Exhibit 4.2
Translated from the French
PUBLICIS GROUPE S.A.
A corporation with management board and supervisory board
With registered capital of 55,912,740 euros
With its head office at: 000, xxxxxx xxx Xxxxxx Xxxxxxx, Xxxxx (00000)
Paris RCS 542 080 061 [...]
AGREEMENT TO ISSUE
BONDS WITH SHARE SUBSCRIPTION WARRANTS
("OBSA")
RECITALS:
Whereas, as part of the acquisition of Bcom3 Group, Inc (hereinafter referred to
as "BCOM3"), a company incorporated in the United States, by Publicis Groupe
S.A. (hereinafter referred to as "PUBLICIS" or the "COMPANY"), a company
incorporated in France, according to the terms of an agreement entitled
Agreement and Plan of Merger dated March 7 2002, as amended (hereinafter
referred to as the "MERGER AGREEMENT"), it was agreed that PUBLICIS would issue
bonds in the amount of 857,812,500 euros represented by 2,812,500 OBSA issued to
PHILADELPHIA MERGER LLC, a 100% indirectly held subsidiary of PUBLICIS and which
would be delivered to a Nominee on behalf of the Bcom3 shareholders in
accordance with the Merger Agreement.
This Agreement, signed immediately before the completion of the merger
transactions outlined in the Merger Agreement, sets forth the terms and
conditions whereby PUBLICIS will issue these OBSA (hereinafter the or this
"CONTRACT").
NOW, THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
1. INFORMATION REGARDING THE ISSUE
1.1 FRAMEWORK OF THE ISSUE
The Merger Agreement provides, among other things, for the issue of ordinary
PUBLICIS bonds with subscription warrants, previously subscribed by PHILADELPHIA
MERGER LLC as part of an increase in capital without preferential subscription
right, reserved to a specifically named party. Consequently, the June 18, 2002
combined general meeting of the PUBLICIS shareholders, in its 19th resolution
contained in Exhibit 1.1 hereto, authorised the Company's Management Board, with
the possibility of subdelegation, to issue bonds for 857,812,500 euros
represented by 2,812,500 OBSA each with a nominal value of 305 euros (hereafter
referred to as the "BONDS"), to PHILADELPHIA MERGER LLC.
Pursuant to the authorisation granted to it during the June 18, 2002 general
meeting of the Company's shareholders and to the prior consent granted to it by
the Company's Supervisory Board on March 5, 2002 under article 12 of the
articles of incorporation, the Company's Management Board decided, on [...]
2002, to avail itself of this authorisation and to subdelegate to the Chairman,
under the applicable legal and regulatory conditions, all powers needed to issue
the said OBSA as part of the 19th resolution adopted by the June 18th, 2002
general meeting, on the terms and conditions set forth in such resolution.
Pursuant to the subdelegation granted to him by the Company's Management Board,
the Chairman decided on [...] 2002 to issue the OBSA and thus set the terms and
conditions of this issue as they are set forth in this agreement.
1.2 ISSUE PRICE
The Bonds will be issued at par, at a price of 305 euros per bond and will be
entirely paid up upon their subscription by means of cash payments.
1.3 PROCEEDS OF THE ISSUE
The gross proceeds of the issue amount to 857,812,500 euros.
1.4 SUBSCRIPTION
The OBSA shall be issued to PHILADELPHIA MERGER LLC, an indirect 100% subsidiary
of the Company, and PHILADELPHIA MERGER LLC shall deliver them to a Nominee on
the behalf of the Bcom3 shareholders in accordance with the Merger Agreement.
In compliance with the resolution adopted by the combined general meeting of the
Company's shareholders, this issue shall entail the express waiver by the
shareholders of the preferential subscription right for the new shares to be
issued upon the exercise of these subscription warrants.
2. CHARACTERISTICS OF THE BONDS ISSUED BY THE COMPANY
2.1 NUMBER AND NOMINAL VALUE OF THE BONDS
This issue shall be represented by 2,812,500 OBSA.
The initial nominal value of the Bonds will be 305 euros and will be reduced by
equal tranches as of 30 June 2013 and until [...] 2022, pursuant to the
provisions of paragraph 3.1 below (hereinafter referred to as the "NOMINAL
VALUE").
2.2 EFFECTIVE DATE AND SETTLEMENT DATE
The effective date and settlement date (hereinafter referred to as the
"SETTLEMENT DATE") shall be the Closing Date as defined in the Merger Agreement.
2.3 FORM AND DELIVERY OF THE BONDS
At the choice of each Holder, the Bonds shall be held in either bearer or
registered form within the meaning of French law.
