SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): March 6, 2003
The Interpublic Group of Companies, Inc.
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(Exact Name of Registrant as Specified in Charter)
Delaware 1-6686 13-1024020
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(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
1271 Avenue of the Americas, New York, New York 10020
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: 212-399-8000
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(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events and Regulation FD Disclosure.
a. On March 6, 2003, The Interpublic Group of Companies, Inc.
("Interpublic") issued a press release announcing its fourth quarter 2002
results and containing the following information:
Results from Operations
Fourth quarter 2002 revenue declined 3.8% to $1,668.7 million, compared
to $1,734.5 million a year ago, reflecting continuing softness in worldwide
demand for advertising and marketing services. On a constant currency basis,
revenue fell 4.8%. Organic revenue declined 4.9% in the quarter and 7.7% for the
full year.
Operating profit for the quarter was $119.3 million, compared to $219.7
million in the 2001 period, primarily as a result of a severe drop in
profitability at McCann-Erickson, disappointing results at Octagon Motor Sports,
and a widespread decline in project-based businesses. In an ongoing effort to
align expenses with declining revenue, the company continued to reduce its
worldwide headcount in 2002. Salaries and related expenses in the fourth quarter
decreased only slightly, despite a significant decline in headcount, as the
company incurred $26.3 million of severance expense, a $13.4 million increase in
severance versus the fourth quarter of 2001. At year-end, the company employed
50,800, compared to 54,100 a year earlier.
Office and general expenses increased 13.4% to $609.8 million,
including higher bad debt expense and professional fees, which together
represented $37.9 million of the increase. In addition, Interpublic recognized
an $8.4 million asset impairment charge in the fourth quarter.
Revenue Analysis
Components of revenue change for the quarter and full year are detailed
below:
4Q02 FY2002
---- ------
Actual Revenue Change (3.8%) (8.7%)
Effect of:
Currency Translation 1.0% 0.3%
Net Dispositions 0.7% (0.6%)
Merger-Related Losses (0.6%) (0.7%)
---- ----
Organic Revenue Change (4.9%) (7.7%)
New Business
Interpublic's agencies posted strong new business results in the fourth
quarter of 2002, with $852 million of net business won, including major new or
additional assignments for Bank of America, Burger King, Club Med, Levi Strauss,
and Novartis. Other significant new assignments won during the quarter included:
Astra Zeneca's Symbicort, the Internal Revenue Service, Merck's Ezetrik and
Qwest.
For the full year 2002, annualized net new business totaled $3.18
billion, including wins of $4.44 billion and losses of $1.26 billion.
Revenue Mix
Domestic revenue, which constitutes 56% of the company's portfolio,
increased 0.4% in the fourth quarter to $940.4 million. Organic revenue in the
U.S. fell 4.6% in the quarter. U.S. advertising and media revenue increased 1.4%
to $543.6 million, while other marketing and communications services declined
0.9% to $396.8 million.
International revenue fell 8.8% to $728.3 million, as market weakness
in Japan and certain Latin American markets was tempered by stronger
international currencies. On a constant currency basis, international revenue
declined 10.9%. International organic revenue was 5.2% lower in the fourth
quarter. International advertising and media revenues fell 8.7% to $461 million,
while marketing and communications services declined 8.8% to $267.3 million.
Octagon Motor Sports
In the fourth quarter, Octagon management completed an in-depth cash
flow analysis of its motor sports assets and concluded that the book value of
Octagon Motor Sports significantly exceeded its estimated fair market value.
Accordingly, the company identified $135.8 million of primarily non-cash charges
to reflect the impaired value of the assets and other adjustments. Because the
events that triggered the impairment occurred in the third quarter, charges of
$132.1 million were appropriately recorded by restating the third quarter of
2002. As a result, the company expects to file restated reports with the
Securities and Exchange Commission for the appropriate periods.
Interpublic's new management has retained independent advisors to
evaluate exit strategies relative to its motor sports assets. The remaining book
value of long-lived assets relating to Octagon Motor Sports is approximately $70
million at December 31, 2002. This amount, as well as other substantial
contractual obligations, may not be fully recoverable depending on the exit
strategy the company ultimately chooses to pursue.
Additional Restatement Charges
In addition, Interpublic will restate its financial statements to
include charges totaling $29.9 million for the years 1997-2002, principally
reflecting adjustments to intangible asset amortization, purchase accounting and
other items. Although the charges were immaterial to any individual prior
period, they would have been material in the aggregate if recognized in the
fourth quarter of 2002 because the level of earnings in the quarter was
abnormally low. An appendix to this release details the adjustments posted to
the appropriate prior periods.
Non-Operating Expenses and Taxes
Interest expense declined to $36.7 million in the fourth quarter, from
$38.8 million in the prior year, reflecting lower average debt balances and
lower average rates.
The company's tax rate increased to 52.9% for the full year 2002,
reflecting a higher proportion of earnings derived from the U.S., where it is
taxed at higher rates. Through the first nine months of 2002, Interpublic had
provided taxes at a 49.1% rate. To provide for the full year tax liability, it
was necessary to increase the fourth quarter tax provision significantly. As a
result, the tax provision in the fourth quarter increased to 62.8%.
Full Year 2002
Operating revenue declined 8.7% to $6,203.6 million in 2002, as the
advertising and marketing industries experienced a second consecutive year of
weakness. In addition, the company experienced significant difficulties at
Octagon Motor Sports and McCann-Erickson WorldGroup. Net income for 2002 was
$99.5 million or $.26 per share, compared to a loss of $1.45 per share, or
$534.5 million, in 2001.
Debt and Liquidity
On December 31, 2002, Interpublic's total debt was $2.6 billion,
compared to $2.9 billion at the end of 2001, reflecting the company's efforts to
reduce its borrowings with cash flow from operations.
