Exhibit 10.1
19 May 1997
EUROPE
SHARE REPURCHASE AND SHARE EXCHANGE AGREEMENT
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The undersigned:
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FCB International Inc., a company incorporated under the laws of the state of
Delaware, having its principal office at Chicago, Illinois, United States of
America (hereinafter called "FCBI"); and
True North Communications Inc., a company incorporated under the laws of the
state of Delaware, having its principal office at Chicago, Illinois, United
States of America (hereinafter called "True North"); and
True North Holding Netherlands B.V., a company incorporated under the laws of
the Netherlands, having its principal office at Amsterdam, the Netherlands
(hereinafter called "DutchCo"); and
Publicis Communication, a company incorporated under the laws of France, having
its principal office at Paris, France (hereinafter called "Publicis"); and
Publicis FCB Europe B.V., a company incorporated under the laws of the
Netherlands, having its principal office at Amsterdam, the Netherlands
(hereinafter called "PBV").
WHEREAS:
a. FCBI, True North, DutchCo, Publicis, PBV and Publicis S.A., a company
incorporated under the laws of France, have entered into agreements dated
as of the date hereof pursuant to which, among other things, all formerly
existing differences between True North and FCBI on the one side and
Publicis, PBV and Publicis S.A. on the other side have been finally
resolved and settled; and
b. FCBI and Publicis have agreed that PBV will no longer be their joint
venture and will become a wholly owned subsidiary of Publicis.
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Have agreed as follows:
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The parties agree that DutchCo and/or FCBI shall exchange with and transfer to
PBV and/or Publicis 78,400 shares of the share capital of PBV (the "PBV
Shares"), representing 49% of the entire issued share capital of PBV, against
transfer and delivery to DutchCo and/or FCBI of (i) 142,627 shares of the
capital stock of Publicis (the "Publicis Shares") and (ii) the following: (1)
100% of the issued and outstanding share capital of the French company FCB
S.A., (2) 100% of the issued and outstanding share capital of FCB Advertising,
(3) 83% of the issued and outstanding share capital of the Portuguese company
FCB-Publicidade, Lda, and (4) the beneficial ownership of two thousand (2,000)
shares of Gnomi FCB SA, a company under Greek law, including the right to
demand the transfer of legal title to these shares at any time. After the
issuance by Publicis of the 142,627 shares referred to in this paragraph,
affiliates of True North will in the aggregate own no less than 26.5% of the
entire share capital of Publicis.
Prior to effecting the transactions contemplated by article 1 of this agreement:
a. FCBI will have transferred all or a portion of the PBV Shares to
DutchCo.
b. FCB Advertising Limited, a company incorporated in England and Wales
("FCB Advertising"), will have purchased from Xxxxx xx Xxxxx 7% of the
share capital of the Portuguese company FCB-Publicidade, Lta.
("Publicidade"), and Xx. Xx Xxxxx will have waived any and all
preemptive rights that he may have with respect to the share capital
of Publicidade;
c. PBV will have caused Multi Market Services Limited ("MMS"), a company
under English law and a wholly owned subsidiary of PBV, to transfer to
PBV all of the shares of FCB Advertising held by MMS; and will have
caused Xxxxx, Cone & Beldings MMS Limited to transfer to PBV all of
the shares of FCB Advertising held by such entity.
d. At True North's request, FCB Advertising shall have acquired the
minority interests in FCB S.A. from six minority shareholders for an
amount equal to U.S. $170,000 with funds loaned to FCB Advertising by
FCBI in such amount.
e. At True North's request, PBV shall have transferred its beneficial
ownership of 2,000 shares of Gnomi FCB S.A. to FCB S.A.
Each party will take, and will cause its direct and indirect subsidiaries to
take, such actions as are within its control to cause the transactions referred
to in this article 2.
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The transactions described in article 1 shall be carried out on June 10, 1997
pursuant to notarial deeds of transfer and other necessary legal
documentation. Each of Publicis, PBV, FCBI and DutchCo shall execute and
deliver any and all instruments, transfers or other documents necessary or
appropriate under any applicable law (including powers of attorney and
revocation of existing agencies and powers of attorney) to fully transfer
ownership of the shares of, and full control of, FCB S.A., FCB Advertising and
FCB-Publicidade, Lda. agreed to be transferred hereunder to DutchCo and/or
FCBI, and to fully transfer ownership of the PBV Shares agreed to be
transferred hereunder to PBV and/or Publicis.