Title to the Bonds will be evidenced solely by book entries in accordance with
article 94-II of French law no. 81-1160 of December 30, 1981, such account being
maintained by:
- a financial institution appointed by the Company, if the Bonds are held in
pure registered form ("nominatifs purs"); or
- a custodian appointed by the holder(s), and the financial institution
appointed by the Company, if the Bonds are held in assisted registered form
("nominatifs administres"); or
- a custodian appointed by the holder(s), if the Bonds are held in bearer form
("titres au porteur").
No physical document of title will be issued in respect of the Bonds (including
<< certificats representatifs >> (certificates in respect of book-entries)
issued pursuant to article 7 of French decree no. 83-359 of May 2, 1983).
2.4 ADMISSION TO LISTING, TRADING
The Bonds will be negotiable as of the Settlement Date.
If requested by the Marketing Agent, as indicated in article 2.02(b) and
2.02(c)(i) of the Merger Agreement, the Company will take all necessary steps to
have the Bonds admitted to trading on the Euronext Paris Premier Marche,
separately from the subscription warrants.
2.5 TERM OF THE LOAN
Twenty years from the Settlement Date.
2.6 INTEREST
2.6.1 Interest Rate
The Bonds will bear interest at the annual fixed rate, in arrears, of 2.75% per
Bond (hereinafter referred to as the "INTEREST").
2.6.2 Interest payment date
The Interest will be paid on a half-yearly basis, on 30 June and 31 December (or
the first business day if the latter date is not a business day) of each year
beginning with the year of the Settlement Date and ending in 2021, and
thereafter on the Maturity Date (as defined under section 3.1 below). The
interest paid on the Maturity Date will be calculated on a pro rata basis for
the time which has passed between December 31, 2021 and such Maturity Date.
Any interest amount relating to a period of less than one entire year will be
calculated on the basis of the annual Interest calculated in compliance with the
above provisions, in proportion to the number of days in the period in
consideration and on the basis of a year of 365 days (or 366 days for a leap
year).
2.6.3 Institution providing the debt service for the loan
[...] bank will ensure the servicing of the securities and the payment of the
Interest due on the Bonds.
During the term of the debt issue, the Company will make available, to any
person so requesting it, an updated list of the institutions responsible for
servicing the Bonds.
2.7 RANK, NEGATIVE PLEDGE
2.7.1 Rank
The Bonds and the interest constitute obligations ("engagements
chirographaires") which are unsecured, direct, general, unconditional,
non-subordinated and free of Company sureties, and shall rank equally among
themselves and have the same rank as all other present or future Company debts
and guarantees which are unsecured, non-subordinated and free of sureties
("dettes et garanties chirographaires").
In accordance with French law, the Company undertakes not to issue any dettes et
garanties chirographaires that will rank senior to the Bonds without the consent
of the Bondholders.
2.7.2 Negative Pledge
Until such time as every single Bond has been reimbursed, the Company undertakes
not to grant a mortgage on its real property, nor a pledge on all or part of its
goodwill and other intangibles ("fonds de commerce") or trade receivables
(except for any securitization transaction of the trade receivables or other
transactions involving the issuing of securities which represent trade
receivables of the Company) to the benefit of the holders of other obligations
without granting the same sureties, and in the same rank, to the holders of the
Bonds.
This commitment relates solely to the issue of obligations and in no way
infringes on the Company's right to dispose of its assets or to grant sureties
on the said assets under any other circumstances.
2.8 GROSS ACTUARIAL RATE OF RETURN ON THE SETTLEMENT DATE OF THE SUBSCRIBERS
The Gross Actuarial Rate of Return amounts to 2.18%
The theoretical Gross Actuarial Rate of Return on the Bonds shall be calculated
on the Settlement Date, in the absence of early redemption. This is only
indicative of the actual yield in the absence of any early redemption and for
the Bondholder who retains the Bonds until their redemption.
2.9 GUARANTEE
No particular guarantee applies to the servicing of the debt in terms of
interest, amortization, taxation, fees or accessories.
3. AMORTIZATION - REDEMPTION OF THE BONDS
3.1 NORMAL AMORTIZATION
In the absence of any early redemption, the Bonds shall be amortized, and their
Nominal Value shall be reduced in proportion, by tranches of 10% on 30 June of
each year beginning on June 30, 2013 and ending on June 30, 2021, and thereafter
on the 20th anniversary of the Settlement Date in 2022 (hereinafter the
"MATURITY DATE"), in compliance with the calendar contained in Exhibit 1 to this
Contract.
3.2 REPURCHASE OF THE BONDS AT THE DISCRETION OF THE ISSUER
So long as the Bonds are outstanding, the Company undertakes not to carry out,
of its own initiative, the early amortization of the Bonds by means of
redemption. However, the Company reserves the right, at any time and with no
limitation as to price or quantity, to purchase all or part of the Bonds prior
to the Maturity Date, either through repurchases on or outside the stock
exchange, or by public tender offers for
their purchase or exchange. These transactions will have no impact on the
remaining timetable for the amortization of the securities still outstanding.
The Bonds acquired in this manner will be cancelled.
3.3 ACCELERATION OF REDEMPTION OF THE BONDS IN THE EVENT OF A DEFAULT
3.3.1 Events giving rise to the accelerated redemption
The representatives of the body of bondholders (the latter referred to herein as
the "BONDHOLDERS") can, pursuant to a resolution adopted by a majority during a
meeting of the Bondholders, by simple written notice sent to the Company, with a
copy sent to the institution servicing the Bonds, demand the early redemption of
all of the Bonds at the Early Redemption Price (calculated in accordance with
the provisions of paragraph 3.3.2) in the following cases:
(a) Should the Company fail to pay, on its due date, any amount due as principal
or Interest relative to the Bonds, if this default is not remedied within a
period of 30 business days as of its due date;
(b) Should the Company fail to meet any of its obligations relative to the
Bonds, if this default is not remedied within a period of 30 business days from
when the Company receives notice of the said default from the representatives of
the body of Bondholders (without the need for a Meeting of the Bondholders for
this purpose);
(c) (i) Should the Company or one of its Major Subsidiaries (as defined below)
fail to make a payment upon maturity (taking into account the applicable grace
periods, if any) of the principal amount due relative to a Indebtedness (as
defined below), (ii) in the event of the accelerated maturity of any
Indebtedness of the Company or one of its Major Subsidiaries pursuant to the
default of the Company or Major Subsidiary in question to meet its obligations,
if this Indebtedness is not reimbursed, or this accelerated maturity is not
cancelled within a period of 30 business days after the Company has been
notified of its existence by the representatives of the body of Bondholders
(without the need for a Meeting of the Bondholders for this purpose), or (iii)
should the Company or one of its Major Subsidiaries fail to pay any amount due
pursuant to a guarantee or compensation relating to any Indebtedness, with the
understanding that the events defined in (i), (ii) and (iii) above only allow
for accelerated maturity of the Bonds, if the principal amount of the
Indebtedness to which these events relate is greater than 25 million euros. The
Company undertakes to inform the representatives of the body of Bondholders of
any event constituting an event of default as indicated in the present
paragraph.
(d) Should the Company or one of its Major Subsidiaries request the appointment
of a conciliator, sign an amicable agreement with its main creditors, be the
subject of a voluntary liquidation procedure or a court-ordered administration
or liquidation procedure and/or filing or a total cessation or any other
equivalent measure or procedure.
(e) In the event of any other circumstance having, pursuant to the law or any
other competent jurisdiction, similar or equivalent effects to the
above-mentioned circumstances.
For the purposes of the preceding provisions, Indebtedness means any debt
(including as part of leasing operations) resulting from the obligation to repay
borrowed money over a period of at least one year and having resulted in the
drafting of a contract or instrument of some kind, but excluding trade debt or
intra-group loans.
A Major Subsidiary refers to any subsidiary a) with net earnings or, if
applicable, consolidated net earnings (before taxes and exceptional earnings)
representing at least 5% of the consolidated net earnings of the Company and its
subsidiaries (before taxes and exceptional earnings) or b) gross assets or, if
applicable, consolidated gross assets (group share, i.e. disregarding minority
interests) representing 5% or more of the consolidated gross assets of the
Company and its subsidiaries (group share, i.e. disregarding minority
interests), calculated on the basis of the last audited accounts of the
subsidiary in question and the last audited consolidated accounts of the Company
and its subsidiaries.
3.3.2 Provisions for the early redemption of the Bonds
In any of the cases where the Representatives of the Holders are sending a
notice to the Company pursuant to section 3.3.1 above, they shall provide copies
of such notice(s) to each of the identified Holders. The Representatives of the
Holders shall also provide each of such Holders with a copy of any response
provided by the Company as well as with any information regarding the occurrence
of a remedy of the relevant default.
Each Bondholder wishing to obtain the payment subsequent to the early redemption
pursuant to Section 3.3.1 of his/her Bonds must make a written request to the
intermediary in whose accounts the securities are held, and the latter will then
transmit this request to the institution responsible for servicing the debt.
Once a Bondholder presents an early redemption request to the intermediary
through which the securities are held, it shall become irrevocable, and the
Company will be required to redeem all of the Bonds listed in each request
submitted in compliance with the above conditions.
Payments in respect of such early redemption of the Bonds will be made in an
amount equal to the residual Nominal Value plus the amount of the Interest
accrued until the date of the redemption (hereinafter referred to as the "EARLY
REDEMPTION PRICE").
