Exhibit 4.2
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")
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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, IT IS 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 18, 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.
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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 compliance 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 of Bonds (a "BONDHOLDER"), the Bonds held by such
holder shall be either in 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 Bondholder(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 Bondholder(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 number 83-359 of May 2, 1983).
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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 - Paying Agent
Euro Emetteurs Finance will ensure the servicing of the securities as a
registrar and [...] will ensure the payment of the principal and Interest due on
the Bonds (the "PAYING AGENT").
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").
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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 3.1 to
this Contract.
3.2 REPURCHASE OF THE BONDS AT THE DISCRETION OF THE ISSUER
Subject to sections 4.1 and 4.2 below, 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.
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The Bonds acquired in this matter 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
In accordance with Section 3.1 of the attached Indenture, upon occurrence of any
of the events described in clauses (a) through (e), the Trustee, as defined
under Section 4 hereafter, by simple written notice sent to the Company, with a
copy sent to the Paying Agent, (i) shall, at the request of the holders of at
least a majority in principal amount of the outstanding Bonds, or (ii) only in
the event described in clause (d), may (but shall not be obligated to), without
instruction of the holders, demand the early redemption of all of the Bonds at
the Early Redemption Price (as defined by paragraph 3.3.2):
(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 Trustee;
(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 an 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 Trustee, 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
Trustee of the occurrence of any event 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, an 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
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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
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 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 Paying Agent.
The Company's decision to carry out any repurchase pursuant to Section 3.2 will,
at least one month before the 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
The Bonds being issued outside of France, pursuant to article L. 228-90 of the
Code de commerce the Bondholders will not be grouped in a "masse". Therefore,
articles L. 228-46 through 228-69, L.228-71, article L.228-72, articles L.228-76
through L.228-81 and articles L.228-83 through L.228-89 shall not apply to the
Bonds and the Bondholders. Instead, a trustee will act for the
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benefit of the Bondholders pursuant to the Indenture attached to this Agreement
(the "TRUSTEE"), which Indenture is incorporated into this Agreement as if fully
set forth herein.
For the avoidance of doubt, any reference in the Section 4.1 and Section 4.2 to
the "repurchase" of the Bonds shall mean a "remboursement anticipe des
obligations" under French law.
4.1 MERGER, DEMERGER, PARTIAL BUSINESS TRANSFER
(a) In the event the Company proposes to engage in a plan of merger, demerger or
spin off (" scission") with the result that the Company ceases to exist as a
legal entity, or a transfer of a part of the Company's business to another
entity or entities by way of an "apport partiel d'actifs soumis au regime des
scissions" (each, a "Corporate Transaction"), the Company shall either (i) send
a written notice to the Trustee that the Company is offering to repurchase all
or any portion of the outstanding Bonds of each Bondholder if so requested by
such Bondholder, or (ii) request that the Trustee submit the Corporate
Transaction to the Bondholders for approval. Notwithstanding the foregoing, in
the event that a Corporate Transaction is submitted for approval to the
Bondholders but is not approved in accordance with the terms hereof, the Company
may nevertheless proceed with the contemplated transaction, as provided by
article L.228-73 of the French Commercial Code.
(b) In the event the Company wishes to offer to repurchase the Bonds in
accordance with Section 4.1 (a)(i):
(1) No later than 30 days prior to the Company's shareholders meeting
convened to approve the Corporate Transaction, the Company shall provide the
Trustee with written notice of the Company's offer to repurchase (the "CT
REPURCHASE OFFER"), which shall set forth (x) the contemplated Corporate
Transaction, and (y) that each Bond shall be repurchased, subject to
consummation of the Corporate Transaction, at the Early Redemption Price (as
such term is defined in article 3.3.2 of the Contract) upon any Bondholder's
request;
(2) The Trustee shall within five days of receipt send a copy of such
CT Repurchase Offer to each Bondholder;
(3) Each Bondholder wishing to have all or any portion of his or her
Bonds repurchased pursuant to the CT Repurchase Offer shall make a written
request to the Trustee no later than three months following the date of the CT
Repurchase Offer (the "CT INDIVIDUAL REPURCHASE REQUEST"), which request shall
become irrevocable upon receipt by the Trustee;
(4) No later than five days following the earlier of (x) the end of
this three-month period and (y) the date on which the Trustee shall have
received CT Individual Repurchase Requests from all the Bondholders, the Trustee
shall make a written repurchase request to the Company (the "CT FINAL REPURCHASE
REQUEST"), which CT Final Repurchase Request shall set forth (i) the list of
Bondholders wishing to have their Bonds repurchased, (ii) the amount of Bonds
that each Bondholder wishes to have repurchased, and (iii) the aggregate amount
of Bonds to be repurchased by the Company;
(5) Within 30 days following receipt of such CT Final Repurchase
Request, but in no event earlier than the date of the consummation of the
Corporate Transaction, the Company shall transfer the aggregate purchase price
to the Paying Agent for distribution to the applicable
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Bondholders and repurchase the Bonds set forth in the CT Final Repurchase
Request at the Early Redemption Price.
