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EXHIBIT C(2)
FCB STOCKHOLDERS AGREEMENT
Dated as of January 1, 1989
between
Publicis Communication
and
Xxxxx, Cone & Xxxxxxx Communications, Inc.
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FCB STOCKHOLDERS AGREEMENT
TABLE OF CONTENTS
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ARTICLE I COVENANTS OF PC . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.1 Limitation on Ownership of Voting Stock . . . . . . . . . . . . . . . . .
1.2 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.3 Voting Trust, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.4 Solicitation of Proxies . . . . . . . . . . . . . . . . . . . . . . . . .
1.5 Acts in Concert with Others . . . . . . . . . . . . . . . . . . . . . . .
1.6 Restrictions on Transfer of FCB Voting
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.7 Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . .
2.
ARTICLE II PC'S RIGHT TO PURCHASE ADDITIONAL FCB
SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.1 Right to Purchase Additional Shares . . . . . . . . . . . . . . . . . . .
2.2 Notice of Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3 Purchase of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.4 Available Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.5 Purchase by FCB of Its Common Stock . . . . . . . . . . . . . . . . . . .
ARTICLE III FCB'S RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . .
3.
3.1 Transfer Sale or Public Offering . . . . . . . . . . . . . . . . . . . . .
3.2 Tender Offer Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.3 Assignment of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.4 Repurchase of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.5 Delivery of FCB's PC Voting Stock . . . . . . . . . . . . . . . . . . . .
ARTICLE IV OPTION OF FCB TO REPURCHASE PC'S
FCB VOTING STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
4.1 Right of Repurchase Shares . . . . . . . . . . . . . . . . . . . . . . . .
4.2 Notice of Repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.3 Repurchase of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.4 Assignment of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.5 Delivery of FCB's PC Voting Stock . . . . . . . . . . . . . . . . . . . .
ARTICLE V OPTION OF PSA TO REPURCHASE FCB'S
PC COMMON SHARES . . . . . . . . . . . . . . . . . . . . . . . . . .
5.
5.1 Right to Repurchase Shares . . . . . . . . . . . . . . . . . . . . . . . .
5.2 Notice of Repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.3 Repurchase of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4 Assignment of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.5 Delivery of PC's FCB Voting Stock . . . . . . . . . . . . . . . . . . . .
5.6 Transfer of PSA's Rights . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VI ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . .
6.
6.1 Election of Director . . . . . . . . . . . . . . . . . . . . . . . . . . .
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6.2 Equity Method Accounting . . . . . . . . . . . . . . . . . . . . . . . . .
6.3 Securities Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.4 Notice by FCB of Acquisitions . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.
7.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.2 Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . .
7.3 Governing Law; Dispute Resolution . . . . . . . . . . . . . . . . . . . .
7.4 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . .
7.5 Entire Agreement; Amendment . . . . . . . . . . . . . . . . . . . . . . .
7.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.7 Government Reviews; Enforceability . . . . . . . . . . . . . . . . . . . .
7.8 Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.9 Non-Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.10 Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.12 PC Common Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBITS
A Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . .
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FCB STOCKHOLDERS AGREEMENT
THIS FCB STOCKHOLDERS AGREEMENT (this "Agreement") is made and
entered into as of this 1st day of January, 1989, by and between Xxxxx, Cone &
Xxxxxxx Communications, Inc., a Delaware corporation ("FCB"), and Publicis
Communication, a societe anonyme ("PC").
WHEREAS, FCB and PC have executed and delivered that certain
Master Alliance Agreement, dated as of January 1, 1989 (the "Master Alliance
Agreement"), the representations and warranties of each party in Sections 5 and
6 to each other being incorporated herein by reference as fully as though set
forth herein;
WHEREAS, pursuant to the Master Alliance Agreement, FCB has
issued to PC 2,110,000 shares of FCB's Common Stock, par value 33-1/3 cents per
share (the "FCB Common Stock"); and PC has issued to FCB 350,000 common shares
of PC's capital stock (the "PC Common Shares");
WHEREAS, the execution and delivery of this Agreement by PC
and FCB is a condition to the obligations of the parties to the Master Alliance
Agreement to consummate the transactions contemplated thereby; and
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WHEREAS, each of FCB and PC have determined that it is in
their best interests and the best interest of their respective shareholders to
enter into this Agreement in order, among other things, to permit the
consummation of the transactions contemplated by the Master Alliance Agreement
and to regulate certain aspects of the relationship of the parties being
created by such Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and undertakings herein set forth and other good in valuable
considerations, the parties hereto agree as follows:
1.
ARTICLE I
Covenants of PC
Until the termination of this Agreement in accordance with
Section 7.2 hereof or of the particular covenant or provision, as the case may
be, or the occurrence of a Change of Control of FCB, and subject to the
provisions of this Agreement:
Section 1.1 Limitation of Ownership of Voting Stock. PC
agrees not to and agrees to cause its Affiliates (excluding any member of PC's
Board of Directors designated by FCB) (the "PC Affiliates") not to acquire
record or beneficial ownership of any FCB Voting Stock (except, in any case, by
way of stock splits of FCB or stock dividends or distributions by FCB to PC)
without the prior written consent of FCB, if the
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effect of such acquisition would be to increase the Voting Power of all FCB
Voting Stock then owned by PC and the PC Affiliates to more than 20.5% of the
Total Voting Power of FCB at such time; provided that:
(i) PC may acquire FCB Voting Stock if it is publicly
disclosed or FCB notifies PC in writing that another person or group
(other than the Xxxxx, Cone & Xxxxxxx Communications, Inc. Stock
Purchase and Stock Ownership Trust or similar employee stock ownership
plan established by FCB (the "Trust")) has acquired any FCB Voting
Stock which results in such person or group owning or having the right
to acquire FCB Voting Stock with aggregate Voting Power having a
percentage of the Total Voting Power of FCB then in effect which is
more than that percentage of the Total Voting Power of FCB then in
effect then owned by PC and the PC Affiliates less 5 percent of the
Total voting Power of FCB then in effect; provided PC may only acquire
up to that amount of FCB Voting Stock which when added to the FCB
Voting Stock then owned by PC and PC Affiliates does not exceed the
percentage interest in Total Voting Power of FCB acquired by such
other person or group plus 5 percentage points of the Total Voting
Power of FCB then in effect;
(ii) PC may acquire FCB Voting Stock without regard to the
limitations in this Section 1.1 if a tender offer or exchange offer is
made, as evidenced by the filing with the Securities and Exchange
Commission (the "SEC")
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of a Schedule 14D-1 (or any successor schedule or form promulgated or
adopted for such purpose by the SEC) by a person or group (not
including PC or any PC Affiliate) to purchase or exchange for cash or
other consideration any FCB Voting Stock which, if successful, would
result in such person or group making the offer owning or having the
right to acquire shares of FCB Voting Stock with aggregate Voting
Power of at least 30% of the Total Voting Power of FCB then in effect;
(iii) In the event FCB at any time Controls more than 26.5%
of the Total Voting Power of PC, PC may (during the period in which
FCB Controls such excess voting power) acquire FCB Voting Stock which
when added to the FCB Voting Stock then owned by PC and the PC
Affiliates has aggregate Voting Power of more than 20.5% (or a greater
percentage if permitted hereunder) of the Total Voting Power of FCB
then in effect but only up to that percentage of FCB Voting Stock at
which the proportion of FCB Voting Stock owned of record or
beneficially by PC and the PC Affiliates compared to the proportion of
PC Voting Stock owned of record or beneficially by FCB and its
Affiliates (excluding any member of FCB's Board of Directors
designated by PC) does not exceed 1:1.3;
(iv) In the event and during any period when the person
designated by Publicis to serve on the Board of Directors of FCB in
accordance with Section 6.1 hereof is not elected to serve (or such
person's successor is not
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so elected in accordance with Section 6.1) so long as the person
designated by FCB has been duly elected to service on the Board of
Directors of PC, PC may (during the period when no such person serves
as a director of FCB) acquire FCB Voting Stock which when added to the
FCB Voting Stock then owned by PC and the PC Affiliates has aggregate
Voting Power in excess of 20.5% of the Total Voting Power of FCB then
in effect (or any greater percentage permitted hereunder) and shall
not be required to dispose of any such shares in the event its
designee is subsequently elected;
(v) Notwithstanding the foregoing but subject to Section
4.1(b), neither PC nor any of its Affiliates shall be obligated to
dispose of any shares of FCB Voting Stock to the extent that their
aggregate percentage ownership is increased as a result of a
recapitalization of FCB or a repurchase of securities by FCB or any
other action taken by FCB to reduce the Total Voting Power of FCB then
in effect.
