THE INTERPUBLIC GROUP OF COMPANIES, INC.
UNDERWRITING AGREEMENT
(DEBT SECURITIES)
October 17, 2000
October 17, 2000
Chase Securities Inc.
Morgan Stanley & Co. Incorporated
c/o Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Dear Sirs and Mesdames:
From time to time, The Interpublic Group of Companies, Inc., a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 333-44512), including a
prospectus, relating to the debt securities (the "Offered Securities") and has
filed with the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act that is incorporated by reference in the
Registration Statement and Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented,
if applicable, will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply (A) to statements
or omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter expressly for use therein or (B) to that
part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so incorporated or
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of
the issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims, except to the extent that
the failure to be so authorized, issued and fully paid and
non-assessable and so owned would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether considered in an action at
law or equity) and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether considered in an action at law or equity) and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be valid and binding obligations
of the Company, in each case enforceable in accordance with their
respective terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether considered in an action at law or equity) and (B) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its
subsidiaries, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary (except for such contraventions that would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole), and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities or the Delayed Delivery Contracts,
except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities or which has already been obtained, taken or made.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus that are not
so described or that any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement, the Prospectus or to be filed or incorporated by reference
as exhibits to the Registration Statement are not described, filed or
incorporated as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus will not be, required
to register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Terms of Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Underwriters' Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public offering
of the Underwriters' Securities are set forth in the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this Section
4, payment for the Underwriters' Securities shall be made by wire transfer to an
account designated by the Company at the time set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters' Securities to the
Underwriters duly paid.
5. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in the reasonable judgment of the
Manager, is material and adverse and that makes it, in the
reasonable judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Paul, Weiss, Rifkind, Wharton & Garrison, outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
property and to conduct its business as described in the
Prospectus under such laws and the Company is duly qualified
to carry on business and is in good standing in the State of
New York;
(ii) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
legally binding obligation of the Company, enforceable in
accordance with its terms, except that enforceability may be
subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and subject to general principles
of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity). The Indenture has been
qualified under the Trust Indenture Act.
(iv) the Offered Securities have been duly authorized
by the Company and when duly executed, issued and delivered by
the Company against payment as provided in the Underwriting
Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance
with their terms, except that enforceability may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors'
rights generally and subject to general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity);
(v) the execution and delivery by the Company of the
Underwriting Agreement and Indenture, the issuance and
delivery of the Offered Securities, the consummation by the
Company of the transactions contemplated in the Underwriting
Agreement and the compliance by the Company with the terms of
the Underwriting Agreement and the Indenture do not and will
not (A) result in a violation of the certificate of
incorporation or by-law of the Company, each as in effect on
the date of such opinion, (B) breach or result in a default
under any agreement, indenture or instrument listed as an
exhibit to the Registration Statement or otherwise referred to
in the Registration Statement to which the Company or any of
its subsidiaries is a party or is bound or to which any of the
properties or assets of the Company or any subsidiary is
subject that is material to the Company and its subsidiaries
taken as a whole or (C) violate Applicable Law or any
judgment, order or decree of any court or arbitrator known to
such counsel, except where the breach, default or violation
could not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
For purposes of this opinion, the term "Applicable Law" means
the General Corporation Law of the State of Delaware (the
"GCL") and those laws, rules and regulations of the United
States of America and the State of New York, in each case
which in such counsel's experience are normally applicable to
the transactions of the type contemplated by the Underwriting
Agreement. Based on the representations, warranties and
agreements of the Company in Section 1 of the Underwriting
Agreement, no consent, approval, authorization or order of, or
