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As filed with the Securities and Exchange Commission on March __, 1998
Registration No. 333-41189
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1
on Form S-8
to
Form S-4
Registration Statement
Under
The Securities Act of 1933
__________________________
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 (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification Number)
organization)
101 East Erie Street
Chicago, Illinois 60611
(312) 425-6500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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Bozell, Jacobs, Kenyon & Eckhardt, Inc.
Stock Option Plan
(Full Title of the Plan)
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Theodore J. Theophilos, Esq.
Executive Vice President and General Counsel
101 East Erie Street
Chicago, IL 60611
(312) 425-6500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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INTRODUCTORY STATEMENT
TRUE NORTH COMMUNICATIONS INC., a Delaware corporation (the "Registrant"),
hereby amends its Registration Statement on Form S-4 (Registration No. 333-
41189) by filing this Post-Effective Amendment No. 1 on Form S-8.
On December 30, 1997, Bozell, Jacobs, Kenyon & Eckhardt, Inc., a Delaware
corporation ("Bozell"), became a wholly-owned subsidiary of the Registrant upon
consummation of the merger (the "Merger") contemplated by the Agreement and Plan
of Merger dated as of July 30, 1997 (the "Merger Agreement") among the
Registrant, a wholly-owned subsidiary of the Registrant and Bozell. Each option
(an "Outstanding Option") to purchase Class B Common Stock, par value $.001 per
share of Bozell ("Bozell Common Stock"), which was outstanding immediately prior
to the effective time of the Merger (the "Effective Time") pursuant to the stock
option plan of Bozell referenced in the Merger Agreement as "the Stock Plans"
became an option to purchase shares of Common Stock, par value $.33 1/3 per
share, of the Registrant ("Common Stock") as provided in the Merger Agreement ,
together with the associated rights to purchase shares of preferred stock of the
Registrant ("Rights") in accordance with the Rights Agreement dated as of
November 16, 1988 between the Registrant and Harris Trust and Savings Bank, as
Rights Agent. Each Outstanding Option will otherwise be exercisable upon the
same terms and conditions as were applicable immediately prior to the Effective
Time.
This Post-Effective Amendment relates to the offer and sale after the
Effective Time of the Merger of Common Stock of Registrant, together with the
associated Rights, pursuant to and in accordance with the Outstanding Options.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I (plan information
and registrant information) will be sent or given to employees as specified by
Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act"). Such documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities At. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed (file Number 1-5029) by the
Registrant with the Securities and Exchange Commission (the "SEC") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended December 31,
1996, Amendment No. 1 thereto on Form 10-K/A dated June 27, 1997 and
Amendment No. 2 thereto on Form 10-K/A dated November 26, 1997;
2. The Registrant's Current Reports on Form 8-K filed with the SEC on May 19,
June 10, July 31, November 17, December 1, December 4, December 11,
December 17, December 29 and December 31, 1997;
3. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1997;
4. The description of the Common Stock contained in the Registration Statement
on Form S-4 (Registration No. 333-41189) under the caption "Description of
True North Common Stock" filed by the Registrant with the SEC on November
26, 1997, including any amendments or reports filed for the purpose of
updating such description; and
5. The description of the Rights contained in the Registration Statement on
Form 8-A filed by the Registrant with the SEC on November 18, 1988,
including any amendments or reports filed for the purpose of updating such
description.
All reports and other documents filed by the Registrant pursuant to
Section 13(a), 13(c) 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the dates of filing of such reports and
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. Registrant's Bylaws also provide that Registrant will indemnify its
directors, officers, employees and other agents to the fullest extent not
prohibited by Delaware law.
Registrant's Charter provides for the elimination of liability for
monetary damages for breach of the directors' fiduciary duty of care to
Registrant 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 Registrant 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, Registrant has secured insurance covering Registrant and
its directors and officers and those of its principal subsidiaries against
certain liabilities.
Item 7. Exemptions from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) The following is a list of Exhibits included as part of this Post-
Effective Amendment. Items marked with a single asterisk are filed
herewith. Items marked with a double asterisk were filed by the Registrant
with the SEC on November 26, 1997 with the Registration Statement on Form
S-4 to which this Post-Effective Amendment relates.
4.1 Restated Certificate of Incorporation, as amended, of Registrant
(incorporated by reference to Exhibit 3(i) to True North's Annual
Report on 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 dated
December 9, 1994).
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4.3 Bylaws, as amended, of Registrant incorporated by reference to
Exhibit 4(d) to Registrant's Registration Statement on Form S-8,
No. 33-54279, filed on June 24, 1994).
*4.4 Registrant's bylaws as restated and amended March 4, 1998.
4.5 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 filed with the SEC on November 18, 1988).
*4.5 Stock Option Plan of Bozell, Jacobs, Kenyon & Eckhardt, Inc, as
amended.
*4.6 Stock Option Agreement (form of) under Stock Option Plan of
Bozell, Jacobs, Kenyon & Eckhardt, Inc.
*4.7 Option Assumption Agreement (form of) among Registrant, Bozell,
Jacobs, Kenyon & Eckhardt, Inc. and individual optionees.
**5.1 Opinion of Sidley & Austin.
**23.1 Consent of Arthur Andersen L.L.P.
**23.2 Consent of KPMG Peat Marwick L.L.P.
**23.3 Consent of Sidley & Austin (included in Exhibit 5.1).
**24.1 Power of Attorney (included in the Signature page to this
Registration Statement as filed on November 26, 1997).