Section 1.2 Voting. PC shall take such action as may be
required so that all shares of FCB Voting Stock owned by PC are voted for the
nominees to the Board of Directors of FCB recommended by FCB's Board of
Directors to FCB's stockholders consistent with Section 6.1 hereof. Further,
PC shall take such action as may be required so that all shares of FCB Voting
Stock owned by PC are voted with management on all other matters to be voted on
by holders of FCB Voting
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Stock; provided, that FCB Voting Stock owned by PC may be voted as PC
determines in its sole discretion on any Significant Event presented to the
holders of Voting Stock for a vote. PC, as the holder of shares of FCB Voting
Stock, shall be present, in person or by proxy, at all meetings of stockholders
of FCB so that all shares of FCB Voting Stock owned by PC may be counted for
the purpose of determining the presence of a quorum at such meetings.
Section 1.3 Voting Trust, etc. PC shall not deposit any
shares of FCB Voting Stock in a voting trust or, except as otherwise provided
herein, subject any shares of FCB Voting Stock to any arrangement or agreement
with respect to the voting of such FCB Voting Stock.
Section 1.4 Solicitation of Proxies. Without FCB's prior
written consent, PC shall not solicit proxies with respect to any FCB Voting
Stock, nor shall it become a "participant" in any "election contest", as such
terms are used in Rule 14a-11 of Regulation 14A (or any successor rule or
regulation) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), relating to the election of directors of FCB; provided,
however, that PC shall not be deemed to be a "participant" by reason of the
membership of its designee on the FCB's Board of Directors pursuant to Section
6.1; and, provided, further, however, that the prohibition contained in this
Section 1.4 shall not apply in the event such designee is not included in the
management
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slate for election to the Board of Directors in accordance with Section 6.1.
Section 1.5 Acts in Concert with Others. Except as
contemplated herein with regard to permissible sales of, or the use of a broker
to facilitate permissible acquisitions of, FCB Voting Stock, PC shall not join
a partnership, limited partnership, syndicate or other group, or otherwise act
in concert with any third person, for the purpose of acquiring, holding, or
disposing of FCB Voting Stock.
Section 1.6 Restrictions on Transfer of FCB Voting Stock. PC
shall not, directly or indirectly, sell, transfer, assign, pledge, encumber, or
otherwise suffer any lien or security interest to attach to any of its FCB
Voting Stock except (i) to FCB or any person or group approved of in advance
and in writing by FCB in its sole discretion; or (ii) to a Controlled
Corporation of PC, so long as prior to such transfer such Controlled
Corporation executes and delivers to FCB a written instrument, in form and
substance reasonably acceptable to FCB (x) evidencing its agreement to hold
such FCB Voting Stock subject to all the provisions and restrictions of this
Agreement as if it were a party hereto, including this Section 1.6, and the
rights of FCB with respect to such FCB Voting Stock, and to transfer such FCB
Voting Stock to PC or other Controlled Corporation of PC if it ceases to be a
Controlled Corporation of PC, and (y) setting forth its address for purposes of
receiving notices in connection with this Agreement; or (iii) subject to FCB's
right of first
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refusal as set forth in Article III hereof, pursuant to a bona fide public
offering (which shall be structured to distribute such FCB Voting Stock through
an underwriter or otherwise in such a manner as should not result in a sale or
sales of beneficial ownership of FCB Voting Stock with aggregate Voting Power
of 5% or more of the Total Voting Power of FCB then in effect to a single
person or group) registered under the Securities Act of 1933, as amended (the
"Securities Act"), of FCB Voting Stock; or (iv) subject to FCB's Right of first
refusal as set forth in Article III hereof, in transactions involving receipt
by PC of cash payment for its FCB Voting Stock not otherwise described herein
so long as such transactions do not, directly or indirectly, in a manner PC
knows or should know, result in any single person or group owning or having the
right to acquire FCB Voting Stock with aggregate Voting Power of 5% or more of
the Total Voting Power of FCB then in effect; or (v) in response to (1) an
offer to purchase or exchange for cash or other consideration any FCB Voting
Stock (a) which is made by or on behalf of FCB or its Affiliates, or (b) which
is made by another person or group and is not opposed by the Board of Directors
of FCB within the time such Board is required, pursuant to the regulations then
in effect under the Exchange Act or any successor federal statute, to advise
FCB's stockholders of such Board's position on such offer, or (2) subject to
FCB's right of first refusal as set forth in Article III, any other offer made
by a person or group (not including PC or any PC Affiliate) to purchase or
exchange for cash or other consideration any FCB Voting Stock which, if
successful, would result in such person or group
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owning or having the right to acquire FCB Voting Stock with aggregate Voting
Power of more than 30% of the Total Voting Power of FCB then in effect; or (vi)
pursuant to a bona fide pledge to a bank or other institutional lender (the
"Pledgee") so long as, prior to such pledge, the Pledgee executes and delivers
to FCB a written instrument, in form and substance reasonably acceptable to FCB
evidencing its agreement (x) to provide FCB a right of first refusal in
connection with any sale or transfer of such FCB Voting Stock by the Pledgee on
the same terms as provided herein, (y) to exercise all voting rights with
respect to such FCB Voting Stock in a manner consistent with FCB's rights under
this Agreement and (z) otherwise to exercise any rights it may have with
respect to such FCB Voting Stock in a manner consistent with FCB's rights under
the Agreement.