3.4 INFORMATION TO BE PROVIDED TO BONDHOLDERS IN THE EVENT OF NORMAL OR EARLY
REDEMPTION OR REPURCHASE OF THE BONDS
In the event of the listing of the Bonds on Euronext Paris, information relating
to the number of repurchased Bonds and the number of Bonds outstanding will be
provided each year to Euronext Paris for the purpose of informing the public and
may in any case be obtained from the Company or the institution in charge of
servicing the securities mentioned under section 2.6.3.
The Company's decision to carry out the redemption or any repurchase pursuant to
Section 3.2 will, at least one month before the redemption or repurchase, be
published in the Official Journal, indicated in a financial newspaper of general
and national distribution and in a Euronext Paris notice.
3.5 LIMITATION
The rights to receive the redemption of the principal of the Bonds will be
barred after a period of thirty (30) years from the date when this principal
falls due, and the rights to receive the payment of the Interest applying to the
Bonds will be barred after a period of five (5) years from the date when the
said Interest becomes payable.
After these limitation dates, any unclaimed amounts will, subject to applicable
provisions of law, including, but not limited to, articles L27 and R46 of the
Code du Domaine de l'Etat, become the property of the Company.
3.6 TAXATION
In compliance with the applicable tax legislation, the interest payable on the
Bonds will be paid without withholding tax. In the event of a change in the
applicable legislation or should such a withholding tax become applicable for
any reason whatsoever, the amount of any sum owed by the Company as payment of
the interest will be increased such that the net amount received by the
Bondholder, after the withholding tax, is equal to the amount which he/she would
have received in the absence of the withholding tax.
4. REPRESENTATION OF THE BONDHOLDERS
For the purpose of representing their common interests, the Bondholders will be
grouped into a body of Bondholders (a "masse") as a matter of law. The body of
Bondholders will then be governed by the provisions of the French Commercial
Code relating to commercial companies, and by decree n(0) 67-236 of 23 March
1967.
4.1 LEGAL PERSONALITY
The body of Bondholders shall have legal personality pursuant to article
L.228-46 of the Commercial Code and shall act, on the one hand, through a
representative of the body of Bondholders and, on the other hand, through its
General Meeting.
4.2 THE REPRESENTATIVES
1) Primary representatives of the body of Bondholders:
- [...], residing [...].
- [...], residing [...].
Whether together or separately, these primary representatives will, without
restriction or reserve, be authorised to carry out, in the name of the body of
Bondholders, all management acts to protect the common interests of the
Bondholders(1).
The compensation of the each of the incumbent representatives is set [...] euros
per year; this compensation is payable on [...] of each year, and for the first
time on [...].
2) Alternate representatives of the body of Bondholders:
- [...], residing [...].
- [...], residing [...].
In the event of temporary replacement, the alternate representatives will have
the same powers as the primary representatives. Should they carry out the duties
of the primary representatives on a permanent basis, they will be entitled to
an annual compensation of [...] euros. This compensation will apply as of the
day when they take up their duties.
5. CHARACTERISTICS OF THE SUBSCRIPTION WARRANTS ("SW")
5.1 NUMBER OF SW ATTACHED TO EACH BOND
Ten (10) immediately detachable SW will be attached to each Bond. Consequently,
28,125,000 SW will be issued.
5.2 NATURE, FORM AND DELIVERY OF THE SW
The SW will be issued pursuant to French law and will be governed by French law.
At the choice of each holder, the SW shall be held either in bearer or
registered form within the meaning of French law.
Title to the SW will be evidenced solely by book entries in accordance with
article 94-II of French law no. 81-1160 of December 30, 1981, such account being
maintained by :
- a financial institution appointed by the Company, if the SW are held in
pure registered form ("nominatifs purs"); or
- a custodian appointed by the holder(s), and the financial institution
appointed by the Company, if the SW are held in assisted registered
form ("nominatifs administres"); or
- a custodian appointed by the holder(s), if the SW are held in bearer
form ("titres au porteur").
No physical document of title will be issued in respect of the SW (including <<
certificats representatifs >> (certificates in respect of book-entries) issued
pursuant to article 7 of French decree no. 83-359 of May 2, 1983).
5.3 ADMISSION TO LISTING, TRADING
The SW will be negotiable as of the Settlement Date.
The Company will take all necessary steps to have the SW admitted to the
Euronext Paris Premier Marche within the five business days following the
Settlement Date. The Company will pay, among other things, but without
limitation, all fees, charges and commissions related to such listing and
negotiations and to its maintenance.
5.4 RIGHTS ATTACHED TO THE SW - PARITY AND EXERCISE PRICE
The only right attached to the SW shall be the right to subscribe to the new
ordinary shares (pursuant to Section 6) of the Company at any time during the
Exercise Period, as defined below.
Subject to the adjustments stipulated in the section "Maintenance of the rights
of SW holders" below, one SW will give the right to subscribe to one Company
share (hereinafter referred to as the "EXERCISE PARITY") with a nominal value of
0.40 euros at the price of 30.5 euros.
The subscription price for each Company share will be entirely paid up upon the
subscription in the amount of 30.5 euros, by cash payment.
5.5 SW EXERCISE PERIOD
Subject to the provisions of paragraph 5.6 below, the SW can be exercised at any
time between 11th anniversary of the Settlement Date, i.e. [...] 2013, and the
20th anniversary of the Settlement Date, i.e. [...] 2022.
Any SW not exercised at the latest by [...] 2022 will expire.
5.6 TRANSACTIONS LIABLE TO TRIGGER THE EARLY EXERCISE OF THE SW
5.6.1 Case of early exercise of the SW
The SW can be exercised on an accelerated basis, i.e. before [... 2013] at the
discretion of each holder, in each of the following cases:
(i) the filing of a public tender offer relating to all of the Company's
equity securities (within the meaning of article 5-1-2 of the Conseil
des Marches Financiers regulation), provided that this public tender
offer has been declared admissible by the competent market authorities,
and that the related opening notice has been published by the market
authorities
(ii) the transfer or proposed transfer to a third party of a substantial
part of the Company's assets or business, whether by means of sale or
disposal, demerger, merger, partial contribution of assets or any other
means. In the event of a transfer proposal having to be approved by the
General Meeting of the Company's shareholders, the early exercise will
occur one week before the record date for shareholders to take part in
the said General Meeting.
For the purposes of this Contract, a substantial part of the Company's
assets or activities is understood to mean any asset or business
generating at least one-third of the Company's consolidated revenues,
as indicated in the Company's last closed consolidated accounts.
(iii) If any person other than those constituting the PUBLICIS concerted
group as it exists on the Settlement Date (i.e. Madame Xxxxxxxxx
Xxxxxxxx, (directly or indirectly through Societe Anonyme Somarel) and
Dentsu, Inc.) (hereinafter the "Concerted Group"), directly or
indirectly, alone or in concert, acquires, or is presumed to have
acquired, exclusive or joint control of the Company, with the
stipulation that the notion of control shall have the meaning set forth
in article L.233-3 of the Commercial Code (hereinafter referred to as a
"CHANGE OF CONTROL"). It is stipulated that such a Change of Control
will be considered as having occurred, amongst other things, if a third
party acts in concert with the Concerted Group and Madame Xxxxxxxxx
Xxxxxxxx is no longer predominant within the Concerted Group, or if the
said third party directly or indirectly is engaged in a business which
competes with that of the Company or one of its subsidiaries.
(iv) A court decision is handed down ordering the liquidation or total sale
of the Company, or should the Company be the subject of a voluntary
liquidation or dissolution, or if the Company is insolvent, or is the
subject of collective or bankruptcy proceedings and/or filings or
reaches a compromise with its creditors.
5.6.2 Provisions for the early exercise of the SW
Each SW holder wishing to proceed with an early exercise of his/her SW must make
a written request to the intermediary in whose accounts the securities are held,
and the latter will than transmit this request to the institution in charge of
servicing the SW.
Once an SW holder presents the early exercise request to the intermediary
through which the securities are held, it shall become irrevocable.
5.7 SUSPENSION OF THE EXERCISING OF THE SW
In the event of an increase in registered capital, a merger or a demerger, as in
the event of other financial transactions including a preferential subscription
right or reserving a priority subscription period for the shareholders, the
Company can suspend the exercise of the SW for a maximum period of three months.
The Company's decision to suspend the exercise of the SW will be published in
the Bulletin of Obligatory Legal Announcements. This notice will be published at
least fifteen days before the effective date of the suspension; it will indicate
the effective date of the suspension and the date when it ends. This information
will also be included in a notice in a nationally distributed financial
newspaper and in a Euronext Paris notice.
5.8 MAINTAINING OF THE RIGHTS OF THE HOLDERS
5.8.1 Commitments of the issuer
In compliance with French law, the Company undertakes, so long as SW remain
outstanding, to refrain from:
- any amortization of the registered capital;
- any modification in the distribution of profits.
Nevertheless, it can create priority dividend rights shares without voting
rights, provided that the rights of the SW holders are reserved under the
conditions outlined below.
5.8.2 Capital reduction due to losses
In the event of a capital reduction due to losses, whether this reduction is
carried out by a decrease of either the nominal value of the shares or the
number of shares, the nominal value or number of shares to be distributed to SW
holders will be reduced in proportion, as though the said holders had been
shareholders of the Company as of the issue date of the Bonds.
5.8.3 Adjustments to the SW Exercise Parity in the event of financial
transactions
Subsequent to one of the following transactions:
a) issuing of shares with a listed preferential subscription right;
b) free distribution to Company shareholders of any financial instrument
other than Company shares;
c) increase in the capital by capitalization of reserves, profits or issue
premiums and free distribution of shares; splitting or reverse
splitting of shares;
d) capitalization in the capital of reserves, profits or issue premiums by
increase in the nominal value of the shares;
e) distribution of reserves or premiums in cash or portfolio securities;
f) absorption, merger, demerger;
g) buyback by the Company of its own shares at a price higher than the
market price;
h) distribution of an exceptional dividend by the Company;
undertaken by the Company after this issue, the maintenance of the rights of the
SW holders will entail an adjustment in the Exercise Parity of the said SW in
compliance with articles L. 225-154 and 225-156 of the French Commercial Code
and 174-1 and 174-1 A of the decree n(0) 67-236 of 23 Mars 1967.
In the event of adjustments carried out in compliance with paragraphs a) to h)
above, the New Exercise Parity will be expressed to the closest thousandth
(0.0005 being rounded to the next higher thousandth, i.e. to 0.001). Any
possible adjustments will be carried out on the basis of the preceding Exercise
Parity, duly calculated and rounded. However, the SW can only result in the
subscription of a whole number of shares, with the settlement of fractional
interests being treated as set forth in article 5.8.5 below.
This adjustment will be carried out such as to equalize the value of the
securities which would have been obtained from exercising the SW before the
consummation of one of the operations listed above and the value of the
securities which will be obtained when exercising the SW after the consummation
of the said transaction.
a) IN THE EVENT OF AN ISSUE INCLUDING A LISTED PREFERENTIAL SUBSCRIPTION RIGHT,
the new Exercise Parity will be determined by multiplying the number of shares
which may be obtained by exercising a SW before the start of the operation in
question, by the ratio:
Value of the share ex-right + Value of the subscription right
-------------------------------------------------------------
Value of the share ex-subscription right
For the calculation of this ratio, the values of the share ex-right and of the
subscription right will be determined using the average of the opening trading
prices listed on the Euronext Paris Premier Marche (or in the absence of a
Euronext Paris listing, that of another regulated or similar market where the
share and the subscription right are both listed) during all trading sessions
included in the subscription period during which the share ex-right and the
subscription right are simultaneously listed.
b) IN THE EVENT OF A FREE DISTRIBUTION TO SHAREHOLDERS OF SIMPLE OR COMPOSITE
FINANCIAL INSTRUMENTS OTHER THAN COMPANY SHARES, the New Exercise Parity will be
determined as follows:
1. If the distribution right for the financial instrument(s) is listed on
Euronext Paris, the New Exercise Parity will be determined by
multiplying the number of shares which would have been obtained by
exercising a SW before the allocation of the financial instrument(s),
by the following coefficient:
Value of the share ex-free allocation right +
Value of the free allocation right
-----------------------------------------------------------
Value of the share ex-free allocation right
For the calculation of this ratio, the values of the share ex-free allocation
right and of the free allocation right will be determined using the average of
the opening trading prices on Euronext Paris (or in the absence of a Euronext
Paris listing, that of another regulated or similar market where the share and
the allocation right are both listed) of the share and of the allocation right
during the first ten trading days during which the share and the allocation
right are simultaneously listed. Should this calculation result from the use of
fewer than five trades, it shall be assessed by an expert chosen by the Company;
2. If the distribution right for the financial instrument(s) is not listed
on Euronext Paris, the New Exercise Parity will be determined by
multiplying the number of shares which would have been obtained by
exercising a SW before the allocation of the financial instrument(s),
by the following coefficient:
Value of the share ex-free allocation right +
Value of the financial instrument(s) allocated per share
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Value of the share ex-free allocation right
For the calculation of this ratio, the values of the share ex-free allocation
right and of the financial instrument(s) allocated by share, if the latter are
listed on a regulated or similar market, will be determined with reference to
the average of the opening trading prices listed during ten consecutive trading
days after the allocation date during which the share and allocated financial
instrument(s) are simultaneously listed. Should the allocated financial
instrument(s) not be listed on a regulated or similar market, it will be
assessed by an expert chosen by the Company.
c) IN THE EVENT OF AN INCREASE IN THE CAPITAL BY CAPITALIZATION OF RESERVES,
PROFITS OR ISSUE PREMIUMS AND FREE DISTRIBUTION OF SHARES, OR IN THE EVENT OF
SHARE SPLITTING OR REVERSE SPLITTING, the Exercise Parity will be adjusted by
multiplying the number of shares which may be obtained by exercising the SW
before the start of the operation in question, by the ratio:
Number of shares comprising the capital after the operation
---------------------------------------------
Number of shares comprising the capital before the operation
d) IN THE EVENT OF AN INCREASE IN THE CAPITAL BY CAPITALIZATION OF THE
RESERVES, PROFITS OR ISSUE PREMIUMS BY INCREASE IN THE NOMINAL VALUE OF THE
SHARES, the nominal value of the shares which holders of SW may obtain by
exercising their SW will be increased in proportion.