filing, registration or qualification with, any Governmental
Authority, which has not been obtained, taken or made, is
required for the performance by the Company of its obligations
under the Underwriting Agreement, the Indenture or the Offered
Securities, except as may be required by any state securities
or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Securities, as to which such
counsel need not express any opinion. For purposes of such
opinion, the term "Governmental Authority" means any
executive, legislative, judicial, administrative or regulatory
body of the State of New York, the State of Delaware or the
United States of America;
(vi) the statements (A) in the Prospectus under the
captions "Description of Notes" and "Description of Debt
Securities" and (B) in the Registration Statement under Item
15, in each case to the extent that they relate to legal
matters fairly summarize the matters referred to therein;
(vii) to such counsel's knowledge, there are no legal
proceedings pending against the Company or any of its
subsidiaries that would be required to be described in a
Prospectus or Registration Statement under the Securities Act
that are not so described, or that if determined adversely to
the Company could reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, or could reasonably be expected to materially impair
its ability to perform its obligations under the Underwriting
Agreement, the Offered Securities or the Indenture;
(viii) the Company is not required to be registered
as an investment company under the Investment Company Act of
1940, as amended, and the rules and regulations of the
Commission under that statute;
(ix) (A) the Registration Statement and the
Prospectus, and each amendment or supplement thereto (except
for the financial statements, financial schedules and other
financial or statistical data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to
which such counsel need not express any opinion) as of their
respective effective or issue dates, appear on their face to
have been appropriately responsive in all material respects to
the requirements of the Securities Act and the rules
promulgated thereunder and (B) each document, if any, filed
pursuant to the Exchange Act and incorporated by reference in
the Registration Statement and the Prospectus (except for the
financial statements, financial schedules and other financial
or statistical data included or incorporated by reference
therein or omitted therefrom, as to which such counsel need
not express any opinion) appears on its face to have been
appropriately responsive in all material respects when so
filed to the requirements of the Securities Act and the rules
promulgated thereunder;
(x) no facts have come to such counsel's attention to
lead them to believe that (A) the Registration Statement or
any amendment thereto (except for financial statements,
financial schedules and other financial or statistical data
included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need not
express any belief), on the original effective date of the
Registration Statement or on the date of the Underwriting
Agreement, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading or (B) the
Prospectus or any amendment or supplement thereto (except for
the financial statements, financial schedules and other
financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such
counsel need not express any belief), at the time the
Prospectus Supplement was issued or on the date such opinion
is delivered included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) The Underwriters shall have received on the Closing Date
an opinion of Nicholas J. Camera, General Counsel to the Company, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each significant subsidiary of the Company (as
defined in Regulation S-X) has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or to
be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(iii) (A) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (B) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on
Form 10-Q, if any, filed since such annual report, in each
case insofar as such statements constitute summaries of the
United States federal or New York statutes, rules or
regulations, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize
the matters referred to therein; and
(iv) after due inquiry, such counsel does not know of
any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or
the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(e) The Underwriters shall have received on the Closing Date
an opinion of Davis Polk & Wardwell, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 5(c)(ii), 5(c)(iii), 5(c)(iv) and 5(c)(vi)(A) (but only as
to the statements in the Prospectus under "Description of Notes,"
"Description of Debt Securities" and "Plan of Distribution") and
clauses 5(c)(ix)(A), 5(c)(x)(A) and 5(c)(x)(B) above.
With respect to Sections 5(c)(ix) and 5(c)(x) above, Paul,
Weiss, Rifkind, Wharton & Garrison may state that they do not assume
responsibility for the accuracy or completeness of the statements
contained in the Registration Statement and Prospectus and that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and their review and discussion of the contents thereof, but
are without independent check or verification, except as specified.
With respect to clauses 5(c)(ix)(B), 5(c)(x)(A) and 5(c)(x)(B) above,
Davis Polk & Wardwell may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but
not including documents incorporated therein by reference) and their
review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
The opinion of Paul, Weiss, Rifkind, Wharton & Garrison
described in Section 5(c) above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Underwriters, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to each Manager, without charge, one signed
copy of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in Section 6(c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request.
