EXHIBIT 10.2
POOLING AGREEMENT
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Agreement dated as of May 19, 1997 (this "Agreement") by and among
Publicis S.A., a societe anonyme organized and existing under the laws of France
("Publicis"), Publicis Communication, a societe anonyme organized and existing
under the laws of France ("Communication") and True North Communications Inc., a
Delaware corporation ("True North").
In consideration of the representations, warranties, covenants and
agreements set forth in this Agreement and other good and valuable
consideration, and independently and unconditionally with respect to any and all
other agreements between the parties, the parties agree as follows:
Article I
Agreements
1.1. Obligation of Publicis and Communication to Deliver Pooling
Letter. So long as Communication or any of its affiliates owns at least 10% of
the issued and outstanding shares of True North Stock (as hereinafter defined),
within 30 days after receiving a written request from True North delivered
before the third anniversary of this Agreement, Publicis and Communication shall
(a) furnish True North, and shall cause any designee of Communication serving on
the Board of Directors of True North to furnish True North, with a "pooling
letter", in substantially the form attached hereto as Exhibit A, or upon the
request of True North, in such other form as is conventional for a transaction
accounted for as a pooling of interests under generally accepted accounting
principles applied in the United States, and, (b) if reasonably requested, take
such other action in support of the transaction (other than a commitment to vote
for such transaction) as would be customary with respect to an acquisition or
other similar business transaction in which True North may participate; provided
that Publicis and Communication may withdraw such pooling letter if any of the
following conditions is not met within 90 days after Publicis and Communication
shall have furnished such pooling letter.
(i) True North has obtained a fairness opinion from a
nationally recognized investment bank with regard to the contemplated
transaction;
(ii) A majority of the non-management directors of True North
has voted to approve the terms and conditions of the contemplated
transaction; and
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(iii) True North has obtained pooling letters (or similar
action) by all other non-de minimis affiliates of True North.
1.1.1. Not later than 90 days after Publicis and Communication shall
have furnished the pooling letter, True North shall call a meeting of the
shareholders of True North, to be held within a further 60 days, to vote on the
contemplated transaction. If a majority vote of the outstanding shares of True
North in favor of the contemplated transaction is not obtained at such meeting
(or at an adjournment thereof within such 60 day period), Publicis and
Communication may withdraw their pooling letter.
1.1.2. The obligation of Publicis and Communication to furnish a
pooling letter pursuant to this Section 1.1 shall expire at the end of the
earlier of (a) True North's successful completion of a significant transaction
involving the pooling method of accounting or (b) three years after the date of
this Agreement.
1.2. Obligations of True North to Deliver Pooling Letter. So long as
True North and its subsidiaries own in the aggregate at least 10% of the issued
and outstanding shares of Communication Stock, within 30 days after receiving a
written request from Communication delivered before the third anniversary of
this Agreement, True North shall (a) furnish Communication, and shall cause any
designee of True North serving on the Board of Directors of Communication to
furnish Communication, with a pooling letter, in a form as is conventional for a
transaction accounted for as a pooling of interests under generally accepted
accounting principles applied in France, and, (b) if reasonably requested, take
such other action in support of the transaction (other than a commitment to vote
for such transaction) as would be customary with respect to an acquisition or
other similar business transaction in which Communication may participate;
provided that True North may withdraw such pooling letter if any of the
following conditions is not met within 90 days after True North shall have
furnished such pooling letter.
(i) Communication has obtained a fairness opinion from a
nationally recognized investment bank with regard to the contemplated
transaction;
(ii) A majority of the outside Directors of Communication has
voted to approve the terms and conditions of the contemplated transaction;
and
(iii) Communication has obtained pooling letters (or similar
action) by all other non-de minimis affiliates of Communication.
1.2.1. Not later than 90 days after True North shall have furnished
the pooling letter, Communication shall call a meeting of the shareholders of
Communication, to be held within a further 60 days, to vote on the contemplated
transaction. If a majority vote of the outstanding shares of Communication in
favor of the contemplated transaction is not obtained at such meeting, True
North may withdraw its pooling letter.
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1.2.2. The obligation of True North to furnish a pooling letter
pursuant to this Section 1.2 shall expire at the end of the earlier of (a)
Communication's successful completion of a significant transaction involving the
pooling method of accounting or (b) three years after the date of this
Agreement.
Article II
Miscellaneous
2.1. Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement among the parties with regard to the subject
matter hereof and supersedes all prior agreements and understandings among the
parties relating to the subject matter hereof. This Agreement shall be of no
force or effect until the Agreement dated as of the date hereof by and among the
parties hereto, Publicis-FCB Europe B.V. ("PBV"), FCB International Inc.
("FCBI") and True North Holdings Netherlands B.V. ("TNBV") (the "Main
Agreement") has been executed and delivered by each party thereto.
2.2. Notices. Any notice, request or other demand to or upon the
parties hereto shall be in writing (including telex and telecopy communication
followed by registered mail with return receipt requested) and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or when telexed (answer-back received) or telecopied (with
receipt acknowledged) addressed to the party for which intended as provided
below (or as hereinafter specified by such party by notice hereunder):
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If to Communication or Publicis, to it at:
000 xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx Cedex 08
France
Attention: President-Directeur General
Telecopy: 00-0-00-00-00-00
with a copy to:
Xxxxxx Xxxx, Esq.