Section 1.7 Confidential Information. Notwithstanding any
Change of Control of FCB, FCB will from time to time pursuant to and in
connection with this Agreement or the Master Alliance Agreement and related
agreements, disclose to PC and its representatives, including PC's designee to
the Board of Directors of FCB, certain business information which FCB deems to
be confidential (for example, financial information or business plans). PC
shall not disclose such information to third parties until the earliest of (i)
the date upon which such information becomes public knowledge through no fault
of PC, (ii) the date upon which FCB discloses such fault of PC, (ii) the date
upon which FCB discloses such information to a third party on an unrestricted
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basis, or (iii) the fifth anniversary of the date of disclosure to PC.
2.
ARTICLE II
PC's Right to Purchase Additional FCB Shares
Section 2.1 Right to Purchase Additional Shares. (a)
Subject to the provisions of this Agreement and so long as no Change of Control
of FCB shall have occurred, in the event that PC (and the PC Affiliates) shall
at any time after January 24, 1989 have beneficial ownership of less that
19.9% of the Total Voting Power of FCB then in effect and desires to acquire
additional FCB Voting Stock up to such 19.9% and all or a part of such FCB
Voting Stock is not likely to be available for purchase in the market over a
period of 60 days for less than 115% of the Market Price (as defined in Section
7.1(j)) thereof determined as of the date of its notice to FCB under the
section (a "Section 2.1 Notice"), PC may elect to purchase directly from FCB,
and FCB shall sell to PC, such amount of FCB Common Stock for a cash payment
equal to the Market Price thereof; provided, that in the event FCB shall be
required to obtain shareholder approval for such sale in accordance with its
New York Stock Exchange listing agreement otherwise by law, FCB shall not be
obligated to issue such shares prior to obtaining such approval, which it shall
use its best efforts to secure. If FCB shall seek and fail to obtain such
shareholder approval, FCB shall offer to sell to PSA (so long as no Change of
Control of PC shall have occurred) sufficient shares of PC Voting Stock so that
the ratio of Total Voting Power of PC then owned by FCB to the
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Total Voting Power of FCB then owned by PC does not exceed 1.3 to 1. Such PC
Voting Stock shall be offered at the Market Price thereof as valued on the date
of the FCB meeting of stockholders at which shareholder approval is sought but
not obtained. PC may conclusively establish that it is not likely to be able
to acquire such FCB Voting Stock in the market on the conditions mentioned
above by providing FCB with a letter to such effect from a nationally
recognized investment bank firm.
Section 2.2 Notice of Purchase. In order to exercise its
rights to purchase FCB Common Stock pursuant to Section 2.1 hereof, PC shall
deliver to FCB the Section 2.1 Notice, setting forth the FCB Voting Stock owned
by PC and the PC Affiliates on the date of the Section 2.1 Notice, the number
of shares of FCB Common Stock it wishes to purchase, the basis under Section
2.1 entitling it to acquire such Common Stock and the date on which PC wishes
to purchase such Common Stock, which date shall not be less than 30 days
following PC's delivery of such notice or as soon thereafter as may be
permitted under applicable laws (the "Purchase Date").
Section 2.3 Purchase of Stock. Unless the parties agree
otherwise, any purchase of FCB Common Stock pursuant to the Article II shall
take place at the corporate offices of FCB on the Purchase Date.
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Section 2.4 Available Shares. FCB shall at all times keep
available as authorized but unissued or as treasury shares a sufficient number
of shares of Common Stock to satisfy its obligations under this Article II.
Section 2.5 Purchase by FCB of Its Common Stock. In order to
enable PC to maintain its proportionate interest in FCB despite the exercise of
employee stock options, so long as there is no stock option plan of PC in
existence, FCB will purchase within a reasonable period of the end of each
quarter sufficient amounts of its Common Stock so that its total outstanding
Common Stock is not increased by the exercise of employee stock options.
3.
ARTICLE III
FCB'S Right of First Refusal
Section 3.1 Transfer Sale or Public Offering. So long as no
Change of Control of FCB shall have occurred, prior to making any public
offering or sale or transfer of FCB Voting Stock pursuant to Sections 1.6(iii)
or (iv), PC shall give FCB the opportunity to purchase such FCB Voting Stock in
the following manner:
(i) PC shall give notice ( the "Transfer Notice" or
"Section 3.1 Notice") to FCB in writing of such intention specifying
the approximate number of the proposed purchasers or transferees, the
amount of FCB Voting Stock proposed to be sold or transferred, the
proposed cash price per share therefor (the "Transfer Price") in the
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case of a proposed sale under Section 1.6(iv) or the proposed
underwriters in the case of a proposed public offering, and the other
material terms upon which any such disposition is proposed to be made
(to the extent known).
(ii) FCB shall have the right, exercisable by written
notice given by FCB to PC within thirty calendar days after receipt of
such Transfer Notice, to purchase all but not part of the FCB Voting
Stock specified in such Transfer Notice for a price per share equal,
in the case of a proposed sale under Section 1.6(iv), to the Transfer
Price or, in the case of a proposed public offering, to the Market
Price on the date of the Section 3.1 Notice, payable (in FCB's
discretion) in cash and/or FCB's PC Common Shares in accordance with
the Section 3.5 valued at the Market Price thereof.
(iii) If FCB exercises its right of first refusal
hereunder, the closing of the purchase of the FCB Voting Stock with
respect to which such right has been exercised shall take place within
sixty calendar days after FCB gives the Section 3.1 Notice; provided,
if at any time prior to such closing, an offer to purchase or exchange
FCB Common Stock described in Section 1.6(v) is made by any person, PC
may revoke its Transfer Notice and sell or exchange its FCB Voting
Stock in responses to such offer, subject to FCB's right of first
refusal set forth in Section 3.2 and, if the offer is made by FCB, to
FCB's right
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to pay its purchase price in FCB's PC Common Shares in accordance with
Section 3.5 valued at the Market Price thereof.
(iv) If FCB does not exercise its right of first refusal
hereunder with respect to any Transfer Notice within the time
specified hereunder for such exercise, PC shall be free, only during
the period of ninety calendar days following the expiration of such
time of exercise, to sell the FCB Voting Stock specified in such
Transfer Notice (x) in the case of a proposed transfer under Section
1.6(iv) on terms no less favorable to PC than the terms specified in
such Transfer Notice and (y) in the case of a proposed public
offering, in accordance with Section 1.6(iii).
Section 3.2 Tender Offer Sale. So long as no Change of
Control of FCB shall have occurred, prior to making any sale or exchange of FCB
Voting Stock pursuant to Section 1.6(v)(2) in response to a tender or exchange
offer, PC shall give FCB the opportunity to purchase such FCB Voting Stock in
the following manner:
(i) PC shall give notice (the "Tender Notice" or "Section
3.2 Notice") to FCB in writing of such intention no later than ten
calendar days prior to the latest time by which FCB Voting Stock must
be tendered in order to be accepted pursuant to such offer or to
qualify for any proration applicable to such offer (the "Tender
Date"),
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specifying the amount of FCB Voting Stock proposed to be tendered.
For purposes hereof, a tender offer to purchase or exchange FCB Voting
Stock shall be deemed to be an offer at the price specified therein,
without regard to any provisions thereof with respect to proration or
condition as to the offeror's obligation to purchase (assuming the
performance of such conditions is not impossible when the offer is
made, without giving effect to FCB's right of first refusal).
(ii) If the Tender Notice is given, FCB shall have the
right, exercisable by giving notice to PC (the "Tender Repurchase
Notice") at least two business days prior to the Tender Date, to
purchase all but not part of the FCB Voting Stock specified in the
Tender Notice for a price consisting (in FCB's discretion) of cash
and/or FCB's PC Common Shares in accordance with Section 3.5 valued at
the Market Price thereof. If FCB exercises such right by giving such
notice, the closing of the purchase of such FCB Voting Stock shall
take place not later than one business day prior to the Tender Date;
provided, however, that (x) PC shall be authorized to withdraw its
Tender Notice if, prior to closing hereunder, another offer described
in Section 1.6(v) is made and (y) if the purchase price specified in
the tender or exchange offer includes any property other than cash,
the value of any property included in the purchase price shall be
jointly determined by a nationally recognized investment banking firm
selected by each party
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or, in the event such firms are unable to agree, a third nationally
recognized investment banking firm to be selected by such two firms.
For this purpose:
(x) In each instance in which such tender offer
is made, the parties shall use their best efforts to cause any
determination of the value of any securities included in the purchase
price to be made within three business days after the date of delivery
of the related Tender Notice even if FCB shall not have then informed
PC of its decision to exercise its right to purchase its right to
purchase the applicable FCB Voting Stock. If the firms selected by PC
and FCB are unable to agree upon the value of any such securities
within such three-day period, the firms shall promptly select a third
firm whose determination shall be made promptly and shall be
conclusive.
(y) The parties shall use their best efforts to
cause any determination of the value of property other than securities
to be made within four business days after the date of delivery of the
Tender Notice. If the firms selected by PC and FCB are unable to
agree upon a value within such four-day period, the firms shall
promptly select a third firm whose determination shall be made
promptly and shall be conclusive.
The purchase price to be paid by FCB or its designee pursuant
to this Section 3.2 shall be (x) if such tender
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or exchange offer is consummated, the purchase price that PC would
have received if it has tendered the FCB Voting Stock purchased by FCB
and all such Voting Stock had been purchased in such tender or
exchange offer, including any increases in the price paid by the
tender offeror after exercise by FCB of its right of first refusal
hereunder, or (y) if such tender or exchange offer is not consummated,
the highest price offered pursuant thereto, in each case with
property, if any, to be valued as aforesaid. Each party shall bear
the cost of its own investment bank firm and the parties shall share
the cost of any third firm selected hereunder.
(iii) If PCB does not exercise such right by giving such
notice, then PC shall be free to accept the tender or exchange offer
with respect to which the Tender Notice was given.
Section 3.3 Assignment of Rights. In the event that FCB
elect to exercise a right of first refusal under this Article III, FCB may
specify prior to closing such purchase another person as its designee to
purchase the FCB Voting Stock to which such right relates. If FCB shall
designate another person as the purchases pursuant to this Article III, the
giving of notice of acceptance of the right of first refusal by FCB shall
constitute a legally binding obligation of FCB to complete such purchase if
such person shall fail to do so.
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Section 3.4 Repurchase of Stock. Unless the Parties agree
otherwise, any repurchase of FCB Voting Stock pursuant to this Article III
shall take place at the corporate offices of FCB.
Section 3.5 Delivery of FCB's PC Voting Stock. FCB may elect
to deliver its PC Voting Stock in connection with payment of the purchase price
of FCB Voting Stock pursuant to this Article III and PC shall cause a person
which it designates to purchase for cash from FCB as much PC Voting Stock (to
the extent of FCB's holding of PC Voting Stock) as equals the Market Price of
the FCB Voting Stock to be purchased by FCB and FCB shall use such cash in the
payment to PC of the purchase price for such FCB Voting Stock. Such PC Common
Shares shall be valued at the Market Price thereof on the date the Section 3.1
or 3.2 Notice is given hereunder as determined hereunder.
4.
ARTICLE IV
Option of FCB to Repurchase PC's FCB Voting Stock
Section 4.1 Right to Repurchase Shares. (a) In the event of
a Change of Control of PC or the existence of an FCB Event, FCB shall have the
right to repurchase from PC or any PC Controlled Corporation then owning such
shares all but not part of the FCB Voting Stock then owned by PC or such
Controlled Corporation for a payment equal to the Market Price thereof
consisting (in FCB's discretion) of cash and/or FCB's PC Common Shares in
accordance with Section 4.5. PC hereby agrees to inform FCB immediately
following the commencement of
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any Change of Control of PC or any FCB Event. FCB's rights hereunder shall
expire unless FCB gives notice of exercise within twelve months after receipt
by FCB of such notice from PC.
(b) Should the FCB Voting Stock owned by PC and the PC
Affiliates exceed the percentage limitations set forth in this Agreement in
violation of the terms of this Agreement, or should the aggregate number of
outstanding shares of FCB Voting Stock be reduced for any reason whatsoever,
and such reduction results in PC and the PC Affiliates owning a greater
percentage of the Total Voting Power of FCB then in effect than in permitted by
the terms of this Agreement (without regard to Section 21.1(v)), in addition to
any other remedies or rights hereunder, FCB shall have the right to repurchase
from PC a sufficient number of shares of FCB Voting Stock for a payment equal
to the Market Price thereof consisting (in FCB's discretion) of cash and/or
FCB's PC Common Shares in accordance with Section 4.5 (so long as no Change of
Control of PC shall have occurred) to meet the foregoing percentage limitation.
PC shall notify FCB promptly after it becomes aware of any fact in light of
which FCB shall be entitled to effect such repurchase.
Section 4.2 Notice of Repurchase. In order to exercise its
right to repurchase shares of FCB Voting Stock pursuant to Section 4.1 hereof,
FCB shall deliver to PC a notice (the "Section 4.1 Notice") setting forth the
basis under Section 4.1 entitling it to repurchase such FCB Voting
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Stock and the date on which FCB wishes to purchase such FCB Voting Stock, which
date shall not be less than 60 days following FCB's delivery of such notice or
as soon thereafter as may be permitted under applicable laws (the "Repurchase
Date").
Section 4.3 Repurchase of Stock. Unless the parties agree
otherwise, any repurchase of FCB Voting Stock pursuant to this Article IV shall
take place at the corporate offices of FCB on the Repurchase Date.
