stock dividends or similar transactions.
----------------------
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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PRELIMINARY, SUBJECT TO COMPLETION
DATED JULY 8, 1998
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS 4,000,000 SHARES
TRUE NORTH COMMUNICATIONS INC.
COMMON STOCK
We may use this Prospectus to offer and sell shares of Common Stock,
$.33-1/3 par value (the "Common Stock"), of True North Communications Inc., a
Delaware corporation (the "Company"), in connection with acquisitions by the
Company or its subsidiaries. Such shares may be issued in exchange for the
shares of capital stock, partnership interests or other assets representing an
interest, direct or indirect, in other companies or other entities, in exchange
for assets used in or related to the business of such entities or otherwise
pursuant to agreements related to such acquisitions, including collateral
agreements, such as employment agreements, consulting agreements and non-
competition agreements. The terms of such acquisitions and of the issuance of
the Company's shares under acquisition agreements will generally be determined
by direct negotiations with the owners or controlling persons of the business or
assets to be acquired or, in the case of entities which are more widely held,
through exchange offers to equity holders or documents soliciting the approval
of mergers, consolidations or sales of assets. Underwriting discounts or
commissions will generally not be paid by the Company. However, under some
circumstances, the Company may issue securities covered by this Prospectus to
pay brokers' commissions or similar fees incurred in connection with
acquisitions.
Pursuant to the Rights Agreement dated as of November 16, 1988 between the
Company and Harris Trust and Savings Bank, as Rights Agent (the "Rights
Agreement"), each share of Common Stock is issued together with one Right
entitling the holder thereof, upon the occurrence of certain events, to purchase
from the Company, at a price of $42.50, subject to adjustment, one two-
thousandth of a share of True North's Series A Junior Participating Preferred
Stock.
This Prospectus, as amended or supplemented if appropriate, may also be
used by the persons who receive shares issued hereunder by the Company in
connection with acquisitions, and who wish to offer and sell such shares, on
terms then obtainable, in transactions in which they may be deemed affiliates or
underwriters within the meaning of the Securities Act of 1933. Any profits
realized on such sales by such persons under certain circumstances may be
regarded as underwriting compensation under the Securities Act of 1933.
The Common Stock is listed on the New York Stock Exchange under the symbol
"TNO."
See "Risk Factors" beginning on page 4 for certain factors that should be
considered by you before you invest in these securities.
----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or has passed upon
the accuracy or adequacy of this Prospectus. Any representation to the contrary
is a criminal offense.
----------------------
The date of this Prospectus is ____________, 1998.
<PAGE>
TABLE OF CONTENTS
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Page
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Summary............................................................... 3
Risk Factors.......................................................... 4
The Company........................................................... 5
Use of Proceeds/Plan of Distribution.................................. 5
Legal Matters......................................................... 6
Experts............................................................... 6
Where You Can Find More Information................................... 6
</TABLE>
Private Securities Litigation Reform Act of 1995 Safe Harbor Cautionary
Statement
This Prospectus and the documents incorporated by reference herein contain
"forward-looking" statements, as defined in the Private Securities Litigation
Reform Act of 1995, that are based on current expectations, estimates and
projections. Statements that are not historical facts, including statements
about the Company's beliefs and expectations, are forward-looking statements.
These statements contain potential risks and uncertainties and, therefore,
actual results may differ materially. The Company undertakes no obligation to
update publicly any forward-looking statements, whether as a result of new
information, future events or otherwise.
Important factors that may affect these projections or expectations
include, but are not limited to: general economic and business conditions,
changes in demand for the Company's services, changes in competition, the
ability of the Company to integrate acquisitions or complete future
acquisitions, interest rate fluctuations, dependence upon and availability of
qualified personnel, and changes in governmental regulation. See also "Risk
Factors." Readers should evaluate any statements in light of these important
factors.
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SUMMARY
This summary highlights selected information from this document and does
not contain all of the information that is important to you. You should
carefully read this entire document and the documents incorporated by reference
in this document. See "Where You Can Find More Information."
The Company
The Company offers full-service advertising through two separate, independent
global agency networks: Foote, Cone & Belding Worldwide and Bozell Worldwide.
The Company also operates two other independent full-service advertising
agencies, Temerlin McClain and Tierney & Partners. In addition, the Company owns
certain marketing services and specialty advertising companies through the True
North Diversified Services Companies, and certain interactive marketing
companies through TN Technologies Inc.
