As filed with the Securities and Exchange Commission on October 22, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-3
Registration Statement
Under
The Securities Act of 1933
NFO WORLDWIDE, INC.
(On October 14, 1997, the registrant changed its name
from NFO Research, Inc. to NFO Worldwide, Inc.)
(Exact name of registrant as specified in its charter)
DELAWARE 06-1327424
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2 PICKWICK PLAZA, SUITE 400
GREENWICH, CONNECTICUT 06830
(203) 629-8888
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
-------------------
WILLIAM E. LIPNER
CHAIRMAN OF THE BOARD
NFO WORLDWIDE, INC.
2 PICKWICK PLAZA, SUITE 400
GREENWICH, CONNECTICUT 06830
(203) 629-8888
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
WITH A COPY TO:
JAMES M. DUBIN, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================
<S> <C> <C> <C> <C>
Proposed
Proposed maximum maximum
TITLE OF SECURITIES Amount to be offering price aggregate Amount of
TO BE REGISTERED registered per share(1) offering price(1) registration fee(1)
- -------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 1,107,687 shares(2) $18.25 $20,215,287.15 $6,064.59
=======================================================================================================
</TABLE>
(1)Pursuant to Rule 457(c) under the Securities Act of 1933, as amended, the
proposed offering price and registration fee are based upon the closing price
of the Registrant's Common Stock, as reported on the Nasdaq National Market
on October 20, 1997.
(2)Represents the number of shares of Common Stock held by the Selling
Stockholders and registered hereunder.
- --------------------------------------------------------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION
8(A), MAY DETERMINE.
================================================================================
Page 1 of 68 Pages
Exhibit Index on Page 19
1
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
1,107,687 SHARES
NFO WORLDWIDE, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
--------------
The persons whose names are listed in the table under the heading "Selling
Stockholders" (collectively, the "Selling Stockholders") may sell the shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock"),
of NFO Worldwide, Inc., a Delaware corporation (the "Company"), offered hereby
from time to time on the Nasdaq National Market or such other national
securities exchange on which shares of the Company's Common Stock are then
listed, through negotiated transactions or otherwise (including private sales)
at market prices prevailing at the time of the sale or at negotiated prices. The
Selling Stockholders directly, or through agents designated from time to time,
or through underwriters, brokers or dealers also to be designated, may sell the
Shares from time to time on terms to be determined at the time of sale. Any such
underwriters, brokers or dealers may receive compensation in the form of
commissions or otherwise in such amounts as may be negotiated by them. As of the
date of this Prospectus, no agreements have been reached for the sale of the
Shares or the amount of any compensation to be paid to underwriters, brokers or
dealers in connection therewith. The Company will bear all expenses in
connection with the registration and sale of the Shares being offered by the
Selling Stockholders, other than commissions, concessions or discounts to
underwriters, brokers or dealers and fees and expenses of counsel or other
advisors to the Selling Stockholders. See "Plan of Distribution."
The Common Stock of the Company is listed on the Nasdaq National Market
under the trading symbol "NFOR." On October 21, 1997, the last reported sale
price of the Company's Common Stock on the Nasdaq National Market was $18.25 per
share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
The date of this Prospectus is October ___, 1997
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at its
office at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's regional offices located at 7 World Trade Center, Suite 1300, New
York, New York 10048 and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of this material can also be
obtained from the Commission's web site at "http://www.sec.gov" and at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. The Company's Common Stock is quoted
on the Nasdaq National Market. Reports, proxy statements and other information
concerning the Company can be inspected at the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act with respect to the shares of Common Stock offered
hereby. This Prospectus does not contain all the information set forth in the
Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Company and the shares of Common Stock offered
hereby, reference is made to the Registration Statement, and to the exhibits and
schedules thereto. Statements made in this Prospectus concerning the contents of
any document referred to herein are not necessarily complete and, in each such
instance, are qualified in all respects by reference to the applicable documents
filed with the Commission. The Registration Statement and the exhibits and
schedules thereto filed by the Company with the Commission may be inspected and
copied at the locations described above.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are incorporated by reference in this
Prospectus:
a. Annual Report on Form 10-K for the fiscal year ended December 31,
1996;
b. Quarterly Report on Form 10-Q for the quarter ended March 31, 1997;
c. Quarterly Report on Form 10-Q for the quarter ended June 30, 1997;
d. Current Report on Form 8-K dated April 1, 1997;
e. Current Report on Form 8-K dated July 11, 1997, as amended by
Current Report on Form 8- K/A filed with the Commission on September
23, 1997;
f. Current Report on Form 8-K dated October 22, 1997;
g. Current Report on Form 8-K dated October 22, 1997; and
h. The description of the Company's Capital Stock contained in its
Registration Statement on Form 8-A (Registration No. 0-21460) filed
with the Commission on May 31, 1993.
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<PAGE>
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Common Stock hereunder shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents. The Company will provide a copy of any
or all of such documents (exclusive of exhibits unless such exhibits are
specifically incorporated by reference therein), without charge, to each person
to whom this Prospectus is delivered, including any beneficial owner, upon
written or oral request to: NFO Worldwide, Inc., 2 Pickwick Plaza, Suite 400,
Greenwich, Connecticut 06830, Attention: Secretary (telephone (203) 629-8888).
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is 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 Prospectus.
3
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements included in or incorporated by reference into this
Prospectus constitute "forward- looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors
which may cause the actual results, performance or achievements of the Company
to be materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among others, the following: general economic and business conditions, which
will, among other things, impact the demand for the Company's products and
services; industry capacity, which tends to increase during strong years of the
business cycle; competition from other companies producing products or
performing services similar to those produced or performed by the Company, which
may affect the Company's ability to generate revenues; changes in business
strategy or development plans, which may, among other things, prolong the time
it takes to achieve the performance results included herein; the loss of any
significant customers; the Company's dependence on key personnel; the quality,
judgment and strategic decisions of management and other personnel; and other
factors referenced in this Prospectus.
SPECIAL NOTE REGARDING CERTAIN ACQUISITIONS
During 1997, the Company acquired Prognostics and The MBL Group plc
(collectively, the "Pooled Companies") in transactions each accounted for as a
pooling-of-interests. See "Recent Developments." Accordingly, certain data
contained herein in the section entitled "The Company" has been presented
assuming both Prognostics and The MBL Group plc had been acquired on January 1,
1996.
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<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS, THE
FOLLOWING RISK FACTORS SHOULD BE CONSIDERED CAREFULLY BEFORE PURCHASING THE
COMMON STOCK OFFERED HEREBY. THIS PROSPECTUS CONTAINS FORWARD- LOOKING
STATEMENTS WITHIN THE MEANING OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE EXCHANGE ACT. SUCH FORWARD-LOOKING STATEMENTS INVOLVE
KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS WHICH MAY CAUSE THE
ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS OF THE COMPANY, OR INDUSTRY RESULTS,
TO BE MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR ACHIEVEMENTS
EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. SEE "SPECIAL NOTE
REGARDING FORWARD-LOOKING STATEMENTS" ON PAGE 3. SUCH FACTORS INCLUDE, AMONG
OTHERS, THE RISK FACTORS SET FORTH BELOW.
RELIANCE ON KEY CLIENTS
The Company's ten largest clients in 1996 generated approximately 23% of
the Company's consolidated revenues. The Company's success is dependent upon its
ability to maintain its existing clients and obtain new clients. No assurances
can be given that the Company will maintain its existing client base or that it
will be able to attract new clients. The loss of one or more of the Company's
larger clients or a significant reduction in business from such clients could
have a material adverse effect on the Company. The Company does not have
long-term contracts with its clients.
FLUCTUATIONS IN DEMAND FOR MARKET RESEARCH
Demand for the Company's research services can be affected by a number of
factors outside the Company's control. For example, a client's market research
activities are dependent on the timing of its new product introductions and
reformulations. Marketing budgets, industry and economic conditions and changes
in management or ownership of a client are also factors that can affect the
client's demand for the Company's research services. As a result of such
factors, the amount of market research conducted by the Company for each of its
clients is likely to vary from year to year, and these variations can contribute
to fluctuations in the Company's operating results from period to period.
RELIANCE ON KEY PERSONNEL
The Company is heavily dependent on the efforts of certain of its
officers and other management personnel, principally, William E. Lipner, Richard
A. Spitzer, Patrick G. Healy, Charles B. Hamlin, Joseph Migliara and Allen R.
DeCotiis. The loss of the services of one or more of these individuals could
have a material adverse effect on the Company. The Company maintains key man
life insurance on the life of William E. Lipner.
COMPETITION
The custom and syndicated market research industry is highly competitive
and is characterized by a large number of competitors, ranging from relatively
small organizations to companies with substantial resources. The Company is also
subject to competition from marketing and research departments of various
companies, advertising agencies and business consulting firms. The Company
believes that it competes principally on (i) the basis of the quality of the
design of a market research project; (ii) the ability to perform, analyze and
report on a research project in a short period of time; (iii) price; and (iv)
consistency of service.
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<PAGE>
INTERNATIONAL SALES
The Company's international sales are typically denominated in local
currencies. In addition, the Company's expenses for its foreign offices and
operations are generally paid in local currencies. If the U.S. dollar
strengthens in relation to the applicable international currencies, the
Company's operating income may be adversely affected. The impact of future
exchange rate fluctuations on the Company's results of operations cannot be
accurately predicted. To date, the Company has not sought to hedge the risks
associated with fluctuations in exchange rates, but may undertake such
transactions in the future. There can be no assurance that any hedging
techniques implemented by the Company in the future would be successful or that
exchange rate fluctuations would not have a material adverse effect on the
Company's business, financial condition and results of operations.