*24.2 Supplemental Power of Attorney.
(b) Not applicable.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective
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amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration
statement; and 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 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table of the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Post-
Effective Amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chicago, State of Illinois, on March 12, 1998.
TRUE NORTH COMMUNICATIONS INC.
By: /s/ BRUCE MASON
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Bruce Mason
Chief Executive Officer
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment has been signed by the following persons in the capacities
and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ BRUCE MASON Chief Executive Officer March 12, 1998
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Bruce Mason and Director (principal executive officer)
/s/ DONALD L. SEELEY Executive Vice President and March 12, 1998
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Donald L. Seeley Chief Financial Officer (principal financial officer)
/s/ JOHN J. REZICH Vice President and Controller March 12, 1998
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John J. Rezich (principal accounting officer)
* Director and President March 12, 1998
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Charles D. Peebler, Jr.
* Director and Chairman of the Board March 12, 1998
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Richard S. Braddock
* Director March 12, 1998
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David A. Bell
* Director March 12, 1998
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Donald M. Elliman, Jr.
* Director March 12, 1998
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W. Grant Gregory
* Director March 12, 1998
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Leo-Arthur Kelmenson
* Director March 12, 1998
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Richard P. Mayer
* Director March 12, 1998
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Michael E. Murphy
* Director March 12, 1998
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J. Brendan Ryan
* Director March 12, 1998
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Stephen T. Vehslage
*By /s/ THEODORE J. THEOPHILOS March 12, 1998
Theodore J. Theophilos, Executive Vice President,
General Counsel, Attorney-in-Fact
</TABLE>
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<PAGE>
Exhibit 4.4
BY-LAWS
OF
TRUE NORTH COMMUNICATIONS INC.
As Restated and Amended
Effective 3/4/98
ARTICLE I.
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Stockholders' Meetings
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Section 1. Annual Meeting. (a) 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.
(b) Only such business shall be conducted at an annual meeting of
stockholders as shall have been properly brought before the meeting. For
business to be properly brought before the meeting, it must be: (i) authorized
by the Board of Directors and specified in the notice, or a supplemental notice,
of the meeting, (ii) otherwise brought before the meeting by or at the direction
of the Board of Directors or the chairman of the meeting, or (iii) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given written notice thereof to the Secretary, delivered or mailed to and
received at the principal executive offices of the corporation (a) not less than
60 days nor more than 90 days prior to the meeting, or (b) if less than 70 days'
notice of the meeting or prior public disclosure of the date of the meeting is
given or made to stockholders, not later than the close of business on the tenth
day following the day on which the notice of the meeting was mailed or, if
earlier, the day on which such public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each item of business the
stockholder proposes to bring before the meeting (1) a brief description of such
item and the reasons for conducting such business at the meeting, (2) the name
and address, as they appear on the corporation's records, of the stockholder
proposing such
<PAGE>
business, (3) the class and number of shares of stock of the corporation which
are beneficially owned by the stockholder (for purposes of the regulations under
Sections 13 and 14 of the Securities Exchange Act of 1934, as amended), and (4)
any material interest of the stockholder in such business. No business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the meeting at which any business
is proposed by a stockholder shall, if the facts warrant, determine and declare
to the meeting that such business was not properly brought before the meeting in
accordance with the provisions of this paragraph (b), and, in such event, the
business not properly before the meeting shall not be transacted.
Section 2. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors, the Chief Executive Officer 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 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
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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 percent 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.
ARTICLE II.
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Directors
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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.
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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. 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 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
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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 Chief Executive Officer, 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 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
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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, an annual retainer fee may be allowed and 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.
ARTICLE III.
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Officers and Employees
----------------------
Section 1. Number, Qualification, Election and Term of Office. (a) The
officers of the corporation shall be a Chief Executive Officer, a President, a
Chief Financial Officer, 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 Chief Executive Officer and the President.
The corporation shall also have a non-executive Chairman of the Board of
Directors, who shall be a director. 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.
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Section 2. Appointments. In addition to the elected officers provided
above, who shall be corporate officers, the Chief Executive Officer 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 serve
in a non-executive capacity and shall have such duties as are designated by the
Board of Directors.
Section 6. Chief Executive Officer. The Chief Executive Officer shall
preside at all meetings of stockholders 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.
Section 7. President. The President shall have general and active
supervision over the property, business and affairs of the corporation, subject
to the authority of the Chief Executive Officer. He shall preside, in the
absence of the Chief Executive Officer, at all meetings of stockholders. 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. Chief Financial Officer. The Chief Financial Officer shall be
the principal officer of the corporation. He shall have such duties as shall
from time to time be designated by the Board.
Section 9. Vice-Presidents. The elected VicePresidents, which may be
designated by different classes, shall have such duties as shall from time to
time be designated by the Board.
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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.
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 Chief
Executive Officer, 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,
participating, optional or other spacial rights of each
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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 (1)
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 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
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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:
(1) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stock holders 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.
(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 a circular in form with
the words "TRUE NORTH COMMUNICATIONS INC. -
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<PAGE>
DELAWARE" around the periphery and the figures and words "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 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
Chief Executive Officer, the President or the Chief Financial Officer, 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.
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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 such person 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 such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person 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 such person's 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 the person 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 such
person's 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 such person 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) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person 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 circumstances 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.
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<PAGE>
(c) To the extent that a present or former 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, such person 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 present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in subsections (a) and (b). Such determination shall be made (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorney's fees) incurred by an officer or
director in defending a civil, criminal, administrative or investigative 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 such person is not entitled to be indemnified by
the corporation as authorized in this Article V, Section 9. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(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 such person's
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,
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<PAGE>
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the corporation would have the power to indemnify
such person 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 such person 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 such person 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.
(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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Exhibit 4.5
BOZELL, JACOBS, KENYON & ECKHARDT, INC.
STOCK OPTION PLAN
As Established Effective As Of March 30, 1992
* * * * * *
ARTICLE I.
Purposes
--------
The purposes of this Bozell, Jacobs, Kenyon & Eckhardt, Inc. Stock Option
Plan (the "Plan"), are to encourage eligible employees of Bozell, Jacobs, Kenyon
& Eckhardt, Inc. (the "Company") to increase their efforts to make the Company
more successful, to provide an additional inducement for such individuals to
remain with the Company, and to increase such individuals' proprietary interest
in the Company's success.
The word "Company" when used in the Plan with reference to employment shall
include subsidiaries of the Company. The word "subsidiary" shall mean any
subsidiary of the Company, within the meaning of Section 424(f) of the Internal
Revenue Code of 1986, as amended (the "Code").
It is intended that no option granted under this Plan shall qualify as an
"incentive stock option" under Section 422 of the Code.
<PAGE>
ARTICLE II.
Administration
--------------
The Plan shall be administered by the Compensation Committee (the
"Committee") appointed by the Board of Directors of the Company.
Subject to the provisions of the Plan, the Committee shall have the sole
authority, in its absolute discretion: (i) to determine which of the eligible
employees of the Company shall be granted options; (ii) to authorize the
granting of options; (iii) to determine the times when options shall be granted
and the number of shares to be optioned; (iv) subject to the authority of the
Executive Committee to do the same, to prescribe the form or forms of the option
agreements under the Plan (which forms shall be consistent with the Plan but
need not be identical); (v) to adopt, amend, and rescind such rules and
regulations as, in its opinion, may be advisable in the administration of the
Plan; and (vi) to construe and interpret the Plan and the rules and regulations
and the option agreements under the Plan, and to make all other determinations
deemed necessary or advisable for the administration of the Plan. All
decisions, determinations and interpretations of the Committee shall be final
and binding on all optionees.
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<PAGE>
ARTICLE III.
Stock
-----
(a) The stock to be optioned under the Plan shall be shares of
authorized but unissued or previously issued Class B Common Stock of the
Company, par value $.001 per share (the "Stock"). The total number of shares of
Stock which may be purchased pursuant to options granted hereunder shall not
exceed in the aggregate 1,200,000 shares, except as such number of shares shall
be adjusted in accordance with the provisions of ARTICLE XI hereof. In the
event that any outstanding option under the Plan is terminated for any reason
prior to the end of the period during which options may be granted hereunder,
the number of shares of Stock subject to the unexercised portion of such option
may again be subjected to another option or options under the Plan.
(b) All shares of Stock which are purchased pursuant to options
granted hereunder shall be subject to the Stockholders' Agreement, dated
February 18, 1988, by and between the Company and certain of its stockholders,
as amended from time to time, or to any successor thereto (the "Stockholders'
Agreement").
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<PAGE>
ARTICLE IV.
Eligibility of Participants
---------------------------
Those employees of the Company who are eligible for grants of options
are members of the Executive Committee of the Company and other officers and key
employees of the Company (including directors of the Company who are also
employees thereof), in each case as determined by the Compensation Committee of
the Company upon the recommendation of the Chief Executive Officer of the
Company. The number of options which may be granted to a participant under the
Plan shall be determined by the compensation Committee, upon the recommendation
of the Chief Executive officer of the Company.
ARTICLE V.
Options
-------
Options granted pursuant to the Plan shall be evidenced by agreements
in such form as the Committee (or, as provided in Article II hereof, the
Executive Committee) shall from time to time approve, which agreements need not
contain uniform terms and conditions, but shall comply with and be subject to
all the terms and conditions of the Plan. More than one option may be granted to
any optionee.
4
<PAGE>
ARTICLE VI.
Option Price
------------
In the case of each option granted under the Plan, the option price
per share of Stock shall be equal to 100% of the appraised value of the Stock on
the March 31 coincident with or immediately preceding the date of grant of such
option. In no event, however, shall the option price per share of Stock be less
than an amount equal to the par value of a share of Stock. For purposes of this
ARTICLE VI, "appraised value" shall mean the value of the Stock, as determined
by an independent appraiser, pursuant to the Stockholders' Agreement. For this
and all other Plan purposes, the date of grant of an option shall be the date as
of which the option agreement for such option is executed by the Company.
ARTICLE VII.
Term of Options
---------------
Each option issued hereunder shall become exercisable as to all of the
shares of Stock subject to such option as of the earliest of the following
events: (i) the sixth anniversary of the date of grant of such option; (ii) the
death or termination of employment for disability (as hereinafter defined) of
the optionee; (iii) a Change of Control of the Company (as hereinafter defined);
(iv) in the case of a Long Term Employment
5
<PAGE>
Contract Optionee (as hereinafter defined), and Linda Robinson, James Lake and
Kenneth Lerer, if such optionee ceases to be employed by the Company prior to
the sixth anniversary of the date of grant of such option in the case of a Long
Term Employment Contract Optionee or the third anniversary of the date of grant
of such option in the case of Linda Robinson, James Lake and Kenneth Lerer, by
reason of such optionee having been terminated without cause (as hereinafter
defined) (such optionee being an "Early Termination Optionee"), the date, if at
all, that the Company notifies the optionee in writing that such optionee has
breached in any material respect a Restrictive Covenant (as hereinafter defined)
(without taking into account the reason why such optionee is no longer employed
by the Company); or (v) the occurrence of such other events as the Committee may
determine from time to time. Any other provision of the Plan notwithstanding, no
option issued hereunder shall be exercisable after the date ten years from the
date of grant of such option.
The option held by any optionee shall immediately terminate (i) in the
case of an optionee who as of the date of grant of such option is party to an
employment agreement with the Company having a term of employment of at least
six years from the date of grant of such option (the "Long Term Employment
Contract Optionees"), and Linda Robinson, James Lake and Kenneth Lerer, if (x)
the optionee's employment shall be terminated for cause or (y) the optionee
terminates his or her employment with
6
<PAGE>
the Company in breach of the terms of his or her employment agreement with the
Company or any subsidiary thereof, in either case prior to the date that his or
her option becomes exercisable; and (ii) in the case of all other optionees, if
the optionee shall cease to be employed by the Company for any reason (whether
or not for cause) other than death, disability or retirement (as hereinafter
defined), prior to the date that his or her option becomes exercisable. If an
optionee shall die or terminate employment for disability, the option held by
such optionee (or, in the case of death, the optionee's transferee) shall
terminate on the first anniversary of the optionee's date of death or
termination of employment for disability, as applicable. If a Long Term
Employment Contract Optionee ceases to be employed by the Company for cause
after an option held by such Optionee is exercisable, such option shall
terminate 30 days after the date of such termination of employment. The option
held by an Early Termination Optionee who, following the termination of his
employment without cause, breaches in any material respect a Restrictive
Covenant as provided in clause (iv) of the first sentence of this Article VII
shall terminate thirty days after the Company furnishes such Early Termination
Optionee with written notice of such breach. In the case of Linda Robinson,
James Lake or Kenneth Lerer, if an option becomes exercisable on the sixth
anniversary of the date of its grant but the optionee does not continue in the
employ of the company beyond the third anniversary of the date of grant of the
option,
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<PAGE>
the option held by such optionee shall terminate 90 days after the sixth
anniversary of the date of grant of the option. If an optionee shall breach in
any material respect any restrictive covenant pertaining to (i) solicitation of
or rendering of services for or on behalf of any then past or present client of
the Company or any of its subsidiaries, (ii) solicitation, inducement or hiring
of any then past or present employees of the Company or any of its subsidiaries,
(iii) otherwise engaging in the advertising, public relations, promotional,
marketing, research or any related business, whether for or on behalf of another
advertising or public relations agency, or of any product competitive with any
product represented by the Company or any of its subsidiaries, or (iv) otherwise
restricting the use of optionee's name, which he has under any agreement or
arrangement with the Company (or any of its subsidiaries) (the restrictive
covenants referred to in (i) through (iv) being "Restrictive Covenants"), the
option held by such optionee shall terminate (i) in the case of a Long Term
Employment Contract Optionee or Linda Robinson, James Lake or Kenneth Lerer,
thirty days after the Company furnishes such person with written notice of such
breach provided that such person fails to cure said breach within said thirty-
day period, and (ii) in the case of all other optionees, immediately.
On and after the date that an option terminates, the optionee shall
have no rights thereunder.
8
<PAGE>
For purposes of this ARTICLE VII, "retirement" shall mean retirement
from active employment with the Company after reaching normal retirement age,
pursuant to the terms and conditions of the Company's retirement policy, as it
may exist from time to time. Termination of employment for "disability" shall
mean, with respect to an optionee who is subject to an employment agreement or
arrangement with the Company at the time of his termination of employment which
defines such term, the meaning which it has under such employment agreement or
arrangement. With respect to any other optionee, termination of employment for
"disability" shall have the meaning contained in the Stockholders' Agreement or,
if the Stockholders', Agreement is not in effect, shall mean termination of
employment due to the unwillingness, inability or other failure of such
individual, because of ill health or physical or mental disability, to
participate actively in the business of the Company in substantially the same
manner as at the time he acquires his option (i) for a period of 60 consecutive
business days or (ii) for a total of 90 business days, whether consecutive or
not, during any 12 consecutive calendar months during the term of the option.
Termination of employment for "cause" shall mean, with respect to an optionee
who is subject to an employment agreement or arrangement with the Company at the
time of his termination of employment which defines such term, the meaning which
it has under such employment agreement or arrangement. With respect to any other
optionee, a termination of employment shall be for
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<PAGE>
"cause" only in the event that the Company determines that the optionee (i) has
committed a felony or any crime involving dishonesty, (ii) has committed an act
or omission constituting willful misconduct that is injurious to the Company or
any of its subsidiaries, or (iii) has continued unsatisfactory performance of
his assigned duties at the conclusion of a prescribed probationary period. A
"Change of Control of the Company" shall mean the sale of all or substantially
all the assets of the Company or if any person or a group of persons (as defined
under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended)
(other than persons who are stockholders of the Company on the date of the
adoption of the Plan) becomes the beneficial owner (within the meaning of Rule
13d-3 under said act), by whatever means, of shares of common stock of the
Company (or in the case of any merger, consolidation or reorganization, of the
surviving or new entity) constituting in excess of 50% of the voting rights of
all outstanding shares of common stock of the Company (or in the case of any
merger, consolidation or reorganization, of the surviving or new entity).
ARTICLE VIII.
Exercise of Options
-------------------
An optionee (or, in the case of death of the optionee, his transferee)
may exercise his option in whole at any time or in part from time to time,
during the exercise period with
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<PAGE>
respect thereto set forth in ARTICLE VII. An optionee (or, in the case of death
of the optionee, his transferee) shall exercise his option by delivering to the
Company at the address provided in the option agreement a written, signed notice
of exercise, stating the number of shares of Stock with respect to which he has
elected to exercise his option, together with payment therefor as provided in
ARTICLE IX. Upon receipt by the Company of any notice of exercise, the exercise
of the option as set forth in that notice shall be irrevocable.
ARTICLE IX.
Payment for Shares
------------------
Payment for shares of Stock purchased upon exercise of an option
granted hereunder shall be made in full, in cash, at the time of exercise of
such option.
ARTICLE X.
Non-Transferability of Option Rights
------------------------------------
No option shall be transferable except by will or the laws of descent
and distribution. During the lifetime of the optionee, an option shall be
exercisable only by the optionee.
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<PAGE>
ARTICLE XI.
Adjustment for Stock Dividend, Merger, Etc.
------------------------------------------
The aggregate number of shares of Stock which may be purchased
pursuant to options granted hereunder, the number of shares of Stock covered by
each outstanding option and the price per share of each outstanding option shall
be proportionately and appropriately adjusted for any increase or decrease in
the number of outstanding shares of Stock resulting from a stock split or other
subdivision or a consolidation of shares of Stock, or for any other capital
adjustments or payments of dividends or other distributions in the form of Stock
or other increases or decreases in the outstanding shares of Stock or an
exchange for a different number or kind of shares effected without receipt of
consideration by the Company.
Subject to the occurrence of a Change of Control of the Company, if
the Company shall be a party to any merger, consolidation or other
reorganization, any option granted hereunder shall pertain to and apply to the
securities of the surviving corporation or the parent of the surviving
corporation, as the case may be, to which a holder, immediately prior to such
merger, consolidation or other Reorganization, of the number of shares of Stock
then subject to the option would have been entitled upon such merger,
consolidation or other reorganization, and the price per share shall
proportionately or appropriately be
12
<PAGE>
adjusted. In case of any recapitalization of the Company pursuant to which the
then outstanding shares of Stock are changed into other shares of stock, an
optionee, upon any exercise of his option, shall receive, in lieu of the shares
of Stock which he would otherwise be entitled to receive, the shares of stock
which the Optionee would have received upon such recapitalization, if
immediately prior thereto he had owned the shares of Stock to which such
exercise of the option relates and had exchanged such shares in accordance with
the terms of such recapitalization. [Note. Underscored language added by
December, 1997 amendment.]
The Company shall not be required to adjust the number of shares of
Stock subject to an option or the price per share thereof for any reason not
specifically enumerated in this ARTICLE XI.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to an option.
13
<PAGE>
ARTICLE XII.
No Obligation to Exercise Option
--------------------------------
Granting of an option shall impose no obligation on the recipient to
exercise such option.
ARTICLE XIII.
Use of Proceeds
---------------
The proceeds received from the sale of Stock pursuant to the Plan
shall be used for general corporate purposes or such other purposes as
determined by the Company.
ARTICLE XIV.
Rights as a Stockholder
-----------------------
An optionee or a transferee of an option shall have no rights as a
stockholder with respect to any shares covered by his option unless and only to
the extent that he shall have become the holder of record of such shares, and
(except as other provided in ARTICLE XI) he shall not be entitled to any
dividends or distributions or other rights in respect of such shares for which
the record date is prior to the date on which he shall have become the holder of
record thereof.
14
<PAGE>
ARTICLE XV.
Employment Rights
-----------------
Nothing in the Plan or in any option agreement granted hereunder shall
confer on any optionee any right to continue in the employ of the Company or to
interfere in any way with the right of the Company to terminate an optionee's
employment at any time.
ARTICLE XVI.
Compliance with Law
-------------------
The Company shall have no liability for failure to (or delay in) issue
or transfer any shares of Stock subject to options under the Plan resulting from
its inability to obtain (or any delay in obtaining) all requisite regulatory
authority, if counsel for the Company deems such authority necessary for lawful
issuance or transfer of any such shares. Appropriate legends may be placed on
the stock certificates evidencing shares issued upon exercise of options to
reflect such transfer restrictions and applicable restriction under securities
laws and legends required by the Stockholders' Agreement.
15
<PAGE>
ARTICLE XVII.
Expiration Date of Plan
-----------------------
No option shall be granted hereunder after March 29, 2002.
ARTICLE XVIII.
Amendment or Discontinuance of Plan
-----------------------------------
The Board of Directors of the Company or the Committee may at any
time, without the consent of the optionees, terminate the Plan entirely and at
any time, or from time to time, amend or modify the Plan; provided, however,
that no such action shall adversely affect options theretofore granted
hereunder. The Executive Committee of the Company may at any time, without the
consent of the optionees, terminate the Plan entirely; provided, however, that
such termination shall not adversely affect options theretofore granted.
ARTICLE XIX.
Construction
------------
Except as otherwise clearly required by the context, the masculine
gender when used herein shall include the feminine, and the singular form shall
include the plural.