The Securities We May Offer
We may offer up to 4,000,000 shares of Common Stock of the Company.
Risk Factors
An investment in the Common Stock involves certain risks. See "Risk Factors"
immediately following this summary.
Purpose of Offering
The Common Stock is being offered in connection with acquisitions by the Company
or its subsidiaries.
Acquisitions We May Make
The Company intends to concentrate its acquisitions in advertising and related
businesses. However, the Company may consider acquisitions which are either
complementary to its present operations or which it considers advantageous even
though the acquired business may be dissimilar to its present activities.
Market for Securities
The Common Stock is listed on the New York Stock Exchange under the symbol
"TNO."
Resale of Securities
This Prospectus, as amended or supplemented, may also be used by persons who
receive Common Stock in connection with acquisitions and who wish to offer and
sell such shares.
Manner of Resale
Resales by persons who receive Common Stock and who wish to offer and sell such
shares hereunder may be made directly to investors or through a securities firm
acting as an underwriter, broker or dealer. When resales are to be made through
a securities firm, such securities firm may be engaged to act as the selling
person's agent in the sale of shares, or such securities firm may purchase
shares from the selling person as principal and thereafter resell such shares
from time to time. The fees earned by or paid to such securities firm may be the
normal stock exchange commission or negotiated commissions or underwriting
discounts to the extent permissible. In addition, such securities firm may
effect resales through other securities dealers, and customary commissions or
concessions to such other dealers may be allowed. Sales of shares may be at
negotiated prices, at fixed prices, at market prices or at prices related to
market prices then prevailing. Any such sales may be made on the New York Stock
Exchange or other exchange on which such shares are traded, in the over-the-
counter market, by block trade, in special or other offerings, directly to
investors or through a securities firm acting as agent or principal, or a
combination of such methods.
Prospectus Supplement
A Prospectus Supplement, if required, will be filed under Rule 424(b) under the
Securities Act of 1933, disclosing the names of the persons who receive Common
Stock and who wish to offer and sell such shares hereunder, the participating
securities firm, if any, the number of shares involved, and other details of
such resale, if appropriate.
Where You Can Find More Information
This Prospectus "incorporates by reference" certain information about the
Company from the Company's filings with the SEC. See "Where You Can Find More
Information" about how to obtain copies of such filings.
Address and Telephone
The address of the Company is 101 East Erie Street, Chicago, Illinois 60611-
2897; and its telephone number is (312) 425-6500.
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RISK FACTORS
An investment in the Common Stock offered hereby involves certain
risks. Accordingly, you should consider carefully the following factors,
together with the other information contained or incorporated by reference in
this Prospectus, before purchasing the Common Stock offered hereby. This
Prospectus includes or incorporates certain forward-looking statements that
involve risk and uncertainty. Actual results and the timing of certain events
could differ materially from those projected in the forward-looking statements
as a result of the risk factors set forth below and other factors discussed
elsewhere in this Prospectus. See "Private Securities Litigation Reform Act of
1995 Safe Harbor Cautionary Statement." Capitalized terms used but not defined
in this section are used as defined elsewhere in this Prospectus.
Risks Associated with Possible Acquisitions
The Company expects that a portion of its future growth may come from
acquisitions. The acquisition of additional businesses will depend on the
Company's ability to identify suitable acquisition candidates, to negotiate
acceptable terms for their acquisition and to finance any such acquisitions. The
Company will also be subject to competition for suitable acquisition candidates.
Any acquisitions, if made, could divert the resources and management time of the
Company and would require integration with the Company's agency networks or
services. As a result, there can be no assurance that any such acquisitions will
occur or that any such acquisitions, if made, would be made in a timely manner
or on terms favorable to the Company or would be successfully integrated into
the Company's operations.
Dependence on Key Personnel
The Company's businesses are managed by a relatively small number of
senior management and operating personnel and the Company is highly dependent
upon the management skills of its key employees. The loss of the services of any
key employee could adversely affect the Company's financial condition and
results of operations. There can be no assurance that the Company will be
successful in retaining its key employees or that it can attract or retain
additional skilled personnel.