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<PAGE>
THE COMPANY
GENERAL
The Company and its subsidiaries (hereinafter collectively referred to as
"NFO") are leading providers of custom and syndicated marketing information
services to some of the largest companies both in the United States and
internationally using, among other things, a proprietary panel (the "NFO Panel")
of pre-recruited consumer households. NFO provides its marketing information
services, databases and market research services to a variety of
nationally-recognized packaged goods and foods manufacturers as well as
healthcare, financial services, hi-tech/telecommunications and travel & leisure
companies. During 1996, the Company conducted over 7,200 research projects for
more than 2,000 clients. The Company's five largest clients in terms of revenues
in 1996 were The Procter & Gamble Company, Pfizer, Inc., Coca Cola Co., Citibank
Corp. and Zeneca Pharmaceuticals Group. The Company's (after incorporating the
Pooled Companies) top ten clients represented approximately 23% of its
consolidated revenues in 1996. The Company's clients use custom and syndicated
research to make product or service introduction and reformulation decisions and
to develop, implement and monitor marketing and advertising programs. NFO also
conducts the consumer confidence survey for the Conference Board that is
recognized by the U.S. Department of Commerce as a leading economic indicator.
The NFO Panel consists of more than 525,000 households, including more
than 1.3 million people. The Company believes that the NFO Panel is the largest
pre-recruited consumer panel in the custom market research industry. The NFO
Panel is designed to match the general US population according to US Bureau of
Census statistics on several important geographic and demographic
characteristics. NFO develops and maintains extensive demographic profiles of
these households, including information with respect to size and composition of
household, household income, age of household members and education and
occupation of adult household members. The Company also maintains a variety of
information relating to ownership and usage of various products and services.
This information, which is continuously updated, is central to the Company's
ability to identify efficiently consumers with specific characteristics targeted
by each research project. The Company surveys targeted consumers in its NFO
Panel, primarily through mail questionnaires and telephone interviews, as well
as internet based surveys, about their beliefs, attitudes and behavior regarding
consumer products and services.
The Company believes that in recent years there has been a trend among its
clients to focus on smaller market segments for product or service introductions
and marketing programs rather than on broad, mass markets and to focus on
segmenting existing product lines to provide products developed for targeted
consumers. The size of the NFO Panel and NFO's extensive demographic and
geographical profiles of the NFO Panel households facilitate the ability of NFO
to assist its clients with such "target" or "micro- marketing." The Company also
anticipates the demand for panel research may be favorably affected by the
impact of legislation proposed in many jurisdictions, and already enacted in
some states, that seeks to limit or prohibit unsolicited telemarketing, sales or
other calls, to redress the perceived invasion of privacy represented by these
calls. In addition, the Company believes its business will be favorably impacted
by the perceived movement toward conducting market research using interactive
methods, as NFO has established an interactive division for the purpose of
developing an interactive methodology for performing market research. The
Company has developed a consumer panel of on-line households (NFO//net.source)
that numbers approximately 70,000 households and over 175,000 individuals.
The Company's goal is to develop into a broader more far reaching
marketing information services business centered around the NFO Panel. The
Company intends to use its NFO Panel and expertise in custom and syndicated
research to expand existing client relationships and to target new clients
particularly in the pharmaceutical, financial services, telecommunications,
information technology, and travel and leisure
7
<PAGE>
industries in which the Company perceives a growing need for market research.
The Company also intends to develop new services or research concepts, including
in the area of interactive technology, that would distinguish it from other
market research companies while furthering its development as a marketing
information services company. In addition, the Company will seek strategic
acquisitions and alliances both in the United States and in international
markets in which the Company perceives an increasing demand for market research.
See "Recent Developments" below for descriptions of the acquisitions of
Prognostics, Access Research, Inc. ("ARI") and The MBL Group plc ("MBL"). To
improve further the timing of research studies and the accessibility of its
research results and to lower its operating costs, the Company intends to
continue its investment in new technologies and information systems.
RECENT DEVELOPMENTS
During 1997, the Company has completed several acquisitions in its
continuing effort to further develop its market information services throughout
the United States, Europe, the Middle East and Southeast Asia.
PROGNOSTICS
On April 1, 1997, the Company acquired in a transaction accounted for as a
pooling-of-interests, Prognostics, a market research provider of survey based
quantitative customer satisfaction research to information technology companies
worldwide, for a consideration of approximately 2,590,000 shares of Common Stock
having a market value on April 1, 1997 of approximately $31.0 million.
ACCESS RESEARCH, INC.
On May 28, 1997, the Company acquired ARI, a research-based financial
services consulting firm specializing in the retirement market, for a cash
purchase price equal to approximately $3.8 million. ARI is nationally recognized
as a provider of quantitative and qualitative research, consulting and
communications services addressing pension sales, operations and marketing
issues, especially in the 401(k) market.
THE MBL GROUP PLC
On July 11, 1997, the Company acquired in a transaction accounted for as a
pooling-of-interests, MBL, an international market research firm with 27 offices
in 15 countries throughout the United Kingdom, the Middle East and Asia. The
Company has also entered into agreements with minority shareholder employees of
the various MBL operating subsidiaries to repurchase a portion of the minority
shares during 1997 and the remainder in three years. The estimated purchase
price for MBL and all of its subsidiaries is approximately $55 million, paid for
principally with shares of Common Stock, and cash.
USE OF PROCEEDS
The Company will not receive any proceeds from any sale of the Shares.
SELLING STOCKHOLDERS
The following table sets forth, to the knowledge of the Company, the
number of shares of Common Stock and the percentage of the outstanding shares of
Common Stock beneficially owned by each Selling Stockholder, and the number of
shares to be offered and sold by such Selling Stockholder, and the number
8
<PAGE>
of shares and percentage of outstanding shares to be beneficially owned by such
Selling Stockholder after such offering and sale, assuming that all the shares
offered by such Selling Stockholder are in fact sold. Unless otherwise
indicated, each person has sole investment and voting power (or shares such
powers with his or her spouse) with respect to the shares set forth in the
following table. As of October 15, 1997, the Company had 20,548,519 shares of
Common Stock issued and outstanding.
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
Prior to the Offering After the Offering
--------------------------- ------------------------------
Shares of Shares to Shares of
Common Stock Percentage(1) be Sold Common Stock Percentage(1)
------------ ------------- ---------- ------------ -------------
<S> <C> <C> <C> <C> <C>
Jay H. Friedman ..... 77,844 * 32,500 45,344 *
John R. Goodyear .... 1,023,181 4.97% 262,500 760,681 3.7%
Mary J. Goodyear .... 1,023,181 4.97% 262,500 760,681 3.7%
Thomas Rich ......... 77,844 * 17,515 60,329 *
Walter P. Smith Trust 1,456,266 7.08% 302,672 1,153,594 5.61%
(2/20/86)
James B. Wood ....... 977,766 4.75% 230,000 747,766 3.63%
</TABLE>
- ---------------
* Represents holdings of less than 1%
(1) Percent of class is calculated by assuming, for purposes of both the
number of shares held by such Selling Stockholder and the number of
shares issued and outstanding, that all options to purchase Common
Stock held by such Selling Stockholder (and no others) had been
exercised, notwithstanding that all such options may not be
currently exercisable.
Jay H. Friedman, Thomas Rich, James B. Wood and The Walter P. Smith Trust
(2/20/86) acquired their shares of Common Stock pursuant to that certain
Agreement and Plan of Merger, dated as of March 20, 1997, among the Company,
Prognostics Corp., a Delaware corporation and wholly owned subsidiary of the
Company, Prognostics, a California corporation, and the shareholders of
Prognostics, which was executed and delivered in connection with the acquisition
by the Company of all of the outstanding capital stock of Prognostics. Jay H.
Friedman, Thomas Rich, James B. Wood and The Walter P. Smith Trust (2/20/86) are
also subject to a Registration Rights Agreement with the Company, dated as of
April 1, 1997, pursuant to which the Company agreed to effect the registration
of the offering and sale of the Shares owned by Jay H. Friedman, Thomas Rich,
James B. Wood, and The Walter P. Smith Trust (2/20/86) on a delayed or
continuous basis under the Securities Act on certain terms and conditions.
John and Mary Goodyear acquired their shares of Common Stock pursuant to
that certain Share Purchase Agreement, dated as of July 11, 1997, among the
Company, NFO UK, Inc., a wholly-owned subsidiary of the Company ("NFO-UK") and
the shareholders of MBL, which was executed and delivered in connection with the
acquisition by NFO-UK of all of the outstanding ordinary shares of MBL. John and
Mary Goodyear are also subject to a Registration Rights Agreement with the
Company, dated as of July 11, 1997, pursuant to which the Company agreed to
effect the registration of the offering and sale of the Shares owned by John and
Mary Goodyear on a delayed or continuous basis under the Securities Act on
certain terms and conditions.
Each of Jay H. Friedman, Thomas Rich and James B. Wood remains employed
by Prognostics and Walter P. Smith, the trustee of the Walter P. Smith Trust
(2/20/86), serves as a consultant to Prognostics. Each of John and Mary Goodyear
remains employed by MBL.
9
<PAGE>
PLAN OF DISTRIBUTION
The Shares may be offered and sold from time to time by the Selling
Stockholders, but may not be sold pursuant to this Prospectus or the
Registration Statement of which it is a part after April 1, 1998, with respect
to the 582,687 Shares registered hereunder and owned by Jay H. Friedman, Thomas
Rich, the Walter P. Smith Trust (2/20/86) and James B. Wood, and July 11, 1998,
with respect to the 525,000 Shares registered hereunder and owned by John R.