On December 31, 2002, the company's committed liquidity was
approximately $1.9 billion, comprised of $980 million of borrowing capacity and
cash of $933 million. On February 10, Interpublic agreed with its major lenders
to suspend its dividend, reduce acquisitions and capital spending, restrict the
company's ability to extend the maturity date of its 364 day facility and limit
certain other activities. Certain of these limitations will be modified at such
times as Interpublic raises $400 million through asset sales or a capital
markets transaction.
The company has obtained waivers relating to potential defaults under
its revolving credit facilities and its note purchase agreements with The
Prudential Insurance Company of America relating to the Octagon restatement.
As previously announced, Interpublic has received from UBS AG a
commitment for an interim credit facility providing for $500 million, maturing
by July 31, 2004, and available beginning May 15, 2003. This commitment will
terminate at such time as the company is in receipt of net cash proceeds of at
least $400 million from asset sales or one or more offerings of securities.
The commitment has been amended to take into account the charges
announced today. As amended, the commitment can be withdrawn in the event of
certain materially adverse conditions, including: market events or hostilities
that could affect the company's debt and changes in the securities lending
market for the company's equity securities. The commitment is also subject to
compliance by the company with undertakings to raise proceeds from a capital
markets transaction. Pursuant to these undertakings, the company expects to
access the capital markets in the near term.
Outlook and Guidance
Interpublic's operating plans for 2003 anticipate continuing weakness
in demand for advertising and marketing services, which may produce negative
revenue comparisons through the first half of the year.
New management expects that 2003 revenue will decline one to four
percent from the 2002 level, adjusted for any potential divestitures.
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED SUMMARY OF EARNINGS
FOURTH QUARTER REPORT 2002 AND 2001
(UNAUDITED) (Amounts in Millions
Except per Share Data)
Three Months
Ended December 31,
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Actual Reported
2001
2002 (Restated) % Variance
---- ---------- ----------
Revenue
United States $ 940.4 $ 936.2 0.4
International 728.3 798.3 (8.8)
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Total Revenue 1,668.7 1,734.5 (3.8)
Salaries and Related Expenses 927.7 930.8 0.3
Office and General Expenses 609.8 537.8 (13.4)
Amortization of Intangible Assets 3.5 46.2 92.4
Restructuring and Other Merger Related Costs -- -- --
Long-Lived Asset Impairment & Other Charges 8.4 -- --
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Operating Income 119.3 219.7 (45.7)
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Other Income (Expense)
Interest Expense (36.7) (38.8) 5.4
Interest Income 8.9 12.7 (29.9)
Other Income 0.5 2.4 (79.2)
Investment Impairment (18.6) (2.5) (644.0)
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Total Other Income (Expense) (45.9) (26.2) (75.2)
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Income before Provision for Income Taxes 73.4 193.5 (62.1)
Provision for Income Taxes 46.1 87.7 47.4
Net Equity Interests (a) (7.0) (9.4) 25.5
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Net Income $ 20.3 $ 96.4 (78.9)
========= ========== =========
Per Share Data:
Basic EPS $ 0.05 $ 0.26 (80.8)
Diluted EPS $ 0.05 $ 0.26 (80.8)
Dividend per share - Interpublic $ 0.095 $ 0.095 --
Weighted Average Shares:
Basic 378.3 371.3
Diluted 381.8 377.2
(a) Net equity interests is the net of equity in income of unconsolidated
affiliates less net income attributable to minority interests of
consolidated subsidiaries.
THE INTERPUBLIC GROUP OF COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED SUMMARY OF EARNINGS
FOURTH QUARTER REPORT 2002 AND 2001
(UNAUDITED) (Amounts in Millions
Except per Share Data)
Twelve Months
Ended December 31,
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Actual Reported
2001
2002 (Restated) % Variance
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Revenue
United States $3,491.1 $3,879.7 (10.0)
International 2,712.5 2,911.5 (6.8)
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Total Revenue 6,203.6 6,791.2 (8.7)
Salaries and Related Expenses 3,549.0 3,809.2 6.8
Office and General Expenses 2,096.6 2,103.8 0.3
Amortization of Intangible Assets 13.0 173.1 92.5
Restructuring and Other Merger Related Costs 12.1 645.6 98.1
Long-Lived Asset Impairment & Other Charges 127.1 303.1 58.1
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Operating Income 405.8 (243.6) 266.6
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Other Income (Expense)
Interest Expense (145.6) (164.6) 11.5
Interest Income 29.8 41.8 (28.7)
Other Income 15.1 13.7 10.2
Investment Impairment (39.7) (210.8) 81.2
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Total Other Income (Expense) (140.4) (319.9) 56.1
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Income (Loss) before Provision for Income Taxes 265.4 (563.5) 147.1
Provision for Income Taxes 140.3 (55.3) (353.7)
Net Equity Interests (a) (25.6) (26.3) 2.7
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Net Income (Loss) $ 99.5 $ (534.5) 118.6
========= ======== ======
Per Share Data:
Basic EPS $ 0.26 $ (1.45) 117.9
Diluted EPS $ 0.26 $ (1.45) 117.9
Dividend per share - Interpublic $ 0.38 $ 0.38 --
Weighted Average Shares:
Basic 376.1 369.0
Diluted 381.3 369.0
(a) Net equity interests is the net of equity in income of unconsolidated
affiliates less net income attributable to minority interests of
consolidated subsidiaries.