Anti-Takeover Provisions
The Company's Restated Certificate of Incorporation and Bylaws and the
Company's Rights Agreement contain provisions that could discourage or make more
difficult a change of control of the Company. For instance, the Company's Bylaws
provide that nominations for the election of directors and the presentation of
other business at an annual meeting of stockholders may be made only by the
Company's board of directors (or in the case of nominations for the election of
directors by a committee appointed by such board) or by any stockholder entitled
to vote at the applicable meeting pursuant to notice timely delivered to the
Company. The Company's Rights Agreement contains provisions that could
discourage or make more difficult a change of control of the Company.
Future Sales and Price of Common Stock
No prediction can be made as to the effect, if any, that future sales
of Common Stock, or the availability of shares for a future sale, will have on
the market price of the Common Stock prevailing from time to time. Sales of
substantial amounts of Common Stock, or the perception that such sales may
occur, could adversely affect prevailing market prices for the Common Stock.
Sales of large volumes of Common Stock may have the effect of depressing the
market price for the Common Stock.
Year 2000 Risk
The Company has implemented a Year 2000 program to ensure that its
computer systems and applications will function properly beyond 1999. The
Company believes that it has allocated adequate resources for this purpose and
expects its Year 2000 date conversion program to be successfully completed on a
timely basis. There can, however, be no assurance that this will be the case.
The Company does not expect to incur significant expenditures to address this
issue. The ability of third parties with whom the Company transacts business to
adequately address their Year 2000 issues is outside of the
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Company's control. There can be no assurance that the failure of the Company or
such third parties adequately to address their respective Year 2000 issues will
not have a material adverse effect on the Company's business, financial
condition, cash flows and results of operations.
THE COMPANY
In December 1994, the Company succeeded Foote, Cone & Belding
Communications, Inc. as the holding company for Foote, Cone & Belding, Inc.
("FCB"), a global advertising agency. In December 1997, through the merger of a
subsidiary of the Company with Bozell, Jacobs, Kenyon & Eckhardt, Inc., the
Company almost doubled its size by adding Bozell Worldwide, Temerlin McClain and
certain specialized communications businesses to its network.
The Company offers full-service advertising through two separate
agency networks, Foote, Cone & Belding Worldwide and Bozell Worldwide. Foote,
Cone & Belding Worldwide and Bozell Worldwide, by themselves and through their
respective subsidiaries and affiliates, independently operate separate
advertising agency networks worldwide. Their primary business is to create
marketing communications for their clients' goods and services across the
spectrum of advertising and promotion media. Each of the agency networks has its
own clients and competes with the other in certain markets. The Company also
operates two other independent full-service advertising agencies, Temerlin
McClain, Inc. and Tierney & Partners. In addition, the Company owns certain
marketing services and specialty advertising companies through the True North
Diversified Services Companies, and certain interactive marketing companies
through TN Technologies Inc.
The Company's corporate headquarters are located at 101 East Erie
Street, Chicago, Illinois 60611-2897, and its telephone number is (312) 425-
6500. Except where the context otherwise indicates, the term "Company" includes
True North Communications Inc., a Delaware corporation, and its subsidiaries.
USE OF PROCEEDS/PLAN OF DISTRIBUTION
The securities of the Company which may be offered from time to time
by this Prospectus include up to 4,000,000 shares of Common Stock. The Company
proposes to issue such shares in connection with acquisitions by the Company or
its subsidiaries. The consideration for any acquisition, including consideration
issued under any collateral arrangements such as employment agreements,
consulting agreements or non-competition agreements, may consist of cash, notes
or other evidences of debt, assumptions of liabilities, equity securities, or a
combination thereof, as determined from time to time by negotiations between the
Company and the owners or controlling persons of businesses or assets to be
acquired. The Company intends to concentrate its acquisitions in advertising and
related businesses. However, the Company may consider acquisitions which are
either complementary to its present operations or which it considers
advantageous even though the acquired business may be dissimilar to its present
activities. In general, the terms of acquisitions will be determined by direct
negotiations between the representatives of the Company and the owners or
controlling persons of the businesses or assets to be acquired or, in the case
of entities more widely held, through exchange offers to stockholders or
documents soliciting approval of mergers, consolidations or sales of assets.
Underwriting discounts or commissions will generally not be paid by the Company.
However, under some circumstances, the Company may issue shares of Common Stock
covered by this Prospectus to pay brokers' commissions or similar fees incurred
in connection with acquisitions.