Goodyear and Mary J. Goodyear. No Selling Stockholder is required to offer or
sell any of his, her or its Shares. Any such sales may be made on the Nasdaq
National Market or such other national securities exchange on which shares of
Common Stock are then listed, through negotiated transactions or otherwise at
prices and at terms then prevailing or at prices related to the then-current
market price or in negotiated transactions. The Shares may be sold pursuant to
one or more of the following: (a) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; (b) purchases by an
underwriter, a broker or a dealer as principal and resale by such underwriter,
broker or dealer for its account pursuant to this Prospectus; (c) a block trade
in which the broker or dealer so engaged will attempt to sell the Shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction; (d) an exchange distribution in accordance with the
rules of such exchange; (e) through the writing of options on the Shares; and
(f) directly or through brokers or agents in private sales at negotiated prices.
If necessary, a supplemental prospectus which describes the method of sale in
greater detail may be filed by the Company with the Commission pursuant to Rule
424(c) under the Securities Act under certain circumstances. In effecting sales,
underwriters, brokers or dealers engaged by the Selling Stockholders and/or
purchasers of the Shares may arrange for other underwriters, brokers or dealers
to participate. Underwriters, brokers or dealers will receive commissions,
concessions or discounts from the Selling Stockholders and/or the purchasers of
the Shares in amounts to be negotiated prior to the sale. In addition, any
Shares covered by this Prospectus which qualify for sale pursuant to Rule 144
under the Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
The Company will bear all expenses in connection with the registration and
sale of the Shares, other than commissions, concessions or discounts to
underwriters, brokers or dealers and certain of the fees and expenses of counsel
or other advisors to the Selling Stockholders.
The Company has agreed to indemnify the Selling Stockholders and the
Selling Stockholders have agreed to indemnify the Company, its officers,
directors, employees, agents and controlling persons from certain damages or
liabilities arising out of or based upon any untrue statement or alleged untrue
statement of any material fact contained in or material omission or alleged
omission from the Registration Statement, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, to the
extent such untrue statement or omission was made in the Registration Statement
or other document in reliance upon information furnished by the indemnifying
party.
The Selling Stockholders and any underwriter, broker or dealer who acts in
connection with the sale of the Shares hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any compensation received by them and any profit on any resale of the Shares as
principals might be deemed to be underwriting discounts and commissions under
the Securities Act.
10
<PAGE>
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York.
EXPERTS
The consolidated financial statements and financial statement schedule, as
of December 31, 1996 and 1995 and for each of the years in the three year period
ended December 31, 1996, included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1996, incorporated by reference in this
Prospectus, to the extent and for the periods indicated in their reports, have
been audited by Arthur Andersen LLP and Deloitte & Touche LLP, independent
public accountants, and are included herein in reliance upon the authority of
said firms as experts in accounting and auditing in giving said reports.
The restated consolidated financial statements as of December 31, 1996 and
1995, and for each of the years in the three year period ended December 31,
1996, included in the Company's current report on Form 8-K dated October 22,
1997, incorporated by reference into this prospectus, have been audited by
Arthur Andersen LLP, independent public accountants, and are included herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report.
The supplemental consolidated financial statements as of December 31, 1996
and 1995, and for each of the years in the three year period ended December 31,
1996, included in the Company's current report on Form 8-K dated October 22,
1997, incorporated by reference into this prospectus, have been audited by
Arthur Andersen LLP, independent public accountants. In their report, Arthur
Andersen LLP states that with respect to certain subsidiaries its opinion is
based on the reports of other auditors, namely Soteriou Banerji. The financial
statements referred to in this paragraph are included herein in reliance upon
the authority of said firms as experts in accounting and auditing in giving said
reports.
11
<PAGE>
================================================================================
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given or
made, such information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities to
which it relates or an offer to sell or the solicitation of an offer to buy such
securities in any circumstance in which such offer or solicitation is unlawful.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct at any time subsequent to its date.
--------------
TABLE OF CONTENTS
PAGE
Available Information................................................ 2
Documents Incorporated by Reference 2
Special Note Regarding
Forward-Looking Statements......................................... 4
Risk Factors......................................................... 5
The Company.......................................................... 6
Use of Proceeds...................................................... 7
Selling Stockholders................................................. 7
Plan of Distribution................................................. 9
Legal Matters........................................................ 9
Experts.............................................................. 10
================================================================================
================================================================================
1,107,687 SHARES
NFO WORLDWIDE, INC.
COMMON STOCK
(par value $.01 per share)
PROSPECTUS
October ___, 1997
================================================================================
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the
offering described in this Registration Statement. The Company has agreed to pay
all of the costs and expenses of this offering.
SEC Registration Fee.................................. $ 6,064.59
Legal Fees and Expenses............................... 20,000.00*
Accounting Fees and Expenses.......................... 10,000.00*
Miscellaneous......................................... $ 1,000.00*
---------
Total................................................. 37,064.59*
=========
- ----------------------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Article 9 of the Certificate of Incorporation of
the Company, Article VI of the By-Laws of the Company and Section 145 of the
Delaware General Corporation Law which, among other things, and subject to
certain conditions, authorize the Company to indemnify its directors and
officers against certain liabilities and expenses incurred by such persons in
connection with the claims made by reason of their being such a director or
officer.
ITEM 16. EXHIBITS.
A list of the exhibits included as part of this Registration Statement
is set forth in the Exhibit Index which immediately precedes such exhibits and
is hereby incorporated by reference herein.
4.1 Restated Certificate of Incorporation of the Company
4.2 Amended and Restated By-laws of the Company (incorporated by reference
to Exhibit 4.2 of the Company's Registration Statement on Form S-8
(File No. 33-73516))
4.3 Specimen Common Stock Certificate (incorporated by reference to Exhibit
4.1 of the Company's Registration Statement on Form S-1 (File No.
33-58748))
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
23.1 Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Soteriou Banerji
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(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;
(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 amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(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 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed 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 post-effective amendment that contains a
form of prospectus 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) 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
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 Securities and Exchange
Commission 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
II-2
<PAGE>
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.
(d) The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed
as part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared
effective.
(ii) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greenwich and State of Connecticut on the 22nd
day of October, 1997.
NFO WORLDWIDE, INC.
By: /s/ Patrick G. Healy
------------------------------------------------
Name: Patrick G. Healy
Title: President - Corporate Product/Systems
Development and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints William E. Lipner and Patrick G. Healy
such individual's true and lawful attorney-in-fact and agent with full power for
such person and in such person's name, place and stead, in any and all
capacities to sign and file with the Securities and Exchange Commission any and
all amendments, including post-effective amendments, to this Registration
Statement, with exhibits thereto and other documents in connection therewith,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as full to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or either of them, or any substitute therefor, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on October 22, 1997.
SIGNATURES TITLE
Chairman of the Board, President, Chief
Executive Officer and Director (Principal
/s/ William E. Lipner Executive Officer)
- -----------------------------------
William E. Lipner
/s Stephen J. Gilbert
- ----------------------------------- Vice Chairman of the Board, Secretary and
Steven J. Gilbert Director
II-4
<PAGE>
SIGNATURES TITLE
/s/ Walter A. Forbes Director
- -----------------------------------
Walter A. Forbes
/s/ Edmund A. Hajim Director
- -----------------------------------
Edmund A. Hajim
/s/ John Sculley Director
- -----------------------------------
John Sculley
/s/ Patrick G. Healy President - Corporate Product/Systems
- -----------------------------------
Patrick G. Healy Development and Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT PAGE
4.1 Restated Certificate of Incorporation of the Company 20
4.2 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 4.2 of the Company's Registration Statement
on Form S-8 (File No. 33-73516))
4.3 Specimen Common Stock Certificate (incorporated by reference
to Exhibit 4.1 of the Company's Registration Statement on Form
S-1 (File No. 33-58748))
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison 64
23.1 Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP 66
23.3 Consent of Deloitte & Touche LLP 67
23.4 Consent of Soteriou Banerji 68
Exhibit 4.1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF OWNERSHIP,
WHICH MERGES:
"NFO" WORLDWIDE, INC.", A DELAWARE CORPORATION,
WITH AND INTO "NFO RESEARCH, INC." UNDER THE NAME OF
"NFO WORLDWIDE, INC.", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF
THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TENTH DAY OF
OCTOBER, A.D. 1997, AT 9 O'CLOCK A.M.
/S/ Edward J. Freel
-------------------------------------------------
Edward J. Freel, Secretary of State
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/10/97
971342963 - 2273866
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
NFO WORLDWIDE, INC.
WITH AND INTO
NFO RESEARCH, INC.
-------------------------
Pursuant to Section 253 of
the General Corporation Law
of the State of Delaware
-------------------------
NFO RESEARCH, INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), desiring to merge (the
"Merger") its wholly-owned subsidiary, NFO WORLDWIDE, INC., a corporation
organized and existing under the laws of the State of Delaware ("NFO
Worldwide"), with and into the Corporation, DOES HEREBY CERTIFY as follows:
FIRST: That the Corporation was incorporated under the laws of the
State of Delaware on September 17, 1991.
SECOND: That the Corporation owns all of the issued and outstanding
shares of common stock (the only outstanding class of stock) of NFO Worldwide,
which was incorporated under the laws of the State of Delaware on September 26,
1997.