Section 4.4 Assignment of Rights. In the event that FCB
elects to exercise its right to repurchase under this Article IV, FCB may
specify in the Section 4.1 Notice another person as its designee to purchase
the FCB Voting Stock to which such Notice relates, provided that if such person
shall fail to do so, FCB shall be obligated to purchase such FCB Voting Stock
on the day following the Repurchase Date.
Section 4.5 Delivery of FCB's PC Voting Stock. Whenever FCB
shall elect to deliver its PC Voting Stock in connection with payment of the
purchase price of FCB Voting Stock pursuant to this Article, PSA (or any person
which it designates who is reasonably acceptable to FCB) shall purchase for
cash from FCB as much PC Voting Stock (to the extent of FCB's holdings of PC
Voting Stock) as equals the Market Price
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of the FCB Voting Stock to be purchased by FCB and FCB shall use such cash in
the payment to PC of the purchase price for such FCB Voting Stock. Such PC
Voting Stock shall be valued at the Market Price thereof on the date the
Section 4.1 Notice is given hereunder as determined hereunder. FCB's rights to
deliver PC Voting Stock to PSA pursuant to this Section 4.5 shall terminate if
FCB shall not exercise its right to repurchase FCB Voting Stock within sixty
days after receipt by FCB form PC of notice of a Change of Control of PC;
provided, PSA may at any time prior thereto assign its obligations under this
Section 4.5 to any other person who shall be reasonably satisfactory to FCB in
which event PSA shall have no further obligation under this section.
5.
ARTICLE V
Option of PSA to Repurchase FCB's PC Common Shares
Section 5.1 Right to Repurchase Shares. (a) In the event of
a Change of Control of FCB or the existence of a PC Event, so long as no Change
of Control of PC shall have occurred, PSA shall have the right to repurchase
from FCB or any FCB Controlled Corporation then owning such shares all but no
part of the shares of capital stock of PC then owned by FCB or such Controlled
Corporation for a payment equal to the Market Price thereof consisting (in
PSA's discretion) of cash and/or PC's FCB Voting Stock in accordance with
Section 5.5. FCB hereby agrees to inform PSA and PC immediately following the
commencement of any Change of Control of FCB or any PC Event. PSA's rights
hereunder shall expire twelve months after the receipt by PSA of such notice
from FCB.
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(b) Should the PC Voting Stock owned by FCB and the FCB
Affiliates exceed the percentage limitations set forth in the Publicis
Communication Shareholders Agreement, dated as of the date hereof, among FCB,
PC and Publicis (the "PC Shareholders Agreement"), in violation of the terms of
such Agreement, or should the aggregate number of outstanding shares of PC
Voting Stock be reduced for any reason whatsoever, and such reduction results
in FCB and the FCB Affiliates owning a greater percentage of the Total Voting
Power of PC then in effect than is permitted by the terms of the PC
Shareholders Agreement (without regard to Section 1.1(v) of the PC Shareholders
Agreement) in addition to any other remedies or rights thereunder, so long as
no Change of Control of PC shall have occurred, PSA shall have the right to
repurchase form FCB a sufficient number of shares of PC Voting Stock for a
payment equal to the Market Price thereof consisting (in PSA's discretion) of
cash and/or PC's FCB Voting Stock (in accordance with Section 5.5) to meet the
foregoing percentage limitation. FCB shall notify PSA and PC promptly after it
becomes aware of any facts in light of which PSA shall be entitled to effect
such repurchase.
Section 5.2 Notice of Repurchase. In order to exercise its
right to repurchase shares of PC Voting Stock pursuant to Section 5.1 hereof,
PSA shall deliver to FCB a notice (the "Section 5.1 Notice") setting forth the
basis under Section 5.1 entitling it to repurchase such PC Voting Stock and the
date on which PSA wishes to purchase such PC
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Voting Stock, which date shall not be less than 60 days following PSA's
delivery of such notice or as soon thereafter as may be permitted under
applicable laws (the "Repurchase Date").
Section 5.3 Repurchase of Stock. Unless the parties agree
otherwise, any repurchase of securities pursuant to this Article V shall take
place at the corporate offices of FCB on the Repurchase Date.
Section 5.4 Assignment of Rights. In the event that PSA
elects to exercise its right to repurchase under this Article V, PSA may
specify in the Section 5.1 Notice another person as its designee to purchase
the PC Voting Stock to which such notice relates, provided that if such person
shall fail to do so, PSA shall be obligated to purchase such PC Voting Stock on
the day following the Repurchase Date.
Section 5.5 Delivery of PC's FCB Voting Stock. Whenever PSA
shall elect (with PC's consent) that the purchase price of PC Common Shares
pursuant to this Article shall be payable in whole or in part by delivery of
PC's FCB Voting Stock to FCB, the transaction may be structured as a purchase
by PSA for cash of PC Common Shares in which case FCB shall accept a put from
PC of so much of PC's FCB Voting Stock as equals the cash acquired by FCB as
proceeds of the purchase by PSA and FCB shall pay PC such acquired cash in
exchange for the FCB Voting Stock to be received upon the exercise of such put.
In such case, such FCB Voting Stock shall be valued at
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the Market Price thereof on the date of Section 5.1 Notice is given hereunder
as determined hereunder.
Section 5.6 Transfer of PSA's Rights. Notwithstanding the
foregoing, the option granted PSA hereunder shall apply only so long as PSA
Controls a majority of the Voting Stock of PC. In the event PSA does not
Control a majority of the Voting Stock of PC, PC shall have the right to
designate the party, if any, which shall be entitled to exercise such rights,
which party shall be reasonably acceptable to FCB. FCB and PC shall cooperate
to establish appropriate new arrangements in this regard.
6.
ARTICLE VI
Additional Agreements
Section 6.1 Election of Director. (a) At the first meeting
of the Board of Directors of FCB occurring following the closing of the
transactions contemplated by the Master Alliance Agreement, FCB shall cause
Xxxxxxx Xxxx to be elected to FCB's Board of Directors who shall serve until
his successor is duly elected and qualified. Commencing on the date hereof and
thereafter during the term of this Agreement so long as PC shall beneficially
own at least 10% of the outstanding Voting Stock of FCB and FCB's designee
shall be elected to serve on PC's Board of Directors in compliance with Section
6.1 of the PC Shareholders Agreement. FCB's management shall recommend to the
Nominating Committee of the Board of Directors of FCB to be included in the
slate of nominees recommended by FCB's Board of Directors to
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stockholders for election as directors at each annual meeting of stockholders
of FCB, commencing with the annual meeting of stockholders next following the
date hereof, one person designated by PC and, assuming such person is included
by such committee in such recommended slate, shall use its best efforts to
cause the shares for which FCB's management or Board of Directors holds proxies
or is otherwise entitled to vote to be voted in favor of the election of such
designee. In the event that any such designee shall cease to serve as a
director for any reason between any annual meetings of FCB's stockholders, so
long as this section shall be applicable, FCB's management shall recommend to
the Nominating Committee to recommend to the Board of Directors that such
vacancy be filled with a person designated by PC. If PC's designee is unable
to attend any meeting of the Board, he shall be entitled to send a non-voting
observer in his place. Moreover, if PC's designee is not elected to FCB's
Board of Directors, PC shall be entitled to have a non- voting observer who
shall be a senior officer of PC present at all meetings of the Board.
(b) The director elected as provided in paragraph (a)
shall also be selected to serve as a voting or nonvoting member of one or more
board committees. In selecting appropriate committee memberships, FCB will
take into account the proportion of ownership which PC holds in it and the
significance of the alliance with PC to FCB's overall business operations.
Initially, Xxxxxxx Xxxx shall be appointed to service on FCB's Management
Council and on the International
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Committee and shall serve as chairman of the latter. Xxxx-Xxxx Xxxxx shall
also initially serve as an invited nonvoting member of FCB's Audit and Finance
Committees whenever appropriate agenda items are to be considered.
Section 6.2 Equity Method Accounting. FCB shall furnish to
PC at FCB's expense all information requested by PC that is required by French
generally accepted accounting principles to enable PC to account for its
investment in FCB pursuant to French equity accounting principles, or otherwise
to comply with any reporting requirements under applicable French securities
and tax laws and regulations. FCB shall provide at the expense of PC such
additional information regarding FCB, to the extent reasonably available, to,
and otherwise cooperate with, PC so as to enable PC or Publicis to prepare its
financial statements and meet management reporting requirements. In cas
information is not available, FCB will use its best efforts to produce such
information as soon as feasible.
Section 6.3 Securities Laws. PC hereby represents and
warrants to FCB that it is not acquiring any of its PC Common Stock on the date
hereof and neither PC nor PSA will be acquiring from FCB any other shares of
the capital stock of FCB pursuant to this Agreement with a view to the public
distribution thereof. Further, PC acknowledges that none of such shares and
none of such other shares when issued to PC will be registered under the
Securities Act or under any state securities or "blue sky" laws and agrees not
transfer any such
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shares unless they are registered under such Act and laws or unless an
exemption from such registration is available, as evidence by an opinion of
United States counsel to PC addressed to FCB reasonably acceptable to FCB and
its United States counsel. FCB agrees to comply with the provisions regarding
registration rights attached in the Registration Agreement attached as Exhibit
A hereto. PC agrees that until any shares of capital stock issued to it or PSA
by FCB are so registered, the certificates representing such shares shall bear
a legend to the effect that such shares are "restricted securities" for
securities laws purposes and are subject to this Agreement.
6.4 Notice by FCB of Acquisitions. FCB shall use its best
efforts to give PC prompt notice of the receipt by FCB of (i) any written
notice from any person or group couched in such terms as to put FCB reasonably
on notice of the likelihood that such person or group has acquired or is
proposing to acquire any shares of FCB Voting Stock which results in, or, if
successful, would result in, such person or group owning or having the right to
acquire more than 5% of the shares of FCB Voting Stock then outstanding, (ii)
any notice under the Xxxx-Xxxxx- Xxxxxx Antitrust Improvements Act of 1976 and
(iii) any Statement on Schedule 13D or 14D-1 under the Exchange Act.
7.
ARTICLE VII
Miscellaneous
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Section 7.1 Certain Definitions. As used in this Agreement:
(a) The term "Affiliate" means, with respect to any
person, any other person which directly or indirectly Controls, is Controlled
by or is under common Control with such person.
(b) "Xxxxxxxxx-Xxxxxxxx Family" means any of Xxxxxx
Xxxxxxxxx-Xxxxxxxx, Xxxxxx Xxxxxxxx or their descendants or any combination of
them.
(bb) The term "business day" shall mean a day which is not
a legal holiday for banks in Chicago, Illinois.
(c) A "Change of Control" with respect to FCB shall be
deemed to have occurred (i) if any person or group (other than (A) the Trust,
(B) any officer or director of FCB who had been such an officer or director for
at least one year prior thereto, (C) any person whose shares of Voting Stock
are treated as "beneficially owned", as defined in Rule 13d-3, of the Exchange
Act, as in effect on the date hereof, by such an officer or director of FCB,
(D) PC, Publicis or any Affiliate of PC or Publicis or (E) a person or group
approved by PC and FCB which approval may be conditioned upon no further
increase of shareholding or other designated conduct by such person or group)
Controls more than 33-1/3% of the Total Voting Power of FCB then in effect or
(ii) if during any period of two consecutive years, individuals who at the
beginning of any
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such period constitute the directors of FCB cease for any reason to constitute
at least a majority thereof, unless the election, or the nomination for
election by FCB's stockholders, of each director of FCB first elected during
such period was approved by a vote of at least two-thirds of the directors of
FCB then still in office who were directors of FCB at the beginning of any such
period, (iii) if FCB shall be merged into or consolidated with another
corporation and FCB shall not be the surviving corporation or FCB shall sell
all or substantially all its assets to another person.
(d) A "Change of Control" with respect to PC shall be
deemed to have occurred as follows:
(1) Family Control. A "Change of Control" with respect
to PC shall not be deemed to have occurred so long as a majority of
the Voting Stock of PC is Controlled by members of the Xxxxxxxxx-
Xxxxxxxx Family either directly or by Control of a majority of the
Voting Stock of PSA so long as PSA shall Control a majority of the
Voting Stock of PC.
(2) No Family Control. At any time a majority of the
Voting Stock of PC is not Controlled by the Xxxxxxxxx-Xxxxxxxx Family
as provided above, a "Change of Control" shall be deemed to have
occurred if either of the following occurs:
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(X) XX Xxxxx. Xxxxxx any period in which PC is
listed on the Cote Officielle, Second Marche or Marche
hors-cote or PSA Controls less than 40% of the Total Voting
Power of PC (i) for any period of two consecutive years,
individuals who at the beginning of any such period constitute
the members of the conseil d'administration, i.e., the
administrateurs, of PC or of the conseil de surveillance if
such form shall be adopted) cease for any reason to constitute
at least a majority thereof, unless the election, or the
nomination for election by PC's stockholders, of each
administrateur of PC first elected during such period was
approved (by written consent or vote) by at least two-thirds
of the administrateurs of PC then still in office who were
administrators of PC at the beginning of any such period;
provided on Change of Control shall be deem to have occurred
pursuant to this clause (i) if it is established to the
satisfaction of the arbitrators in proceedings pursuant of the
Multi-Party Arbitration Agreement that the Xxxxxxxxx- Xxxxxxxx
Family continues as a matter of fact to possess the power to
control (despite its failure to own directly or indirectly a
majority of the Total Voting Power of PC) the election of a
majority of the administrateurs, or (ii) any other person or
group Controls more than 33-1/3% of the Total Voting Power of
PC then in effect without the consent of FCB and PC (which
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consent may be conditioned upon no further increases of
shareholding or other designated conduct by such person or
group); or
(B) PSA Level. During any period in which PSA
Controls at least 40% of the Total Voting Power of PC (i) for
any period of two consecutive years, individuals who at the
beginning of any such period constitute the members of the
conseil de surveillance of PSA cease for any reason to
constitute at least a majority thereof, unless the election,
or the nomination for election by PSA's stockholders, of each
such member first elected during such period was approved (by
written consent or vote) by at least two-thirds of such
members then still in office who were members at the beginning
of any such period; provided no Change of Control shall be
deemed to have occurred pursuant to this clause (i) if it is
established to the satisfaction of the arbitrators in
proceedings pursuant to the Multi-Party Arbitration Agreement
that the Xxxxxxxxx-Xxxxxxxx Family continues as a matter of
fact to possess the power to control (despite its failure to
own directly or indirectly a majority of the Total Voting
Power of PSA ) the election of a majority of the members of
the conseil de surveillance, or (ii) any other person or group
Controls more than 33-1/3% of the Total Voting Power of PSA
then in effect without the consent of FCB and PC
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(which consent may be conditioned upon no further increases in
shareholding or other designated conduct by such person or
group) unless members of the Xxxxxxxxx-Xxxxxxxx Family shall
continue to Control at all time thereafter a percentage of the
Total Voting Power of PSA which is at least equal to the sum
of the total Voting Power of PSA held by such other person or
group plus 5% of the Total Voting Power of PSA.