This Prospectus, as appropriately amended or supplemented, has also
been prepared for use by persons who receive shares issued hereunder by the
Company in connection with acquisitions, and who wish to offer and sell such
shares, on terms then obtainable, in transactions in which they may be deemed
affiliates or underwriters within the meaning of the Securities Act of 1933
(such persons being referred to under this caption as "Selling Shareholders").
Resales may be made pursuant to this Prospectus, as amended or supplemented,
pursuant to Rule 145(d) under the Securities Act of 1933, or pursuant to an
exemption from such Act. Any profits realized on resales by Selling Shareholders
under certain circumstances may be regarded as underwriting compensation under
the Securities Act of 1933.
Resales by Selling Shareholders may be made directly to investors or
through a securities firm acting as an underwriter, broker or dealer. When
resales are to be made through a securities firm, such securities firm may be
engaged to act as the Selling Shareholder's agent in the sale of shares by such
Selling Shareholder, or such securities firm may purchase shares from the
Selling Shareholder as principal and thereafter resell such shares from time to
time. The fees
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earned by or paid to such securities firm may be the normal stock exchange
commission or negotiated commissions or underwriting discounts to the extent
permissible. In addition, such securities firm may effect resales through other
securities dealers, and customary commissions or concessions to such other
dealers may be allowed. Sales of shares may be at negotiated prices, at fixed
prices, at market prices or at prices related to market prices then prevailing.
Any such sales may be made on the New York Stock Exchange or other exchange on
which such shares are traded, in the over-the-counter market, by block trade, in
special or other offerings, directly to investors or through a securities firm
acting as agent or principal, or a combination of such methods. Any
participating securities firm may be indemnified against certain civil
liabilities, including liabilities under the Securities Act of 1933. Any
participating securities firm may be deemed to be an underwriter within the
meaning of the Securities Act of 1933, and any commissions earned by such firm
may be deemed to be underwriting discounts or commissions under such Act.
A Prospectus Supplement, if required, will be filed under Rule 424(b)
under the Securities Act of 1933, disclosing the name of the Selling
Shareholder, the participating securities firm, if any, the number of shares
involved, and other details of such resale, if appropriate.
LEGAL MATTERS
Certain legal matters relating to the securities offered hereby will
be passed upon for the Company by Suzanne E. Sutkowski, Vice President and
Assistant General Counsel of the Company.
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries included (or incorporated by reference) in the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated herein in reliance upon the
authority of Arthur Andersen LLP as experts in giving said reports.
The consolidated statements of operations, cash flows and
stockholders' equity of Bozell, Jacobs, Kenyon & Eckhardt, Inc. and its
subsidiaries for each of the two years in the period ended March 31, 1997 were
audited by KPMG Peat Marwick LLP, independent certified public accountants, and
are included in the consolidated financial statements of True North
Communications Inc. for each of the two years in the period ended December 31,
1996. The reports of KPMG Peat Marwick LLP on the statements of operations, cash
flows and stockholders' equity of Bozell, Jacobs, Kenyon & Eckhardt, Inc. and
subsidiaries for each of the two years in the period ended March 31, 1997 are
incorporated by reference in reliance upon the authority of KPMG Peat Marwick
LLP as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
The Company files reports, proxy statements and other information with
the Securities and Exchange Commission ("SEC"). You may inspect and copy such
reports, proxy statements and other information at the public reference
facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information. Such materials also may be accessed electronically by means
of the SEC's web site at http://www.sec.gov.
The Company has filed a Registration Statement relating to the
offering described in this Prospectus. As allowed by SEC rules, this Prospectus
does not contain all of the information which you can find in the Registration
Statement. You are referred to the Registration Statement and the Exhibits
thereto for further information. This document is qualified in its entirely by
such other information.
The SEC allows the Company to "incorporate by reference" information
into this Prospectus, which means that we can disclose important information to
you by referring you to another document filed separately with the SEC. The
information incorporated by reference is deemed to be part of this Prospectus,
except for any information superseded by
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information in this Prospectus. This Prospectus incorporates by reference the
documents set forth below that have been previously filed with the SEC. These
documents contain important information about the Company's business and
finances.
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
3. The description of the Company's capital stock contained in the
Company's Registration Statement on Form S-4 filed on November 26,
1997, Registration No. 333-41189, and any amendment or report filed
for the purposes of updating such description;
4. The description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed on
November 18, 1988, and any amendment or report filed for the purpose
of updating such description; and
5. All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934 since December 31, 1997.
This Prospectus also incorporates by reference additional documents that
may be filed by the Company with the SEC between the date of this Prospectus and
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold. Any statement contained in this Prospectus or in a document incorporated
by reference shall be deemed to be modified or superseded for all purposes to
the extent that a statement contained in this Prospectus or in any other
document which is also incorporated by reference modifies or supersedes such
statement.
You may obtain copies of such documents which are incorporated by reference
in this Prospectus (other than exhibits thereto which are not specifically
incorporated by reference herein), without charge, upon written or oral request
to the Secretary of the Company at 101 East Erie Street, Chicago, Illinois
60611-2897, (312) 425-6500. In order to ensure delivery of documents, any
request therefor should be made not later than five business days prior to
making an investment decision.
You should rely only on the information contained or incorporated by
reference in this Prospectus. We have not authorized anyone to provide you with
information that is different from what is contained in this Prospectus. You
should not assume that the information contained in the Prospectus is accurate
as of any date other that the date of the Prospectus, and neither the mailing of
the Prospectus to stockholders nor the issuance of any securities hereunder
shall create any implication to the contrary. This Prospectus does not offer to
buy or sell securities in any jurisdiction where it is unlawful to do so.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Company's Bylaws also provide that the Company will indemnify its
directors, officers, employees and other agents to the fullest extent permitted
by Delaware law.
The Company's Certificate of Incorporation, as amended, provides for
the elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company or its stockholders. These provisions do
not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Company or its stockholders, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, or for
payment of dividends or approval of stock repurchases or redemptions that are
unlawful under Delaware law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
Furthermore, the Company has secured insurance covering the Company
and its directors and officers and those of its principal subsidiaries against
certain liabilities.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit No. Description of Document
4.1 Registrant's Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3(i) to Registrant's Form 10-K for the year ended
December 31, 1994)
4.2 Certificate of Ownership and Merger changing Registrant's name to True
North Communications Inc. (incorporated by reference to Exhibit (3)(i)
to Registrant's Current Report on Form 8-K filed December 9, 1994).
4.3 Certificate of Correction to Correct a Certain Error in the Restated
Certificate of Incorporation, filed in Delaware on December 3, 1996
(incorporated by reference to Exhibit 10.2 to Registrant's Current
Report on Form 8-K dated June 10, 1997).
4.4 Registrant's Bylaws, as restated March 4, 1998 (incorporated by
reference to Exhibit 4.4 to Registrant's Post-Effective Amendment No.
1 on Form S-8 dated March 17, 1998 to Registrant's Registration
Statement on Form S-4, filed November 26, 1997 (File No. 333-41189)).
4.5 Certificate of Increase of Shares Designated as Series A Junior
Participating Preferred Stock, filed in Delaware on December 3, 1997
(incorporated by reference to Exhibit 4.5 to Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.6 Certificate of Amendment of Restated Certificate of Incorporation,
filed in Delaware on December 30, 1997 (incorporated by reference to
Exhibit 4.6 to Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997).
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4.7 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 Securities Exchange Act of 1934 filed on November
18, 1988).
5.1 Opinion of Suzanne E. Sutkowski, Vice President, Assistant General
Counsel of Registrant.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of KPMG Peat Marwick LLP, independent certified public
accountants.
23.3 Consent of Suzanne E. Sutkowski, Vice President, Assistant General
Counsel of Registrant (included in Exhibit 5.1).
24.1 Power of Attorney.
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(b) Schedules
All schedules are omitted because they are not applicable or not required
or because the required information is shown in the financial statements or
notes thereto.
Item 22. Undertakings
(a) The undersigned 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:
(1) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(2) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. 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 end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(3) 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 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.
(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.
II-2
<PAGE>
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
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.
(d) The undersigned registrant hereby undertakes as follows: prior to any
public offering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
(e) The undersigned registrant undertakes that every prospectus (i) that is
filed pursuant to the immediately preceding paragraph or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Securities Act and is used in
connection with the offering of securities subject to Rule 415, except to the
extent permitted to be filed as a prospectus supplement, will be filed as a part
of an amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes 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 bona fide offering thereof.
(f) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(g) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective, except where
the transaction in which the securities being offered pursuant to this
registration statement would itself qualify for an exemption from Section 5 of
the Securities Act, absent the existence of other similar (prior or subsequent)
transactions.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant 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 7th day of July, 1998.