The Interpublic Group of Companies, Inc. and Subsidiaries
(Amounts in Millions Except Per Share Data)
Impact of Restatement
A. Years 2001 2000 1999 1998 1997
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Net income (loss) - as reported $(527.4) $397.1 $340.2 $361.8 $152.0
Adjustments (7.1) (4.3) (3.6) (1.8) (1.0)
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Net income (loss) - as restated (534.5) 392.8 336.6 360.0 151.0
======= ====== ====== ====== ======
Earnings (loss) per share - as reported $ (1.43) $ 1.07 $ 0.94 $ 1.01 $ 0.44
Earnings (loss) per share - as restated $ (1.45) $ 1.06 $ 0.92 $ 1.00 $ 0.44
2001 2002
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B. Quarters Q1 Q2 Q3 Q4 Q1 Q2 Q3
-- -- -- -- -- -- --
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Net income (loss) - as reported $ (30.4) $(116.3) $(481.1) $100.4 $ 61.7 $111.3 $ 7.5
Adjustments (0.8) (1.0) (1.3) (4.0) (1.9) (2.3) (97.1)
------- -------- ------- ------ ------ ------ -------
Net income (loss) - as restated (31.2) (117.3) (482.4) 96.4 59.8 109.0 (89.6)
======= ======= ======= ====== ====== ====== =======
Earnings (loss) per share - as reported $ (0.08) $ (0.32) $ (1.30) $ 0.27 $ 0.16 $ 0.29 $ 0.02
Earnings (loss) per share - as restated $ (0.09) $ (0.32) $ (1.31) $ 0.26 $ 0.16 $ 0.29 $(0.24)
b. On March 7, 2003, Standard & Poor's Ratings Services downgraded
Interpublic's credit rating to BB+.
###
In addition, attached hereto as Exhibit 10.1 is a Commitment Letter
(referenced in the attached press release), as amended and restated as of
February 28, 2003, among Interpublic, UBS AG, Cayman Islands Branch and UBS
Warburg LLC.
Item 7. Financial Statements and Exhibits.
Exhibits:
Exhibit 10.1: Commitment Letter, amended and restated as of February
28, 2003, among Interpublic, UBS AG, Cayman Islands Branch and UBS Warburg LLC.
Item 9. Regulation FD Disclosure.
In its release announcing its fourth quarter 2002 earnings, Interpublic
indicated that it expects to generate 2003 earnings of $.68-.72 per share.
The information in this Item 9 shall not be deemed "filed" for the
purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise
subject to liability under that Section. In addition, the information in this
Item 9 shall not be deemed to be incorporated by reference into the filings of
Interpublic under the Securities Act of 1933.
Cautionary Statement
This document contains forward-looking statements. Interpublic's
representatives may also make forward-looking statements orally from time to
time. Statements in this document that are not historical facts, including
statements about Interpublic's beliefs and expectations, particularly regarding
recent business and economic trends, the impact of litigation, dispositions,
impairment charges, the integration of acquisitions and restructuring costs,
constitute forward-looking statements. These statements are based on current
plans, estimates and projections, and therefore undue reliance should not be
placed on them. Forward-looking statements speak only as of the date they are
made, and Interpublic undertakes no obligation to update publicly any of them in
light of new information or future events.
Forward-looking statements involve inherent risks and uncertainties. A
number of important factors could cause actual results to differ materially from
those contained in any forward-looking statement. Such factors include, but are
not limited to, those associated with the effects of global, national and
regional economic and political conditions, Interpublic's ability to attract new
clients and retain existing clients, the financial success of Interpublic's
clients, developments from changes in the regulatory and legal environment for
advertising and marketing and communications services companies around the world
and the successful completion and integration of acquisitions which complement
and expand Interpublic's business capabilities.
Interpublic's liquidity could be adversely affected if Interpublic is
unable to access capital or to raise proceeds from asset sales. In addition,
Interpublic could be adversely affected by developments in connection with the
purported class actions and derivative suits that it is defending or the SEC
investigation relating to the restatement of its financial statements.
At any given time Interpublic may be engaged in a number of preliminary
discussions that may result in one or more acquisitions or dispositions. These
opportunities require confidentiality and from time to time give rise to bidding
scenarios that require quick responses by Interpublic. Although there is
uncertainty that any of these discussions will result in definitive agreements
or the completion of any transactions, the announcement of any such transaction
may lead to increased volatility in the trading price of Interpublic's
securities.
The success of recent or contemplated future acquisitions will depend
on the effective integration of newly-acquired and existing businesses into
Interpublic's current operations. Important factors for integration include
realization of anticipated synergies and cost savings and the ability to retain
and attract new personnel and clients.
In addition, Interpublic's representatives may from time to time refer
to "pro forma" financial information. Because "pro forma" financial information
by its very nature departs from traditional accounting conventions, this
information should not be viewed as a substitute for the information prepared by
Interpublic in accordance with GAAP, including the balance sheets and statements
of income and cash flow contained in Interpublic's quarterly and annual reports
filed with the SEC on Forms 10-Q and 10-K.
Investors should evaluate any statements made by Interpublic in light
of these important factors.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
Date: March 7, 2003 By: /s/ Nicholas J. Camera
----------------------------------
Nicholas J. Camera
Senior Vice President,
General Counsel and Secretary
EXHIBIT 10.1
UBS AG, Cayman Islands Branch UBS WARBURG LLC
c/o UBS AG, Stamford Branch 299 Park Avenue
677 Washington Boulevard New York, New York 10171
Stamford, Connecticut 06901
February 28, 2003
The Interpublic Group of Companies, Inc.
1271 Avenue of the Americas
New York, New York 10020
Amended and Restated Credit Facility Commitment Letter
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Ladies and Gentlemen:
The Interpublic Group of Companies, Inc., a Delaware corporation
("Borrower" or "you"), has requested UBS AG, Cayman Islands Branch ("UBS") to
commit to provide a senior unsecured revolving credit facility of up to $500.0
million (the "Credit Facility") to be available on or after May 15, 2003, as
described in the Summary of Principal Terms and Conditions attached hereto as
Annex I (the "Term Sheet"). In addition, Borrower has requested UBS Warburg LLC
("UBSW," "we" or "us") to agree to structure, arrange and syndicate the Credit
Facility. All references to "dollars" or "$" in this agreement and the
attachments hereto (collectively, this "Commitment Letter") are references to
United States dollars.