THIRD: That the Board of Directors of the Corporation, in accordance
with Section 253 of the General Corporation Law of the State of Delaware, by
<PAGE>
unanimous written consent of its directors dated September 29, 1997 adopted the
following resolutions, which have not been modified or rescinded and are in full
force and effect on the date hereof, authorizing such merger upon the terms and
conditions set forth therein:
RESOLVED, that, pursuant to Section 253 of the General Corporation
Law of the State of Delaware (the "DGCL"), NFO Worldwide, Inc. ("NFO Worldwide")
be merged (the "Merger") with and into NFO Research, Inc. (the "Corporation") on
the following terms and conditions:
(i) The effective time of the Merger (the "Effective Time")
shall be the time of filing of a Certificate of Ownership and Merger
with the Secretary of State of the State of Delaware;
(ii) At the Effective Time and in accordance with applicable law,
NFO Worldwide shall be merged with and into the Corporation, with
the Corporation being the surviving corporation of the Merger (the
"Surviving Corporation"). At the Effective Time, the separate
existence of NFO Worldwide shall cease and the other effects of the
Merger shall be as set forth in the DGCL (including, without
limitation, Sections 259, 260 and 261 thereof);
(iii) Except as provided in paragraph (vi) below, the Certificate
of Incorporation of the Corporation, as in effect immediately prior
to the Effective Time, shall continue in full force and effect as
the Certificate of Incorporation of the Surviving Corporation, until
thereafter altered, amended or repealed as provided therein and in
accordance with applicable law;
(iv) The By-laws of the Corporation, as in effect immediately
prior to the Effective Time, shall continue in full force and effect
as the By-laws of the Surviving Corporation, until thereafter
altered, amended or repealed as provided therein and in accordance
with applicable law;
(v) The officers and directors of the Corporation at the
Effective Time shall continue to be the officers and directors of
the Surviving Corporation and shall serve until their respective
successors are duly elected or appointed and qualify or their
earlier resignation or removal;
(vi) At the Effective Time, the name of the Surviving Corporation
shall be NFO Worldwide, Inc.;
2
<PAGE>
(vii) The President or any Vice President of the Corporation shall
be, and each of them hereby is, authorized to execute, and the
Secretary of the Corporation is hereby authorized to attest to the
execution of, a Certificate of Ownership and Merger, and the
President or any Vice President shall be, and each of them hereby
is, authorized to cause the Certificate of Ownership and Merger to
be filed with the Secretary of State of the State of Delaware; and
(ix) The President, any Vice President and Secretary of the
Corporation are hereby authorized and empowered, acting in the name
and on behalf of the Corporation, to execute and deliver such other
instruments and documents and to take such other actions which they,
or any one of them, deem necessary or appropriate to carry out the
intent of these resolutions, the due execution and delivery by them
of any such instrument or document and the taking by them of any
such action to be conclusive evidence of their approval and
authority pursuant to this resolution.
FOURTH: That the name of the Surviving Corporation shall be
NFO Research, Inc., changing its name to NFO Worldwide, Inc.
FIFTH: That at the Effective Time, the Certificate of
Incorporation of the Corporation, as in effect immediately prior to the
Effective Time, shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation, as amended to change the name of the
Surviving Corporation to "NFO Worldwide, Inc.", until further amended and
changed pursuant to the provisions of the General Corporation Law of the State
of Delaware.
SIXTH: That the aforesaid resolution of Merger was duly adopted
in accordance with the applicable provisions of Section 253 of the General
Corporation Law of the State of Delaware.
SEVENTH: That the Merger shall become effective upon the filing
of this certificate with the Secretary of State of the State of Delaware.
3
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the duly authorized officers of
the Corporation, have caused this Certificate of Ownership and Merger to be
signed and attested to this 10th day of October, 1997.
NFO RESEARCH, INC.
By: /S/ William E. Lipner
-------------------------------------
Name: William E. Lipner
Title: Chairman, President and
Chief Executive Officer
ATTEST:
By: /S/ Patrick G. Healy
---------------------------------------
Name: Patrick G. Healy
Title: Executive Vice President-Finance
and Chief Financial Officer
4
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "NFO RESEARCH, INC.", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF SEPTEMBER,
A.D. 1996, AT 11 O'CLOCK A.M.
/S/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NFO RESEARCH, INC.
(Under Section 242 of the Delaware General Corporation Law)
NFO Research, Inc., a corporation organized and existing under the
Delaware General Corporation Law (the "Corporation"), DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is NFO Research, Inc.
SECOND: Article FOURTH of the Restated Certificate of
Incorporation of the Corporation is hereby amended by deleting the first
paragraph thereof and substituting in lieu thereof the following paragraph:
"The total number of shares which the Corporation shall have
authority to issue is sixty-five million (65,000,000), consisting of
sixty million (60,000,000) shares of Common Stock, par value $.01
per share (the "Common Stock") and five million (5,000,000) shares
of Preferred Stock, par value $.01 per share (the "Preferred
Stock")."
<PAGE>
THIRD: The aforesaid amendment has been duly adopted in
accordance with Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this certificate to
be signed by its duly authorized officer, this 20th day of September, 1996.
NFO RESEARCH, INC.
By:/S/William E. Lipner
--------------------------------
Name:William E. Lipner
Title: Chairman of the Board and
Chief Executive Officer
2
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "NFO RESEARCH, INC.", FILED IN THIS OFFICE ON THE SEVENTH DAY OF AUGUST, A.D.
1995, AT 10:45 O'CLOCK A.M.
/S/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:45 AM 08/07/1995
950177323 - 2273866
CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
NFO RESEARCH, INC.
------------------------------------
Adopted in accordance with the
provisions of Section 242 of the General
Corporation Law of the State of Delaware
------------------------------------
We, William E. Lipner, President, and Steven J. Gilbert, Secretary,
of NFO RESEARCH, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, as amended (the
"Corporation"), DO HEREBY CERTIFY under the seal of the Corporation as follows:
FIRST: Article FIFTH of the Restated Certificate of Incorporation
of the Corporation is hereby amended by deleting in its entirety and
substituting in lieu thereof the following new Article FIFTH:
FIFTH: At all meetings of stockholders, each stockholder
shall be entitled to vote, in person or by proxy, the shares of
voting stock owned by such stockholder of record on the record date
for the meeting. Except as otherwise provided by statute or by the
Restated Certificate of Incorporation, at any meeting of
stockholders (at which a quorum was present to organize the
meeting), any election of directors shall be decided by a plurality
of the votes cast at such meeting by the holders of shares present
in person or represented by proxy and entitled to vote in
<PAGE>
the election and all other matters shall be decided by a majority of
the votes cast at such meeting by the holders of shares present in
person or represented by proxy and entitled to vote thereon, in each
case whether or not a quorum is present when the vote is taken.
SECOND: The foregoing amendment was duly adopted in accordance with
Section 242 of the General Corporation Law of the State of Delaware by the
affirmative vote of the holders of a majority of the outstanding shares of
Common Stock of the Corporation, being the only class entitled vote at a duly
held meeting of stockholders.
IN WITNESS WHEREOF, we have signed this Certificate of Amendment and
caused the corporate seal of said NFO RESEARCH, INC. to be hereunto affixed this
5th day of May, 1995.
/S/ William E. Lipner
-----------------------
William E. Lipner
President
[SEAL]
ATTEST:
/S/ Steven J. Gilbert
- ------------------------
Steven J. Gilbert
Secretary
2
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"NFO RESEARCH, INC.", FILED IN THIS OFFICE ON THE TWELFTH DAY OF APRIL, A.D.
1993, AT 3:30 O'CLOCK P.M.
/S/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
NFO RESEARCH, INC.
The undersigned, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, as amended (the
"Corporation"), DOES HEREBY CERTIFY as follows:
1. The Certificate of Incorporation of the Corporation was
filed in the Office of the Secretary of State of the State of Delaware on
September 17, 1991 and amended and restated on September 27, 1991 and further
amended on October 21, 1991.
2. On December 21, 1992, the Corporation filed a Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware.
3. On February 23, 1993, and March 15, 1993, in the manner
prescribed by Section 242 and 245 of the General Corporation Law of the State of
Delaware, as amended, resolutions were duly adopted by the Board of Directors
and the stockholders of the Corporation, respectively, duly adopting this
Restated Certificate of Incorporation and amending the Certificate of
Incorporation of the Corporation as herein provided.
4. Pursuant to the provisions of Section 103(d) of the General
Corporation Law of the State of Delaware, as amended, this Restated Certificate
of Incorporation is not to become effective until 9:00 a.m. New York time on
April 15, 1993 (the "Effective Date").
5. The text of the certificate of incorporation of the
Corporation as amended and restated herein, shall, at the effective time of this
Restated Certificate of Incorporation, read as follows:
* * *
FIRST: The name of the Corporation is NFO Research, Inc.
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of the registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as amended (the "GCL").
<PAGE>
FOURTH: The total number of shares which the Corporation shall have
authority to issue is twenty million (20,000,000), consisting of fifteen million
(15,000,000) shares of Common Stock, par value $.01 per share (the "Common
Stock") and five million (5,000,000) shares of Preferred Stock, par value $.01
per share (the "Preferred Stock").
A. PREFERRED STOCK. The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of this Article FOURTH, to fix
by resolution or resolutions providing for the issuance of the shares of
Preferred Stock in series, and by filing a certificate pursuant to Section 151
of the General Corporation Law of the State of Delaware, to establish from to
time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The Board of Directors may from time to time increase the number of
shares of any series of Preferred Stock already created by providing that any
unissued shares of Preferred Stock shall constitute part of such series, or
decrease (but not below the number of shares thereof then outstanding) the
number of shares of any series of Preferred Stock already created by providing
that any unissued shares previously assigned to such series shall no longer
constitute part thereof. The Board of Directors is hereby empowered to classify
any unissued Preferred Stock by fixing or altering the terms thereof in respect
of the above-mentioned particulars and by assigning the same to any existing or
newly created series from time to time before the issuance of such Preferred
Stock.
B. COMMON STOCK. A statement of the designations, powers,
preferences, rights, qualifications, limitations and restriction in respect of
the shares of Common Stock is as follows:
(1) DIVIDENDS. The Board of Directors of the Corporation may cause
dividends to be paid to the holders of shares of Common Stock out of funds
legally available for the payment of dividends by declaring an amount per share
as a dividend. When and as dividends are declared, whether payable in cash, in
property or in shares of stock or other securities of the Corporation, the
holders of Common Stock shall be entitled to share ratably, according to the
number of shares of Common Stock held by them, in such dividends.