Xxxxxx, Xxxxx & Xxxxx
1330 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Telecopy: 0-000-000-0000
If to True North, to it at:
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Chief Executive Officer
Telecopy: 0-000-000-0000
with a copy to:
General Counsel
True North Communications Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Telecopy: 0-000-000-0000
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2.3. Survival. Sections 2.4.1, 2.4.2, 2.4.3, and 2.5 and agreements
and covenants contained in any document delivered pursuant hereto or in
connection herewith (unless otherwise expressly provided herein or therein)
shall survive the termination of this Agreement and shall remain in full force
and effect.
2.4.1. Governing Laws. The provisions of this Agreement, including,
without limitation, the validity, interpretation, performance or termination of
them, shall be governed by and construed in accordance with (a) to the extent
relating to a request under Section 1.1, the laws of the State of Delaware,
United States of America, excluding its choice of law rules and (b) to the
extent relating to a request under Section 1.2, the laws of France applicable to
agreements executed and delivered and to be performed in France, without regard
to conflicts of laws principles.
2.4.2. Any claim arising out of a request under Section 1.1 of this
Agreement shall be brought only in a court of the State of Delaware or in a
United States District Court located within the State of Delaware. This
provision shall be enforceable by any party even if another party has related
disputes with persons who are not parties to this Agreement. Each of the parties
hereto irrevocably consents and submits to the jurisdiction of such courts in
any action within the scope of this provision. Each of the parties to this
Agreement agrees to the sufficiency of service of process if made by hand
delivery pursuant to Section 2.2 of this Agreement. Each of the parties to this
Agreement hereby irrevocably waives any objections to jurisdiction or venue in
such courts, including but not limited to objections based on the common law
doctrine or forum non coveniens or its statutory counterparts. Without limiting
the rights of True North to pursue any other legal and equitable remedies
available to it for any breach by Publicis and Communication of this Agreement
arising out of a request under Section 1.1, Publicis and Communication
acknowledge that such a breach would cause a loss to True North which could not
be reasonably or adequately compensated in damages in an action at law, that
remedies other than injunctive relief could not fully compensate True North for
a breach of said covenants and that, accordingly, True North shall be entitled
to injunctive relief to prevent any breach or continuing breaches of this
Agreement arising out of a request under Section 1.1. It is the intention of the
parties hereto that if any term, restriction, covenant or promise is found to be
unenforceable and for that reason is unenforceable, then such term, restriction,
covenant or promise shall be deemed modified to the extent necessary to make it
enforceable by such court.
2.4.3. Any claim arising out of a request under Section 1.2 shall be
brought only in a court of France located in Paris, France. This provision shall
be enforceable by any party even if another party has related disputes with
persons who are not parties to this Agreement. Each of the parties hereto
irrevocably consents and submits to the jurisdiction of such courts in any
action within the scope of this provision. Each of the parties to this Agreement
agrees to the sufficiency of service of process if made by hand delivery
pursuant to Section 2.2 of this Agreement. Each of the parties to this Agreement
hereby irrevocably waives any objections to jurisdiction or venue in such
courts, including but not limited to objections based on the common law doctrine
of forum non
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conveniens or its statutory counterparts. Without limited the rights of
Communication to pursue any other legal and equitable remedies available to it
for any breach by True North of this Agreement arising out of a request under
Section 1.2, True North acknowledges that such a breach would cause a loss to
Communication which could not be reasonably or adequately compensated in damages
in an action at law, that remedies other than injunctive relief could not fully
compensate Communication for a breach of said covenants and that, accordingly,
Communication shall be entitled to injunctive relief to prevent any breach or
continuing breaches of this Agreement arising out of a request under Section
1.2. It is the intention of the parties hereto that if any term, restriction,
covenant or promise is found to be unenforceable and for that reason is
unenforceable, then such term, restriction, covenant or promise shall be deemed
modified to the extent necessary to make it enforceable by such court.
2.5. Enforceability; Severability. It is the desire and intent of
the parties that the provisions of this Agreement shall be enforced to the
fullest extent permissible under the governing laws. Accordingly, if any
provision of this Agreement is or becomes invalid or unenforceable, is held by
any competent court or arbitral tribunal to be invalid or unenforceable, or is
challenged by either party hereto as being invalid or unenforceable under French
or Delaware law, respectively, then such provision shall be interpreted under
laws of the State of Delaware or France, respectively, and insofar as it is
invalid or unenforceable under Delaware or French law, respectively, be given no
effect and shall be deemed not be included in this Agreement, but without
invalidating any of the remaining provisions of this Agreement, which other
provisions shall remain in full force and effect. The parties shall then
negotiate in good faith and shall be bound to replace without delay the invalid
or unenforceable provision by a valid provision the effect of which is as close
as possible to the intended effect of the invalid or unenforceable provision.
2.6. Expenses. Except as the parties may otherwise agree, all fees,
commissions and expenses incurred by True North, Publicis, or Communication in
connection with the negotiation, execution, delivery or performance of this
Agreement shall be borne by the party incurring such expenses.
2.7. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties thereto and their respective
successors and assigns. This Agreement may not be assigned by a party hereto,
whether by operation of law or otherwise, without the prior written consent of
the other party. Any purported assignment in violation of this provision shall
be void and of no force or effect.
2.8. Descriptive Headings. Section headings used in the Agreement
are used for convenience of reference only and shall in no event be used for
interpretation purposes.
2.9. Amendment; Waivers. Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
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2.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original instrument, but all
of which shall be considered one and the same agreement, and shall become
binding when one or more counterpart shall have been signed by each of the
parties and delivered to each of the other parties thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective duly authorized officers, effective as of the
date first written above.
PUBLICIS S.A. TRUE NORTH COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx Xxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President of Directoire Title: Director, Chairman of Special
Committee
PUBLICIS COMMUNICATION
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Director General
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