Exhibit 4.9
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FORM
OF
AGREEMENT FOR THE TRANSFER OF THE NUE-PROPRIETE
OF CERTAIN PUBLICIS SHARES
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(TO BE SIGNED AND DATED ON THE CLOSING DATE)
BETWEEN THE UNDERSIGNED
[NOMINEE], a company organized under the laws of ____________ acting as Special
Nominee (the "Nominee") for and on behalf of the Former Holders (as defined
below)
AND
DENTSU INC., a company organized under the laws of Japan, ("Dentsu");
together with the Nominee, the "Principal Parties";
AND
PUBLICIS GROUPE S.A., a company organized under the laws of France, ("Publicis")
together with the Principal Parties, sometimes referred to herein as the
"Parties", for purposes of Sections 1.1 through 1.1.3 , Sections 4.1 through
4.2, and Sections 5.5 through 5.8;
WHEREAS, Publicis, Philadelphia Merger Corp., Philadelphia Merger LLC and Bcom3
Group, Inc. (the "Company") have entered into an Agreement and Plan of Merger
dated as of March 7, 2002 (as amended from time to time, the "Merger
Agreement"), which provides for the merger of the Company into Philadelphia
Merger Corp. (the "Merger");
WHEREAS, the Company and the Nominee have entered into a Special Nominee
Agreement pursuant to which the Company has engaged the Nominee to act as
"Special Nominee" as contemplated by Section 2.03(a) of the Merger Agreement;
WHEREAS, in such capacity, the Nominee has received the Transfer Shares (as
defined below) on behalf of holders of Class A common stock of the Company on
the effective time of the Merger (the "Former Holders");
WHEREAS, the Company has directed the Nominee to enter into this agreement (the
"Agreement") to implement the provisions of Section 2.03(b) of the Merger
Agreement; and
WHEREAS, in accordance with Section 2.01(a)(ii)(B) and Section 2.03(b) of the
Merger Agreement, Dentsu is to receive the bare legal title (nue-propriete) of
the Transfer Shares as part of the Merger Consideration (as such term is defined
in the Merger Agreement), under the terms and conditions of this Agreement.
IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - TRANSFER OF NUE-PROPRIETE BY WAY OF "PRET DE CONSOMMATION"
1.1 THE TRANSFER
For and on behalf of the Former Holders, the Nominee hereby transfers
for the Term (as defined below) to Dentsu (sometimes referred to herein
as the "Nu Proprietaire") by way of a pret de consommation, pursuant to
Articles 1892 sq. of the French Civil Code and the terms and conditions
set forth in this Agreement, the bare legal title ("nue-propriete") to
[...] shares, par value 0.40 euros each, of Publicis (the
"Transfer Shares") free and clear of all pledges, liens, options or
encumbrances, except as otherwise provided in this Agreement (the
"Transfer"). Immediately after the Transfer, the Nominee shall transfer
to the Exchange Agent (as such term is defined in Section 2.05 of the
Merger Agreement) for deposit in the Class A Exchange Fund (in each
case, as defined in the Merger Agreement) the usufruct ("usufruit")
attached to such Transfer Shares for distribution to the Former
Holders. Each holder of such usufruct at any time is referred to herein
as a "Usufruitier", and all such holders together are referred to
herein as the "Usufruitiers".
For purposes of this Agreement, the Transfer Shares shall also be
deemed to include (A) Free Shares as such term is defined in Section
3.2(iv), (B) New Shares as such term is defined in Section 3.3.2; and
(C) New Entity Shares as such term is defined in Section 3.4.1.
1.1.1 TERM
The Transfer shall be for a period commencing on the date hereof and
expiring on the earlier of (i) the second anniversary of the date
hereof, and (ii) the occurrence of the event referred to in Section
1.1.2 (the "Term"). Upon expiration of the Term, the nue-propriete of
the Transfer Shares shall automatically revert to the Usufruitiers who,
as a consequence, shall from such date hold full ownership ("pleine
propriete") in the Transfer Shares.
