Exhibit 2
The following is an unofficial English Translation of the French document.
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PROFESSIONAL SERVICES AGREEMENT
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BETWEEN:
HAVAS, a stock corporation (societe anonyme) organized and existing under the
laws of France with capital of EUR 171,518,765.60, having its registered office
at 0, xxxxx xx Xxxxxxxxx, Xxxxxxxx 00000, Xxxxxx, registered with the Commercial
and Companies Registry of Nanterre under the number 335 480 265,
Represented herein by Mr. Alain de Pouzilhac, its Chief Executive Officer,
Hereinafter referred to as the "Havas"
AS THE FIRST PART
AND:
Xx. Xxxxxxx Xxxxxxx, who resides at 00, xxx Xxxxxx Xxxxxx, Xxxxx 00000, Xxxxxx,
Hereinafter referred to as the "Service Provider"
AS THE SECOND PART
Unofficial Translation: For Information Purposes Only
RECITALS
WHEREAS the Service Provider is presently employed by Havas where he works as
Creative Director.
WHEREAS the Service Provider has gained significant experience and developed
expertise in creative advertising and Havas wishes to retain the services of the
Service Provider in the event he decides to retire.
WHEREAS given the circumstances, the Parties met and agreed the following terms
and conditions to enter into a professional services agreement.
WHEREAS to the extent that such agreement does not fall within the scope of the
non-competition clause provided for in the Service Provider's employment
contract, as amended by an amendment dated January 19, 2005, it does not suspend
the application of such clause for the full duration thereof.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Article 1: Definition
For the purposes of this Agreement, the term "Group" will refer to Havas and any
civil or commercial company, regardless of the nature thereof, be it French or
foreign controlled, directly or indirectly, by Havas. One company is deemed to
control another one when it meets the requirements set forth under Section L.
233-3 of the [French] Business Code.
Article 2: Services
This Agreement (hereinafter the "Agreement") is a professional services
agreement.
It is agreed as a material condition of the Agreement that the Service Provider
will be free to organize his work as he sees fit within the framework defined in
the Agreement. Accordingly, Havas agrees not to interfere in any way with the
Service Provider's work and, more generally, to exert any authority on the
Service Provider. The Service Provider will nevertheless keep Havas informed of
the performance of the Services on a monthly basis or any other periodicity
agreed by and between the Parties based upon the Services.
The Service Provider will also be free to provide services to entities other
than the companies of the Group, subject to not providing services in any form
whatever to entities competing with the Clients of the Group or a Client of the
Group (outside of the performance of the professional services agreement), or to
any international communications consulting group competing with the Group or
the subsidiaries of any such groups.
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Unofficial Translation: For Information Purposes Only
The term Client will mean the clients for whom the Service Provider has provided
services hereunder and the clients of the Group in the twelve months preceding
the date when this Agreement took effect.
The Service Provider will provide Havas the following services (hereinafter the
"Services").
o Handle the Citroen client/budget;
o At the request of Havas, supervise the Group's creative teams and
assist in recruiting new members of such creative teams;
o Advice and counsel on creative strategy of the Group or of its
clients.
The Service Provider must devote between 80 and 120 days per year to the
provision of the Services. In this regard, Havas agrees to enforce this
Agreement in good faith and to order the Services.
The Service Provider will personally perform the Services utilizing the
experience, expertise and care which are to be expected from a professional in
the provision of said Services.
Article 3: Registration of the Service Provider
The Service Provider hereby represents that the Service will be performed in
compliance with applicable laws and regulations. To this end, the Service
Provider will turn over to Havas, prior to the performance of any Service:
o proof that is properly registered as an independent contractor; or
o proof from the proper government agency that the Service Provider
has made the appropriate employer/independent contractor and social
security filings within the past year;
o proof that the Service Provider is subject to the business tax (taxe
professionnelle) for the previous fiscal year; or
o if the Service Provider started working three calendar months ago
and failing any of the abovementioned documents, proof that he has
made a filing with a corporate formalities center.
It is understood that the Services may be rendered by a Company of which the
Service Provider is one of the main partners, on the condition however that the
Services be personally provided by the Service Provider.
Article 4: Duration
The Agreement is entered into for a 24-month period. It will take effect only
after the Service Provider voluntary leaves the company, and specifically after
the Service Provider requests to leave for retirement. The Agreement may be
renewed for same duration at the initiative of Havas and with the Service
Provider's agreement, subject to three months' notice.
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Unofficial Translation: For Information Purposes Only
Havas may however terminate the Agreement at any time in the event that the
Service Provider is found to be doing business with entities competing with
clients of the Group or in the event that the Service Provider is found to be
soliciting the clients of the Group for personal purposes. Havas may also
terminate the Agreement at any time in case the Service Provider fails to comply
with any of the obligations provided for in the Agreement or in case of the
Service Provider's physical incapacitation or death.
The Service Provider may terminate the Agreement at any time, subject to giving
three months' notice.
It is expressly agreed that the term of the Agreement will not be extended in
the event that the Service Provider is temporarily unable for any reason
whatever (illness, personal reasons, etc.) to perform the Services.
The termination of the Agreement in observance of the aforementioned provisions
will not give rise to the payment of any compensation by or to either party,
except for those payments associated with Services provided prior to the
termination.
Article 5: Fees for Professional Services
As compensation for the Services, the Service Provider will receive fixed and
variable fees.
5.1 Fixed Fee
The Service Provider will receive a fixed fee of eighty thousand euros
((euro)80,000.00), exclusive of tax, per quarter.
5.2 Variable Fee
In addition to the fixed fee, the Service Provider will receive variable fees
based on the growth in the annual revenue stream from the Citroen account
compared to the revenues from the twelve months preceding the date the Agreement
takes effect.
The maximum amount of variable fees that may be paid to the Service Provider
will be 40% of the amount of his annual fixed fee, exclusive of tax.
If the Citroen revenues remain at their level of the twelve months preceding the
date the Agreement takes effect, the Service Provider may claim the maximum
amount of variable fees.
If the Citroen revenues are between 80% and 100% compared to what they were in
the twelve months preceding the date the Agreement takes effect, variable fees
from 0% to 40% will be due and payable on the basis of a linear increase.
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Unofficial Translation: For Information Purposes Only
If the Citroen revenues are less than 20% of what they were in the twelve months
preceding the date the Agreement takes effect, no variable fees will be due and
payable.
5.3 Payment of Fees
All payments will be made in euros and subject to value added tax.
Fixed fees will be payable on a quarterly basis, at the end of each quarter.
Variable fees will be payable annually in one lump sum no later than 3 months
after the end of the twelve month period in connection with which the variable
fees are due.
5.4 Reimbursement of Expenses
Out-of-pocket expenses incurred by the Service Provider for the provision of the
Services will be reimbursed upon submission of receipts.
In case of travel outside France, all expenses must be first approved by Havas.
Article 6: Confidentiality
The Service Provider agrees not to disclose or to use any information, knowledge
or practices related to the business of the Group and/or of its clients and to
which the Service Provider has been privy in the provision of the Services.
All documentation related to the business activities of the Group and/or of its
clients are confidential in nature and may not be reproduced or used by any
means whatever by the Service Provider, except as required for the provision of
the Services. At the end of this Agreement, such documentation and/or any copies
thereof must be returned immediately to Havas.
Article 7: Non-Solicitation of Personnel
Except in connection with the Services provided for herein, the Service Provider
agrees not to engage, or to cause to work in any manner whatever, any present or
future employee of Havas. This clause will apply regardless of the expertise of
the employee in question and even in the event that the solicitation is at the
initiative of said employee. This clause will have full force and effect for the
full duration of the Agreement and for two years after it ends.
Article 8: The Service Provider's Creative Work
The Service Provider's creative work will mean any work of the mind, any method,
any technique, program, slogan, drawing, model, plan, product, diagram,
development, research, study, data, strategy, improvement and upgrade thereof,
regardless of their state of completion (whether they be in draft form or in
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Unofficial Translation: For Information Purposes Only
finalized form) and, more generally, whether or not they are liable to be
protected by any right whatever, an intellectual property or industrial right,
that the Service Provider may design, make, create, produce in full or in part,
acting alone or with others, in connection with the Services, that may be
designed under his supervision or that of the Havas Group or with its support,
for the duration of this Agreement.
The Service Provider acknowledges and accepts that the amount of his fees,
defined in subsection 5.1 hereinabove, takes into account the firm and final
assignment to the Havas Company, as they come into existence, as the case may
be, of all the rights of the Service Provider arising or to arise, proprietary
rights, the right to use or any other rights associated with present or future
creative works (hereinafter referred to as the "Rights"), the Havas Company will
not owe the Service Provider any additional compensation therefor, which the
Service Provider hereby declares that he expressly accepts.
It is understood that the Rights include in particular the license,
reproduction, publication, adaptation, translation, arrangement, transformation,
representation rights as well as the rights to make, use and exploit any
application that may be derived of said Creative Works, and for all uses and
purposes, in any forms, on all mediums, by all means, present or future, known
or unknown to date.
On the one hand, the Service Provider waives the right to have his name appear
on or in the Creative Work and accepts on the other hand that the Creative Work
be modified, completed or otherwise adapted to meet requirements and, as the
case may be, applicable standards and usages for its exploitation.
The Parties agree that the assignment of the Rights is given and intended to
take effect in all places and for the full duration of the legal protection of
said Creative Works for the benefit of its creator, his heirs or assigns or
representatives under the terms of applicable French and foreign laws and
regulations and international conventions, including any extensions that may be
made to the duration of the protection.
Article 9: New Business Brought in by the Service Provider
If, due to the action of the Service Provider, Havas secures new advertising
business, either from new clients or from existing clients, the Service Provider
will receive a commission for the new business brought in. The maximum amount of
such commission will be one hundred and thirty thousand euros
((euro)130,000.00), exclusive of tax.
The amount of such commission will be determined on a discretionary basis as a
function of the significance of such new business.
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Unofficial Translation: For Information Purposes Only
The commission will be due and payable if any only if Havas invoices the client
for services it provides pursuant to service agreements entered into going
through the Service Provider.
However, no commission will be due for:
- orders accepted by Havas but not performed, if the nonperformance is not
due to circumstances that are attributable to him;
- orders performed by Havas but not paid by the client, unless the failure
to make payment is the result of some failing on Havas' part.
In case of partial payment by the client, the commission will be reduced
proportionally. Commissions already received by the Service Provider will be
reimbursed in full or in part if the right to the commission is lost, in full or
in part, because it is found that the agreement between the client and Havas
will not be performed and the nonperformance is not due to circumstances that
are attributable to Havas.
It is agreed that Havas will reserve the right in any case not to provide
services and not to sign an agreement with a prospective client, especially in
case of any doubts regarding its solvency.
Article 10: General Provisions
Any modification of the provisions of the Agreement must be set forth in a
written agreement between Havas and the Service Provider before the modification
may take effect.
This Agreement is governed by the laws of France. In the event of disputes, the
Parties will attempt to reach an amicable solution and, failing a solution
within two weeks, the dispute will be submitted by the most diligent Party to
the Courts of Paris.
Executed in Suresnes
On this 26th day of May 2005
(signature) (signature)
Alain de Prouzilhac The Service Provider