For the avoidance of doubt:
(1) The obligation of the Company to consummate the repurchase of the
Bonds shall be conditioned upon the consummation of the Corporate Transaction
and the transfer of the aggregate purchase price to the Paying Agent pursuant to
Section 4.1(b)(5) above may be made after the Corporate Transaction is
consummated;
(2) In the case of a partial business transfer ("apport partiel
d'actifs soumis au regime des scissions"), or a demerger or spin off
("scission"), the Bondholders who shall send the CT Individual Repurchase
Request to the Trustee in accordance with this Section 4.1 shall be paid by the
Company and/or by the resulting or transferee entities acting jointly and
severally for this purpose.
(3) In the event of a transfer of a part of the Company's business to
another entity by way of an apport partiel d'actifs soumis au regime des
scissions, the provisions of paragraph (a) above shall not be considered,
interpreted or understood as providing anything different than what is provided
by applicable French law, including inter alia articles L. 228-73, and L. 236-16
through L. 236-22 of the French Commercial Code.
(C) In the event the Company requests that the Trustee submit the Corporate
Transaction to the Bondholders for approval in accordance with Section 4.1
(a)(ii):
(1) The Company shall provide the Trustee with (i) a written notice of
such proposed Corporate Transaction, and (ii) a certified English translation of
the same information that is required to be published in the Bulletin of
Obligatory Legal Announcements ("avis de fusion ou de scission" referred to by
article L.236-6 of the Code de commerce and D.155 of the decree number 67-236 of
23 March 1967) (substantially in the form this information has been or will be
published in the Bulletin of Obligatory Legal Announcements) (the "CT
INFORMATION"), no later than two business days after the Company has published
the description of the proposed Corporate Transaction in the Bulletin of
Obligatory Legal Announcement, as required by French law;
(2) The Trustee shall within five days of receipt send to each
Bondholder the CT Information together with a proxy allowing each of the
Bondholders to instruct the Trustee (i) to approve or oppose the Corporate
Transaction and/or (ii) to file claim before the Paris Tribunal de Commerce in
accordance with Section 4.1 (c)(6) hereof (abstention or failure to respond or
to make a choice relating to a proposal shall be considered as an instruction to
approve the Corporate Transaction and/or not to file a claim);
(3) Each Bondholder wishing to instruct the Trustee to vote on the
Corporate Transaction and/or to file a claim as described in Section 4.1 (c)(2)
shall send the proxy to the Trustee no later than 20 days following the date on
which the CT Information and related proxy is sent to the Bondholders. The
action of the holders of at least a majority in principal amount of the Bonds is
required to approve or oppose a Corporate Transaction;
(4) Promptly after expiration of such 20-day period, the Trustee shall
promptly notify the Company in writing of the Bondholders' decision, which
notice shall state the amount and
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percentage of principal amount of the Bonds the holders of which opposed the
Corporate Transaction and/or requested that a claim be filed;
(5) If the Management Board of the Company decides to proceed with the
contemplated Corporate Transaction despite the Bondholders' opposing decision,
the Management Board of the Company shall promptly notify the Trustee of such
decision. The Trustee shall (i) promptly upon receipt send a copy of such
decision to each of the Bondholders; and (ii), within 30 days following such
receipt, if previously so instructed by holders of a majority in principal
amount of the outstanding Bonds pursuant to Section 4.1 (c)(2), cause the filing
of a claim before the Paris Tribunal de Commerce requesting the court to order
the repurchase of the outstanding Bonds or the posting of security for the
repurchase of such Bonds pursuant to the terms and conditions of articles L.
228-73 Section 3 and L. 236-14 of the Code de Commerce.