1.1.2 EARLY TERMINATION
The Transfer shall terminate and the nue-propriete of the Transfer
Shares shall revert to the Usufruitiers upon the occurrence of the
following event (without notice except as otherwise expressly set
forth below):
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In case of a final arbitral award, in accordance with Section 5.7,
upholding a claim by the Nominee on behalf of the Usufruitiers that
Dentsu has committed a material breach of this Agreement, the date of
early termination shall be the 45th day following delivery of notice of
such final award by the Nominee to Publicis and Dentsu.
Notwithstanding the foregoing, in the event that, prior to the
expiration of such 45-day period, Dentsu provides Publicis and the
Nominee with documentary evidence that Dentsu has duly exercised any
right of recourse before a court with jurisdiction, the date of early
termination shall be the date of notification by the Nominee to
Publicis and Dentsu of the final decision of the competent court
upholding the arbitral award referred to in the preceding sentence.
1.1.3 EARLY REVERSION
In addition to the foregoing, with respect to each Former Holder who is
an individual, in the event of the death of such Former Holder after
the date hereof, the Transfer relating to the Usufruit received by such
Former Holder in the Merger shall be deemed to have terminated and
shall terminate as of the day preceding his or her death. Upon such
termination, the relevant nue-propriete shall automatically revert to
the Usufruitier. Upon Publicis's and Dentsu's receipt from the Nominee
of a "Notice of Early Reversion" in the form attached hereto as Annex
A, Publicis shall, without further notice or action by Dentsu, any
Usufruitier or any Former Holder, cause the pleine propriete of the
number of Transfer Shares set forth in such Notice, to be inscribed in
the name of the Usufruitier set forth in such Notice. In no event will
Dentsu and/or Publicis have or be deemed to have, any liability to the
Usufruitiers as a result of Dentsu's exercising voting rights attached
to the nue-propriete prior to Publicis and Dentsu's having received
such Notice of Early Reversion.
ARTICLE 2 - CREATION OF THE USUFRUIT
The usufruit of the Transfer Shares is hereby created for the duration of the
Transfer in accordance with the terms and conditions of Articles 578 to 624 of
the French Civil Code and the provisions set forth in this Agreement.
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ARTICLE 3 - RESPECTIVE RIGHTS OF THE NUE-PROPRIETAIRE AND USUFRUITIERS
3.1 VOTING RIGHTS ATTACHED TO THE NUE-PROPRIETE
By express agreement between the Principal Parties, the Nu Proprietaire
shall have all voting rights attached to the Transfer Shares including
without limitation the right to vote in Ordinary, Extraordinary and
Special General Meetings, that may be exercised by the holders of
ordinary shares in accordance with the provisions of the French
Commercial Code and the by-laws of Publicis.
3.2 ECONOMIC RIGHTS ATTACHED TO THE USUFRUIT
In accordance with the provisions contained in Article 582 of the
French Civil Code, the Usufruitiers shall be entitled to all economic
rights attached to the Transfer Shares.
Without limiting the generality of the foregoing:
(i) Any distribution of dividends within the meaning of Article L.
232-12 of the French Commercial Code shall inure to the
exclusive benefit of the Usufruitiers, including any dividends
for which the option to be paid in shares has been exercised.
The Principal Parties expressly agree that only the
Usufruitier, and not Dentsu, shall have the right to exercise
an option to be paid dividends in the form of shares. In the
event that the Usufruitier exercises such option, the new
shares thereby acquired shall inure to the exclusive benefit
of such Usufruitier.
In the event of an amount distributed to shareholders from
shareholders' equity (distribution prelevee sur un compte de
capitaux propres), in respect of the Transfer Shares apart
from distributable profits, which distribution supplements a
dividend within the meaning of Article L. 232-12 of the French
Commercial Code (regardless of the amount or respective
proportions of the distributable profits and such
supplementary amount), such distribution shall be deemed to
constitute a dividend for the purposes of this Section 3.2(i)
and shall inure to the exclusive benefit of the Usufruitier.