16
<PAGE>
ARTICLE XX.
Governing Law
-------------
The validity, construction and performance of this Plan shall be
governed by and interpreted in accordance with the internal laws of the State of
New York, without reference to the conflicts of law provisions thereof, except
insofar as they may require application of the corporation law of the State of
Delaware.
17
<PAGE>
Exhibit 4.6
STOCK OPTION AGREEMENT
UNDER
BOZELL, JACOBS, KENYON & ECKHARDT, INC.
STOCK OPTION PLAN
THIS AGREEMENT, made as of 31st day of December, 1996, by and between
BOZELL, JACOBS, KENYON & ECKHARDT, INC.(the "Company") and the "Optionee").
W I T N E S S E T H :
---------------------
WHEREAS, the Optionee is an employee of the Company, and the Company
desires to encourage Optionee's continued service as an employee and to afford
Optionee the opportunity to enlarge Optionee's stock ownership in the Company so
as to further Optionee's direct proprietary interest in the Company's success;
NOW THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein
and in the Company's Stock Option Plan (the "Stock Option Plan"), a copy of
which the Optionee acknowledges has been delivered to him previously, the
Company hereby grants to the Optionee the right and option (the "Option") to
purchase from the Company, at a price of $10.40 per share, up to, but not
exceeding in the aggregate, 20,000 shares of the Company's Class B Common Stock,
par value $.001 share (the "Stock"). Any share of Stock purchased pursuant to
this Agreement shall be subject to the Stockholders' Agreement dated February
18, 1988, by and between the Company and certain of its stockholders, as amended
from time to time, and any successor agreement (the "Stockholders' Agreement"),
a copy of which the Optionee acknowledges has been delivered to him previously.
The Optionee acknowledges that the Stockholders' Agreement provides that upon
exercise of this Option, the Optionee shall, subject to the remaining provisions
of the Stockholders' Agreement, be required to resell to the Company any shares
of stock issued upon exercise of this Option. This Option shall not constitute
an incentive stock option, within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended.
<PAGE>
2. Option Exercise Period. Subject to the terms and conditions set forth
herein, the Optionee may exercise all or part of this Option (i) at any time or
from time to time on or after the earliest of the following events: (a) March
31, 1998; (b) the death or termination of employment with the Company as a
result of disability (as defined in the Employment Agreement between the Company
and Optionee, as amended from time to time (the "Employment Agreement")) of the
Optionee; (c) a Change of Control (as defined in the Stock Option Plan); (d) in
the event that the Optionee ceases to be employed by the Company prior to the
date that the Optionee ceases to be employed by the Company prior to the date
that the Option becomes exercisable by reason of the Optionee having been
terminated without "Cause" (as defined in the Employment Agreement), the date,
if at all, that the Company notifies the Optionee in writing that the Optionee
has breached in any material respect a Restrictive Covenant (as hereinafter
defined) (without taking into account the reason why the Optionee is no longer
so employed); or (e) the occurrence of such other events as the Company's
Compensation Committee (the "Committee") may determine from time to time, but
(ii) in no event later than April 1, 2002.
3. Events Which Result In Early Termination of Option.
a. If prior to the date that the Option becomes exercisable, either
the Company shall terminate Optionee's employment with the Company for Cause or
the Optionee terminates his employment with the Company in breach of the terms
of his Employment Agreement, the Option shall immediately terminate.
b. If on or after the date that the Option becomes exercisable the
Optionee shall cease to be employed by the Company for Cause, the Option shall
terminate thirty days thereafter. If the Optionee breaches in any material
respect a Restrictive Covenant as provided in paragraph 2(i)(d) hereof, the
Option shall terminate thirty days after the Company furnishes the Optionee with
written notice of such breach.
c. If the Optionee shall die or terminate employment with the Company
for disability, the Option shall terminate on the first anniversary of the
Optionee's date of death or termination of employment for disability, as
applicable. If the Optionee shall die, the executor or administrator of the
estate of the Optionee or the person or persons to whom the Option shall have
been validly transferred by the executor or administrator pursuant to will or
the laws of descent and distribution (as established by proof which is
reasonably satisfactory to the Committee) shall have the right, within one year
from the date of the Optionee's death, to exercise the Option subject to any
other limitation contained herein on the exercise of the Option in effect on the
date of exercise.
2
<PAGE>
d. Subject to paragraph 3 b. hereof, if the Optionee shall breach in
any material respect any restrictive covenant contained in the Employment
Agreement pertaining to (i) solicitation of or rendering of services for or on
behalf of any then past or present client of the Company or any of its
subsidiaries, (ii) solicitation, inducement or hiring of any then past or
present employees of the Company or any of its subsidiaries, (iii) otherwise
engaging in the advertising, public relations, promotional, marketing, research
or any related business, whether for or on behalf of another advertising or
public relations agency, or of any product competitive with any product
represented by the Company or any of its subsidiaries, or (iv) otherwise
restricting the use of Optionee's name (the restrictive covenants referred to in
(i) through (iv) being "Restrictive Covenants"), this Option shall immediately
terminate thirty days after the Company furnishes Optionee with written notice
of such breach provided that Optionee fails to cure said breach within said
thirty day period.
e. In no event shall the occurrence of any of the events specified in
this paragraph 3 result in the extension of the Option exercise period beyond
the date specified in clause (ii) of paragraph 2 hereof.