(b) Before amending or supplementing the Prospectus with
respect to the Offered Securities, to furnish to the Manager a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably
objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Offered Securities may have been sold by the Manager
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 6(d), (ii) file
any general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earnings statement
covering the twelve month period ending not later than 15 months after
the offering date that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the
Manager.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the reasonable fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and
delivery of the Offered Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the reasonable cost of
printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Offered Securities under
state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities
laws as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., (v) the
cost of printing certificates representing the Offered Securities, (vi)
the costs and charges of any transfer agent, registrar or depositary,
(vii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Offered Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (viii) all
other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in
this Section, Section 7 entitled "Indemnity and Contribution", and the
last paragraph of Section 9 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may
make.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly for use
therein; provided, however, that the Company will not be liable to any
Underwriter, or to any person who controls such Underwriter within Section 15 of
the Securities Act or Section 20 of the Exchange Act, with respect to any
preliminary prospectus to the extent that such loss, claim, damage, liability or
expense resulted from the fact that such Underwriter sold Offered Securities to
a person to whom such Underwriter failed to send or give, at or prior to the
written confirmation of the sale of Offered Securities to such person, a copy of
the Prospectus, as then amended and supplemented, if the Company had previously
furnished copies thereof to the Underwriters and the loss, claim, damage,
liability or expense of such Underwriter resulted from an untrue statement or
omission or alleged untrue statement or omission of material fact contained in
or omitted from the preliminary prospectus that was corrected in the Prospectus.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party shall be entitled to
participate in such proceeding and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
without the consent of the indemnified party, be counsel to the indemnifying
party in such action), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel at the
indemnifying party's expense or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to Section 7(a), and by the Company, in
the case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause 7(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 7(d)(i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of the
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Offered Securities they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Manager, is
material and adverse and (b) in the case of any of the events specified in
clauses 8(a)(i) through 8(a)(iv), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Underwriters' Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate amount of Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of the
Underwriters' Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Underwriters'
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate amount of Underwriters' Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Underwriters' Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the amount of
Underwriters' Securities that any Underwriter has agreed to purchase pursuant to
this Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such amount of Underwriters' Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Underwriters' Securities and the aggregate
amount of Underwriters' Securities with respect to which such default occurs is
more than one-tenth of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder, but the Company shall then be under no
further obligation to any underwriter except as provided in Sections 6(g) and 7.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
UNDERWRITING AGREEMENT
October 17, 2000
The Interpublic Group of Companies, Inc.
136 Madison Avenue
New York, New York 10016
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that The Interpublic
Group of Companies, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell $500,000,000 aggregate initial offering price of Debt Securities
(the "Debt Securities"). The Debt Securities are referred to herein as the
"Offered Securities." The Debt Securities will be issued pursuant to the
provisions of an Indenture dated as of the Closing Date (the "Indenture")
between the Company and The Bank of New York, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of 99.106% of the principal amount of
Debt Securities:
Principal Amount of
Name Debt Securities
--------------------------------- ------------------------
Chase Securities Inc. $212,500,000
Morgan Stanley & Co. Incorporated $212,500,000
HSBC Securities (USA) Inc. $37,500,000
Banc of America Securities LLC $37,500,000
------------
Total......................................$500,000,000
The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of Davis Polk & Wardwell at 10:00 a.m. (New York City
time) on October 20, 2000, or at such other time, not later than 5:00 p.m. (New
York City time) on October 27, 2000 as shall be designated by the Manager. The
time and closing of such payment and delivery are hereinafter referred to as the
Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated September 15, 2000 and the Prospectus Supplement dated October 17, 2000,
including the following:
Terms of Debt Securities
Maturity Date: October 15, 2005
Interest Rate: 7.875%
Redemption Provisions: As stated in the Prospectus
Supplement
Interest Payment Dates: April 15 and October 15 of
each year, commencing April
15, 2001, and on the Maturity
Date
All provisions contained in the document entitled The Interpublic Group of
Companies, Inc. Underwriting Agreement Standard Provisions (Debt Securities)
dated October 17, 2000, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement, and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
Acting severally on behalf of themselves and the
several Underwriters named herein
By: /s/ SUZETTE W. SANDS
-------------------------------
Name: SUZETTE W. SANDS
Title: Managing Director
By: /s/ HAROLD J. HENDERSHOT
-------------------------------
Name: HAROLD J. HENDERSHOT
Title: Vice President
Accepted:
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ NICHOLAS J. CAMERA
---------------------------------
Name: NICHOLAS J. CAMERA
Title: Senior Vice President
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 2000
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from The Interpublic Group of
Companies, Inc., a Delaware corporation (the "Company"), and the Company agrees
to sell to the undersigned the Company's securities described in Schedule A
annexed hereto (the "Securities"), offered by the Company's Prospectus dated
______________, 2000 and Prospectus Supplement dated ________________, 2000,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in Schedule A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company, Securities in the
principal amount and number on the delivery dates as set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
______________________________, New York, N.Y., at 10:00 a.m. (New York City
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
(Purchaser)
By:
(Title)
(Address)
Accepted:
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By:
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
------------------ ----------------------- ----------------
------------------ ----------------------- ----------------
SCHEDULE A
Securities:
Principal Amounts or Numbers to be Purchased:
Purchase Price:
Delivery:
