Exhibit 1.1
Omnicom Group Inc.
Omnicom Capital Inc.
Omnicom Finance Inc.
6.250% Senior Notes due 2019
Underwriting Agreement
New York, New York
June 24, 2009
To the Representatives named in
Schedule I
hereto of the several
Underwriters
named in Schedule II
hereto
Ladies and Gentlemen:
Omnicom Group
Inc., a corporation organized under the laws of New York (the
“Company”), Omnicom Capital Inc., a corporation
organized under the laws of Connecticut, and Omnicom Finance Inc.,
a corporation organized under the laws of Delaware (the Company,
Omnicom Capital Inc. and Omnicom Finance Inc., hereinafter
collectively referred to as the “Issuers”), propose to
sell to the several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its securities identified in Schedule II hereto
(the “Securities”), to be issued under an indenture
(the “Base Indenture”) to be dated as of the Closing
Date (as defined herein), between the Issuers and Deutsche Bank
Trust Company Americas, a New York banking corporation, as trustee
(the “Trustee”) as supplemented by the First
Supplemental Indenture to be dated as of the Closing Date (as
defined herein), between the Issuers and the Trustee (the
“Supplemental Indenture” and together with the Base
Indenture, the “Indenture”). To the extent there are no
additional Underwriters listed on Schedule II other than you, the
term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in Section 20
hereof.
1.
Representations and Warranties . The Company and the
Issuers, where applicable, represent and warrant to, and agree
with, each Underwriter as set forth below in this Section
1.
(a)
The Issuers meet the requirements for use of Form S-3 under the Act
and have prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (the file number of
which is set forth in Schedule I hereto) on Form S-3, including a
related Base Prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time,
became effective upon filing and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act has been received by any Issuer. No order suspending the
effectiveness of the Registration Statement has been issued by the
Commission and no proceeding for that purpose or pursuant to
Section 8A of the Act against any Issuer or related to the offering
has been initiated or threatened by the Commission. The Issuers may
have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more
preliminary prospectus supplements relating to the Securities, each
of which has previously been furnished to you. The Issuers will
file with the Commission a final prospectus supplement relating to
the Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the
Act and the rules thereunder, and, except to the extent the
Representatives shall agree to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x). The initial Effective
Date of the Registration Statement was not earlier than the date
three years before the Execution Time.
(b)
On each Effective Date, the Registration Statement did, at the time
of filing of each Preliminary Prospectus such Preliminary
Prospectus did, and when the Final Prospectus is first filed in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the
Effective Date and on the Closing Date, the Indenture did or will
comply in all material respects with the applicable requirements of
the Trust Indenture Act and the rules thereunder; at the time of
filing of each Preliminary Prospectus, such Preliminary Prospectus
did not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not
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include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement, any
Preliminary Prospectus or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
in the Registration Statement, any Preliminary Prospectus or the
Final Prospectus (or any supplement thereto), it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriters consists of the information described as such
in Section 8 hereof.
(c)
The documents incorporated by reference in the Registration
Statement, the Final Prospectus and the Disclosure Package, when
they were filed with the Commission conformed in all material
respects with the applicable provisions of the Exchange Act and
none of such documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in
the Registration Statement, the Final Prospectus or the Disclosure
Package, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(d)
(i) The Disclosure Package and (ii) each electronic roadshow
identified on Schedule V hereto, when taken together as a whole
with the Disclosure Package, does not contain any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(e)
(i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Issuers or any person acting on their behalf
(within the meaning, for this clause only, of Rule 163(c)) made any
offer relating to the Securities in reliance on the exemption in
Rule 163, and (iv) at the Execution Time (with such date being used
as the determination date for purposes of this clause (iv)), each
of the Issuers was or is (as the
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case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees
to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(f)
(i) At the earliest time after the filing of the Registration
Statement that the Issuers or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)) of
the Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Issuers were not and are not an Ineligible Issuer (as
defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary
that the Issuers be considered an Ineligible Issuer.
(g)
Each Issuer Free Writing Prospectus including the final term sheet
prepared and filed pursuant to Section 5(b) hereof does not include
any information that conflicts with the information contained in
the Registration Statement, including any document incorporated
therein and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that only such information furnished by or on behalf of
any Underwriter consists of the information described as such in
Section 8 hereof.