(3) Merger, Sale of Assets: (A) PC Level. If PC shall
be merged into or consolidated with another corporation and PC shall
not be the surviving corporation or PC shall sell all or substantially
all its assets to another person, so long as a majority of the Voting
Stock of the surviving corporation is not Controlled by members of the
Xxxxxxxxx-Xxxxxxxx Family either directly or by Control of a majority
of the Voting Stock of PSA so long as PSA shall Control a majority of
the Voting Stock of the surviving corporation.
(B) PSA Level. During any period in which PSA Controls at
least 40%
(e) An "FCB Event" shall be deemed to occur upon the
existence of any of the following events:
(iv) PC or PSA shall be in default in any material respect
in the performance of any of its obligations
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hereunder or under the Master Alliance Agreement, the PC Shareholders
Agreement, the Publicis Undertaking dated the date hereof, the PSA
Shareholders Agreement, dated as of the date hereof, among PC, FCB
International, Inc, and Publicis FCB B.V. or the Registration Rights
Agreement, dated the date hereof, between PC and FCB (such agreements
to be collectively referred to herein as the "Related Agreements") as
determined by the arbitrator in proceedings pursuant to the Multi-
Party Arbitration Agreement described in Section 7.3;
(v) PC or PSA (so long as PSA shall Control PC) shall
file a voluntary petition in bankruptcy or insolvency, or a petition
for relief or reorganization under any bankruptcy or insolvency law or
declare a moratorium with respect to the payment of its indebtedness;
or an involuntary petition in bankruptcy or insolvency shall be filed
against either of them and shall not have been vacated within sixty
days; or a receiver, intervenor or custodian shall be appointed for
all or a substantial portion of the property of either them; or
(vi) Any of the stock or the advertising business of PC or
PSA (so long as PSA shall Control PC) or any of the stock or the
advertising business of Publicis Conseil shall have been expropriated
or nationalized by any governmental Authority (other than the United
States).
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(h) The term "Governmental Authority" means any nation or
government, any state, province, department or other political subdivision
thereof, and any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government have jurisdiction
over a party.
(i) The term "group" shall have the meaning comprehended
by Section 13(d)(3) of the Exchange Act and the rules and regulations
promulgated thereunder.
(j) The term "Market Price" means:
(i) with respect to FCB Voting Stock, upon the issuance
of any Notice hereunder in which the Market Price of FCB Voting Stock
is applicable, (a) with respect to FCB Common Stock, the average of
the closing prices of FCB Common Stock during the 20 trading days
ending with the trading day next preceding the date the Notice is
sent, as reported by the Wall Street Journal for the New York Stock
Exchange, or as reported by the Wall Street Journal for the principal
stock exchange on which such FCB Common Stock is listed (if other than
the New York Stock Exchange) or as reported by the Wall Street Journal
for the NASDAQ National Market System, if such Common Stock is
principally traded thereon; and (b) with respect to any other Voting
Stock of FCB that is not publicly listed or traded, the value of such
Voting Stock on the date of such Notice, as jointly determined by
nationally
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recognized investment banking firms selected by each party or, in the
event such firms are unable to agree, a third nationally recognized
investment banking firm to be selected by such two firms in accordance
with the procedures set forth in clause (ii) hereof;
(ii) with respect to FCB's PC Common Shares upon the
issuance of any Notice hereunder in which the Market Price of PC
Common Shares is applicable, (a) so long as such PC Common Shares are
not publicly listed for trading on the French Stock Exchange. FCB and
PSA shall each designate within 15 calendar days after delivery of
such Notice an investment banker of recognized standing in France to
evaluate FCB's PC Common Shares. PC shall give each investment banker
full access to all information that it may reasonably request
concerning PC and shall provide the same information to the other
investment banker. Within 30 days of their selection, each investment
banker must propose a market value for FCB's PC Common Shares as of
the date of the Notice. If the market value proposed by FCB's
investment banker is lower or not more than 10% more than the market
value proposed by PSA's investment banker, then the Market Price shall
be the average of such prices. If the price proposed by FCB's
investment banker is more than 10% higher than the price proposed by
PSA's investment banker, then the parties shall consult as to a fair
price. If they are unable to agree within 10 days, they shall cause
their investment bankers to select jointly a third investment
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banker who shall have access to all information it shall reasonably
request concerning PC. The third investment banker shall within 30
days of its selection choose the market value which best reflects its
professional opinion of the fair market value of FCB's PC Common
Shares on the date the applicable Notice was first given which shall
be the price proposed by FCB's investment banker or PSA's investment
banker, and such choice shall be final. Each party shall each bear
the costs of its own investment banker and the parties shall share
equally the cost of the third investment banker; or (b) from the time
PC Common Shares are listed on the French Stock Exchange, the price
published in the "Cote Officielle" on the day of any notice hereunder,
or, if no notice is provided, on the relevant day to be considered in
the terms of this Agreement. The "French Stock Exchange" as used
herein means either of the Cote Officielle, second Marche or Marche
hors-cote.
(k) A "PC Event" shall be deemed to occur upon the
existence of any of the following events:
(i) FCB or FCB International shall be in default in any
material respect in the performance of any of its obligations
hereunder or under any of the Related Agreements as determined by the
arbitrators in proceedings pursuant to the Multi-Party Arbitration
Agreement described in Section 7.3;
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(ii) FCB or FCB International shall file a voluntary
petition in bankruptcy or insolvency, or a petition for relief or
reorganization under any bankruptcy or insolvency law or declare a
moratorium with respect to the payment of its indebtedness; or an
involuntary petition in bankruptcy or insolvency shall be filed
against FCB or FCB International and shall not have been vacated
within sixty days; or a receiver, intervenor or custodian shall be
appointed for all or a substantial portion of the property of FCB or
FCB International; or
(iii) Any of the stock or business of FCB shall have been
expropriated or nationalized by any Governmental Authority (other than
France);
(l) The term "person" shall mean any person, individual,
corporation, partnership, trust or other nongovernmental entity or any
Governmental Authority.