e) IN THE EVENT OF THE DISTRIBUTION OF RESERVES OR PREMIUMS IN CASH OR
PORTFOLIO SECURITIES, the new Exercise Parity will be determined by multiplying
the Exercise Parity applicable before the start of the operation in question by
the ratio:
Value of the share before the distribution
--------------------------------------------------
Value of the share before the distribution
less the amount distributed or the value of the securities distributed per share
For the calculation of this ratio:
- the share value before the distribution will be determined
using the average of the opening trading prices on the
Euronext Paris (or in the absence of a Euronext Paris listing,
that of another regulated or similar market where the share or
the allocation right are both listed) for twenty consecutive
trading days chosen from amongst the forty which precede the
distribution day
- the value of the securities distributed per share will be
established either using the average of the opening trading
prices for twenty consecutive market days as chosen from the
forty which precede the distribution day, if these are
securities admitted for negotiations on a regulated market,
or, if not, on the basis of a value determined by an expert
chosen by the Company.
f) Pursuant to the provisions of applicable law, IN THE EVENT OF A MERGER BY
ABSORPTION OF THE COMPANY OR ITS PARTICIPATION IN A MERGER FOR THE CREATION OF A
NEW COMPANY, OR A DEMERGER THROUGH A CONTRIBUTION TO EXISTING OR NEW COMPANIES,
the merger or demerger will be subject to the prior approval of the special
Meeting of the SW holders.
SW will give the right to receive shares of the absorbing or new company under
the conditions stipulated herein, provided that this will not affect article
5.6.1.
The number of shares of the absorbing or new company granted for each SW will be
equal to the number of Company shares which the SW holder would have received
had he/she exercised the SW before the transaction, corrected by the ratio for
the exchange of the Company shares with those of the absorbing or new company.
The absorbing or new company will replace the issuing Company for the
application of the above provisions, which are intended to preserve, if
applicable, the rights of SW holders in the event of financial or securities
transactions and, in general terms, for all obligations related to the SW
incumbent upon the Company pursuant to the present Contract.
g) SHOULD THE COMPANY BUY BACK ITS OWN SHARES AT A PRICE HIGHER THAN THE
MARKET PRICE, the new Exercise Parity will be equal to the product of the
applicable Exercise Parity multiplied by the following ratio, calculated to the
closest hundredth of a share:
Share value + Pc % x (Buyback price - share value)
--------------------------------------------------
Share value
For the calculation of this ratio:
- Share value refers to the average of at least ten consecutive
trading prices chosen from amongst the twenty which precede
the buyback;
- Pc % refers to the percentage of capital bought back;
- Buyback price refers to the actual purchase price.
h) SHOULD THE COMPANY DISTRIBUTE AN EXCEPTIONAL DIVIDEND as defined below,
the new Exercise Parity will be calculated in the manner indicated below.
For the purposes of this paragraph, the term "EXCEPTIONAL DIVIDEND" refers to
the value expressed in euros of any dividend paid to shareholders in cash or in
kind, insofar as the value of this dividend (not taking into account any related
possible tax credit ("avoir fiscal")) (the "REFERENCE DIVIDEND") and the value
of all other dividends paid to shareholders in cash or in kind during the same
Company financial year (not taking into account any possible related tax credits
("avoir fiscal")) (the "PREVIOUS DIVIDENDS") represents a Ratio of Distributed
Dividends (as defined below) greater than 4%.
For the purposes of the previous paragraph, the term "RATIO OF DISTRIBUTED
DIVIDENDS" refers to the sum of the ratios obtained by dividing the Reference
Dividend and each of the Previous Dividends by the Company market capitalization
on the day which precedes the corresponding distribution date; the market
capitalization used to calculate each of the ratios being equal to the product
(x) of the closing price of the Company share on Paris Euronext on the day which
precedes the distribution date of the Reference Dividend or of each of the
Previous Dividends, multiplied by (y) the respective numbers of Company shares
existing on each of these dates. Any dividend or other dividend fraction
resulting in an adjustment of the Exercise Parity pursuant to paragraphs a) to
h) above shall not be taken into account for the application of this clause.
In the event of the payment of an Exceptional Dividend, the calculation formula
for the Exercise Parity is the following:
NEP = EP x (1+RDD-3%)
where:
NEP: New Exercise Parity
EP: the last Exercise Parity in effect before the distribution of the Reference
Dividend
RDD: the Ratio of Distributed Dividends as defined above;
Provided however that any dividend released for payment between the payment date
of an Exceptional Dividend and the end of the same Company financial year (the
"SUPPLEMENTARY DIVIDEND") will result in an adjustment using the following
formula:
NEP = EP x (1+SDR)
where:
SDR: the ratio obtained by dividing the value of the Supplementary Dividend
(less any dividend fraction giving rise to the calculation of a new Exercise
Parity pursuant to paragraphs a) to h) above, if necessary) and not taking into
account any related tax credit ("avoir fiscal"), by the Company market
capitalization, obtained by the product (x) of the closing price of the Company
share on Euronext Paris on the day which precedes the distribution day of the
Supplementary Dividend, multiplied by (y) the number of Company shares existing
on that date.