4. Method of Exercising Option. The Optionee may exercise the Option only
by delivering to the Company a written, signed notice stating the whole number
of shares that the Optionee has elected to purchase at that time from the
Company and by making full payment of the purchase price of the shares shall be
made in cash, by certified or bank cashier's check payable to the order of the
Company, by wire transfer of immediately available funds to an account of the
Company designated by the Company, or by any other means acceptable to the
Company.
5. Issuance of Shares. As promptly as practical after receipt of such
written notification and full payment of such purchase price as provided in
paragraph 4 hereof, the Company shall issue or transfer to the Optionee the
number of shares with respect to which the Option has been so exercised, and
shall deliver to the Optionee a certificate or certificates therefor, registered
in the Optionee's name. Notwithstanding the foregoing, in no event shall the
Company be required to issue or transfer any shares hereunder (i) until counsel
for the Company determines that the Company has complied with all applicable
securities or other laws and/or all requirements of any national securities
exchange on which the Stock may then be listed, (ii) unless the Optionee
supplies the Company with all information and documentation reasonably required
by counsel to the Company in order to assure the Company that such issuance
would comply with all such laws and requirements and (iii) unless the Optionee
reimburses the Company for any tax withholding required and
3
<PAGE>
supplies the Company with such information and data as the Company may deem
necessary. Any determination in this connection by the Committee shall be final,
binding and conclusive. The Company shall take all reasonable steps necessary to
issue and/or transfer such shares to Optionee and to comply with all applicable
securities and other laws pertaining thereto (provided, however, that the
Company shall in no event be obligated to register any securities pursuant to
the Securities Act of 1933 (as now in effect or as hereafter amended)).
6. Non-Transferability. The Option is not transferable by the Optionee
otherwise than by will or the laws of descent and distribution and is
exercisable during the Optionee's lifetime only by him. No assignment or
transfer of the Option, or of the rights represented thereby, whether voluntary
or involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in an assignee or transferee any interest
or right herein whatsoever, but immediately upon such assignment or transfer or
purported assignment or transfer the Option shall terminate and become of no
further effect.
7. Rights as Stockholder. The Optionee or a transferee of the Option
shall have no rights as a stockholder with respect to any share covered by the
Option until he shall have become the holder of record of such share, and
(except as provided in ARTICLE XI of the Plan) no adjustment shall be made or
dividends or distributions or other rights in respect of such share for which
the record date is prior to the date upon which he shall become the holder of
record thereof.
8. Employment Rights. Nothing contained herein shall confer on Optionee
any right to continue in the employ of the Company or any subsidiary or, subject
to the terms of the Employment Agreement, to interfere in any way with the right
of the Company or any subsidiary to terminate the Optionee's employment at any
time.
9. Construction. The word "Company" when used herein with reference to
employment shall include subsidiaries of the Company. Except as clearly required
by the context, the masculine gender shall include the feminine and the singular
shall include the plural. Whenever the word "Optionee" is used in any provision
of this Agreement under circumstances where the provision should logically be
construed to apply to the executors, the administrators, or the person or
persons to whom the Option may be transferred by will or by the laws of descent
and distribution, the word "Optionee" shall be deemed to include such person or
persons.
4
<PAGE>
10. Notice. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided;
provided that, unless and until some other address be so designated, all notices
or communications by the Optionee to the Company shall be mailed or delivered to
the Company at its executive offices at 40 West 23rd Street, New York, New York,
10010, Attention: Chief Financial Officer, and all notices or communications by
the Company to the Optionee may be given to the Optionee personally or may be
mailed to him at the address shown below his signature to this Agreement.
11. Governing Law. The validity, construction and performance of this
Agreement shall be governed by and interpreted in accordance with the internal
laws of the State of New York, without reference to the conflicts of law
provisions thereof, except insofar as they may require application of the
corporation law of the State of Delaware.
12. Execution. The Optionee shall execute this Agreement and return it to
the Company within ten days after the mailing or delivery by the Company of this
Agreement. If the Optionee shall fail to execute and return this Agreement
within said ten day period, the Option shall automatically terminate.
13. Stock Option Plan Amendments. To the extent that any of the
provisions of this Agreement are contrary or inconsistent with the Stock Option
Plan, by its execution and delivery of this Agreement, the Company hereby
acknowledges and agrees that it has so amended the Stock Option Plan with
respect to the Optionee. The Company shall not amend the Stock Option Plan in
any way that adversely affects or diminishes Optionee's rights and privileges
thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BOZELL, JACOBS, KENYON & ECKHARDT, INC.
By:
-----------------------------------
Valentine J. Zammit
Vice Chairman of the Board
of Chief Financial Officer
Address of Optionee:
5
<PAGE>
Exhibit 4.7
This OPTION ASSUMPTION AGREEMENT (this "Agreement"), dated December 30,
1997 is made among True North Communications Inc., a Delaware corporation (the
"Parent"), Bozell, Jacobs, Kenyon & Eckhardt, Inc. a Delaware corporation (the
"Company") and (the "Optionee"). References to "he," "him," and "his" shall mean
the feminine form of such terms, when applicable.