(h)
KPMG LLP, whose report accompanies the financial statements and
supporting schedules included in or incorporated by reference into
the Final Prospectus, is an independent registered public
accounting firm with respect to the Company and its consolidated
subsidiaries within the meaning of Regulation S-X under the
Act.
(i)
The financial statements, together with the related schedules and
notes, included in or incorporated by reference in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement
present fairly, in all material respects, the financial position of
the Company and its consolidated subsidiaries at the dates
indicated and the statements of operations, stockholders’
equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified, said financial statements
have been prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in or incorporated by reference into the Preliminary
Prospectus, the Final Prospectus and the Registration Statement
present fairly, in all material respects, in accordance with GAAP
the information required to be stated therein. The selected
financial data included in the Preliminary Prospectus, the Final
Prospectus and the Registration Statement present fairly, in all
material respects, the information shown therein and have been
compiled on a basis consistent with that of the financial
statements incorporated by reference into the Preliminary
Prospectus, the Final Prospectus and the Registration
Statement.
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(j)
Each of the Issuers has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of its incorporation and has the requisite corporate power
and authority to own, lease and operate its properties and to
conduct its respective business as described in the Disclosure
Package and the Final Prospectus and to enter into and perform its
obligations under this Agreement and the Indenture; and none of
them are required to qualify as a foreign corporation to transact
business in any other jurisdiction, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business (a “Material Adverse Effect”).
(k)
The authorized, issued and outstanding capital stock of the Company
is as set forth in the Disclosure Package and the Final Prospectus
in the column entitled “Actual” under the caption
“Capitalization” (except for subsequent repurchases by
the Company, issuances pursuant to reservations, agreements,
incentive stock option plans referred to in the Disclosure Package
or Final Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Disclosure Package or
Final Prospectus). The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the
Company.
(l)
The Company is a holding company that conducts its business through
over 1,000 separate subsidiary entities (each, a
“Subsidiary”, and together, the
“Subsidiaries”). There is no matter arising out of the
organization, existence, capitalization, compliance with laws or
contractual or other construction of any agreement of or relating
to any such Subsidiary or all of such Subsidiaries in the aggregate
that would reasonably be expected to have a Material Adverse
Effect.
(m)
Except for such of the following as would not have a Material
Adverse Effect, there are no consensual encumbrances or
restrictions on the ability of any Subsidiary (i) to pay any
dividends or make any distributions on such Subsidiary’s
capital stock or to pay any indebtedness owed to the Company or any
of its other Subsidiaries, (ii) to make any loans or advances to,
or investments in, the Company or any of its other Subsidiaries, or
(iii) to transfer any of its property or assets to the Company or
any of its other Subsidiaries.
(n)
This Agreement has been duly authorized, executed and delivered by
the Issuers.
(o)
The Indenture has been duly authorized by the Issuers and, when
executed and delivered by the Issuers and the Trustee, will
constitute a valid and binding agreement of the Issuers,
enforceable against the Issuers in accordance with its
terms,
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except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(p)
The Securities have been duly authorized and, at the Closing Date,
will have been duly executed by the Issuers and, when
authenticated, issued and delivered in the manner provided for in
the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and
binding obligations of the Issuers, enforceable against the Issuers
in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (including, without
limitation, good faith, fair dealing and reasonableness, equitable
defenses, the exercise of judicial discretion and limits on the
enforceability of equitable remedies, whether such principles are
considered in a proceeding at law or in equity), and will be in the
form contemplated by, and entitled to the benefits of, the
Indenture.
(q)
The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in
the Disclosure Package and the Final Prospectus.
(r)
No Issuer is in violation of its charter or by laws; and no
Subsidiary of the Company is in violation of its charter, by-laws
or other organizational documents except for such violations that
would not result in a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its Subsidiaries is a party or by
which it may be bound or to which any of the property or assets of
the Company or any of its Subsidiaries may be subject
(collectively, “Agreements and Instruments”), except
for such defaults violations that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and any other agreement
or instrument entered into or issued or to be entered into or
issued by the Issuers in connection with the transactions
contemplated hereby or thereby or in the Disclosure Package and the
Final Prospectus and the consummation of the transactions
contemplated herein and in the Disclosure Package and the Final
Prospectus (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as
described in the Disclosure Package and the Final Prospectus under
the caption “Use of Proceeds”) and compliance by the
Issuers with their obligations hereunder have been duly authorized
by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or a Repayment
Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Subsidiaries pursuant to,
the
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Agreements and Instruments except
for such conflicts, breaches or defaults or Repayment Events,
liens, charges or encumbrances that, individually or in the
aggregate, would not result in a Material Adverse Effect, nor will
such action result in (x) any violation of the provisions of the
charter or by-laws of the Issuers; (y) the charter or bylaws of the
Subsidiaries of the Company or (z) any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
Subsidiaries or any of their assets, properties or operations
except (in the case of (y) and (z) only) as would not have a
Material Adverse Effect. As used herein, a “Repayment
Event” means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its Subsidiaries.