(2) LIQUIDATION RIGHTS. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
holders of Common Stock shall be entitled to share, ratably according to the
number of shares of Common Stock held by them, in all remaining assets of the
Corporation available for distribution to its stockholders.
(3) VOTING RIGHTS. Except as otherwise provided in this Certificate
of Incorporation or by applicable law, the holders of Common Stock shall be
entitled to vote on each matter on which the stockholders of the Corporation
shall be entitled to vote, and each
2
<PAGE>
holder of Common Stock shall be entitled to one vote for each share of such
stock held by him.
C. CONVERSION. (1) On the Effective Date, by virtue of the
effectiveness of this Restated Certificate of Incorporation, and without any
action on the holders of such shares, each share of Class A Common Stock and
each share of Class B Common Stock of the Corporation outstanding prior to the
effectiveness of this Restated Certificate of Incorporation shall be
extinguished and cease to exist and shall be converted into 33.82700 shares of
Common Stock and 22.57127 shares of Common Stock, respectively, which shares of
Common Stock shall be fully paid and nonassessable shares of the Corporation.
(2) No fractional shares of Common Stock shall be issued upon the
aforementioned conversion, but instead such fractional shares, which would have
been issuable but for the prohibition in this paragraph, shall evidence the
right to receive cash equal to the number of fractional shares multiplied by the
initial public offering price of the shares of Common Stock offered to the
public pursuant to the Company's Registration Statement on Form S-1 (File No.
33-58748) filed with the Securities and Exchange Commission.
(3) On the Effective Date or as soon as practicable thereafter, each
holder of the Class A Common Stock and Class B Common Stock shall surrender its
shares to the Secretary of the Company in exchange for (i) the number of shares
of Common Stock as determined in subparagraph (C)(1) above and (ii) the amount,
if applicable to such holder, referred to in subparagraph (C)(2) above payable
by check, to which such holder is entitled. No holder shall be entitled to any
interest on the cash in lieu of fractional shares to which it is entitled.
FIFTH: At all meetings of stockholders, each stockholder shall be
entitled to vote, in person or by proxy, the shares of voting stock owned by
such stockholders of record on the record date for the meeting. When a quorum is
present or represented at any meeting, the vote of the holders of a majority of
the voting power of all of the shares of stock of the Corporation outstanding
and entitled to vote on any matter, question or proposal brought before such
meeting shall decide such question, unless the question is one upon which, by
express provision of law, this Certificate of Incorporation or the By-Laws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
SIXTH: The number of directors of the Corporation shall be fixed
from time to time by the vote of a majority of the entire Board of Directors,
but such number shall in no case be less than three nor more than twelve. Any
such determination made by the Board of Directors shall continue in effect
unless and until changed by the Board of Directors, but no such changes shall
affect the term of any directors then in office.
3
<PAGE>
A director shall hold office until the annual meeting for the year
in which his or her term expires and until his or her successor shall be elected
and shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
Advance notice of nominations for the election of directors, other
than nominations by the Board of Directors or a committee thereof, shall be
given to the Corporation in the manner provided in the By-Laws.
SEVENTH: For the management of the business and for the conduct of
the affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
(1) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-Laws of the Corporation.
(3) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Certificate of Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if such
By-Laws had not been adopted.
EIGHTH: (1) Meetings of stockholders may be held within or without
the State of Delaware as the By-Laws may provide. The books of the Corporation
may be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
(2) Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of such holders and may not effected by a consent in writing by any such
holders.
NINTH: (1) The Corporation shall, to the fullest extent permitted by
Section 145 of the GCL, as the same may be amended and supplemented, indemnify
any and all directors and officers whom it shall have power to indemnify under
said Section and may, upon the act of the Board of Directors, indemnify all
other persons whom it shall have power to indemnify under said Section, from and
against any and all of the expenses, liabilities or other matters referred to in
or converted by said Section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
4
<PAGE>
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. The rights to
indemnification hereunder shall continue as to a director or officer who has
ceased to be a director or officer, shall inure to the benefit of the heirs,
executors and administrators of the director or officer, and may, upon such act
of the Board of Directors, continue as to such other persons and inure to the
benefit of the heirs, executors and administrators of such other persons. The
rights to indemnification conferred in this ARTICLE NINTH shall also include the
right to be paid by the Corporation the expenses incurred in connection with any
such proceeding in advance of its final disposition to the fullest extent
authorized by Delaware law.
(2) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for any breach of fiduciary duty as a
director, except for liability (i) for breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the GCL or (iv) for any transaction from which
the director derived an improper personal benefit. Any repeal or modification of
this ARTICLE NINTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
(3) Neither the amendment, change, alteration nor repeal of this
ARTICLE NINTH, nor the adoption of any provision of this Certificate of
Incorporation or the By-Laws of the Corporation nor any modification of law,
shall eliminate or reduce the effect of this ARTICLE NINTH or the rights or any
protections afforded under this ARTICLE NINTH in respect of any acts or
omissions occurring prior to such amendment, change, alteration, repeal,
adoption or modification.
TENTH: The Corporation reserves the right to repeal, alter or amend
this Certificate of Incorporation in the manner now or hereafter prescribed by
statute. No repeal, alteration or amendment of this Certificate of Incorporation
shall be made unless the same is first approved by the Board of Directors of the
Corporation pursuant to a resolution adopted by the directors then in office in
accordance with the By-Laws and applicable law and thereafter approved by the
stockholders.
ELEVENTH: The Corporation has elected to be governed by
Section 203 of the GCL.
5
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed by its President and attested to by
its Secretary.
NFO RESEARCH, INC.
(Corporate Seal) By: /S/ William E. Lipner
------------------------
William E. Lipner
President
ATTEST:
/S/ Steven J. Gilbert
- ---------------------------
Steven J. Gilbert
Secretary
6
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"NFO RESEARCH, INC.", FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF DECEMBER,
A.D. 1992, AT 10 O'CLOCK A.M.
/S/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
7
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 10/21/1992
722356101 - 2273866
RESTATED CERTIFICATE OF INCORPORATION
OF
NFO RESEARCH, INC.
The undersigned, a corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, as amended (the
"CORPORATION"), DOES HEREBY CERTIFY as follows:
1. The Certificate of Incorporation of the Corporation was filed in
the Office of the Secretary of State of the State of Delaware on September 17,
1991 and amended and restated on September 27, 1991 and further amended on
October 21, 1991.
2. On December 18, 1992, in the manner prescribed by Sections 242
and 245 of the General Corporation Law of the State of Delaware, as amended,
resolutions were duly adopted by the Board of Directors and the stockholders of
the Corporation, respectively, duly adopting this Restated Certificate of
Incorporation and amending the certificate of incorporation of the Corporation
as herein provided.
3. The text of the certificate of incorporation of the Corporation
as amended and restated herein, shall, at the effective time of this Restated
Certificate of Incorporation, read as follows:
* * *
FIRST: The name of the Corporation is NFO Research, Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of the registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as amended (the "GCL").
FOURTH:
Part A. AUTHORIZED SHARES
The total number of shares of capital stock which the Corporation has
authority to issue is 110,000 shares, consisting of:
(1) 66,000 shares of Class A Common Stock, par value $.01 per share
("CLASS A COMMON"); and
(2) 44,000 shares of Class B Common Stock, par value $.01 per share
("CLASS B COMMON").
<PAGE>
The Class A Common and Class B Common and any other common stock issued
hereafter are referred to collectively as the "COMMON STOCK." The share of
Common Stock shall have the rights, preferences and limitations set forth below.
Capitalized terms used but not otherwise defined in Part A or Part B of this
Article IV are defined in Part C.
Part B. COMMON STOCK
Except as otherwise provided in this Part B or as otherwise required by
applicable law, all shares of Class A Common and Class B Common shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and
restrictions.
Section 1. VOTING RIGHTS. Except as otherwise provided in this Part B or
as otherwise required by applicable law, all holders of Class A Common and Class
B Common shall be entitled to one vote per share on all matters to be voted on
by the Corporation's stockholders, and the holders of Class A Common and Class B
Common shall vote together as a single class.
Section 2. DISTRIBUTIONS. At the time of each Distribution, such
Distribution shall be made to the holders of Class A Common and Class B Common
in the following priority:
(i) The holders of Class A Common, as a separate class, shall be
entitled to receive all or a portion of such Distribution (ratably among
such holders based upon the Unpaid Yield held by each such holder as of
the time of such Distribu tion) equal to the aggregate Unpaid Yield on the
outstanding shares of Class A Common as of the time of such Distribution,
and no Distribution or any portion thereof shall be made under paragraphs
2(ii) or 2(iii) below until the entire amount of the Unpaid Yield on the
outstanding shares of Class A Common as of the time of such Distribution
has been paid in full. The Distributions made pursuant to this paragraph
2(i) to holders of Class A Common shall constitute a payment of Yield on
the Class A Common.
(ii) After the required amount of a Distribution has been made in
full pursuant to paragraph 2(i) above, the holders of Class A Common, as a
separate class, shall be entitled to receive all or a portion of such
Distribution (ratably among such holders based upon the number of shares
of Class A Common held by each such holder as of the time of such
Distribution) equal to the aggregate of the Preferred Per Share
Distribution Amounts on the outstanding shares of Class A Common as of the
time of such Distribution, and no Distribution or any portion thereof
shall be made under paragraph 2(iii) below until the entire amount of the
Preferred Per Share Distribution Amounts on the outstanding shares of
Class A Common as of the time of such Distribution has been paid in full.
The Distributions made pursuant to this paragraph 2(ii) to holders of
Class A Common shall constitute a distribution of the Preferred Per Share
Distribution Amount on the Class A Common.