WHEREAS, the Optionee and the Company are parties to a "Stock Option
Agreement" (the "Option Agreement") attached hereto as Exhibit A pursuant to
which the Optionee has options (the "Options") outstanding with respect to
200,000 shares of the Company's common stock pursuant to the Bozell, Jacobs,
Kenyon & Eckhardt, Inc. Stock Option Plan (the "Plan");
WHEREAS, the Company, pursuant to an Agreement and Plan of Merger, dated as
of July 30, 1997 (the "Merger Agreement"), among Parent, Cherokee Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of the Parent,
and the Company, will become a wholly-owned subsidiary of the Parent (the
"Merger");
WHEREAS, pursuant to Section 5.8 of the Merger Agreement, Parent has agreed
to assume each option under the Plan which is outstanding immediately prior to
the Effective Time (as such term is defined in the Merger Agreement); and
WHEREAS, the parties hereto intend, effective as of the Effective Time,
that the Company common stock subject to each Option of the Optionee shall be
replaced with Parent common stock in accordance with the formula set forth in
Section 5.8 of the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Assumption of Options. Effective as of the Effective Time,
each Option of the Optionee shall be assumed by Parent and become and represent
an option to purchase the number of shares of Parent Common Stock (as such term
is defined in the Merger Agreement) (a "Substitute Option") (decreased to the
nearest full share) determined by multiplying (i) the number of shares of
Company Common Stock (as much term is defined in the Merger Agreement) by (ii)
the Exchange Ratio (as such term is defined in the Merger Agreement), which
Substitute Options shall have an exercise price per share of Parent Common Stock
(rounded up to the nearest tenth of a cent) equal to the exercise price per
share of Company Common Stock immediately prior to the Effective Time divided by
the Exchange Ration (Such number of shares of Parent Common Stock and such
revised exercise price are set forth on the signature page hereto). Parent shall
pay cash to the Optionee in lieu of issuing fractional shares of Parent Common
Stock upon the exercise of Substitute Options for shares of Parent Common Stock,
unless in the judgment of Parent such payment would adversely affect the ability
to account for the Merger under the pooling of interests method.
<PAGE>
Section 2. Substitute Options. Except as provided above in Section 1,
each Substitute Option shall be exercisable upon the same terms and conditions
as were applicable under the related Option immediately prior to the Effective
Time.
Section 3. Not a Contract of Employment. This Agreement shall not be
deemed to constitute a contract of employment between the parties hereto, nor
shall any provision hereof restrict the right of the Parent and/or the Company
to discharge the Optionee, or restrict the right of the Optionee to terminate
his employment with the Parent and/or the Company.
Section 4. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Optionee and his beneficiaries and shall be
binding upon and inure to the benefit of the Parent and the Company, and any
successor organization to either such entity.
Section 5. Amendment. No term or provision of this Agreement may be
changed, waived, discharged or terminated orally, but may only be changed,
waived, discharged or terminated by an instrument in writing executed by each of
the parties to this Agreement.
Section 6. Governing Law/Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. If, under
such law, any portion of this Agreement is at any time deemed to be in conflict
with any applicable statute, rule, judicial interpretation binding on the
parties, regulation or ordinance, such portion shall be deemed to be modified or
altered to conform thereto or, if that is not possible, to be omitted from this
Agreement; and the invalidity of any such portion shall not affect the force,
effect and validity of the remaining portions hereof.
Section 7. Captions. Section headings are for convenience of reference
only and shall not be considered a part of this Agreement.
Section 8. Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one and the same
instrument.
2
<PAGE>
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day
and year first written above.
TRUE NORTH COMMUNICATIONS INC.,
as the Parent hereunder
By
- ------------------------- -------------------------------
DATE
BOZELL, JACOBS, KENYON & ECKHARDT, INC.,
as the Company hereunder
By
- ------------------------- -------------------------------
DATE
as the Optionee hereunder
By
- ------------------------- -------------------------------
DATE
3
<PAGE>
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that 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 any and all Registration Statements or amendments (including
post-effective amendments) to any Registration Statement relating to any
employee benefit plan of True North Communications Inc. or any of its
subsidiaries, 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. This Power of Attorney shall be effective from the
date on which it is signed until January 1, 1999.
<TABLE>
<CAPTION>
Name Date Signed
---- -----------
<S> <C>
, 1998
- --------------------------------------- -------------------------------
Bruce Mason
, 1998
- --------------------------------------- -------------------------------
Donald L. Seeley
, 1998
- --------------------------------------- -------------------------------
John J. Rezich
/s/ Charles D. Peebler, Jr. February 2, 1988
- --------------------------------------- -------------------------------
Charles D. Peebler, Jr.
/s/ Richard S. Braddock February , 1988
- --------------------------------------- -------------------------------
Richard S. Braddock
/s/ David A. Bell February 10, 1998
- --------------------------------------- -------------------------------
David A. Bell
/s/ Donald M. Elliman, Jr. February 2, 1998
- --------------------------------------- -------------------------------
Donald M. Elliman, Jr.
/s/ W. Grant Gregory February 3, 1998
- --------------------------------------- -------------------------------
W. Grant Gregory
/s/ Leo-Arthur Kelmenson February 9, 1998
- --------------------------------------- -------------------------------
Leo-Arthur Kelmenson
/s/ Richard P. Mayer January 31, 1998
- --------------------------------------- -------------------------------
Richard P. Mayer
/s/ Michael E. Murphy January 31, 1998
- --------------------------------------- -------------------------------
Michael E. Murphy
/s/ J. Brendan Ryan February 9, 1998
- --------------------------------------- -------------------------------
J. Brendan Ryan
/s/ Stephen T. Vehslage February 2, 1998
- --------------------------------------- -------------------------------
Stephen T. Vehslage
</TABLE>