(s)
No labor dispute with the employees of the Company or any of its
Subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any of its
Subsidiaries’ principal suppliers, customers or contractors,
which, in any such case, may reasonably be expected to result in a
Material Adverse Effect.
(t)
Except as disclosed in the Disclosure Package and the Final
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of
its Subsidiaries which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of the
Company or any of its Subsidiaries, taken as a whole, or the
consummation of the transactions contemplated by this Agreement or
the performance by the Company of its obligations hereunder. The
aggregate of all pending legal or governmental proceedings to which
the Company or any of its Subsidiaries is a party or of which any
of their respective property or assets is the subject which are not
described in the Disclosure Package and the Final Prospectus,
including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse
Effect.
(u)
The Company and its Subsidiaries own or possess, or can acquire on
reasonable terms adequate patents, patent rights, licenses,
inventions, copyrights, knowhow (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) trademarks, service marks,
trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to continue to carry
on the business now operated by them in all material respects, and
neither the Company nor any of its Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its Subsidiaries therein except for such
of the foregoing as would not result in a Material Adverse
Effect.
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(v)
No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Issuers of their obligations hereunder, in
connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by
this Agreement or for the due execution, delivery or performance of
this Agreement and the Indenture by the Issuers, except (i) such as
have been already obtained, (ii) such as may be required by the
securities or blue sky laws of the various states in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Final
Prospectus.
(w)
The Company and its Subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to continue to conduct the business now operated by them
in all material aspects; the Company and its Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure to have such Governmental
Licenses or to so comply would not, either singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have
a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(x)
The Company and each of its Subsidiaries have good and marketable
title to all real property owned by the Company and such Subsidiary
and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Disclosure Package and the Final
Prospectus or (b) would not, individually or in the aggregate, have
a Material Adverse Effect, and all of the leases and subleases
material to the business of the Company and its Subsidiaries,
considered as one enterprise, and under which the Company or any of
its Subsidiaries holds properties described in the Disclosure
Package and the Final Prospectus, are in full force and effect, and
neither the Company nor any of its Subsidiaries has any notice of
any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any of its Subsidiaries
under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or any of its Subsidiaries
to the continued possession of the leased or subleased premises
under any such lease or sublease, except for such of the foregoing
as would not have a Material Adverse Effect.
(y)
The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to
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assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(z)
The Company and its subsidiaries, taken as a whole, maintain an
effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules
and forms, including controls and procedures designed to ensure
that such information is accumulated and communicated to the
Company’s management as appropriate to allow timely decisions
regarding required disclosure. The Company and its subsidiaries,
taken as a whole, have carried out evaluations of the effectiveness
of their disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act.
(aa) Except as
described in the Disclosure Package and the Final Prospectus and
except such matters as would not, individually or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor
any of its Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products
(collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the Company
and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending, or to
the knowledge of the Company after due inquiry, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its Subsidiaries
and (D) to the knowledge of the Company after due inquiry, there
are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
Subsidiaries relating to Hazardous Materials or Environmental
Laws.
(bb) The Issuers
are not, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Disclosure Package and the Final Prospectus will
not be, an “investment company” or an entity
“controlled” by an “investment company” as
such terms are defined in the Investment Company Act of 1940, as
amended.
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(cc) Omnicom
Finance Inc. and Omnicom Capital Inc. are wholly owned subsidiaries
of the Company with no independent operations or
subsidiaries.
(dd) Neither the
Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such Persons of the FCPA, including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, its subsidiaries and, to
the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA.
“FCPA”
means Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations promulgated thereunder.
(ee) The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(ff) Neither the
Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(gg) No holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
(hh) There is and
has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material res
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