(ii) Any distribution in cash in respect of the Transfer Shares
other than dividends, including but not limited to
distributions of reserves or premiums, reduction of capital,
reimbursement of capital, redemption of capital or a
distribution in liquidation (boni de liquidation) shall be
subject to the right of "quasi-usufruit" in respect of all
such amounts and shall be enjoyed by the Usufruitier pursuant
to Article 587 of the French Civil Code. Pursuant to such
Article 587, solely the Usufruitier shall be entitled to
receive all such amounts. Upon termination of the Transfer and
the resulting automatic reversion of the nue-propriete to the
Usufruitier, the contingent rights of the Nu Proprietaire
against the Usufruitier in respect to such distributions shall
be extinguished under Article 1300 of the French Civil Code as
a result of the debtor thereby acquiring the rights to payment
of the debt (extinction par confusion).
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(iii) Subject to the provisions set forth in Section 3.2(iv), in the
event of any distribution in kind in respect of the Transfer
Shares other than dividends, including but not limited to
distributions of reserves or premiums, reduction of capital,
reimbursement of capital, redemption of capital or a
distribution in liquidation, if and to the extent Dentsu
acquires or is deemed to hold any interest therein, such
interest shall automatically be transferred to the
Usufruitiers without further consideration, such that the
entire distribution in kind shall inure to the exclusive
benefit of the Usufruitiers.
(iv) The Principal Parties agree that (A) in the event of an
attribution of shares of Publicis in respect of the Transfer
Shares, as a result of a reduction or an increase in the
nominal value of the Transfer Shares, or (B) in accordance
with sub-section 3 of Article L. 225-140 of the French
Commercial Code, in the event of a free attribution of shares
of Publicis in respect of the Transfer Shares by way of
capitalization of reserves, profits or premiums giving rise to
newly issued shares of Publicis (the shares set forth in the
preceding clauses (A) and/or (B) being herein referred to as
the "Free Shares"), such Free Shares shall be deemed Transfer
Shares for all purposes under this Agreement, and shall be
subject to all of the terms and conditions of this Agreement
for the remainder of the Term.
3.3 PREFERENTIAL SUBSCRIPTION RIGHTS
3.3.1 In accordance with sub-section 4 of Article L.225-140 of the French
Commercial Code, the Principal Parties agree that the provisions of
sub-sections 1, 2 and 3 of said Article shall not apply and that as a
result, in the event of a capital increase in cash or of any other
issuance giving rise to preferential subscription rights or priority
rights (droits de priorite), the preferential subscription rights or
priority rights attached to the Transfer Shares shall inure to the
exclusive benefit of the Usufruitiers.
3.3.2 In the event that some or all of the Usufruitiers exercise in whole or
in part such preferential subscription rights or priority rights in
respect of the Transfer Shares, the Principal Parties hereby agree
that:
(i) shares subscribed for by any Usufruitier in the case of a cash
capital increase; and/or
(ii) shares issued or delivered pursuant to the exercise by any
Usufruitier of a right conferred by securities giving access
to Publicis share capital (titres donnant acces au capital)
subscribed by such Usufruitier
shall be deemed to be Transfer Shares for all purposes of this
Agreement. The transfer of any of the shares referred to in clauses (i)
and (ii) above (the "New Shares") shall automatically take effect upon
the issuance or delivery (as the case may be) of such New Shares and
shall be subject to all of the terms and conditions of this Agreement
for the remainder of the Term.
3.4 MERGER OR SCISSION
3.4.1 In the event of a merger of Publicis into another company or a scission
of Publicis, in either case, with the result that Publicis ceases to
exist as legal entity, the Principal Parties hereby agree that Transfer
Shares shall be substituted by means of a subrogation reelle
conventionnelle for the new shares issued of the surviving entity (or
entities) received in
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exchange for the Transfer Shares as a result of such merger or scission
(the<< New Entity Shares>>). Such New Entity Shares shall be deemed to
be Transfer Shares for all purposes of this Agreement and shall be
subject to all of the terms and conditions of this Agreement for the
remainder of the Term. Such subrogation reelle conventionnelle shall
enter into full force and effect upon receipt by the Usufruitiers of
the New Entity Shares.
ARTICLE 4 - RECORDING IN THE SHARE REGISTERS/IMPLEMENTATION OF RIGHTS
4.1 Publicis shall take all necessary actions to ensure that the
respective rights of the Usufruitiers and Nu Proprietaire pursuant to this
Agreement will (i) be properly reflected within three trading days in its share
registers and (ii) be implemented with respect to voting rights (Section 3.1)
and economic rights (Section 3.2) in each case in accordance with the provisions
of this Agreement.
Without limiting the generality of the foregoing, Publicis shall take all
necessary actions to ensure that all necessary and appropriate inscriptions are
made in Publicis's share registers (x) to give effect to the reversion of the
nue-propriete of any Transfer Shares to the Usufruitiers and their full
ownership (pleine propriete) in such Transfer Shares as provided herein, and (y)
upon issuance and/or delivery (as the case may be), to inscribe in the Publicis
share registers, Dentsu as the Nu Proprietaire and the Usufruitiers as
Usufruitiers of the Free Shares and the New Shares pursuant to, the provisions
of, respectively, Sections 3.2.(iv) and 3.3.2; it being provided, however, that
Publicis shall not be responsible for (and the Principal Parties hereby release
Publicis and its officers from liability in respect of) any delay or failure to
make the appropriate inscriptions in its share registers (except to the extent
the same is attributable to a failure of Publicis to comply with the provisions
set forth in this Agreement) (1) in the case that such delay or failure results
from any dispute or claim arising among the Principal Parties, or (2) in the
case that such delay or failure is caused by an act or an omission of any of the
Principal Parties.
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4.2 For the avoidance of doubt, Dentsu shall not be responsible for
any delay or failure to register the full ownership of the Former Holders in any
Transfer Shares in accordance with the terms of this Agreement or any errors or
inaccuracies in connection with such registration except to the extent the same
is attributable to a failure of Dentsu to comply with the provisions set forth
in this Agreement.
ARTICLE 5 - MISCELLANEOUS PROVISIONS
5.1 This Agreement shall enter into full force and effect on the date
hereof.
5.2 Dentsu undertakes not to transfer in any manner whatsoever the
nue-propriete of the Transfer Shares or any interest therein, including
without limitation, by way of sale, contribution, exchange,
encumbrance, swap or otherwise, provided that Dentsu shall be allowed
to transfer the nue-propriete of Transfer Shares to any of its wholly
owned subsidiaries that have agreed in advance of such transfer to be
bound by the terms of this Agreement in a writing in form and substance
acceptable to the Nominee.
5.3 Each Usufruitier shall have the right to transfer freely to any one or
more individuals, entities or trusts (the "Transferee") the usufruit in
the Transfer Shares and its rights under this Agreement. Notice of any
such transfer shall be given to Dentsu and Publicis by the Nominee, and
Publicis and Dentsu shall be entitled to rely on such notice. Publicis
shall, upon receipt of such notice from the Nominee, cause the
Transferee to be inscribed as the Usufruitier in the Publicis share
registers.
5.4 Dentsu shall be the registered holder of the Transfer Shares and shall
cause such Transfer Shares to be inscribed in the share registers of
Publicis in pure registered form (nominatif pur).
5.5 If notwithstanding the express terms of this Agreement and the clear
intentions of the Parties evidenced hereby, Dentsu is deemed to acquire
any economic interest (contingent or otherwise) whatsoever in the
Transfer Shares, Dentsu will be deemed to hold such economic interest
for and on behalf of the Usufruitiers and shall promptly take such
action as is necessary to reconvey without further consideration such
economic interest to the Usufruitiers and if applicable their
respective Transferee(s). If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
law, all other
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terms and provisions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other
provision of this Agreement is invalid, illegal or incapable of being
enforced, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely
as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as
originally contemplated to the fullest extent possible.
5.6 This Agreement shall be governed and construed in accordance with
French law.
5.7 (i) Any dispute, controversy or claim arising out of, relating to, or
in connection with, this Agreement, or the breach, termination or
validity thereof, shall be referred to and finally settled by
arbitration conducted in accordance with the Arbitration Rules of the
London Court of International Arbitration (the "LCIA Rules") in effect
at the time of the arbitration, except as they may be modified herein
or by mutual agreement of the Parties. The seat of the arbitration
shall be Paris, France. The arbitration shall be conducted in the
English language, provided that any Party may submit testimony or
documentary evidence in the French or Japanese language if it
furnishes, upon the request of any other Party, interpretation or
translation, as the case may be, into English of any such testimony or
documentary evidence.
(ii) The arbitration shall be conducted by three arbitrators appointed
in accordance with the LCIA Rules provided that any arbitrator
appointed pursuant to this Section 5.7 shall be an expert in French law
(an avocat admitted to practice in France or a Professor of French
law). If only two Parties are party to the arbitration then the
arbitral tribunal shall be formed as set forth in clause (A) to this
Section 5.7(ii). If more than two Parties are party to the arbitration,
then the arbitral tribunal shall be formed as set forth in clause (B)
to this Section 5.7(ii).
(A) The Party commencing the arbitration (the "Claimant") and
the other Party (the "Respondent") shall each nominate one
arbitrator for appointment according to the procedure set
forth in the LCIA Rules. The first two arbitrators so
nominated shall nominate a third arbitrator within 30 days
after the nomination of the second arbitrator and shall
promptly notify the Parties of such nomination. If the first
two arbitrators appointed fail to nominate a third arbitrator
or so to notify the Parties within the aforementioned 30 day
period, or if the third arbitrator fails to accept the
nomination within 10 days thereafter, then the LCIA shall
nominate the third arbitrator and shall promptly notify the
Parties of the nomination. The third arbitrator so nominated
shall act as Chair of the arbitral tribunal.
(B) If, in the request for arbitration (the "Request"), the
Claimant(s) contend that the Parties are aligned into two
separate sides for the purposes of the formation of the
arbitral tribunal, then the Claimant(s) shall nominate in the
Request one arbitrator for appointment. If the Respondent(s)
agree with the Claimant(s) contention on alignment, then the
Respondent(s) shall, within 30 days of receipt of the Request
by the Respondent(s), nominate one arbitrator for appointment.
The first two arbitrators so nominated shall nominate a third
arbitrator within 30 days after the nomination of the second
arbitrator and shall promptly notify the Parties of such
nomination. If the first two arbitrators nominated fail to
nominate a third arbitrator or so to notify the Parties within
the aforementioned 30 day period, or if the third arbitrator
fails to accept the nomination within 10 days
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thereafter, then the LCIA shall nominate the third arbitrator
and shall promptly notify the Parties of the nomination. The
third arbitrator so nominated shall act as Chair of the
arbitral tribunal. If, however, (i) the Respondent(s) do not
agree with the Claimant(s)' contention on alignment within 30
days of receipt of the Request by the Respondent(s) or (ii)
one or more of the other Parties cited as a Respondent(s) in
the Request objects to such alignment in writing within 15
days after receipt of the Request by the Respondents, and if
the Parties do not then agree within 15 days thereafter on an
alignment of the Parties into two groups each of which shall
appoint an arbitrator, then all three arbitrators shall be
appointed as set forth in the LCIA Rules' provisions for
arbitrations with three or more parties, the Claimant(s)'
nomination of an arbitrator for appointment in the Request
being deemed null and void.
(iii) The arbitral award shall be in writing, state the reasons for the
award, and be final and binding on the parties to the arbitration. The
award may include an award of costs, including reasonable attorneys'
fees and disbursements. Judgment upon the award may be entered by any
court having jurisdiction thereof or having jurisdiction over the
relevant Party or its assets.
(iv) Nothing in Section 5.7 shall be construed to prevent any Party
from seeking from a court a temporary restraining order or other
temporary or preliminary relief to preserve the status quo pending
final resolution of a dispute, controversy or claim pursuant to Section
5.7, or if such Party makes a good faith determination that a breach of
the terms of this Agreement by another Party is such that a temporary
restraining order or other temporary or preliminary relief is the only
appropriate and adequate remedy at such time.
5.8 All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be either (i) personally
delivered, (ii) sent by Federal Express or other reputable overnight
courier or (iii) sent by telecopier (with a copy also sent by reputable
overnight courier) to the Party for which it is intended at the
following address:
(a) If to Dentsu, to:
Dentsu Inc.
