Exhibit 4.1
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
OBLIGATIONS REDEEMABLE
IN
NEW OR EXISTING SHARES
("ORANE")
RECITALS:
Whereas, in connection with 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 7th March 2002, as amended (hereinafter
referred to as the "MERGER AGREEMENT"), it was agreed that PUBLICIS would issue
obligations in the amount of 857,812,500 euros represented by 1,562,500 ORANE to
PHILADELPHIA MERGER LLC, a 100% indirectly held subsidiary of PUBLICIS and which
would be delivered to 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 such ORANE (hereinafter referred to as
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, among other things, provides for the issue of obligations
redeemable in new or existing ordinary PUBLICIS shares to PHILADELPHIA MERGER
LLC pursuant to a reserved increase in capital with suppression of the
preferential subscription right reserved to a specifically named party.
Consequently, the June 18, 2002 combined general meeting of the PUBLICIS
shareholders, in its 20th resolution contained in Exhibit 1.1 hereto, authorized
the Company's Management Board, with the possibility of subdelegation, to issue
obligations for 857,812,500 euros represented by 1,562,500 ORANE each with a
nominal value of 549 euros, to PHILADELPHIA MERGER LLC.
Pursuant to the authorization granted to it during the June 18, 2002 general
meeting of the Company's shareholders and the prior consent granted to it by the
Company's supervisory board on March 5th, 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
ORANE pursuant to the [...]th resolution adopted by the June 18th, 2002 general
meeting, and on the terms and conditions set forth by this same resolution.
Pursuant to the delegation granted to him by the Management Board, the Chairman
decided on [...] 2002 to issue the ORANEs and thus set the terms and conditions
of this issue as they are set forth in this Agreement.
1.2 ISSUE PRICE
The ORANE will be issued at a price of 549 euros per ORANE 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 shall be 857,812,500 euros.
1.4 SUBSCRIPTION
The ORANEs shall be issued to PHILADELPHIA MERGER LLC, an indirect 100%
subsidiary of the Company, and PHILADELPHIA MERGER LLC shall deliver them to
the exchange agent for the Bcom3 shareholders in accordance with the Merger
Agreement.
In compliance with the decision adopted by the combined general meeting of the
Company's shareholders, this issue entails the express waiver by the
shareholders of the preferential subscription right for the new shares to be
issued, when necessary, upon the redemption of ORANEs.
2. CHARACTERISTICS OF THE ORANE ISSUED BY THE COMPANY
2.1 NUMBER AND NOMINAL VALUE OF THE ORANE
This issue shall be represented by 1,562,500 ORANEs redeemable in new or
existing Company shares, according to the terms and conditions set out below:
The initial nominal value of the ORANEs will be 549 euros per ORANE and will
be reduced by equal tranches as of 1st September 2005 and until [...] 2022,
pursuant to the provisions of paragraph 3.1 below. The amount thus remaining
due on a given date will hereinafter be 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 ORANE
At the choice of each holder, the ORANEs shall be held in either bearer or
registered form within the meaning of French law.
Title to the ORANEs 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 ORANEs 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 ORANEs are held under in assisted form
("nominatifs administres"); or
- a custodian appointed by the holder(s), if the ORANEs are held in
bearer form ("titres au porteur").
No physical document of title will be issued in respect of the ORANEs (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 ORANEs will be negotiable as of the Settlement Date.
The Company will take all necessary steps to have the ORANEs admitted to the
Euronext Paris Premier Marche within the five business days following the
Settlement Date. The Company will pay for, without this list being exhaustive,
all fees, charges and commissions related to the admission to the said
negotiations and to its maintenance.
2.5 FINAL MATURITY DATE
Twenty years from the Settlement Date.
2.6 COUPON
2.6.1 Coupon amount
The ORANEs will accrue an annual coupon in arrears (hereinafter referred to as
the "COUPON") calculated pursuant to the following indications and which can
under no circumstances be less than 0.82% of the ORANE Nominal Value on the
calculation date (hereinafter referred to as the "MINIMUM COUPON").
Any Coupon amount relating to a period of less than one entire year will be
calculated on the basis of the annual Coupon 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).
The Coupon will be revised every three (3) years as of the period which begins
on 1st September 2004.
The Coupon will be calculated as follows:
(i) Coupon due on 1st September 2002
The Coupon will be calculated, on a pro rata basis, as of the Settlement Date,
and will be equal to:
(0.82% x 549) x number of days between the Settlement Date (inclusive)
------------- and 31 August 2002 (inclusive).
365
(ii) Coupon due on 1st September 2003 and 2004
For the period from 1st September 2002 (inclusive) to 31st August 2004
(inclusive), each Coupon will be equal to 0.82% of the Nominal Value of the
ORANEs still due for each of these two years, i.e. 4.50 euros.
(iii) Coupon due on 1st September 2005, 2006 and 2007
Each Coupon will be calculated such that:
MAX [MINIMUM COUPON; R(n) X 110% X (DIV2005 + DIV2004 + DIV2003)]
------------------------------
3
(iv) Coupon due on 1st September 2008, 2009 and 2010
Each Coupon will be calculated such that:
MAX [MINIMUM COUPON; R(n) X 110% X (DIV2008 + DIV2007 + DIV2006)]
------------------------------
3
(v) Coupon due on 1st September 2011, 2012 and 2013
Each Coupon will be calculated such that:
MAX [MINIMUM COUPON; R(n) X 110% X (DIV2011 + DIV2010 + DIV2009)]
------------------------------
3
(vi) Coupon due on 1st September 2014, 2015 and 2016
Each Coupon will be calculated such that:
MAX [MINIMUM COUPON; R(n) X 110% X (DIV2014 + DIV2013 + DIV2012)]
------------------------------
3
(vii) Coupon due on 1st September 2017, 2018 and 2019
Each Coupon will be calculated such that:
MAX [MINIMUM COUPON; R(n) X 110% X (DIV2017 + DIV2016 + DIV2015)]
------------------------------
3
(viiii) Coupon due on 1st September 2020, 2021 and 2022
Each Coupon will be calculated such that:
MAX [MINIMUM COUPON; R(n) X 110% X (DIV2020 + DIV2019 + DIV2018)]
------------------------------
3
with the stipulation that the coupon due on [...] 2022 will be calculated on a
pro rata basis of the time which has passed between 1 September 2021 and [...]
2022.
where:
- R(n) = 2023 - n, i.e. the number of shares relative to which a ORANE
grants the right to redemption on 31 August of year n, while taking
into account, if relevant, the adjustments stipulated in paragraph
3.4.3. below
- DIV = net amount, excluding related tax credit (`avoir fiscal'), of the
dividend per share released for distribution by vote between 1st
September of the previous year and 31st August of the year in question
- n falling between 2005 and 2022.
2.6.2 Coupon payment date
The Coupon will be paid on a yearly basis, on 1st September (or the first
following business day if the latter date is not a business day). Nevertheless,
the Coupon due for 2022 will be payable on the Maturity Date (as defined below)
of the ORANEs.
The Coupon due for a given year will only be paid if the general meeting of the
Company shareholders has approved the distribution of a dividend between 1st
September of the previous year and 31st August of the year in question.
Should no dividend distribution be decided by the general meeting of the Company
shareholders between 1st September of the previous year and 31st August of the
year in question, the Coupon payable for the year in question will not be paid,
but rather will be carried forward and accumulated, without being capitalized,
for payment during the first year in which the distribution of a dividend will
once again be approved by the general meeting of the Company shareholders,
whatever the amount of said dividend.
Nevertheless, no Coupon will be payable, if the non-distribution of the dividend
resulted in the early redemption of the ORANEs pursuant to the stipulations
outlined in paragraph 3.3.1(i) below.
Subject to the provisions of paragraph 2.6.3 below for the payment of the Coupon
in the event of the non-distribution of a dividend during any of the five years
which precede the Maturity Date of the ORANEs, the Coupon will cease to accrue
as of the date of the redemption (normal or early) of the ORANEs.
2.6.3 Coupon payment in the event of redemption of the ORANEs in advance or on
the Maturity Date
In the event of early redemption of the ORANEs for any of the reasons stipulated
in paragraphs 3.3.1(ii) to 3.3.1(viii) below, as well as in the event that a
non distribution of a dividend should occur during any of the last five years
which precede the Maturity Date of the ORANEs, the Coupon will be paid, at the
discretion of the Company, in cash or in Company shares.
Should the Coupon be paid in Company shares, the value of the share to which it
must refer will be equal to the average of the opening trading prices of the
shares on the Euronext Paris Premier Marche on the ten trading days prior to the
redemption date (but excluding that day).
2.6.4 Institution servicing the ORANEs
The [...] bank will look after the servicing of the securities, the payment of
the Coupon due on the ORANEs, and the redemption thereof.
As long as there are any ORANEs outstanding, the Company will make available, to
any person so requesting it, an updated list of institutions responsible for
servicing the ORANEs.
2.7 RANK, NEGATIVE PLEDGE
2.7.1 Rank
The ORANEs and their Coupon shall constitute obligations ("engagements
chirographaires") which are unsecured, direct, general, unconditional,
non-subordinated and free of Company sureties, having the same rank among
themselves and having 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 ORANEs without the
consent of the Holders of ORANEs (hereinafter the "HOLDERS").
2.7.2 Negative Pledge
Until such a time as every single ORANE has been reimbursed, the Company
undertakes not to grant a mortgage on its real property, nor a pledge of 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) for the benefit of the holders of other obligations
without granting the same sureties, and in the same rank, to the holders of the
ORANEs.
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 guarantees
or security interests on the said assets under any other circumstances.
2.8 GUARANTEE
No particular guarantee applies to the servicing of the ORANEs in terms of
Coupon, amortization, taxation, fees or accessories.
3. AMORTIZATION - REDEMPTION OF THE ORANES WITH PUBLICIS SHARES
3.1 EXERCISE PARITY - NORMAL AMORTIZATION
3.1.1 Exercise Parity
Subject to any possible adjustments as indicated below in the section
Maintaining of the rights of the Holders, the redemption of the ORANEs shall
take place through the delivery of eighteen (18) new or existing Company
ordinary shares effective as of the start of the financial year during which the
redemption occurs, for one (1) ORANE (hereinafter the "REDEMPTION PARITY").
3.1.2 Normal Amortization
Unless reimbursed early, the ORANEs shall be entirely amortized on [...] 2022
(hereinafter the "MATURITY DATE").
Subject to the possible adjustments indicated below in the section Maintaining
of the rights of the Holders, the ORANEs will be amortized, and their Nominal
Value will be reduced in proportion, through a redemption by means of one (1)
new or existing Company share, at the choice of the Company, per year as of
1st September 2005 and through to the Maturity Date, in compliance with the
schedule provided below.
PERIOD ORANE NUMBER OF
(THE PERIOD START AND END DATES NOMINAL VALUE REDEMPTION REIMBURSED
ARE INCLUSIVE) (EUROS) DATE SHARES
[...] 2002 to 31 August 2002 549 - -
1 September 2002 to 31 August 2003 549 - -
1 September 2003 to 31 August 2004 549 - -
1 September 2004 to 31 August 2005 549 1 September 2005 1
1 September 2005 to 31 August 2006 518.5 1 September 2006 1
1 September 2006 to 31 August 2007 488 1 September 2007 1
1 September 2007 to 31 August 2008 457.5 1 September 2008 1
1 September 2008 to 31 August 2009 427 1 September 2009 1
1 September 2009 to 31 August 2010 396.5 1 September 2010 1
1 September 2010 to 31 August 2011 366 1 September 2011 1
1 September 2011 to 31 August 2012 335.5 1 September 2012 1
1 September 2012 to 31 August 2013 305 1 September 2013 1
1 September 2013 to 31 August 2014 274.5 1 September 2014 1
1 September 2014 to 31 August 2015 244 1 September 2015 1
1 September 2015 to 31 August 2016 213.5 1 September 2016 1
1 September 2016 to 31 August 2017 183 1 September 2017 1
1 September 2017 to 31 August 2018 152.5 1 September 2018 1
1 September 2018 to 31 August 2019 122 1 September 2019 1
1 September 2019 to 31 August 2020 91.5 1 September 2020 1
1 September 2020 to 31 August 2021 61 1 September 2021 1
1 September 2021 to [...] 2022 30.5 [...] 2022 1
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 exercising of the redemption right for a maximum period
of three months.
The Company's decision to suspend the exercising of the redemption right will be
published in the Bulletin of Obligatory Legal Announcements. This notifice 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.
3.2 REPURCHASE OF THE ORANES AT THE DISCRETION OF THE ISSUER
So long as the ORANEs are outstanding, the Company undertakes not to carry out,
of its own initiative, the early amortization of the ORANEs by means of
redemption. The Company reserves the right, at any time and with no limitation
as to price or quantity, to repurchase all or part of the ORANEs prior to the
Maturity Date, either through repurchases on or outside the stock exchange, or
by public 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 ORANEs acquired in this manner will be cancelled.
3.3 EARLY REDEMPTION AT THE DISCRETION OF THE HOLDERS (EXCEPT IN THE CASE
COVERED BY 3.3.1(v))
3.3.1 Events able to trigger the early redemption of the ORANEs
The redemption of the ORANEs can be carried out in advance, at the option of
each Holder, in each of the following cases with the exception of (v) below,
when the early redemption shall occur automatically:
(i) in the absence of a dividend distribution approved by the general meeting
of the Company's shareholders during the five consecutive company
financial years which precede the early redemption request (with the
early redemption request being submitted after the General Meeting which,
for the 5th consecutive company financial year, as to which no dividend
is declared), with the stipulation that in this case, and subject to the
provisions of paragraph 2.6.3 above, the Coupon accrued for the said
years will not be due,
(ii) the filing of a public tender offer for all of the Company's equity
securities (within the meaning of article 5-1-2 of the Conseil des
Marches Financiers regulation), provided that the public offer has been
declared admissible by the competent market authorities, and that the
related opening notice has been published by the market authorities
(iii) 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 proposed transfer having to be approved by the
General Meeting of the Company's shareholders, the early redemption will
occur one week before the record date for taking part in the said General
Meeting.
For the purposes of this Contract, a substantial part of the Company's
assets or business shall be understood to mean any asset or business
generating at least one-third of the Company's consolidated revenues, as
indicated in the Company's latest closed consolidated accounts.
(iv) 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 French
Commercial Code (hereinafter referred to as the "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.
(v) 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 becomes insolvent, or is
the subject of collective or bankruptcy proceedings and/or filings or
reaches a compromise with its creditors. In any such event, the early
redemption will automatically occur without the need for written notice
from the Holder.
(vi) Should the Company fail to meet its obligations relating to the
redemption of the ORANEs or the payment on its due date of any Coupon due
pursuant to the ORANEs, if this default is not remedied with a period of
30 business days from the due date it being provided that the
representatives of the body of Holders ("masse") shall have sent a notice
of default for this purpose (without the need for a Meeting of the
Holders for sending such notice).
(vii) Should the Company fail to meet any of its obligations relative to the
ORANEs, 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 Holders (without the need for a Meeting of
the Holders for sending such notice);
(viii) As of the Company receiving notice of a default as indicated below, from
the representative of the body of Holders (without the need for a Meeting
of the Holders for sending such notice), and if this default is not
remedied within a period of 30 business days: (a) 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 any Indebtedness (as defined
below), (b) in the event of the accelerated maturity of any Indebtedness
of the Company or one of its Major Subsidiaries pursuant to the failure
of the Company or Major Subsidiary in question to meet its obligations,
(c) 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 (a), (b)
and (c) above only shall allow for an anticipated maturity of the ORANEs,
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 Holders of any event constituting an event
of default as indicated in the present paragraph. For the purposes of the
preceding provisions, "Indebtedness" shall mean any debt (including as
part of leasing transactions) 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 shall mean any
subsidiary a) with net earnings or, if applicable, consolidated net
earnings (before taxes and exceptional earnings) representing at least
56
5% of the consolidated net earnings of the Company and its subsidiaries
(before taxes and exceptional earnings) ("resultat exceptionnel"), or b)
gross assets or, if applicable, consolidated gross assets (group share
("part du groupe"), 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 ORANEs
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.
Except in the case indicated in paragraph 3.3.1(v) above, in which case the
redemption of the ORANEs will occur automatically, each Holder wishing to obtain
early redemption of his/her ORANEs must submit a written request to the
intermediary in whose account the securities are held, which will then transmit
this request to the institution in charge of servicing the ORANEs.
Once a Holder 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 pay back all of the ORANEs listed in each request submitted in
compliance with the above conditions.
In any case, and including in the event of insolvency or court-ordered
liquidation, the early redemption of the ORANEs can only take place by means of
shares.
3.3.3 Information to be provided to Holders in the Event of Normal or Early
Redemption or Repurchase of the ORANEs
In the event of the listing of the ORANEs on Euronext Paris, information
relating to the number of repurchased or redeemed ORANEs and the number of
ORANEs 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.
3.4 MAINTAINING OF THE RIGHTS OF THE HOLDERS
3.4.1 Commitments of the Issuer
In compliance with French law, the Company undertakes, so long as any ORANE
remains outstanding, to refrain from:
- any amortization of the corporate 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 Holders are reserved under the
conditions outlined below.
3.4.2 In the event of a reduction in the registered capital due to losses
In the event of a reduction in the registered capital 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 Holders will be reduced in proportion, as if the said Holders had
been shareholders of the Company as of the issue date of the ORANEs.
3.4.3 Adjustments in the event of financial transactions
Subsequent to one of the following transactions:
1. issuing of shares having a listed preferential subscription right;
2. free distribution to Company shareholders of any financial instrument
other than Company shares;
3. increase in registered capital by capitalization of reserves, profits or
issue premiums and free distribution of shares; splitting or reverse
splitting of shares;
4. capitalization in the capital of reserves, profits or issue premiums by
increase in the nominal value of the shares;
5. distribution of reserves or premiums in cash or portfolio securities;
6. absorption, merger, demerger;
7. buyback by the Company of its own shares at a price higher than the
market price;
8. distribution of an exceptional dividend by the Company;
undertaken by the Company as of the present issuing, the maintenance of the
rights of the Holders will entail an adjustment to the conditions of the
redemption in shares of the said ORANE in compliance with articles L. 225-162
and 225-164 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 1) to 8)
above, the New Redemption 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
Redemption Parity, duly calculated and rounded. However, the ORANEs can only
result in the subscription of a whole number of shares, with the settlement of
fractional shares being as stipulated in article 3.4.5 below.
This adjustment will be carried out so as to equalize the value of the
securities which would have been obtained upon redemption of the ORANEs before
the consummation of one of the transactions listed above and the value of the
securities which will be obtained upon redemption of the ORANEs after the
consummation of the said transaction.
(1) In the event of an issue including a listed preferential subscription right,
the new number of shares which may be obtained for each ORANE will be determined
by multiplying the number of shares which would have been obtained for one ORANE
before the start of the transaction 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 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 shares and
the subscription right are both listed) during all trading sessions included in
the subscription period during which the ex-right share and the subscription
right are simultaneously listed.
(2) IN THE EVENT OF A FREE DISTRIBUTION TO SHAREHOLDERS OF SIMPLE OR COMPOSITE
FINANCIAL INSTRUMENTS OTHER THAN COMPANY SHARES, the new number of shares to be
distributed as redemption for the ORANE will be determined as follows
(a) If the distribution right for the financial instrument(s) is listed on
Euronext Paris, the new number of shares delivered in redemption of
each ORANE will be determined by multiplying the number of shares which
would have been obtained in redemption of ORANEs 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 shares and
the allocation right are both listed) of the shares and of the allocation right
during the ten first trading days during which the shares and the allocation
right are simultaneously listed. Should this calculation result from use of
fewer than five trades, it shall be assessed by an expert chosen by the Company;
(b) If the distribution right for the financial instrument(s) is not listed
on Euronext Paris, the new number of shares delivered in redemption of
each ORANE will be determined by multiplying the number of shares which
would have been obtained in redemption of each ORANE 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 any of 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 (they) will be assessed by an expert chosen by the Company.
(3) IN THE EVENT OF AN INCREASE IN REGISTERED CAPITAL BY CAPITALIZATION OF
RESERVES, PROFITS OR ISSUE PREMIUMS AND FREE DISTRIBUTION OF SHARES, OR IN THE
EVENT OF SHARE SPLITS OR REVERSE SPLIT, the new number of shares that may be
obtained in redemption of each ORANE will be determined by multiplying the
number of shares which may be obtained in redemption before the start of the
transaction in question, by the ratio:
Number of shares comprising the capital after the transaction
---------------------------------------------
Number of shares comprising the capital before the transaction
(4) IN THE EVENT OF AN INCREASE IN REGISTERED CAPITAL BY CAPITALIZATION OF
RESERVES, PROFITS OR ISSUE PREMIUMS BY INCREASE IN THE NOMINAL VALUE OF THE
SHARES, the nominal value of the shares which holders of ORANE may obtain by
exercising their ORANE will be increased in proportion.
(5) IN THE EVENT OF THE DISTRIBUTION OF RESERVES OR PREMIUMS IN CASH OR
PORTFOLIO SECURITIES, the new number of shares that may be obtained in
redemption of each ORANE will be determined by multiplying the number of shares
that may have been obtained in redemption of the ORANEs before the start of the
transaction 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 security 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
trading days as chosen from the forty which precede the distribution day, if
these are securities admitted to trading on a regulated market, or, if not,
on the basis of a value determined by an expert chosen by the Company.
(6) Pursuant to French 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
Holders.
The ORANE will be reimbursed in shares of the absorbing or new company, pursuant
to the conditions stipulated herein, provided that this will not affect 3.3.1
(iii).
The number of shares of the absorbing or new company granted in redemption for
each ORANE will be equal to the number of Company ordinary shares which the
Holder would have received, corrected by the ratio for the exchange of the
Company ordinary 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 Holders in the event of financial or securities
transactions and, in general terms, for all obligations related to the ORANE
binding upon the Company pursuant to this Contract.