4.2 CHANGE OF THE CORPORATE FORM OR OF THE CORPORATE PURPOSE, ISSUANCE OF
SECURED OBLIGATIONS
(a) In the event of (i) any proposed issuance of bonds ("obligations" within the
meaning of French law) secured by the Company's assets (to the extent such
issuance is permitted pursuant to Section 2.7.2 of the Contract); (ii) any
proposed change of the Company's corporate form (from its current form as a
French "societe anonyme" to any other corporate form); or (iii) any proposed
change of the Company's corporate purpose (resulting in an amendment of article
2 of the Company's by-laws) (each, a "Material OPERATION"), the Company shall
either (x) send a written notice to the Trustee that the Company is offering to
repurchase all or any portion of the outstanding Bonds of each Bondholder if so
requested by such Bondholder, or (y) request that the Trustee submit the
Material Operation to the Bondholders for approval.
(b) In the event that the Company wishes to offer to repurchase the Bonds in
accordance with Section 4.2 (a)(x):
(1) No later than 30 days before the Company's shareholders meeting
convened to approve the Material Operation or, if no shareholders meeting is
required to approve such Material Operation, no later than the date of
consummation of the Material Operation, the Company shall provide the Trustee
with written notice of the Company's offer to repurchase (the "MO REPURCHASE
OFFER"), which shall set forth (i) the contemplated Material Operation, and (ii)
that each Bond shall be repurchased, subject to the consummation of the Material
Operation, at the Early Redemption Price upon any Bondholder's request;
(2) The Trustee shall within five days of receipt send a copy of such
MO Repurchase Offer to each Bondholder;
(3) Each Bondholder wishing to have all or any portion of his or her
Bonds repurchased pursuant to the MO Repurchase Offer shall make a written
request to the Trustee no later than three months following the date of the MO
Repurchase Offer (the "MO INDIVIDUAL REPURCHASE REQUEST") which request shall
become irrevocable upon receipt by the Trustee;
(4) No later than five days following the earlier of (x) the end of
this three month period, or (y) the date on which the Trustee shall have
received MO Individual Purchase Requests from all the Bondholders, the Trustee
shall make a written repurchase request to the
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Company (the "MO FINAL REPURCHASE REQUEST"), which MO Final Repurchase Request
shall set forth (i) the list of Bondholders wishing to have their Bonds
repurchased, (ii) the amount of Bonds that each Bondholder wishes to have
repurchased and (iii) the aggregate amount of Bonds to be repurchased by the
Company;
(5) Within 30 days following receipt of such MO Final Repurchase
Request, but in no event earlier than the date of the consummation of the
Material Operation, the Company shall transfer the aggregate purchase price to
the Paying Agent for distribution to the applicable Bondholders and repurchase
the Bonds set forth in the MO Final Repurchase Request at the Early Redemption
Price.
For the avoidance of doubt, the Company's obligation to consummate the
repurchase of the Bonds shall be conditioned upon the consummation of the
Material Operation and the transfer of the aggregate purchase to the Paying
Agent pursuant to Section 4.2 (b)(5) above may be consummated after the Material
Operation becomes effective.
(c) In the event that the Company requests that the Trustee submit any Material
Operation to the Bondholders for approval in accordance with Section 4.2 (a)(y):
(1) In the event of a change of the corporate purpose or the corporate
form, the Company shall provide the Trustee with (i) a written notice of such
Material Operation, and (ii) a certified English translation of the proposed
resolutions of the Company's shareholders meeting convened or to be convened to
approve the proposed Material Operation and the notice relating thereto
(substantially in the form these documents have been or will be published in the
Bulletin of Obligatory Legal Announcements), no later than two business days
after the Company has published the notice of the meeting ("avis de reunion") in
the Bulletin of Obligatory Legal Announcements, as required by French law;
(2) In the event of the issuance of "obligations" secured by the
Company's assets, the Company shall, 30 days prior to such issuance, provide the
Trustee with (i) the legal disclosures filed by the Company with the competent
regulatory authorities in France, and (ii) if applicable, a certified English
translation of the avis de reunion and proposed resolutions of the Company's
shareholders meeting convened or to be convened to approve the proposed issuance
(substantially in the form these documents have been or will be published in the
Bulletin of Obligatory Legal Announcements) (the documents referred to in this
paragraph 2 and paragraph 1 above shall be collectively referred to as the "MO
INFORMATION");
(3) The Trustee shall within five days of receipt send to each
Bondholder the MO Information together with a proxy allowing each of the
Bondholders to instruct the Trustee (i) to approve or oppose the Material
Operation and/or (ii) to require the repurchase of all or a portion of his or
her Bonds in the circumstances described under Section 4.2 (c)(6) (abstention or
failure to respond or to make a choice relating to a proposal shall be
considered as an instruction to approve the Material Operation and/or to waive
the right to have his or her Bonds repurchased);
(4) Each Bondholder wishing to instruct the Trustee to vote on the
Material Operation and/or, as applicable, to have all or a portion of his or her
Bonds repurchased in accordance with Section 4.2 (c)(3) shall send the proxy to
the Trustee no later than 20 days following the date on which the MO Information
and related proxy is sent to the Bondholders. The action of the holders of at
least a majority in principal amount of the Bonds is required to approve or
oppose a Material Operation;
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(5) Promptly upon expiration of such 20-day period, the Trustee shall
promptly notify the Company in writing of the Bondholders' decision, which
notice shall state the amount and percentage of principal amount of the Bonds
the holders of which opposed the Material Operation and/or requested the
repurchase of their Bonds, if applicable;
(6) If the Management Board of the Company decides to proceed with the
contemplated Material Operation despite the Bondholders' opposing decision, the
Management Board of the Company shall promptly notify the Trustee of such
decision. The Trustee shall (i) promptly upon receipt send a copy of such
decision to each of the Bondholders; and (ii) send to the Company a written
repurchase request which repurchase request, shall set forth (i) the list of
Bondholders wishing to have their Bonds repurchased, (ii) the amount of Bonds
that each Bondholder wishes to have repurchased and (iii) the aggregate amount
of Bonds to be repurchased by the Company;
(7) Within 30 days following receipt of such repurchase request, the
Company shall transfer the aggregate purchase price to the Paying Agent for
distribution to the applicable Bondholders and repurchase the Bonds set forth in
such repurchase request at the Early Redemption Price.
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 held by such holder shall be 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).
-13-
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 equity
securities (within the meaning of article 5-1-2 of the Conseil des Marches
Financier 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,
-14-
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 then transmit this request to the institution in charge of
servicing the SW.
Once a 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.
-15-
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 number 67-236 of 23 March 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.
-16-
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
--------------------------------------------------------------------------
Value of the share ex-free allocation right
-17-
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.
-18-
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
-19-
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 completes 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:
-20-
- 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 held by such holder shall be 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.
-21-
7. SEVERABILITY.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
8. GOVERNING LAW - JURISDICTION
This Agreement (excluding any provisions incorporated herein from the Indenture,
which shall be governed and construed pursuant to the Indenture) shall be
governed by French law.
Except as expressly set forth in the Indenture, 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 4.2
Exhibit 1.1
NINETEENTH RESOLUTION
The Shareholders' Meeting, after having familiarized itself with the report by
the Management Board, with the special report by the Statutory Auditors and
with the report of the independent appraisers, and subject to the conditions
precedent (a) of approval by the Company's shareholders of the 16th, 17th, 20th
and 21st resolutions, (b) of satisfaction or waiver of the conditions
precedent concerning the merger as detailed in the Merger Agreement and in the
report by the Management Board including, in particular, approval by the Bcom3
shareholders of the merger described in the said report by the Management Board
and by the Merger Agreement that is the object of the 16th resolution:
1. Delegates full powers to the Management Board, with the power of
substitution under the conditions laid down in law, for the purpose of carrying
out a bond issue in a nominal amount of 857,812,500 euros, divided into
2,812,500 bonds of 305 euros each (the "Bonds") with 10 equity warrants
immediately detachable, each entitling the holder to subscribe to one Company
share (hereinafter designated as the << OBSA : >).
The present authorization is granted for a duration of six months starting with
the date of the present meeting.
2. Lays down the following principal terms of the borrowing:
A. CHARACTERISTICS OF THE BONDS:
>> EFFECTIVE DATE AND SETTLEMENT DATE:
The effective date and settlement date shall be the effective time of the
merger of Bcom3 and Philadelphia Merger Corp., as defined in the Merger
Agreement.
>> ISSUE PRICE OF THE BONDS:
The Bonds are issued at their par value, namely 305 euros.
>> DURATION:
The duration of the Bonds is set at 20 years starting with the settlement
date.
>> ANNUAL INTEREST:
Subject to the following, the bondholders shall receive annual interest
of 2.75% of the nominal amount of the Bonds paid semiannually in cash on
June 30 and December 31 of each year.
>> NORMAL REDEMPTION
Saving cases of early redemption or of prepayment in accordance with its
terms, the Bonds shall be redeemed and their nominal value shall be
reduced to that extent in the form
of an annual tranche of 10% on June 30 of each year starting on 30 June
2013.