Borrower has advised us that holders of its Zero-Coupon Convertible
Senior Notes due 2021 (the "Zero-Coupon Notes") will be entitled to require
Borrower to purchase such holders' Zero-Coupon Notes (the "Put Obligation") as
of December 14, 2003. We understand that Borrower intends to fund the Put
Obligation with proceeds of one or more of the following: (i) the issuance or
sale by Borrower or any entity in which Borrower directly or indirectly owns a
majority equity interest (each, a "Subsidiary") of equity, equity-linked or debt
securities; (ii) the sale of stock or assets comprising the NFO WorldGroup unit;
and (iii) borrowings under committed and/or uncommitted lines of credit
available to Borrower or any of its Subsidiaries for such purpose.
We understand that borrowings under the Credit Facility would be used
to fund cash requirements for general corporate purposes not prohibited under
the negative covenants of the Credit Documentation (as defined below), including
to fund all or a portion of the Put Obligation, in the event that proceeds from
one or more of the above are insufficient to fund such cash requirements.
You have further advised us that you will (1) incur non-cash charges of
up to $280.0 million in the aggregate (the "Charges") with respect to the fiscal
quarters ended September 30, 2002, June 30, 2002 and March 31, 2002 and the
fiscal years ended December 31, 2001, 2000, 1999, 1998 and 1997, relating
largely to the impairment of the assets of your Subsidiaries Brands Hatch
Leisure Limited, Octagon Worldwide Limited and Octagon Worldwide Inc. and their
respective Subsidiaries and (2) restate your unaudited consolidated financial
statements for such fiscal quarters and your audited consolidated financial
statements for such fiscal years to reflect the Charges (such restatements, the
"Restatements").
Commitments.
UBS is pleased to advise you of its commitment to provide the entire
amount of the Credit Facility to Borrower upon the terms and subject to the
conditions set forth or referred to in this Commitment Letter. The commitment of
UBS and each other Lender (as defined below) hereunder is subject to the
negotiation, execution and delivery of definitive documentation (the "Credit
Documentation") with respect to the Credit Facility reasonably satisfactory to
UBS and the other Lenders reflecting, among other things, the terms and
conditions set forth in the Term Sheet and in the letter of even date herewith
addressed to you providing, among other things, for certain fees relating to the
Credit Facility (the "Fee Letter").
The aggregate amount of the Lenders' commitments under this Commitment
Letter will be reduced upon the circumstances specified in the second paragraph
under "Commitment Reductions" in the Term Sheet occurring after February 10,
2003 and prior to the execution and delivery of the Credit Documentation (the
date thereof, the "Closing Date") in the amounts so specified therein.
Syndication.
It is agreed that UBSW will act as the sole and exclusive advisor,
arranger and bookmanager for the Credit Facility and will, in such capacities,
exclusively perform the duties and exercise the authority customarily associated
with such roles. It is further agreed that no additional advisors, agents,
co-agents, arrangers or bookmanagers will be appointed with respect to the
Credit Facility, and no Lender (as defined below) will receive compensation with
respect to the Credit Facility outside the terms contained herein and in the Fee
Letter in order to obtain its commitment to participate in the Credit Facility,
in each case unless you and we so agree.
UBS reserves the right, prior to or after the execution of the Credit
Documentation, to syndicate all or a portion of its commitment to one or more
financial institutions reasonably satisfactory to Borrower that will become
parties to the Credit Documentation (UBS and the institutions that will become
parties to the Credit Documentation, the "Lenders"). Upon any such additional
Lender executing and delivering a counterpart of this Commitment Letter to the
other parties hereto agreeing to assume a portion of the Credit Facility on the
terms and conditions of this Commitment Letter, UBS shall be released from a
portion of its commitment in respect of the Credit Facility in an aggregate
amount equal to the commitment of such Lender.
UBSW will, in consultation with Borrower, exclusively manage all
aspects of the syndication of the Credit Facility, including selection of
additional Lenders reasonably satisfactory to Borrower, determination of when
UBSW will approach potential additional Lenders, any naming rights and the final
allocations of the commitments in respect of the Credit Facility among the
additional Lenders. Following May 15, 2003, you agree to actively assist UBSW in
achieving a timely syndication of the Credit Facility that is satisfactory to
UBSW and the Lenders. To assist UBSW in its syndication efforts, you agree that
you will (a) use commercially reasonable efforts to ensure that the syndication
efforts benefit materially from your and your Subsidiaries' existing lending
relationships, (b) make available to prospective Lenders, at reasonable times
and with reasonable prior notice, your senior management (including but not
limited to the chief executive officer, chief financial officer and treasurer)
and advisors, (c) host, with UBSW, one or more meetings with prospective Lenders
and (d) assist, and will use all commercially reasonable efforts to cause your
representatives and advisors to assist, UBSW in the preparation of one or more
confidential information memoranda satisfactory to UBSW, which shall include
financial projections for 2003 (the "Projections"), and to provide such
supplemental information as UBSW reasonably deems necessary in connection with
the syndication of the Credit Facility.
Information.
You hereby represent and warrant that, as of February 10, 2003, (a)(i)
Borrower's Annual Report on Form 10-K for the year ended December 31, 2001 (as
amended) (the "Annual Report") and Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 2002 (as amended), June 30, 2002 (as amended)
and September 30, 2002 (each, a "Quarterly Report") and (ii) all other
information (other than the Projections) that has been made available to UBSW
(in any capacity) (whether in oral, written, electronic or other form) by you or
any of your representatives in connection with the transactions contemplated
hereby (the "Information"), when taken as a whole, is complete and correct in
all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements contained
therein, in light of the circumstances under which such statements are made, not
misleading, and (b) the Projections that have been available to UBSW by you or
any of your representatives in connection with the transactions contemplated
hereby have been prepared in good faith based upon assumptions believed by you
to be reasonable at the time of preparation and at the time such Projections
were made available; provided, however, that with respect to clause (a)(i), in
the event that subsequent to the date hereof Borrower shall file with the
Securities and Exchange Commission any amendment to the Annual Report or any
Quarterly Report to reflect the Charges, references to the Annual Report and/or
a Quarterly Report shall refer to the Annual Report and/or such Quarterly Report
as so amended or further amended, as applicable, to reflect the Charges. You
agree to advise UBSW on a timely basis of all developments that are material to
you and your Subsidiaries taken as a whole or material to the transactions
contemplated hereby, and to supplement the Information and the Projections from
time to time until the Closing Date, so that the representations and warranties
in the preceding sentence will be true and correct as if the Information and
Projections (as so supplemented) were being furnished on the Closing Date. You
acknowledge that, in connection with the transactions contemplated hereby, UBS
and UBSW may share with any of their affiliates, and such affiliates may share
with UBS and UBSW, any information related to you or any of your Subsidiaries
(including in each case information relating to creditworthiness) and the
transactions contemplated hereby; provided that any such affiliate agrees to be
bound by the confidentiality agreement between Borrower and us.