2
<PAGE>
(iii) After the required amount of a Distribution has been made
pursuant to paragraphs 2(i) and 2(ii) above, the holders of Class A Common
and Class B Common, as a group, shall be entitled to receive the remaining
portion of such Distribution and any subsequent Distribution (ratably
among such holders based upon the number of shares of Common Stock held by
each such holder as of the time of such Distribution).
Section 3. SCHEDULED DISTRIBUTIONS. On September 30, 1998 (the "SCHEDULED
DISTRIBUTION DATE"), the Corporation shall distribute (the "SCHEDULED
DISTRIBUTION") to the holder of each outstanding share of Class A Common any
portion of the Unpaid Yield and Preferred Per Share Distribution Amount which
has not previously been distributed on such share (in the aggregate for all
outstanding shares of Class A Common, the "SCHEDULED DISTRIBUTION AMOUNT"). The
Scheduled Distribution shall be made in accordance with the provisions of
Section 2 hereof. If the funds of the Corporation legally available for
distribution with respect to Class A Common on the Scheduled Distribution Date
are insufficient to distribute the Scheduled Distribution Amount, those funds
which are legally available for distribution will be used for the Scheduled
Distribution and at any time thereafter when additional funds of the Corporation
are legally available for distribution with respect to Class A Common, such
funds will immediately be used to distribute the balance of the Scheduled
Distribution Amount which the Corporation has not distributed.
Section 4. STOCK SPLITS AND STOCK DIVIDENDS. The Corporation shall not in
any manner subdivide (by stock split, stock dividend or otherwise) or combine
(by stock split, stock dividend or otherwise) the outstanding Common Stock of
one class unless the outstanding Common Stock of all the other classes shall be
proportionately subdivided or combined. All such subdivisions and combinations
shall be payable only in Class A Common to the holders of Class A Common and in
Class B Common to the holders of Class B Common. In no event shall a stock split
or stock dividend constitute a payment of Yield or a return of the Preferred Per
Share Distribution Amount.
Section 5. REGISTRATION OF TRANSFER. The Corporation shall keep at its
principal office (or such other place as the Corporation reasonably designates)
a register for the registration of shares of Common Stock. Upon the surrender of
any certificate repre senting shares of any class of Common Stock at such place,
the Corporation shall, at the request of the registered holder of such
certificate, execute and deliver a new certificate or certificates in exchange
therefor representing in the aggregate the number of shares of such class
represented by the surrendered certificate, and the Corporation forthwith shall
cancel such surrendered certificate. Each such new certificate shall be
registered in such name and will represent such number of shares of such class
as is requested by the holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate. The issuance of
new certificates shall be made without charge to the holders of the surrendered
certificates for any issuance tax in respect thereof or other cost incurred by
the Corporation in connection with such issuance.
Section 6. REPLACEMENT. Upon receipt of evidence reasonably satisfactory
to the Corporation (an affidavit of the registered holder will be satisfactory)
of the ownership and the
3
<PAGE>
loss, theft, destruction or mutilation of any certificate evidencing one or more
shares of any class of Common Stock, and in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation (provided that if the holder is a financial institution or other
institutional investor its own agreement will be satisfactory), or, in the case
of any such mutilation upon surrender of such certificate, the Corporation shall
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of shares of such class
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
Section 7. NOTICES. All notices referred to herein shall be in writing,
shall be delivered personally or by first class mail, postage prepaid, and shall
be deemed to have been given when so delivered or mailed to the Corporation at
its principal executive offices and to any stockholder at such holder's address
as it appears in the stock records of the Corporation (unless otherwise
specified in a written notice to the Corporation by such holder).
Section 8. AMENDMENT AND WAIVER. No amendment or waiver of any provision
of this Article IV shall be effective without the prior written consent of the
holders of at least 66-2/3% of the then outstanding shares of Common Stock
voting as a single class; provided that no amendment directly to any terms or
provisions of any class of Common Stock that adversely affects such class of
Common Stock shall be effective without the prior consent of the holders of at
least 66-2/3 % of the then outstanding shares of such class of Common Stock.
Part C. DEFINITIONS
"DISTRIBUTION" means each distribution made by the Corporation to holders
of Common Stock, whether in cash, property, or securities of the Corporation and
whether by dividend, liquidating distribution, redemption, repurchase or
otherwise; provided that none of the following shall be a Distribution: (a) any
redemption or repurchase by the Corporation of Common Stock pursuant to the
Stockholders Agreement by and among the Corporation and certain other
stockholders of the Corporation, (b) any redemption or repurchase by the
Corporation of Common Stock held by an employee of the Corporation or any of its
Subsidiaries pursuant to a stock vesting agreement, (c) any recapitalization or
exchange of any shares of Common Stock or (d) any subdivision (by stock split,
stock dividend or otherwise) or any combination (by stock split, stock dividend
or otherwise) of any outstanding shares of Common Stock.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"PREFERRED PER SHARE DISTRIBUTION AMOUNT" means $157.58 per share of Class
A Common less the aggregate Distributions made by the Corporation on such share
of Class A Common that constitute Distributions of the Preferred Per Share
Distribution Amount. The
4
<PAGE>
Preferred Per Share Distribution Amount shall be adjusted equitably in the event
of a stock dividend, stock split, reverse stock split, combination of shares or
other similar event.
"SUBSIDIARY" means with respect to any Person, any corporation of which
the shares of stock having a majority of the general voting power in electing
the board of directors are, at the time as of which any determination is being
made, owned by such Person either directly or indirectly through Subsidiaries.
"UNPAID YIELD" with respect to each share of Class A Common means an
amount equal to the excess, if any, of (a) the aggregate Yield accrued on such
share of Class A Common, over (b) the aggregate amount of Distributions made by
the Corporation that constitute payment of Yield on such share of Class A
Common.
"YIELD" means, with respect to each share of Class A Common for each
calendar quarter, the amount accruing on such share of Class A Common each day
during such quarter at the rate of 8% per annum of the sum of (a) the Preferred
Per Share Distribution Amount, plus (b) the Unpaid Yield thereon for all prior
quarters. In calculating the amount of any Distribution to be made during a
quarter, the portion of the Yield for such portion of such quarter elapsing
before such Distribution is made shall be taken into account.
FIFTH: At all meetings of stockholders, each stockholder shall be
entitled to vote, in person or by proxy, the shares of voting stock owned by
such stockholders of record on the record date for the meeting. When a quorum is
present or represented at any meeting, the vote of the holders of a majority of
the voting power of all of the shares of stock of the Corporation outstanding
and entitled to vote on any matter, question or proposal brought before such
meeting shall decide such question, unless the question is one upon which, by
express provision of law, this Certificate of Incorporation or the By-Laws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
(1) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-Laws of the Corporation.
(3) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless,
5
<PAGE>
to the provisions of the GCL, this Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
EIGHTH: (1) The Corporation shall, to the fullest extent permitted
by Section 145 of the GCL, as the same may be amended and supplemented,
indemnify any and all directors and officers whom it shall have power to
indemnify under said Section and may, upon the act of the Board of Directors,
indemnify all other persons whom it shall have power to indemnify under said
Section, from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said Section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, shall continue as to a director or officer who has ceased to be a
director or officer, shall inure to the benefit of the heirs, executors and
administrators of the director or officer, and may, upon such act of the Board
of Directors, continue as to such other persons and inure to the benefit of the
heirs, executors and administrators of such other persons.
(2) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for any breach of fiduciary duty as a
director, except for liability (i) for breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the GCL or (iv) for any transaction from which
the director derived an improper personal benefit. Any repeal or modification of
this ARTICLE EIGHTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
NINTH: The Corporation reserves the right to repeal, alter or amend
this Certificate of Incorporation in the manner now or hereafter prescribed by
statute. No repeal, alteration or amendment of this Certificate of Incorporation
shall be made unless the same is first approved by the Board of Directors of the
Corporation pursuant to a resolution adopted by the directors then in office in
accordance with the By-Laws and applicable law and thereafter approved by the
stockholders.
6
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed by its President and attested to by
its Secretary.
NFO RESEARCH, INC.
(Corporate Seal) By: /S/ William E. Lipner
---------------------------
William E. Lipner
President
ATTEST:
/S/ Steven J. Gilbert
- ---------------------------
Steven J. Gilbert
Secretary
7
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "NFO ENTERPRISES, INC.", CHANGING ITS NAME FROM "NFO ENTERPRISES, INC." TO
"NFO RESEARCH, INC.", FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF OCTOBER,
A.D. 1991, AT 11:30 O'CLOCK A.M.
/S/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 10/21/1992
722356101 - 2273866
CERTIFICATE OF AMENDMENT
OF
NFO ENTERPRISES, INC.
WHEREAS, the original certificate of incorporation of NFO
Enterprises, Inc. (the "Corporation") was filed with the office of Secretary of
State of Delaware on September 17, 1991 and a restatement of the certificate of
incorporation was filed with the office of Secretary of State of Delaware on
September 27, 1991;
WHEREAS, the Corporation desires to amend its certificate of
incorporation, as amended hereby;
WHEREAS, the Corporation has not issued any stock or received any
payment for any of its stock; and
WHEREAS, the amendment and restatement of the certificate of
incorporation has been duly adopted by a majority of the Board of Directors in
accordance with the provisions of Sections 241(b) of the General Corporation Law
of the State of Delaware; now,
THEREFORE, the text of the certificate of incorporation of the
corporation is hereby amended as follows:
FIRST: The name of the corporation is NFO Research, Inc.
IN WITNESS WHEREOF, said Corporation has caused this Amendment to
the Certificate of Incorporation to be signed by William E. Lipner, its
President, and attested by Alan L. Harvey, its Assistant Secretary this 18th day
of October, 1991.