True North, FCBI and DutchCo represent and warrant to and agree with Publicis
and PBV as of the date hereof and also as of the day of completion of the
transactions contemplated hereby that:
a. The authorized capital stock of PBV is 800,000 shares, nominal value
250 Dutch Guilders per share, of which 160,000 are issued and
outstanding (78,400, or 49%, of which are owned of record and
beneficially by FCBI and DutchCo in the aggregate). No options,
warrants, preemptive or subscription rights or other rights to
acquire, as a result of purchase, subscription, conversion, exchange
or otherwise, or agreements or commitments to issue or sell, shares of
the capital stock of PBV are outstanding as of the date hereof.
b. FCBI and/or DutchCo has, good and marketable title to the PBV Shares,
free and clear of all liens, security interests, claims, encumbrances
and restrictions of any kind whatsoever other than any thereof in
favor of Publicis or PBV.
c. DutchCo has the full power and authority to transfer the PBV Shares
contemplated to be transferred under article 1 hereof, and upon the
transfer of such shares pursuant to article 1 hereof, good and
marketable title to such shares will be transferred to PBV, and such
shares, when so transferred, shall be free and clear of all liens,
security interests, claims, encumbrances and restrictions of any kind
whatsoever (except for any thereof that may have been granted or
imposed by Publicis or PBV).
d. The PBV Shares have been paid up in full.
e. PBV is a company duly incorporated under the laws of the Netherlands,
and no resolution to dissolve PBV has been adopted.
f. Since December 31, 1996 FCBI and DutchCo have not caused PBV to engage
in any material transaction other than in the ordinary course of
business (except as contemplated by this agreement and related
agreements).
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Publicis and PBV represent and warrant to and agree with True North, FCBI and
DutchCo as of the date hereof and also as of the day of completion of the
transactions contemplated hereby that, subject to the confirmation of counsel
in each jurisdiction as to technical local law matters:
a. After giving effect to the issuance of the shares of Publicis
contemplated to be transferred pursuant to article 1 of this agreement
(the "Communication Shares"), DutchCo, FCBI and True North will own of
record, in the aggregate, not less than 26.5% of the issued and
outstanding share capital and voting power of Publicis, all of which
will constitute fully paid and nonassessable shares. No options,
warrants, preemptive or subscription rights or other rights to
acquire, as a result of purchase, subscription, conversion, exchange
or otherwise, or agreements or commitments to issue or sell, shares of
the capital stock of Publicis are outstanding as of the date hereof.
b. The Communication Shares to be transferred to DutchCo and/or FCBI
hereunder have been duly authorized, and when issued as contemplated
herein, the Communication Shares will constitute validly issued and
outstanding, fully paid and non-assessable shares of capital stock of
Publicis.
c. Since December 31, 1996, Publicis has engaged in no material
transactions other than in the ordinary course of business (except as
contemplated by this agreement and related agreements).
d. Publicis is a company duly incorporated under the laws of France, and
no resolution to dissolve Publicis has been adopted.
e. Except as previously disclosed to True North, FCBI and DutchCo in
writing in connection with the preparation of this agreement and
related agreements, other than in the ordinary course of business
neither Publicis nor any of its subsidiaries or affiliates is a party
to any contract or other arrangement with any of FCB Advertising, FCB
S.A. or FCB-Publicidade, Lda. or any of their respective subsidiaries,
which calls for aggregate payments in excess of $150,000.
f. Immediately before giving effect to the completion of the transactions
described in article 1, PBV will be the only legal and beneficial
owner of 100% of the issued and outstanding share capital of each of
FCB S.A. (including indirect ownership) and FCB Advertising, and 83%
of the issued and outstanding share capital of FCB Publicidade, Lda;
and FCB S.A. shall have beneficial ownership of 2,000 shares of Gnomi
FCB S.A. and no options, warrants, preemptive or subscription rights
or other rights to acquire, as a result of purchase, subscription,
conversion, exchange or otherwise, or agreements or commitments to
issue or sell, such shares of capital stock are outstanding as of the
date hereof.