Compensation.
As consideration for the commitments of the Lenders hereunder with
respect to the Credit Facility and the agreement of UBSW to structure, arrange
and syndicate the Credit Facility and to provide advisory services in connection
therewith, you agree to pay, or cause to be paid, to UBS the fees set forth in
the Term Sheet and the Fee Letter. Once paid, such fees shall not be refundable
under any circumstances.
Conditions.
The commitment of the Lenders hereunder with respect to the Credit
Facility and UBSW's agreement to perform the services described herein may be
terminated prior to the Closing Date by UBS if (i) any condition set forth in
the Term Sheet is not satisfied or any covenant or agreement in this Commitment
Letter or the Fee Letter is not complied with, in each case, to the extent
required to be satisfied or complied with prior to the Closing Date, or any
representation in this Commitment Letter is breached, (ii) in the sole judgment
of UBS, a material adverse change or material disruption has occurred after
February 27, 2003 in the financial, banking or capital markets generally, in any
such case, which has had or could reasonably be expected to have a material
adverse effect on the syndication of the Credit Facility or the marketing of any
Securities Offering (as defined in the Fee Letter), (iii) in the sole judgment
of UBS, a material adverse change or material disruption has occurred after
February 27, 2003 in the securities lending market for Borrower's equity
securities, which has had or could reasonably be expected to have a material
adverse effect on the marketing of any Securities Offering of convertible debt
securities, or (iv) there shall have been after February 27, 2003 an outbreak or
escalation of hostilities involving the United States, or the declaration by the
United States of a national emergency or war, or the occurrence of any other
national or international calamity or crisis, or any material adverse change in
financial, political or economic conditions in the United States or elsewhere,
in any such case, which, in the sole judgment of UBS, has had or could
reasonably be expected to have a material adverse effect on the syndication of
the Credit Facility or the marketing of any Securities Offering.
Clear Market.
From February 10, 2003 until the completion of syndication (as
determined by us and notified in writing to you) of the Credit Facility and, if
later, of the Securities Offering (as defined in the Fee Letter), you will
ensure that no financing (other than the Credit Facility or any Securities
Offering (as defined in the Fee Letter)) for you or any of your Subsidiaries or
affiliates is announced, syndicated or placed without the prior written consent
of UBS (it being understood that such consent shall be deemed given with respect
to any transaction in which UBS or UBSW is a bookrunner) if such financing,
announcement, syndication or placement would have, in the reasonable judgment of
UBS, a detrimental effect upon the transactions contemplated hereby. The
foregoing shall not limit your ability to seek, or effect, (i) the extension of
the termination date of Borrower's 364-Day Credit Agreement dated as of May 16,
2002, as amended and restated as of December 31, 2002 (the "364-Day Facility")
in accordance with the terms thereof, or the amendment or amendment and
restatement of the 364-Day Facility, or the replacement of the 364-Day Facility
with another unsecured committed term loan or revolving credit facility, (ii)
the amendment, amendment and restatement or replacement of any committed or
uncommitted lines of credit of any Subsidiary of Borrower existing on February
10, 2003, (iii) additional unsecured debt financing for Borrower's U.S.
Subsidiaries up to $25.0 million in the aggregate at any time outstanding and
(iv) any additional unsecured debt financing for Borrower's non-U.S.
Subsidiaries.
Securities Demand.