/S/ William E. Lipner
----------------------------
William E. Lipner, President
ATTEST:
/S/ Alan L. Harvey
- -----------------------
Alan L. Harvey
Assistant Secretary
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"NFO ENTERPRISES, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF
SEPTEMBER, A.D. 1991, AT 4:30 O'CLOCK P.M.
/S/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 10/21/1992
722356101 - 2273866
RESTATED CERTIFICATE OF INCORPORATION
OF
NFO ENTERPRISES, INC.
WHEREAS, the original certificate of incorporation of NFO
Enterprises, Inc. (the "Corporation") was filed with the office of Secretary of
State of Delaware on September 17, 1991;
WHEREAS, the corporation desires to restate its certificate of
incorporation, as amended hereby;
WHEREAS, the corporation has not issued any stock or received any
payment for any of its stock, and the undersigned has been named as the sole
director of the Corporation; and
WHEREAS, the amendment to and restatement of the certificate of
incorporation has been duly adopted by a majority of the Board of Directors in
accordance with the provisions of Sections 241(b) and 245 of the General
Corporation Law of the State of Delaware (the "GCL"); now,
THEREFORE, the text of the certificate of incorporation of the
Corporation is hereby amended and restated as follows:
FIRST: The name of the corporation is NFO Enterprises, Inc.
SECOND: The address of its registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business or purpose to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the GCL.
FOURTH: Part A. AUTHORIZED SHARES
The total number of share of capital stock which the Corporation has
authority to issue is 110,000 shares, consisting of:
(1) 66,000 shares of Class A Common Stock, par value $.0l per
share ("Class A Common"); and
(2) 44,000 shares of Class B Common Stock, par value $.01 per
share ("Class B common"); and
<PAGE>
The Class A Common and Class B Common and any other common stock
issued hereafter are referred to collectively as the "Common Stock". The shares
of Common Stock shall have the rights, preferences and limitations set forth
below. Capitalized terms used but not otherwise defined in Part A or Part B of
this Article IV are defined in Part C.
Part B. COMMON STOCK
Except as otherwise provided in this Part B or as otherwise required
by applicable law, all share of Class A Common and Class B Common shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and
restrictions.
Section 1. VOTING RIGHTS. Except as otherwise provided in this Part
B or as otherwise required by applicable law, all holders of Class A Common and
Class B Common shall be entitled to one vote per share on all matters to be
voted on by the Corporation's stockholders, and the holders of Class A Common
and Class B Common shall vote together as a single class.
Section 2. DISTRIBUTIONS. At the time of each Distribution, such
Distribution shall be made to the holders of Class A Common and Class B Common
in the following priority:
(i) The holders of Class A Common, as a separate class, shall be
entitled to receive all or a portion of such Distribution (ratably among such
holders based upon the Unpaid Yield held by each such holder as of the time of
such Distribution) equal to the aggregate Unpaid Yield on the outstanding shares
of Class A Common as of the time of such Distribution, and no Distribution or
any portion thereof shall be made under paragraph 2(ii) or 2(iii) below until
the entire amount of the Unpaid Yield on the outstanding shares of Class A
Common as of the time of such Distribution has been paid in full. The
Distributions made pursuant to this paragraph 2(i) to holders of Class A Common
shall constitute a payment of Yield on the Class A Common.
(ii) After the required amount of a Distribution has been made in
full pursuant to paragraph 2(i) above, the holders of Class A Common, as a
separate class, shall be entitled to receive all or a portion of such
Distribution (ratably among such holders based upon the number of shares of
Common Stock held by each such holder as of the time of such Liquidating
Distribution).
Section 3. SCHEDULED DISTRIBUTIONS. On September 30,
1998 (the "Scheduled Distribution Date"), the Corporation shall
2
<PAGE>
distribution (the "Scheduled Distribution") to the holders of the Class A Common
any portion of the Unpaid Yield and Preferred Distribution Amount which has not
previously been distributed (the "Scheduled Distribution Amount"). The Scheduled
Distribution shall be made in accordance with the provisions of Section 3
hereof. If the funds of the Corporation legally available for distribution with
respect to Class A Common on the Scheduled Redemption Date are insufficient to
distribute the required amount of the Unpaid Yield and Preferred Distribution
Amount to be distributed on such date, those funds which are legally available
for distribution will be used for the Scheduled Distribution and at any time
thereafter when additional funds of the Corporation are legally available for
distribution with respect to Class A Common, such funds will immediately be used
to distribute the balance of the Scheduled Distribution Amount which the
Corporation has not distributed.
Section 4. STOCK SPLITS AND STOCK DIVIDENDS. The Corporation shall
not in any manner subdivide (by stock split, stock dividend or otherwise) or
combine (by stock split, stock dividend or otherwise) the outstanding Common
Stock of one class unless the outstanding Common Stock of all the other classes
shall be proportionately subdivided or combined. All such subdivisions and
combinations shall be payable only in Class A Common to the holders of Class A
Common and in Class B Common to the holders of Class B Common. In no event shall
a stock split or stock dividend constitute a payment of Yield or a return of
Preferred Distribution Amount.
Section 5. REGISTRATION OF TRANSFER. The Corporation shall keep at
its principal office (or such other place as the Corporation reasonably
designates) a registrar for the registration of shares of Common Stock. Upon the
surrender of any certificate representing shares of any class of Common Stock at
such place, the Corporation shall, at the request of the registered holder of
such certificate, execute and deliver a new certificate or certificates in
exchange therefore representing in the aggregate the number of shares of such
class represented by the surrendered certificate, and the Corporation forthwith
shall cancel such surrendered certificate. Each such new certificate be
registered in such name and will represent such number of shares of such class
as in requested by the holder of the surrendered certificates and shall be
substantially identical in form to the surrendered certificate. The issuance of
new certificates shall be made without charge to the holders of the surrendered
certificates for any issuance tax in respect thereof or other cost incurred by
the Corporation in connection with such issuance.
Section 6. REPLACEMENT. Upon receipt of evidence
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<PAGE>
reasonably satisfactory to the Corporation (an affidavit of the registered
holder be satisfactory) of the ownership and the loss, theft, destruction or
mutilation of any certificates evidencing one such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Corporation (provided
that if the holder is a financial institution or other institutional investor
its own agreement will be satisfactory), or, in the case of any such mutilation
upon surrender of such certificate, the Corporation shall (at its expense)
execute and deliver in lieu of such certificate a new certificate of like kind
representing the number of shares of such class represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
Section 7. NOTICES. All notices referred to herein shall be in
writing, shall be delivered personally or by first class mail, postage prepaid,
and shall be deemed to have been given when so delivered or mailed to the
Corporation at its principal executive offices and to any stockholder at such
holder's address as it appears in the stock records of the Corporation (unless
otherwise specified in a written notice to the Corporation by such holder).
Section 8. AMENDMENT AND WAIVER. No amendment or waiver of any
provision of this Article IV shall be effective without the prior written
consent of the holders of 66 2/3% of the then outstanding shares of Common Stock
voting as a single class; provided that no amendment directly to any terms or
provisions of any class of Common Stock that adversely affects such class of
Common Stock shall be effective without the prior consent of the holders of 66
2/3% of the then outstanding shares of such class of Common Stock.
DEFINITIONS
"DISTRIBUTION" means each distribution made by the Corporation to
holders of Common Stock, whether in cash, property, or securities of the
Corporation and whether by dividend, liquidating distribution, redemption,
repurchase or otherwise, provided that none of the following shall be a
Distribution: (a) any redemption or repurchase by the Corporation of Common
Stock pursuant to the Stockholders Agreement by and among the Corporation and
certain other stockholders of the Corporation, (b) any redemption of repurchase
by the Corporation of Common Stock held by an employee of the Corporation or any
of its Subsidiaries pursuant to a stock vesting agreement, (c) any
recapitalization or exchange of any shares of Common Stock or (d) any
subdivision (by stock split, stock dividend or otherwise) or any combination (by
stock split, stock dividend or otherwise) of any outstanding shares of Common
Stock.
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"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"PREFERRED DISTRIBUTION AMOUNT" means $10,334,000 less the aggregate
Distributions made by the Corporation that constitute Distributions of the
Preferred Distribution Amount.
"SUBSIDIARY" means with respect to any Person, any corporation of
which the shares of stock having a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by such Person either directly or indirectly through
Subsidiaries.
"UNPAID YIELD" with respect to the Class A Common means an amount
equal to the excess, if any, of (a) the aggregate Yield accrued on the Class A
Common, over (b) the aggregate amount of Distributions made by the Corporation
that constitute payment of Yield on the Class A Common.
"YIELD" means, with respect to the Class A Common for each calendar
quarter, the amount accruing on the Class A Common each day during such quarter
at the rate of 8% per annum of the sum of (a) the Preferred Distribution Amount,
plus (b) the Unpaid Yield thereon for all prior quarters. In calculating the
amount of any Distribution to be made during a quarter, the portion of the Class
A Common Yield for such portion of such quarter elapsing before such
Distribution is made shall be taken into account.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the GCL or on the application of trustees in
dis solution or of any receiver or receivers appointed for this Corporation
under the provisions of Section 279 of the GCL, order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of
this Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of
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this Corporation, as the case may be, agree to any compromise or arrangement and
to any reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the stockholders or class of stockholders of this Corporation,
as the case may be, and also on this Corporation.
SEVENTH: For the management of the business and for the conduct of
the affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
(1) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be fixed by, or
in the manner provided in, the By-Laws of the Corporation. Election of directors
need not be by written ballot unless the By-Laws so provide.
(4) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Certif icate of Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if such
By-Laws had not been adopted.