If the Company carries out transactions which do not entail an adjustment
pursuant to paragraphs a) to h) above and should subsequent law or regulation
call for such an adjustment, the Company will make such adjustment in compliance
with applicable law and regulations and with the applicable
customary practice in the French market.
The Company's Management Board will report on the calculation elements and the
results of the adjustment in the annual report which follows this adjustment.
5.8.4 Information for SW holders in the event of adjustments
In the event of adjustments, SW holders will be made aware of the New Exercise
Parity by means of a notice published in the Bulletin of Obligatory Legal
Announcements, a notice in a nationally distributed financial newspaper and a
Euronext Paris notice.
5.8.5 Settlement of fractional interests
Any SW holder can obtain a number of shares calculated by applying the
applicable Exercise Parity to the number of SW presented.
When the calculated number of shares does not result in a whole number, the SW
holder will be provided with, at his option:
- either the immediately inferior whole number of shares, in
which case the holder will be paid in cash an amount equal to
the product of the share fraction giving the fractional share
multiplied by the opening Company share price on the Euronext
Paris Premier Marche on the opening of the trading day
immediately preceding the exercise date;
- or the immediately greater whole number of shares, in which
case the holder shall pay to the Company an amount equal to
the value of the additional share fraction thus requested,
assessed as indicated in the previous paragraph.
6. PUBLICIS SHARES RESULTING FROM EXERCISING THE SW
The new shares issued as a result of the exercise of the SW will be subject to
the provisions of the articles of association and will confer the same rights as
the outstanding shares of the Company. In proportion with their nominal value,
they entail the right to the same dividend as the one which may be distributed
to other shares entitled to dividends as of the same date.
Each new share shall give rise to a right to ownership of the corporate assets,
to a share in the profits and liquidation proceeds in equal proportion with the
share of corporate capital which it represents, taking into account, if
relevant, the amortized or non-amortized or paid up and non-paid up capital, the
nominal amount of the shares and the rights of the shares in the various
classes.
At the option of each holder, the shares shall be held in either bearer or
registered form within the meaning of French law.
Title to the shares will be evidenced solely by book entries in accordance with
article 94-II of French law no. 81-1160 of December 30, 1981, such account being
maintained by :
- a financial institution appointed by the Company, if the shares are held in
pure registered form ("nominatifs purs"); or
- a custodian appointed by the holder(s), and the financial institution
appointed by the Company, if the shares are held in assisted registered
form ("nominatifs administres");
- a custodian appointed by the holder(s), if the shares are held in bearer
form ("titres au porteur").
No physical document of title will be issued in respect of the shares (including
<< certificats representatifs >> (certificates in respect of book-entries)
issued pursuant to article 7 of French decree no. 83-359 of May 2, 1983).
The shares will be admitted to clearing by Euroclear France.
The shares resulting from the exercising of SW will be freely negotiable.
The Company will shall take all necessary steps to the admission of the new
shares to the Euronext Paris Premier Marche.
7. GOVERNING LAW - JURISDICTION
The OBSA are governed by French law.
In the event of any dispute, the competent courts will be those where the
registered office is located when the Company is the defendant, and will be
assigned on the basis of the nature of the disputes, in the absence of contrary
provisions contained in the French New Code of Civil Procedure.
Signed in Paris on [...] 2002
Exhibit 1
Face Value Per OBSA Interest and Return of Principal
Period Debenture Outstanding (E) Per OBSA Debenture (E)
1 305.00 4.19
2 305.00 4.19
3 305.00 4.19
4 305.00 4.19
5 305.00 4.19
6 305.00 4.19
7 305.00 4.19
8 305.00 4.19
9 305.00 4.19
10 305.00 4.19
11 305.00 4.19
12 305.00 4.19
13 305.00 4.19
14 305.00 4.19
15 305.00 4.19
16 305.00 4.19
17 305.00 4.19
18 305.00 4.19
19 305.00 4.19
20 305.00 4.19
21 305.00 4.19
22 274.50 34.69
23 274.50 3.77
24 244.00 34.27
25 244.00 3.36
26 213.50 33.86
27 213.50 2.94
28 183.00 33.44
29 183.00 2.52
30 152.50 33.02
31 152.50 2.10
32 122.00 32.60
33 122.00 1.68
34 91.50 32.18
35 91.50 1.26
36 61.00 31.76
37 61.00 0.84
38 30.50 31.34
39 30.50 0.42
40 0.00 30.92