(m) The term "Publicis" or "PSA" means Publicis S.A., a
societe anonyme, which at the date hereof controls PC.
(n) The term "Significant Event" mean (i) any proposed
amendment to the Certificate of Incorporation or By-laws of FCB, (ii) any
disposition of FCB (by way of merger, disposition of assets or otherwise),
(iii) any recapitalization, (iv) any liquidation, (v) any vote pursuant to any
provision of law or FCB's Certificate of Incorporation or By-laws requiring or
permitting stockholders to approve any
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business combination proposed by or with another person or its affiliates which
have acquired a certain percentage of FCB's shares or to grant voting rights to
such person or to waive or adopt provisions requiring such a vote, or (vi) any
action which PC, in good faith, believes would be materially adverse to PC
(other than actions which may be taken by FCB as contemplated by this
Agreement).
(o) The term "Total Voting Power" of a person which is a
corporation means the total number of votes which may be cast in the election
of directors of such person at any meeting of stockholders if all securities
entitled to vote in the election of directors were present and voted at such
meeting (other than votes that may be cast only upon the happening of a
contingency).
(p) The term "Voting Power" with respect to any person or
group or with respect to the Voting Stock held by such person or group means
the total number of votes to be cast in the election of directors of any
corporation which such person or group, alone or in possession with any
Affiliate, holds directly or indirectly, the power to vote.
(q) The term "Voting Stock" means the common shares and
any other securities issued by a corporation having the ordinary power to vote
in the election of directors of such corporation (other than securities having
such power only upon the happening of a contingency not then in effect).
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Section 7.2 Termination of Agreement. (a) FCB may terminate
this Agreement, in its sole discretion, if PC at any time owns less than 10% of
the FCB Voting Stock than outstanding, for a period in excess of 12 months;
and PC may terminate this Agreement, in its sole discretion, if FCB at any time
thereafter owns less than 10% of the PC Common Shares then outstanding, for a
period in excess of 12 months.
(b) Notwithstanding anything to the contrary in this
Agreement, this Agreement shall terminate on December 31, 2008, except that
Article I (other than Sections 1.6 and 1.7) and II shall expire on December 31,
1998.
(c) From and after the termination of this Agreement, the
covenants, obligations and agreements of the parties set forth herein shall be
of no further force or effect and the parties shall be under no further
obligation with respect thereto; provided that the representations, warranties
and agreements of PC contained in Section 6.3 and the Registration Rights
Agreement shall survive any termination of this Agreement.
Section 7.3 Governing Laws, Dispute Resolution. (a) This
Agreement shall be governed in all respects by the laws of the State of
Delaware as applied to contracts entered into solely between residents of, and
to be performed entirely within, such state,
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(b) All disputes arising under this Agreement and the
Related Agreements shall be referred in the first instance by written notice in
accordance with Section 7.6 to the Dispute Resolution Committee (described in
Section 1.4 of the Master Alliance Agreement), and if not resolved by such
Committee within thirty calendar days after the giving of notice may be
referred by either party by written notice to the Chief Executive Officers or
Chief Operating Officers of FCB and PC.
(c) Disputes which are not revolved within thirty
calendar days after the giving of notice to the Chief Executive or Chief
Operating Officers referred to in clause (b) hereof shall be settled in
accordance with the Multi-Party Arbitration Agreement attached as Appendix 7 to
the Master Alliance Agreement, provided, nothing in this Section 7.3 shall
prevent any party from seeking provisional or injunctive relief in any court
having jurisdiction over the parties pending resolution of such dispute by the
processes contemplated herein.
Section 7.4 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties thereto and their
respective successors and assigns. This Agreement may not be assigned by a
party hereto, whether by operation of law or otherwise, without the prior
written consent of the other party.
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Section 7.5 Entire Agreement; Amendment. This Agreement, the
Master Alliance Agreement and the other documents delivered pursuant thereto
constitute full and entire understanding and agreement between the parties with
regard to the subject matter hereof and supersede all prior agreements and
understandings among the parties relating to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is
sought.
Section 7.6 Notices. Any notice, request or other demand to
or upon the parties hereto shall be in writing (including telex and telecopy
communication followed by registered mail with return receipt requested) and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or when telexed (answer-back received) or
telecopied (with receipt acknowledged) addressed to the party for which
intended as provided below (or as hereafter specified by such party by notice
hereunder):
(a) if to PC or PSA, to it at:
000, xxxxxx xxx Xxxxxx-Xxxxxxx
Xxxxx 00000
Xxxxxx
Attn: President Directeur General
(b) if to FCB, to it at:
000 X. Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
XXX
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Attn: Chief Executive Officer
Section 7.7 Government Reviews, Enforceability. The parties
and their respective subsidiaries will cooperate in the event of any
governmental or EEC review of the transactions contemplated hereby, including
furnishing information sought by the reviewing authority. This Agreement may
be discussed with, shown to, and filed with any Governmental Authority or
official as determined to be appropriate by a party. If, as a result of such
representation or otherwise, any provision of this Agreement is or becomes or
is deemed invalid, illegal or unenforceable under the applicable laws or
regulations of any jurisdiction, or is stricken or materially amended by the
action of any competent authority or any change or modification of any such
provision is required or recommended by any such Governmental Authority, the
parties shall negotiate in good faith with respect to either an alternative or
modified provision or the striking of such provision from this Agreement.
After sixty days from the commencement of such negotiations, either party may
submit the subject of such disagreement to arbitration in accordance with the
Multi-Party Arbitration Agreement for reformation or termination of all or
portions of this Agreement and the Related Agreements, all as deemed
appropriate by the arbitrators.
Section 7.8 Injunctive Relief. PC, on the one hand, and FCB
on the other, acknowledge and agree that irreparable damage would occur in the
event that any of the
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provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specific
performance of the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they may be entitled at law or equity but subject to the
provisions of Section 7.3 with regard to the Multi-Party Arbitration Agreement.
Section 7.9 Non-Waiver. The failure by any party to enforce
any provision of this Agreement shall not constitute a waiver or affect its
right to require the performance thereof by the other party hereto or affect
the validity of any other provision hereof.
Section 7.10 Titles. Section titles used in the Agreement
are used for convenience of reference only and shall in no event be used for
interpretation purposes.
Section 7.11 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same agreement,
and shall become binding when one or more counterpart have been signed by each
of the parties and delivered to the other party thereto.
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Section 7.12 PC Common Shares. When the term PC Common
Shares is used herein, it shall mean PC Voting Stock.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on their behalf on January 23, 1989 to
be effective as of the date first above written.
PUBLICIS COMMUNICATION
By:
Name:
Title:
XXXXX, CONE & XXXXXXX
COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name:
Title:
This agreement is executed in 2 full sets, one for each Party.
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