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EIGHTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
NINTH: (1) The Corporation shall, to the fullest extent permitted by
Section 145 of the GCL, as the same may be amended and supplemented, indemnify
any and all directors and officers, and may upon the act of the Board of
Directors, indemnify all other persons whom it shall have the power to indemnify
under Section 145 of the GCL, from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said Section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-Law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a director or officer who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and
administrators of the director or officer, and may, upon such act of the Board
of Directors, continue as to such other persons and inure to the benefit of the
heirs, executors and administrators of such other persons.
(2) To the fullest extent permitted by the GCL, as the same may be
amended and supplemented, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty an a director. Any repeal or modification of this Article NINTH
by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification with respect to acts or omissions occurring prior to such repeal
or modification.
TENTH: Except as provided in Article FOURTH, from time to time any
of the provisions of this Certificate of Incorporation may be amended, altered
or repealed, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted in the manner and at the
time prescribed by said laws, and all rights at any time conferred upon the
stockholders of the Corporation by this Certificate of Incorporation are granted
subject to the provisions or this Article TENTH.
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The proper officers of the corporation are hereby authorized, and
directed, in the corporation's name and on its behalf, to do and perform any and
all acts as they shall deem necessary, appropriate or desirable in the best
interests of the corporation to effectuate the foregoing Restatement of the
Certificate of Incorporation attached hereto, and the terms and provisions
thereof, any such determination to be conclusively evidenced by the doing or
performance of any such act or thing.
IN WITNESS WHEREOF, said Corporation has caused this Restated
Certificate of Incorporation to be signed by William E. Lipner, its President,
and attested by Steven J. Gilbert, its Secretary, this 27th day of September,
1991.
/S/ William E. Lipner
----------------------------
William E. Lipner, President
ATTEST:
/S/ Steven J. Gilbert
- ------------------------
Steven J. Gilbert
Secretary
8
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "NFO ENTERPRISES, INC.", FILED IN THIS OFFICE ON THE
SEVENTEENTH DAY OF SEPTEMBER, A.D. 1991, AT 4:30 O'CLOCK P.M.
/S/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 10/21/1992
722356101 - 2273866
DELAWARE
CERTIFICATE OF INCORPORATION
OF
NFO ENTERPRISES, INC.
* * * * * * * *
FIRST. The name of the corporation (the "Corporation") is: NFO
Enterprises, Inc.
SECOND. The address of its registered office in the State of Delaware is
1209 Orange Street in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purpose to be conducted or promoted
by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware (the "DGCL").
FOURTH. The total number of shares of stock which the Corporation has the
authority to issue is 1,000 shares of Common Stock, par value of $.01 per share;
FIFTH. The name and mailing address of the incorporator is as follows:
<PAGE>
Kathleen A. Walsh
Mayer, Brown & Platt
787 Seventh Avenue
New York, NY 10019
SIXTH. In furtherance and not in limitation of the powers conferred by
statute, the by-laws of the Corporation (the "By-Laws") may be made, altered,
amended or repealed by the stockholders or by the board of directors of the
Corporation (the "Board").
SEVENTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the DGCL or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the DGCL, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case maybe, to be summoned in
such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any
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<PAGE>
reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
EIGHTH. Elections of directors need not be by written ballot.
NINTH: (a) The Corporation shall indemnify to the fullest extent permitted
under and in accordance with the laws of the State of Delaware 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 by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of or in any
other capacity with another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or
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<PAGE>
proceeding, had no reasonable cause to believe his conduct was unlawful.
(b) Expenses incurred in defending a civil or criminal action, suit or
proceeding shall (in the case of any action, suit or proceeding against a
director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or on
behalf of the indemnified person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article Ninth.
(c) The indemnification and other rights set forth in this Article Ninth
shall not be exclusive of any provisions with respect thereto in the By-Laws or
any other contract or agreement between the Corporation and any officer,
director, employee or agent of the Corporation.
(d) Neither the amendment nor repeal of subparagraphs (a), (b) or (c) of
this Article Ninth, nor the adoption of any provision of this Certificate of
Incorporation inconsistent with subparagraphs (a), (b) or (c) of this Article
Ninth, shall eliminate or reduce the effect of subparagraphs (a), (b) and (c) of
this Article Ninth, in respect of any matter occurring before such amendment,
repeal or adoption of any inconsistent provision
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<PAGE>
or in respect of any cause of action, suit or claim relating to any such matter
which would have given rise to a right of indemnification or right to receive
expenses pursuant to subparagraph (a), (b) or (c) of this Article Ninth, if such
provision had not been so amended or repealed or if a provision inconsistent
therewith had not been so adopted.
(e) No director shall be personally liable to the Corporation or to
any stockholder for monetary damages for breach of fiduciary duty as a director,
except for any matter in respect of which such director (a) shall be liable
under Section 174 of the DGCL or any amendment thereto or successor provision
thereto, or (b) shall be liable by reason that, in addition to any and all other
requirements for liability, he:
(i) shall have breached his duty and loyalty to the Corporation or
its stockholders;
(ii) shall not have acted in good faith or, in failing to act, shall
not have acted in good faith;
(iii) shall have acted in a manner involving intentional misconduct
or a knowing violation of law or, in failing to act, shall have
acted in a manner involving intentional misconduct or a knowing
violation of law; or
(iv) shall have derived an improper personal benefit.
If the DGCL is amended after date of incorporation, to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the DGCL, as so amended.
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<PAGE>
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a Corporation pursuant to the DGCL makes this Certificate,
hereby declaring and certifying that this is her act and deed and the facts
herein stated are true and, accordingly, has hereunto set her hand this 17th day
of September, 1991.
/S/ Kathleen A. Walsh
-------------------------
Kathleen A. Walsh, Esq.
6
EXHIBIT 5.1
October 22, 1997
NFO Worldwide, Inc.
2 Pickwick Plaza
Suite 400
Greenwich, Connecticut 06830-5530
NFO Worldwide, Inc.
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
In connection with the above-referenced Registration Statement on
Form S-3 (the "Registration Statement") filed by NFO Worldwide, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations promulgated thereunder (the "Rules"), we have been requested to
render our opinion as to the legality of the shares of common stock, par value
$.01 per share (the "Common Stock"), of the Company to be registered thereunder.
The Common Stock is being registered for offering and sale from time to time by
certain selling stockholders of the Company pursuant to Rule 415 under the Act.
In connection with this opinion, we have examined (i) an original,
photocopy or conformed copy of the Registration Statement (including the
exhibits thereto), (ii) the Restated Certificate of Incorporation and Amended
and Restated By-laws of the Company, each as amended to date, and (iii) records
of certain of the Company's corporate proceedings. We have also made such other
examinations of law and fact as we have considered necessary in order to form a
basis for the opinion hereinafter expressed. In our examination of documents, we
have assumed, without independent investigation, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
photostatic, reproduced or conformed copies, the authenticity of all such latter
documents and the legal capacity of all individuals who have executed any of the
documents. As to certain matters of fact, we have relied on representations,
statements or certificates of officers of the Company.
<PAGE>
Based on the foregoing, we are of the opinion that the shares of
Common Stock to be registered under the Registration Statement were duly
authorized, and when issued, delivered and paid for in accordance with the
Registration Statement, will be validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United
States and the General Corporation Law of the State of Delaware. Our opinion is
rendered only with respect to the laws, and the rules, regulations and orders
thereunder, which are currently in effect. Please be advised that no member of
this firm is admitted to practice law in the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" contained in the Prospectus included in the Registration Statement. In
giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required by the Act or the Rules.
Very truly yours,
/s/ Paul, Weiss, Rifkind, Wharton & Garrison
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of NFO Worldwide, Inc. on Form S-3,
dated October 22, 1997:
1) of our report dated February 18, 1997, except for Note 19, as to which the
date is March 20, 1997, on the consolidated financial statements of NFO
Worldwide, Inc. and subsidiaries as of December 31, 1996 and 1995, and for
the years then ended, included in NFO Worldwide, Inc.'s annual report on
Form 10-K for the year ended December 31, 1996;
2) of our report dated August 4, 1997, on the restated consolidated financial
statements of NFO Worldwide, Inc. and subsidiaries as of December 31, 1996
and 1995, and for each of the years in the three year period ended
December 31, 1996, included in NFO Worldwide, Inc.'s current report on
Form 8-K dated October 22, 1997;
3) of our report dated August 4, 1997, on the supplemental consolidated
financial statements of NFO Worldwide, Inc. and subsidiaries as of
December 31, 1996 and 1995, and for each of the years in the three year
period ended December 31, 1996, included in NFO Worldwide, Inc.'s current
report on Form 8-K dated October 22, 1997,
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
New York, New York,
October 20, 1997
EXHIBIT 23.3
[LETTERHEAD OF DELOITTE & TOUCHE LLP]
INDEPENDENT AUDITORS' CONSENT
To the Board Directors and Stockholders
NFO Worldwide, Inc.
Greenwich, Connecticut
We consent to the incorporation by reference in this Registration Statement of
NFO Worldwide, Inc. on Form S-3 of our report dated February 17, 1995, appearing
in the Annual Report on Form 10-K of NFO Worldwide, Inc. for the year ended
December 31, 1996, and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
October 22, 1997
EXHIBIT 23.4
CONSENT OF REGISTERED AUDITORS AND CHARTERED ACCOUNTANTS
As registered auditors and chartered accountants, we hereby consent to the
incorporation by reference in this registration statement of NFO Worldwide, Inc.
on Form S-3 dated October 22, 1997, of our report dated August 4, 1997, on the
financial statements of The MBL Group Plc as of December 31, 1996 and 1995, and
for each of the years in the three year period ended December 31, 1996, included
in NFO Worldwide, Inc.'s current report on Form 8-K dated October 22, 1997, and
to the reference to our Firm included in the expert section in this registration
statement.
/s/ Soteriou Banerji
SOTERIOU BANERJI
253 Gray's Inn Road
London
WCIX 8QT
October 20, 1997
