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EXHIBIT C(4)
Execution Copy
19 May 1997
POOLING AGREEMENT
Agreement dated as of May 19, 1997 (this "Agreement") by and
among Publicis S.A., a societe anonyme organized and existing under the laws of
France ("Publicis"), Publicis Communication, a societe anonyme organized and
existing under the laws of France ("Communication") and True North
Communications Inc., a Delaware corporation ("True North").
In consideration of the representations, warranties, covenants
and agreements set forth in this Agreement and other good and valuable
consideration, and independently and unconditionally with respect to any and
all other agreements between the parties, the parties agree as follows:
ARTICLE I
AGREEMENTS
1.1. Obligation of Publicis and Communication to Deliver
Pooling Letter. So long as Communication or any of its affiliates owns at
least 10% of the issued and outstanding shares of True North Stock (as
hereinafter defined), within 30 days after receiving a written request from
True North delivered before the third anniversary of this Agreement, Publicis
and Communication shall (a) furnish True North, and shall cause any designee of
Communication serving on the Board of Directors of True North to furnish True
North, with a "pooling letter", in substantially the form attached hereto as
Exhibit A, or upon the request of True North, in such other form as is
conventional for a transaction accounted for as a pooling of interests under
generally accepted accounting principles applied in the United States, and, (b)
if reasonably requested, take such other action in support of the transaction
(other than a commitment to vote for such transaction) as would be customary
with respect to an acquisition or other similar business transaction in which
True North may participate; provided that Publicis and Communication may
withdraw such pooling letter if any of the following conditions is not met
within 90 days after Publicis and Communication shall have furnished such
pooling letter.
(i) True North has obtained a fairness opinion
from a nationally recognized investment bank with regard to the
contemplated transaction;
(ii) A majority of the non-management directors of
True North has voted to approve the terms and conditions of the
contemplated transaction; and
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(iii) True North has obtained pooling letters (or
similar action) by all other non-de minimis affiliates of True North.
1.1.1. Not later than 90 days after Publicis and
Communication shall have furnished the pooling letter, True North shall call a
meeting of the shareholders of True North, to be held within a further 60 days,
to vote on the contemplated transaction. If a majority vote of the outstanding
shares of True North in favor of the contemplated transaction is not obtained
at such meeting (or at an adjournment thereof within such 60 day period),
Publicis and Communication may withdraw their pooling letter.
1.1.2. The obligation of Publicis and Communication to
furnish a pooling letter pursuant to this Section 1.1 shall expire at the end
of the earlier of (a) True North's successful completion of a significant
transaction involving the pooling method of accounting or (b) three years after
the date of this Agreement.
1.2. Obligations of True North to Deliver Pooling Letter.
So long as True North and its subsidiaries own in the aggregate at least 10% of
the issued and outstanding shares of Communication Stock, within 30 days after
receiving a written request from Communication delivered before the third
anniversary of this Agreement, True North shall (a) furnish Communication, and
shall cause any designee of True North serving on the Board of Directors of
Communication to furnish Communication, with a pooling letter, in a form as is
conventional for a transaction accounted for as a pooling of interests under
generally accepted accounting principles applied in France, and, (b) if
reasonably requested, take such other action in support of the transaction
(other than a commitment to vote for such transaction) as would be customary
with respect to an acquisition or other similar business transaction in which
Communication may participate; provided that True North may withdraw such
pooling letter if any of the following conditions is not met within 90 days
after True North shall have furnished such pooling letter.
(i) Communication has obtained a fairness opinion
from a nationally recognized investment bank with regard to the
contemplated transaction;
(ii) A majority of the outside Directors of
Communication has voted to approve the terms and conditions of the
contemplated transaction; and
(iii) Communication has obtained pooling letters
(or similar action) by all other non-de minimis affiliates of
Communication.
1.2.1. Not later than 90 days after True North shall have
furnished the pooling letter, Communication shall call a meeting of the
shareholders of Communication, to be held within a further 60 days, to vote on
the contemplated transaction. If a majority vote of the outstanding shares of
Communication in favor of the contemplated transaction is not obtained at such
meeting, True North may withdraw its pooling letter.
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1.2.2. The obligation of True North to furnish a pooling
letter pursuant to this Section 1.2 shall expire at the end of the earlier of
(a) Communication's successful completion of a significant transaction
involving the pooling method of accounting or (b) three years after the date of
this Agreement.
ARTICLE II
MISCELLANEOUS
2.1. Entire Agreement. This Agreement constitutes the
full and entire understanding and agreement among the parties with regard to
the subject matter hereof and supersedes all prior agreements and
understandings among the parties relating to the subject matter hereof. This
Agreement shall be of no force or effect until the Agreement dated as of the
date hereof by and among the parties hereto, Publicis-FCB Europe B.V. ("PBV"),
FCB International Inc. ("FCBI") and True North Holdings Netherlands B.V.
("TNBV") (the "Main Agreement") has been executed and delivered by each party
thereto.
2.2. 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 hereinafter specified by such party by notice
hereunder):
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If to Communication or Publicis, to it at:
000 xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx Cedex 08
France
Attention: President-Directeur General
Telecopy: 00-0-00-00-00-00
with a copy to:
Xxxxxx Xxxx, Esq.