(7) 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.
(8) 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 the present paragraph, the term "EXCEPTIONAL DIVIDEND" shall
refer 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 possible related 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" shall refer to the sum of the ratios obtained by dividing the
Reference Dividend and each of the Previous Dividends by the Company's 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 redemption ratio pursuant to
paragraphs (1) to (8) above shall not be taken into account for the application
of the present clause.
In the event of the payment of an Exceptional Dividend, the calculation formula
for the Redemption Parity shall be the following:
NRP = RP x (1+RDD-3%)
where:
NRP: New Redemption Parity
RP: the last Redemption Parity in effect before the distribution of the
Reference Dividend
RDD: the Ratio of Distributed Dividends as defined below;
With the understanding that any dividend paid 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:
NRP = RP 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 Redemption
Parity pursuant to paragraphs (1) to (8) above, if necessary) and not taking
into account any related tax credit (`avoir fiscal'), by the Company's market
capitalization, obtained by the product (x) of the closing price of the
Company's shares on Euronext Paris on the day which precedes the distribution
day of the Supplementary Dividend, multiplied by (y) the number of Company's
shares existing on that date.
If the Company carries out transactions which do not entail an adjustment
pursuant to paragraphs (1) to (8) above and should subsequent law or regulation
call for such an adjustment, the Company will apply this adjustment in
compliance with the applicable statutory or regulatory provisions and in
accordance with 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.
3.4.4 Information for Holders in the event of adjustments
In the event of adjustments, Holders will be made aware of the New Redemption
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.
3.4.5 Settlement of fractional shares
Any XXXXX Xxxxxx can obtain a number of shares calculated by applying the
applicable Redemption Parity to the number of ORANE presented.
When the calculated number of shares does not result in a whole number, the
XXXXX Xxxxxx will be provided, at his option, with:
- 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 producing the fractional share multiplied by the opening Company
share trading price on the Euronext Paris Premier Marche on the opening of
the trading day immediately preceding the redemption 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.
3.5. LIMITATION
The right to receive the redemption of the principal of the ORANEs will be
barred after a period of thirty (30) years from the applicable redemption date
and the rights to receive the payment of the Coupon applying to the ORANEs will
be barred after a period of five (5) years from the date when the said Coupon
becomes due.
Beyond these limitation dates, any unclaimed amounts will, subject to the legal
provisions, 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 law, the Coupon payable on the ORANEs will
be paid without withholding tax. In the event of a change in applicable law, or
should such withholding tax become applicable for any reason whatsoever, the
amount of any sum owed by the Company as payment of the Coupon will be increased
such that the net amount received by the Holder, 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 HOLDERS
For the purpose of representing their common interests, the Holders will be
grouped into a body of Holders ("masse") as a matter of law. The body of Holders
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 Holders shall have legal personality pursuant to article L.228-46 of
the Commerce Code and shall act, on the one hand, through a representative of
the body of Holders and, on the other hand, through its General Meeting.
4.2 THE REPRESENTATIVES
1) Primary representatives of the Body of Holders:
- [...], residing [...].
- [...], residing [...].
Whether together or separately, these primary representatives will, without
restriction or reserve, be authorized to carry out, in the name of the body of
Holders, all management acts in defense of the common interests of the Holders.
The compensation of each of the primary 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 Holders:
- [...], 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 incumbent 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. PUBLICIS SHARES ISSUED AS REDEMPTION FOR THE ORANES
The ORANEs can be redeemed, as chosen by the issuer, either through the
allocation of new PUBLICIS shares, or by the allocation of PUBLICIS shares held
in the treasury.
The new shares will be of the exact same nature as the existing shares and will
confer the right, both during the life of the Company or upon its liquidation,
to receive, in proportion with the nominal value, the same net amount as the
other shares with respect to any distribution or redemption.
The new or existing shares delivered as redemption for one ORANE will receive,
for the financial year which began on their issue or delivery date and for the
subsequent financial years, the same dividend as is declared and paid in respect
of other shares outstanding as of that same date.
At the choice 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 redemption of ORANEs will be freely negotiable.
The Company will take all necessary steps to have the new shares admitted to the
Euronext Paris Premier Marche.
Any existing ordinary shares delivered as redemption will be immediately
negotiable on the Stock Market.
6. GOVERNING LAW - JURISDICTION
The ORANEs shall be 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