0-00, Xxxxxxx, Xxxx-Xx
Xxxxx 000-0000, Xxxxx
Fax: (000) 0000-0000
Attention: Xx. Xxxxx Xxxxxx, Executive Vice President
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with copies to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxxx
and
Debevoise & Xxxxxxxx
00, Xxxxxx Xxxxxx X
00000 Xxxxx (Xxxxxx)
Fax: 00-0-00-00-00-00
Attention: Xxxxxxx X. Xxxxx
or to such other address as Dentsu may have designated by
notice hereunder; and
(b) if to Publicis, to:
Publicis Groupe S.A.
000, Xxxxxx xxx Xxxxxx Xxxxxxx
00000 Xxxxx (Xxxxxx)
Fax: (00-0) 00-00-00-00
Attention: M. Xxxxxxx Xxxx
M. Jean-Xxxx Xxxxx
With a copy to:
Darrois, Villey, Maillot & Brochier
00, Xxxxxx Xxxxxx Xxxx
00000 Xxxxx Cedex 16
Fax: (00-0) 00-00-00-00
Attention: Xxxxxxx Xxxx
or to such other address as Publicis may have designated by
notice hereunder; and
(c) if to the Nominee or any Former Holder, to:
[NOMINEE]
[ADDRESS]
Fax: [___]
Attention: [___]
or to such other address as the Nominee may have designated by
notice hereunder.
Every notice, demand, request or other communication hereunder shall be deemed
to have been duly given or served: (i) on the date on which personally
delivered, with receipt acknowledged, (ii) two business days after timely
delivery to Federal Express or other reputable overnight courier, if sent by
courier or (iii) upon transmission thereof by the sender and issuance by the
transmitting machine of a confirmation slip confirming that the number of pages
constituting the communication have been transmitted without error, if sent by
telecopy (subject to copy of such communication also being sent by reputable
overnight courier).
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Executed on ____________, 2002
In three (3) originals
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DENTSU THE NOMINEE
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PUBLICIS
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Annex A
NOTICE OF EARLY REVERSION
FROM : [NOMINEE]
TO : DENTSU
CC : PUBLICIS
[NOMINEE] hereby informs Publicis and Dentsu that, pursuant to Section 1.1.3 of
the Agreement for the Transfer of Certain Publicis Shares between Dentsu,
Publicis and [NOMINEE] acting on behalf of the Usufruitiers, dated [___] 2002
(the "Usufruct Agreement"), [NOMINEE] has received the attached notice of death
of [NAME OF THE FORMER HOLDER].
In accordance with Section 1.1.3 of the Usufruct Agreement, the nue-propriete of
[NUMBER] Transfer Shares reverts, as of the date of the day preceding the death
of the Former Holder, to [NAME, ADDRESS OF USUFRUITIER] as Usufruitier of such
[NUMBER] Transfer Shares, and Publicis is hereby instructed to inscribe the
pleine propriete of such Transfer Shares is to be inscribed in the name of
[USUFRUITIER.]
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For [NOMINEE]
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ATTACHED ATTESTATION OF DEATH OF A FORMER HOLDER
To be signed by any person informing the Nominee of the death of a Former Holder
in accordance with Section 1.1.3 of the Agreement and to which shall be attached
a copy of a death certificate or any other official document (including from the
deceased's treating physician) evidencing the death of such Former Holder.
FROM :[____]
TO: [NOMINEE]
I:
[NAME, ADDRESS, RELATIONSHIP WITH THE DECEASED]
hereby informs [NOMINEE] that [NAME OF THE FORMER HOLDER] died in [PLACE OF
DEATH: CITY, STATE, COUNTRY] on [DATE OF DEATH], as documented by [NAME OF
OFFICIAL DOCUMENT] attached to this notice.
This attestation is being given in accordance with Section 1.1.3 of the
Agreement for the Transfer of the Nue-Propriete Certain Publicis Shares between
Dentsu, Publicis and [NOMINEE] acting on behalf of the Usufruitiers, dated [___]
2002.
[DATE]
[NAME]
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