Xxxxxx, Xxxxx & Xxxxx
1330 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Telecopy: 0-000-000-0000
If to True North, to it at:
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Chief Executive Officer
Telecopy: 0-000-000-0000
with a copy to:
General Counsel
True North Communications Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Telecopy: 0-000-000-0000
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2.3. Survival. Sections 2.4.1, 2.4.2, 2.4.3, and 2.5 and
agreements and covenants contained in any document delivered pursuant hereto or
in connection herewith (unless otherwise expressly provided herein or therein)
shall survive the termination of this Agreement and shall remain in full force
and effect.
2.4.1. Governing Laws. The provisions of this Agreement,
including, without limitation, the validity, interpretation, performance or
termination of them, shall be governed by and construed in accordance with (a)
to the extent relating to a request under Section 1.1, the laws of the State of
Delaware, United States of America, excluding its choice of law rules and (b)
to the extent relating to a request under Section 1.2, the laws of France
applicable to agreements executed and delivered and to be performed in France,
without regard to conflicts of laws principles.
2.4.2. Any claim arising out of a request under Section 1.1
of this Agreement shall be brought only in a court of the State of Delaware or
in a United States District Court located within the State of Delaware. This
provision shall be enforceable by any party even if another party has related
disputes with persons who are not parties to this Agreement. Each of the
parties hereto irrevocably consents and submits to the jurisdiction of such
courts in any action within the scope of this provision. Each of the parties
to this Agreement agrees to the sufficiency of service of process if made by
hand delivery pursuant to Section 2.2 of this Agreement. Each of the parties
to this Agreement hereby irrevocably waives any objections to jurisdiction or
venue in such courts, including but not limited to objections based on the
common law doctrine or forum non coveniens or its statutory counterparts.
Without limiting the rights of True North to pursue any other legal and
equitable remedies available to it for any breach by Publicis and Communication
of this Agreement arising out of a request under Section 1.1, Publicis and
Communication acknowledge that such a breach would cause a loss to True North
which could not be reasonably or adequately compensated in damages in an action
at law, that remedies other than injunctive relief could not fully compensate
True North for a breach of said covenants and that, accordingly, True North
shall be entitled to injunctive relief to prevent any breach or continuing
breaches of this Agreement arising out of a request under Section 1.1. It is
the intention of the parties hereto that if any term, restriction, covenant or
promise is found to be unenforceable and for that reason is unenforceable, then
such term, restriction, covenant or promise shall be deemed modified to the
extent necessary to make it enforceable by such court.
2.4.3. Any claim arising out of a request under Section 1.2
shall be brought only in a court of France located in Paris, France. This
provision shall be enforceable by any party even if another party has related
disputes with persons who are not parties to this Agreement. Each of the
parties hereto irrevocably consents and submits to the jurisdiction of such
courts in any action within the scope of this provision. Each of the parties
to this Agreement agrees to the sufficiency of service of process if made by
hand delivery pursuant to Section 2.2 of this Agreement. Each of the parties
to this Agreement hereby irrevocably waives any objections to jurisdiction or
venue in such courts, including but not limited to objections based on the
common law doctrine of forum
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non conveniens or its statutory counterparts. Without limited the rights of
Communication to pursue any other legal and equitable remedies available to it
for any breach by True North of this Agreement arising out of a request under
Section 1.2, True North acknowledges that such a breach would cause a loss to
Communication which could not be reasonably or adequately compensated in
damages in an action at law, that remedies other than injunctive relief could
not fully compensate Communication for a breach of said covenants and that,
accordingly, Communication shall be entitled to injunctive relief to prevent
any breach or continuing breaches of this Agreement arising out of a request
under Section 1.2. It is the intention of the parties hereto that if any term,
restriction, covenant or promise is found to be unenforceable and for that
reason is unenforceable, then such term, restriction, covenant or promise shall
be deemed modified to the extent necessary to make it enforceable by such
court.
2.5. Enforceability; Severability. It is the desire and
intent of the parties that the provisions of this Agreement shall be enforced
to the fullest extent permissible under the governing laws. Accordingly, if
any provision of this Agreement is or becomes invalid or unenforceable, is held
by any competent court or arbitral tribunal to be invalid or unenforceable, or
is challenged by either party hereto as being invalid or unenforceable under
French or Delaware law, respectively, then such provision shall be interpreted
under laws of the State of Delaware or France, respectively, and insofar as it
is invalid or unenforceable under Delaware or French law, respectively, be
given no effect and shall be deemed not be included in this Agreement, but
without invalidating any of the remaining provisions of this Agreement, which
other provisions shall remain in full force and effect. The parties shall then
negotiate in good faith and shall be bound to replace without delay the invalid
or unenforceable provision by a valid provision the effect of which is as close
as possible to the intended effect of the invalid or unenforceable provision.
2.6. Expenses. Except as the parties may otherwise agree,
all fees, commissions and expenses incurred by True North, Publicis, or
Communication in connection with the negotiation, execution, delivery or
performance of this Agreement shall be borne by the party incurring such
expenses.
2.7. 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. Any purported assignment in violation of
this provision shall be void and of no force or effect.
2.8. Descriptive Headings. Section headings used in the
Agreement are used for convenience of reference only and shall in no event be
used for interpretation purposes.
2.9. Amendment; Waivers. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument
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signed by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
2.10. 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 shall have been signed by each of
the parties and delivered to each of the other parties thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective duly authorized
officers, effective as of the date first written above.
PUBLICIS S.A. TRUE NORTH COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx Xxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President of Directoire Title: Director, Chairman of Special
Committee
PUBLICIS COMMUNICATION
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Director General
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