You agree to engage an investment bank (the "Investment Bank")
reasonably satisfactory to the Lenders and Borrower to publicly sell, privately
place or arrange, alone or with one or more additional bookrunners (together
with the Investment Bank, the "Bookrunners") and/or underwriters, placement
agents or initial purchasers, in one or more transactions (each, a "Securities
Offering"), at least $500.0 million (at least $800.0 million on or after May 15,
2003) aggregate net cash proceeds of equity or equity-linked (including
convertible debt) securities and/or senior unsecured, senior secured, senior
subordinated and/or subordinated debt of Borrower and/or any of its Subsidiaries
(collectively, the "Securities"). You shall use all commercially reasonable
efforts to take any and every action necessary or desirable so that the
Investment Bank and, if before March 1, 2003, the other Bookrunners can, as soon
as practicable whether prior to or after the making of loans under the Credit
Facility, publicly sell, privately place or arrange the Securities. Without
limiting the foregoing, you agree to:
(i) promptly, and in the case of a Securities Offering of convertible
debt securities no later than the opening of trading on the New York Stock
Exchange on March 11, 2003 and in the case of any other Securities Offering
no later than April 1, 2003, prepare an offering memorandum for a private
placement pursuant to Rule 144A or file, and use all commercially
reasonable efforts to cause to become effective, a registration statement
(which may be a "universal" shelf registration statement) and prepare a
prospectus under the Securities Act, with respect to each Securities
Offering, in each case, as requested by the Investment Bank and, if before
March 1, 2003, the other Bookrunners, in form for distributions to
investors and otherwise in form and substance reasonably satisfactory to
Borrower, the Investment Bank and, if before March 1, 2003, the other
Bookrunners; provided that an offering memorandum for a Securities Offering
of convertible debt securities shall be substantially completed no later
than March 10, 2003 subject to such revisions as are necessary to reflect
the disclosures contemplated by clause (vii) below;
(ii) cooperate in the preparation of other marketing materials that the
Investment Bank and, if before March 1, 2003, the other Bookrunners
reasonably deem necessary in connection with the Securities Offering;
provided that in the case of a Securities Offering of convertible debt
securities such other material materials shall be prepared no later than
March 10, 2003 (subject to such revisions as are necessary to reflect the
disclosures contemplated by clause (vii) below) and in the case of any
other Securities Offering no later than April 1, 2003;
(iii) obtain, at your expense, monitored public ratings of each of the
Securities that are debt securities from Moody's Investors Service and
Standard & Poor's Ratings Group not later than April 1, 2003 and
participate actively in the process of securing such ratings, including
having your senior management meet with such rating agencies;
(iv) continue to promptly provide to the Investment Bank access to
management and advisors of Borrower and other information reasonably
required to effect the issue and sale of each Securities Offering,
including in connection with due diligence investigations;
(v) make senior management of Borrower (including but not limited to
the chief executive officer, chief financial officer and treasurer)
available to participate in "road show" meetings with prospective
investors, as reasonably requested by the Investment Bank and, if prior to
March 1, 2003, the other Bookrunners;
(vi) use all commercially reasonable efforts to cause the independent
auditors of Borrower to issue comfort letters, and counsel to Borrower to
issue legal opinions (including 10b-5 negative assurance), each in form and
substance customary for transactions of this type and otherwise reasonably
satisfactory to the Investment Bank and, if prior to March 1, 2003, the
other Bookrunners; provided that, no later than the opening of trading on
the New York Stock Exchange on March 11, 2003, the independent auditors of
Borrower and the Investment Bank shall have agreed to the form of such
comfort letter to be executed and delivered upon pricing of a Securities
Offering of convertible debt securities;
(vii) promptly, and not later than the opening of trading on the New
York Stock Exchange on March 11, 2003, make public disclosures regarding
Borrower's (a) future dividend policy, (b) amendment of existing credit
facilities and (c) actual or estimated fourth quarter 2002 financial
results, projected 2003 financial results and any anticipated material
charges or range of such charges; provided that, not later than the close
of trading on the New York Stock Exchange on March 11, 2003, Borrower shall
file with the Securities and Exchange Commission a Current Report on Form
8-K that includes such disclosures;
(viii) not later than the opening of trading on the New York Stock
Exchange on March 11, 2003, file with the Securities and Exchange
Commission an amendment to Borrower's Quarterly Report on Form 10-Q/A for
the quarterly period ended September 30, 2002 reflecting the Restatement
for such quarterly period, and, not later than April 5, 2003, file with the
Securities and Exchange Commission Borrower's Annual Report on Form 10-K
for the year ended December 31, 2002 containing audited financial
statements of Borrower as of December 31, 2002 and 2001 and for the three
years ended December 31, 2002, which financial statements shall be
accompanied by an opinion of the independent auditors of Borrower which
shall be unqualified, except that such opinion may (a) to the extent
consistent with past practice, state that it relies upon the reports of
other auditors of certain Subsidiaries of Borrower and (b) refer to the
Restatements; and
(ix) otherwise cooperate with and assist the Investment Bank and, if
prior to March 1, 2003, the other Bookrunners in connection with each
Securities Offering.
Upon notice by the Investment Bank (a "Securities Demand"), at any time
and from time to time, (A) on or after the earlier of (x) March 11, 2003 and (y)
completion of the matters specified in clauses (i), (vi) and (vii) above and (B)
prior to the termination of this Commitment Letter without the Closing Date
having occurred or, if the Closing Date has occurred, the repayment in full of
the Credit Facility and the termination of all commitments under the Credit
Facility, you will cause the issuance and sale of Securities, in one or more
transactions, upon such terms and conditions and in such amounts as specified in
the Securities Demand, as the Investment Bank in its sole reasonable judgment
determines to be appropriate in light of prevailing circumstances and market
conditions and the financial condition and prospects of Borrower and its
Subsidiaries at the time of sale; provided that (i) prior to April 1, 2003, any
Securities Demand may be only with respect to a Securities Offering of
convertible debt securities (x) generating aggregate net cash proceeds of at
least $400.0 million and (y) having pricing terms thereof no less favorable than
those offered by any other Bookrunner; (ii) on or after April 1, 2003 and prior
to May 15, 2003, the Investment Bank shall be entitled to require the issuance
of up to $500.0 million aggregate net cash proceeds of Securities; (iii) on or
after May 15, 2003, the Investment Bank shall be entitled to require the
issuance of up to $800.0 million aggregate net cash proceeds of Securities
(provided that to the extent exceeding $500.0 million the Investment Bank deems
such excess necessary to market such an offering in order to provide adequate
liquidity needs of Borrower and its Subsidiaries); and (iv) the Investment Bank
shall not be entitled to make a Securities Demand on any date that trading in
securities generally on the New York Stock Exchange is suspended, a banking
moratorium declared by federal or New York State authorities is effective or, in
the reasonable judgment of the majority of the Bookrunners (if prior to March 1,
2003) and in the sole reasonable judgment of the Investment Bank (if on or after
March 1, 2003), a temporary disruption exists in the capital markets generally
or in securities of companies similar to Borrower generally that, in the
reasonable judgment of the majority of the Bookrunners (if prior to March 1,
2003) and in the sole reasonable judgment of the Investment Bank (if on or after
March 1, 2003), would result in materially adverse pricing terms in the
Securities Offering than the Securities Offering would achieve in the absence of
such temporary disruption. For the avoidance of doubt, the parties agree that a
disruption shall be deemed not temporary if it lasts more than 5 business days.