TRUE NORTH COMMUNICATIONS INC.
By: /s/ Bruce Mason
-------------------------------------------
Bruce Mason, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the 7th day of July, 1998.
Signature Title
--------- -----
/s/ Bruce Mason
- --------------------------------
Bruce Mason Chief Executive Officer and Director
/s/ Donald L. Seeley
- --------------------------------
Donald L. Seeley Executive Vice President, Chief
Financial Officer (Principal
Financial Officer)
/s/ John J. Rezich
- --------------------------------
John J. Rezich Vice President, Controller (Principal
Accounting Officer)
*
- --------------------------------
Richard S. Braddock Director
*
- --------------------------------
Donald M. Elliman, Jr. Director
*
- --------------------------------
W. Grant Gregory Director
*
- --------------------------------
Leo-Arthur Kelmenson Director
*
- --------------------------------
Richard P. Mayer Director
*
- --------------------------------
Michael E. Murphy Director
<PAGE>
*
- --------------------------------
Charles D. Peebler, Jr. Director
*
- --------------------------------
J. Brendan Ryan Director
*
- --------------------------------
Stephen T. Vehslage Director
*By: /s/ Theodore J. Theophilos
--------------------------
Theodore J. Theophilos
as Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Document
4.1 Registrant's Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3(i) to Registrant's Form
10-K for the year ended December 31, 1994)
4.2 Certificate of Ownership and Merger changing Registrant's name to
True North Communications Inc. (incorporated by reference to
Exhibit (3)(i) to Registrant's Current Report on Form 8-K filed
December 9, 1994).
4.3 Certificate of Correction to Correct a Certain Error in the
Restated Certificate of Incorporation, filed in Delaware on
December 3, 1996 (incorporated by reference to Exhibit 10.2 to
Registrant's Current Report on Form 8-K dated June 10, 1997).
4.4 Registrant's Bylaws, as restated March 4, 1998 (incorporated by
reference to Exhibit 4.4 to Registrant's Post-Effective Amendment
No. 1 on Form S-8 dated March 17, 1998 to Registrant's
Registration Statement on Form S-4, filed November 26, 1997 (File
No. 333-41189)).
4.5 Certificate of Increase of Shares Designated as Series A Junior
Participating Preferred Stock, filed in Delaware on December 3,
1997 (incorporated by reference to Exhibit 4.5 to Registrant's
Annual Report on Form 10-K for the year ended December 31, 1997).
4.6 Certificate of Amendment of Restated Certificate of
Incorporation, filed in Delaware on December 30, 1997
(incorporated by reference to Exhibit 4.6 to Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.7 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 Securities Exchange Act of 1934 filed on
November 18, 1988).
5.1 Opinion of Suzanne E. Sutkowski, Vice President, Assistant
General Counsel of Registrant.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of KPMG Peat Marwick LLP, independent certified public
accountants.
23.3 Consent of Suzanne E. Sutkowski, Vice President, Assistant
General Counsel of Registrant (included in Exhibit 5.1).
24.1 Power of Attorney.
<PAGE>
EXHIBIT 5.1
True North Communications Inc.
101 East Erie Street
Chicago, Illinois 60611
July 7, 1998
Board of Directors
True North Communications Inc.
101 East Erie Street
Chicago, Illinois 60611
Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-4 to be filed with the Securities and Exchange Commission
(the "Commission") on the date hereof (the "Registration Statement") relating to
the registration of 4,000,000 shares of common stock, $.33 1/3 par value per
share (the "Registered Shares"), of True North Communications Inc. (the
"Company"), together with 4,000,000 Preferred Stock Purchase Rights (the
"Rights") associated therewith, for use in acquisitions. The terms of the Rights
are set forth in the Rights Agreement dated November 16, 1986 between the
Company and Harris Trust and Savings Bank, as Rights Agent.
I, in my capacity as Vice President and Assistant General Counsel of
the Company, am familiar with the proceedings to date with respect to the
proposed issuance of the Registered Shares and associated Rights and have
examined such records, documents and matters of law and satisfied myself as to
such matters of fact as I have considered relevant for the purposes of this
opinion.
I am of the opinion that:
1. The Company is a corporation validly existing under the laws of
the State of Delaware.