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g. PBV will have as of the completion of the transactions described in
article 1 hereof good and marketable title to the shares described as
owned by it in paragraph g above, free and clear of all liens,
security interests, claims, encumbrances and restrictions of any kind
whatsoever.
h. PBV has the full power and authority to transfer the shares of capital
stock of FCB Advertising, FCB-Publicidade, Lda. and FCB S.A. (the
"Compensation Shares") contemplated to be transferred under article 1
hereof, and upon the transfer of the Compensation Shares pursuant to
article 1 hereof, good and marketable title to such Compensation
Shares will be transferred to DutchCo and/or FCBI and such
Compensation Shares, when so transferred, shall be free and clear of
all liens, security interests, claims, encumbrances and restrictions
of any kind whatsoever (except for any thereof that may have been
granted or imposed by DutchCo and/or FCBI).
i. The shares to be transferred by PBV to DutchCo and/or FCBI under
article 1 hereof have been paid up in full.
j. Each of FCB Advertising, FCB-Publicidade, Lda. and FCB S.A. has been
duly organized under the laws of its jurisdiction of organization, and
no resolution to dissolve FCB Advertising, FCB-Publicidade, Lda. or
FCB S.A. has been adopted.
k. Since December 31, 1996, neither Publicis nor PBV has caused any of
FCB Advertising, FCB-Publicidade, Lda., FCB S.A. or Gnomi FCB S.A. or
any subsidiaries of any thereof to engage in any material transaction
other than in the ordinary course of business (except as contemplated
by this agreement and related agreements), and none of FCB S.A., FCB
Advertising or FCB-Publicidade, Lda. has or will at the closing have
declared, set aside or paid any dividends or other distributions,
directly or indirectly, in respect of such company's capital stock or
redeemed or repurchased any shares of its capital stock except for
dividends which shall not exceed FFr 20,000,000 in the aggregate.
l. Immediately before giving effect to the completion of the transactions
described in article 1, FCB S.A.'s beneficial ownership of 2,000
shares of Gnomi FCB S.A. will be free and clear of all liens, security
interests, claims, encumbrances and restrictions of any kind
whatsoever; and Gnomi FCB S.A. has not been liquidated.
(a) In recognition of the fact that Publicis and PBV are not in control of
Gnomi FCB S.A., their representations and warranties in Article 5, insofar as
they relate to Gnomi FCB S.A., are understood to be based upon the actual
knowledge of the executive officers of Publicis and, further, an error
therein shall not be a breach or otherwise give rise to a claim against
Publicis or PBV if such error was known or should have been known by the True
North or any of its affiliates.
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(b) In recognition of the fact that True North and its affiliates are not in
control of PBV, their representations and warranties in Article 4, insofar as
they relate to PBV, are understood to be based upon the actual knowledge of
the executive officers of True North and, further, an error therein shall not
be a breach or otherwise give rise to a claim against True North, FCBI or
DutchCo if such error was known or should have been known by Publicis or any
of its affiliates.
This agreement shall be governed by the laws of France except as provided in
applicable notarial deeds and other transfer documents.
The rights and remedies of the parties in respect of any breach of the
warranties in articles 4 or 5 shall not be affected by the transfer of any
shares or capital stock pursuant to this agreement or the notarial deeds
contemplated hereby.
Thus agreed and signed in five original copies in New York on 19 May 1997.
FCB International Inc. Publicis Communication
/s/ Xxxxxxxx X. Xxxxxxxxxx /s/ Xxxxxxx Xxxx
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By: Xxxxxxxx X. Xxxxxxxxxx By: Xxxxxxx Xxxx
Title: Executive Vice President Title: Director General
Publicis FCB Europe B.V. True North Communications Inc.
/s/ Xxxxxxx Xxxx /s/ Xxxxxxx X. Xxxxxxxx
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By: Xxxxxxx Xxxx By: Xxxxxxx X. Xxxxxxxx
Title: President Director Title: Director, Chairman of Special
Committee
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Xxxx Xxxxx Xxxxxxx
Xxxxxxxxxxx B.V.
/s/ Xxxxxxxx X. Xxxxxxxxxx
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By: Xxxxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
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