Notwithstanding anything to the contrary, in no event shall Borrower be required
to consummate any Securities Offering if to do so would, in the written opinion
of outside counsel to Borrower, result in a violation of applicable law,
including applicable disclosure requirements, despite Borrower's compliance with
its obligations in the preceding paragraph. The Securities will be issued
pursuant to one or more indentures, securities purchase agreements and/or
registration rights agreements, which shall contain such terms, conditions and
covenants as are typical and customary for similar financings (as determined by
the Investment Bank) and as are reasonably satisfactory in all respects to the
Investment Bank. All other arrangements with respect to the Securities shall be
reasonably satisfactory in all respects to the Investment Bank in light of the
then prevailing market conditions.
This section "Securities Demand" shall remain in effect only until the
earlier of (i) the repayment in full of the Credit Facility and the termination
of all commitments thereunder and (ii) the termination or expiration of this
Commitment Letter prior to the execution and delivery of the Credit
Documentation. So long as no borrowings are outstanding under the Credit
Facility, the termination of all commitments under this Commitment Letter (prior
to the Closing Date) or the Credit Facility (on or after the Closing Date) shall
be the sole remedy for breach of this section "Securities Demand."
Indemnity.
By your acceptance below, you hereby agree to indemnify and hold
harmless each of UBSW, UBS and the other Lenders and their respective affiliates
(including, without limitation, controlling persons) and the directors,
officers, employees, advisors and agents of the foregoing (each, an "Indemnified
Person") from and against any and all losses, claims, costs, expenses, damages
or liabilities (or actions or other proceedings commenced or threatened in
respect thereof) that arise out of or in connection with this Commitment Letter,
the Term Sheet, the Fee Letter, the Credit Facility or any of the transactions
contemplated hereby or the providing or syndication of the Credit Facility, and
to reimburse each Indemnified Person upon presentation of a summary statement
for all reasonable out-of-pocket legal or other expenses incurred in connection
with investigating, preparing to defend or defending against, or participating
in, any such loss, claim, cost, expense, damage, liability or action or other
proceeding (whether or not such Indemnified Person is a party to any action or
proceeding), other than any of the foregoing of any Indemnified Person to the
extent determined by a final judgment of a court of competent jurisdiction to
have resulted solely by reason of the gross negligence or willful misconduct of
such Indemnified Person. You shall not be liable for any settlement of any such
proceeding effected without your written consent, but if settled with such
consent or if there shall be a final judgment for the plaintiff, you shall
indemnify the Indemnified Persons from and against any loss or liability by
reason of such settlement or judgment subject to your rights in this paragraph
to claim exemption from your indemnity obligations. You shall not, without the
prior written consent of any Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which such Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability or claims that are the
subject matter of such proceeding. None of UBSW, UBS or any other Lender (or any
of their respective affiliates) shall be responsible or liable to you or any of
your Subsidiaries, affiliates or stockholders or any other person or entity for
any consequential damages which may be alleged as a result of this Commitment
Letter, the Term Sheet, the Fee Letter, the Credit Facility or the transactions
contemplated hereby. In addition, you hereby agree to reimburse UBSW from time
to time upon presentation of a summary statement for all reasonable
out-of-pocket costs and expenses (including, without limitation, reasonable
outside legal fees and expenses of UBS and UBSW, and printing, reproduction,
document delivery, travel and communication costs) incurred in connection with
the syndication and execution of the Credit Facility, and the preparation,
review, negotiation, execution and delivery of the Original Commitment Letter
(as defined below), the Term Sheet attached thereto as Annex I, the letter dated
February 10, 2003 addressed to you providing, among other things, for certain
fees relating to the Credit Facility (the "Original Fee Letter"), and any
amendment or waiver thereof (including without limitation, this Commitment
Letter, the Term Sheet and the Fee Letter) and the Credit Documentation, whether
or not any Credit Documentation is executed and delivered or any extensions of
credit are made under the Credit Facility.
Confidentiality.
This Commitment Letter is furnished for your benefit, and may not be
relied on by any other person or entity. This Commitment Letter is delivered to
you upon the condition that neither the existence of the Original Commitment
Letter, the Term Sheet attached thereto as Annex I, the Original Fee Letter, any
amendment or waiver thereof (including without limitation this Commitment
Letter, the Term Sheet and the Fee Letter) nor any of their contents shall be
disclosed by you or any of your affiliates, directly or indirectly, to any other
person, except that such existence and contents may be disclosed (i) as may be
compelled in a judicial or administrative proceeding or as otherwise required by
law, including applicable disclosure requirements as determined by Borrower in
its sole discretion (provided that you agree to give us reasonable prior notice
of any public disclosure by you or any of your affiliates relating to the Credit
Facility, UBS or any of its affiliates and/or UBS's commitment hereunder or
under the Credit Facility and reasonable opportunity to comment thereon (it
being understood that we will use reasonable efforts to provide any such
comments expeditiously)), (ii) to your directors, officers, employees, advisors
and agents, in each case on a confidential and "need-to-know" basis and only in
connection with the transactions contemplated hereby and (iii) to rating
agencies.
Notwithstanding the foregoing, and notwithstanding any other express or
implied agreement or understanding to the contrary, you and your employees,
representatives, and other agents are authorized by us, each of our affiliates,
and each person acting on our behalf to disclose the structure and tax aspects
(as such terms are used in Internal Revenue Code Sections 6011, 6111 and 6112
and the regulations promulgated thereunder) of these transactions to any and all
persons, without limitation of any kind. You may disclose all materials of any
kind (including opinions or other tax analyses) insofar as they relate to the
structure and tax aspects of the transactions. The authorization in this
paragraph does not extend to disclosure of any other information including
(without limitation) (a) the identities of participants or potential
participants in the transactions, (b) the existence or status of any
negotiations, (c) any pricing information or (d) any other term or detail not
related to the structure or tax aspects of the transactions.
Other Services.