2. The Registered Shares will constitute validly issued, fully paid
and nonassessable shares of common stock, $.33 1/3 par value per
share, of the Company, when (i) the Registration Statement, as
finally amended, shall have become effective under the Securities
Act of 1933, as amended; (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 the Registered
Shares; (iii) the Registered Shares shall have been duly issued
and sold in the manner contemplated by such resolutions and the
Registration
<PAGE>
Statement; and (iv) certificates representing the Registered
Shares shall have been duly executed, countersigned and
registered and duly delivered to the purchaser thereof against
payment of the agreed consideration therefor (not less than the
par value thereof) in accordance with such resolutions and the
Registration Statement.
3. Rights associated with the Registered Shares will be legally
issued when such Rights shall have been duly issued in
accordance with the terms of the Rights Agreement.
I do not find it necessary for the purposes of this opinion, and
accordingly do not purport to cover herein, the application of the securities or
"blue sky" laws of the various states to the sale of the Registered Shares or
associated Rights.
This opinion is limited to the General Corporation Law of the State of
Delaware and the federal laws of the United States of America.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. I
assume no obligation to revise or supplement this opinion should the General
Corporation Law of the State of Delaware or the federal law of the United States
as presently in effect be changed by legislative action, judicial decision or
otherwise.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement and to the references to me in the
Registration Statement. In giving this consent, I do not thereby admit that I
am in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Commission.
Very truly yours,
/s/ Suzanne E. Sutkowski
Suzanne E. Sutkowski
Vice President,
Assistant General Counsel
<PAGE>
EXHIBIT 23.1
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our Firm) included in or made part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Chicago, Illinois
July 7, 1998
<PAGE>
EXHIBIT 23.2
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
ACCOUNTANTS' CONSENT
The Board of Directors
True North Communications Inc.
We consent to the incorporation by reference in the Registration Statement on
Form S-4 of True North Communications Inc. of our report dated May 16, 1997,
relating to the consolidated statements of operations, cash flows, and
stockholders' equity of Bozell, Jacobs, Kenyon & Eckhardt, Inc. and subsidiaries
for each of the years in the two-year period ended March 31, 1997, which report
appears in the December 31, 1997, annual report on Form 10-K of True North
Communications Inc.
KPMG PEAT MARWICK LLP
/s/ KPMG PEAT MARWICK LLP
Omaha, Nebraska
July 7, 1998
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
WHEREAS, True North Communications Inc., a Delaware corporation (the
"Corporation"), proposes to offer and sell shares of Common Stock, $.33-1/3 par
value (the "Common Stock"), in connection with acquisitions by the Corporation
or its subsidiaries.
WHEREAS, in order to register such shares, the Corporation proposes to file
shortly with the Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a Registration Statement on Form S-4 (the
"Registration Statement") with respect to such shares of Common Stock which may
be issued from time to time in connection with acquisitions by the Corporation
or its subsidiaries;
NOW THEREFORE, each person whose signature appears below constitutes and
appoints Bruce Mason, Donald L. Seeley and Theodore J. Theophilos, and each of
them, his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, in any and all capacities, to sign the
Registration Statement or amendments (including post-effective amendments)
thereto and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
each of said attorneys-in-fact and agents 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 he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or their substitutes, may lawfully do or cause to be done by
virtue hereof.
<TABLE>
<CAPTION>
Name Date Signed
---- -----------
<S> <C>
/s/ Charles D. Peebler, Jr. June 25, 1998
- ---------------------------------------
Charles D. Peebler, Jr.
/s/ Richard S. Braddock June 26, 1998
- ---------------------------------------
Richard S. Braddock
/s/ David A. Bell June 29, 1998
- ---------------------------------------
David A. Bell
/s/ Donald M. Elliman, Jr. June 29, 1998
- ---------------------------------------
Donald M. Elliman, Jr.
/s/ W. Grant Gregory June 26, 1998
- ---------------------------------------
W. Grant Gregory
/s/ Leo-Arthur Kelmenson June 26, 1998
- ---------------------------------------
Leo-Arthur Kelmenson
/s/ Richard P. Mayer June 25, 1998
- ---------------------------------------
Richard P. Mayer
/s/ Michael E. Murphy June 25, 1998
- ---------------------------------------
Michael E. Murphy
/s/ J. Brendan Ryan June 26, 1998
- ---------------------------------------
J. Brendan Ryan
/s/ Stephen T. Vehslage June 26, 1998
- ---------------------------------------
Stephen T. Vehslage
</TABLE>