>> EARLY REDEMPTION
Redemption of the bonds may be requested under the conditions laid down
in the issue contract if one of the following events or an event having
analogous or equivalent effects occurs:
-- The Company's failure to pay any amount due, in terms of principal
or interest, in connection with the Bonds if the said shortcoming is not
remedied within a period of thirty business days starting with the date
of payability;
-- Lack of performance by the Company of another one of its
commitments in connection with the Bonds if the said shortcoming is not
remedied within a period of thirty business days starting with the date
of notification of the said shortcoming;
-- Failure by the Company or by one of its material subsidiaries in
meeting obligations in connection with another material financial
commitment;
-- Cessation of payments, legal settlement with creditors, agreed
liquidation or reorganization or judicial liquidation of the Company or
one of its material subsidiaries.
B. CHARACTERISTICS OF THE EQUITY WARRANTS ("BONS DE SOUSCRIPTION D'ACTIONS",
"BSA"):
>> NUMBER OF BSA:
Ten BSA shall be attached to each Bond issued and shall be detachable
immediately after issue.
>> EXERCISE PRICE OF THE BSA AND NUMBER OF SHARES TO WHICH THEY OFFER
ACCESS:
Subject to the adjustments necessary for maintenance of the rights of the
holders of BSA in case of financial operations, each BSA shall entitle
its holder to subscribe to one Company share at a price of 30.5 euros.
>> PERIOD FOR EXERCISE OF THE BSA:
The BSA shall be exercisable at any time starting with the eleventh
anniversary of the payment date and until its twentieth anniversary.
They may be exercised early at any time if one of the following cases
occurs:
[X] Publication of notice of the opening of a public offer bearing on
the totality of the securities issued by the Company;
[X] Transfer to a third party of a substantial part of the Company's
assets or business;
[X] Change of the control of the Company which is defined as control
by an entity other than the group consisting of Mrs. Xxxxxxxxx Xxxxxxxx,
Somarel and Dentsu;
[X] Cessation of payments, legal settlement with creditors, agreed
liquidation or reorganization or judicial liquidation of the Company or
one of its important subsidiaries.
3. Eliminates the shareholders' preferential subscription right and reserves
the totality of the subscription to the OBSA for Philadelphia Merger LLC, a
corporation organized under the law of the State of Delaware (United States of
America) whose head office is c/o National Registered Agents, Inc, 9 East
Loockerman Street, city of Xxxxx, Xxxx County, Delaware 00000 (Xxxxxx Xxxxxx of
America), an indirect subsidiary of the Company.
As explained in the Management Board's report and in the Merger Agreement
approved by the shareholders in the 16th resolution, the said reserved issue is
part of the merger of Delaware corporation Bcom3 by absorption into and with
Philadelphia Merger Corp.
The extraordinary Shareholders' Meeting takes note of the fact that pursuant to
the provisions of article L 225-151, paragraph 2, of the Code of Commerce, the
present decision entails by right, to the benefit of the holders of the BSA
mentioned in the present resolution, a waiver by the Company's shareholders of
their preferential subscription right to the shares to be issued at the time of
exercise of the said BSA.
4. Authorizes the Management Board to increase the share capital by a maximum
amount of 11,250,000 euros by issue of the maximum number of 28,125,000 new
shares to be subscribed by exercise of BSA, it being specified that the said
maximum amount is set without regard to the consequences on the amount of
the share capital increase of the adjustments that might be made, pursuant to
the law, in case of financial operations.
Sets the exercise price of each BSA at 30.5 euros pursuant to the agreement
between the Company and Bcom3 in the Merger Agreement.
5. Decides that the new shares resulting from the subscription to the BSA
shall bear current dividend rights and shall be treated entirely on the same
basis as the existing shares.
6. Grants full powers to the Management Board, with the power of substitution
laid down in law, for the following purposes:
-- record realization of the conditions precedent mentioned in the present
resolution;
-- decide on and carry out the issue of the OBSA that are the object of the
present resolution;
-- determine any other terms of the OBSA, and particularly the
stipulations making it possible to reserve or re-establish the holders'
rights in case of a financial operation on securities, within the limits
provided under the Code of Commerce, and generally to ensure to the
conformity of the stipulations of the said issue contract to the
applicable legal and regulatory provisions;
-- take all measures for the financial servicing of the securities;
-- take any necessary steps in order to make it possible to list the
BSA, as well as the bonds if the case arises, for trading on the Euronext
Paris S.A. market;
-- gather the requests for subscription to shares by exercise of the
BSA, record the number and nominal amount of the shares issued in
connection with exercise of the BSA, lay down the procedures of such
issues in accordance with the above stipulations and with the legislation
in effect, and carry out the related modifications of the articles of
incorporation;
-- enter into any agreement, take any steps and carry out any
formalities required for application of the present resolution.
Exhibit 4.2
Exhibit 3.1
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 [...]