You acknowledge and agree that UBS, UBSW and/or their affiliates may be
requested to provide additional services with respect to you, your Subsidiaries
and/or affiliates or other matters contemplated hereby. Any such services will
be set out in and governed by a separate agreement(s) (containing terms
relating, without limitation, to services, fees and indemnification) in form and
substance satisfactory to the parties thereto. Nothing in this Commitment Letter
is intended to obligate or commit UBS or UBSW or any of their affiliates to
provide any services other than as set out herein.
Governing Law, Etc.
This Commitment Letter and the commitment of the Lenders shall not be
assignable (i) by you without the prior written consent of the Lenders and UBSW
or (ii) by us except to one or more financial institutions reasonably
satisfactory to you, and any purported assignment in violation of the foregoing
shall be void. This Commitment Letter amends and restates in its entirety the
Credit Facility Commitment Letter (including the Term Sheet attached thereto as
Annex I, collectively, the "Original Commitment Letter"), dated February 10,
2003, among you, UBS and UBSW and supersedes it in all respects. This Commitment
Letter also supercedes in all respects the provisions contained under the
caption "Commitment Letter" (other than the last sentence of the first paragraph
thereunder, which shall survive in full) and under the caption "Fee Letter," in
each case, in the letter dated February 28, 2003 (the "February 28 Letter")
among Borrower, UBS, UBSW and UBS AG, Stamford Branch providing, among other
things, for certain amendments and waivers to the Original Commitment Letter and
the Original Fee Letter. In all other respects the February 28 Letter shall
survive in full. This Commitment Letter may not be amended or any provision
hereof waived or modified except by an instrument in writing signed by UBS, UBSW
and you. This Commitment Letter may be executed in any number of counterparts,
each of which shall be an original and all of which, when taken together, shall
constitute one agreement. Delivery of an executed counterpart of a signature
page of this Commitment Letter by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Commitment Letter. Headings
are for convenience only. This Commitment Letter is intended to be for the
benefit of the parties hereto and is not intended to confer any benefits upon,
or create any rights in favor of, any person other than the parties hereto, the
Lenders and, with respect to the indemnification provided under the heading
"Indemnity," each Indemnified Person. This Commitment Letter shall be governed
by, and construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of law to the extent that the application of
the laws of another jurisdiction will be required thereby. Any right to trial by
jury with respect to any claim or action arising out of this Commitment Letter
is hereby waived. Each of the parties hereto submits to the non-exclusive
jurisdiction of the federal and New York State courts located in The City of New
York (and appellate courts thereof) in connection with any dispute related to
this Commitment Letter or any of the matters contemplated hereby, and agrees
that service of any process, summons, notice or document by registered mail
addressed to it at its address first written above (or such other address as
notified to the other parties hereto) shall be effective service of process for
any suit, action or proceeding relating to any such dispute. The parties hereto
irrevocably and unconditionally waive any objection to the laying of such venue
of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding has been brought in an inconvenient
forum. A final judgment in any such suit, action or proceeding brought in any
such court may be enforced in any other courts to whose jurisdiction the party
against whom enforcement is sought is or may be subject by suit upon judgment.
Please indicate your acceptance of the terms hereof and of the Term
Sheet and the Fee Letter by returning to us executed counterparts of this
Commitment Letter and the Fee Letter not later than 8:00 p.m., New York City
time, on the date hereof. This Commitment Letter and the commitments of the
Lenders hereunder and the agreement of UBSW to provide the services described
herein are also conditioned upon your acceptance hereof and of the Fee Letter,
and our receipt of executed counterparts hereof and thereof.
Termination.
This Commitment Letter and the commitments of the Lenders hereunder and
the agreement of UBSW to provide the services described herein shall
automatically terminate unless the Lenders and UBSW shall, in their discretion,
agree to an extension, upon the earliest to occur of any of the following: (i)
the execution and delivery of the Credit Documentation by all of the parties
thereto; (ii) May 16, 2003, if the Credit Documentation shall not have been
executed and delivered by all such parties prior to that date; (iii) the
extension of the termination date of 364-Day Facility in accordance with the
terms thereof, or the amendment or amendment and restatement of the 364-Day
Facility resulting in an extension of the term thereof, or the replacement of
the 364-Day Facility with, or the entering into, another committed term loan or
revolving credit facility, that, in each case, provides for aggregate borrowings
of at least $500.0 million; (iv) receipt by Borrower and/or its Subsidiaries
after February 10, 2003 of Net Cash Proceeds (as defined in the 364-Day
Facility) of not less than $400.0 million in the aggregate from a combination of
one or more transactions involving the sale, lease, transfer or other
disposition of any assets by Borrower or any of its Subsidiaries or the
incurrence or issuance of any debt in the capital markets having neither a put
exercisable, nor a maturity, earlier than July 31, 2005 or the sale or issuance
of any equity interests by Borrower or any of its Subsidiaries; or (v) at the
option of Borrower upon written notice to UBS and UBSW.
The compensation, expense reimbursement, confidentiality,
indemnification and governing law and forum provisions hereof and in the Term
Sheet and the Fee Letter shall survive termination of this Commitment Letter or
the commitments of the Lenders hereunder, except to the extent superseded by the
Credit Documentation. The provisions under the headings "Syndication" and "Clear
Market" above shall survive the execution and delivery of the Credit
Documentation.
[Signature Page Follows]
We are pleased to have been given the opportunity to assist you in
connection with this financing.
Very truly yours,
UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ David A. Juge
--------------------------------
Name: David A. Juge
Title: Managing Director
By: /s/ Oliver O. Trumbo II
--------------------------------
Name: Oliver O. Trumbo II
Title: Director
UBS WARBURG LLC
By: /s/ David A. Juge
--------------------------------
Name: David A. Juge
Title: Managing Director
By: /s/ Oliver O. Trumbo II
--------------------------------
Name: Oliver O. Trumbo II
Title: Director
Accepted and agreed to as of
the date first written above:
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Steven Berns
--------------------------------
Name: Steven Berns
Title: Vice President and Treasurer