Item 1.01 Entry Into a Material Definitive Agreement.
On April 12, 2019, Alliance Data Systems Corporation, a Delaware corporation (“
Parent
”), and certain subsidiaries of Parent (together with Parent, the “
Sellers
”) entered
into a Securities Purchase Agreement (the “
Purchase Agreement
”) with Publicis Groupe, S.A., a French
sociéte anonyme
(“
Publicis
”), and certain subsidiaries of Publicis
(together with Publicis, the “
Purchasers
”) pursuant to which the Purchasers will acquire the Epsilon business (the “
Business
”) of Parent by means of a sale of all of the outstanding equity interests of certain subsidiaries held by the Sellers which operate the Business.
Pursuant to the Purchase Agreement, the Purchasers will pay a purchase price of $4.4 billion in cash, subject to certain adjustments
specified therein, including for indebtedness, cash, working capital and transaction expenses of the Business at the closing of the transaction (the “
Transaction
”).
The Transaction was approved by Parent’s Board of Directors and is expected to close in the third quarter of 2019, subject to customary closing conditions and regulatory approvals.
Each party’s obligation to consummate the transaction pursuant to the Purchase Agreement is subject to customary closing conditions as set
out therein, including, among others, (i) subject to certain exceptions, the accuracy of the representations and warranties of the parties; (ii) performance in all material respects by each of the parties of its covenants and agreements; (iii)
the receipt of regulatory approvals, including the expiration or termination of the waiting period applicable under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the conclusion of review and approval by the Committee
on Foreign Investment in the United States; and (iv) the absence of any law or order from any governmental body prohibiting consummation of the Transaction.
The Purchase Agreement contains customary representations, warranties and covenants by each party that are subject, in some cases, to
specified exceptions and qualifications contained in the Purchase Agreement. Subject to certain specified exceptions contained in the Purchase Agreement, the representations and warranties of the parties will not survive the closing of the
Transaction. Additionally, Parent has agreed to customary non-compete and non-solicitation provisions contained in the Purchase Agreement.
The Purchase Agreement may be terminated by mutual written consent of Parent and Publicis or by either Parent or Publicis in the following
circumstances: failure to complete the closing of the Transaction on or prior to January 12, 2020 (subject to extension to April 12, 2020 in the event that required regulatory approvals have not been obtained); failure to obtain applicable
governmental approvals or authorizations; the issuance of an order by a governmental body prohibiting the consummation of the Sale; or certain uncured breaches of any representation, warranty or covenant by the other party.
The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the
full text of the Purchase Agreement which is attached hereto and incorporated herein by reference as Exhibit 2.1. The Purchase Agreement has been included to provide stockholders with information regarding its terms. It is not intended to
provide any other information about Parent or Publicis or their respective subsidiaries and affiliates. The Purchase Agreement contains representations and warranties by each of Parent, Publicis and their respective subsidiaries party thereto.
These representations and warranties were made solely for the benefit of the other parties to the Purchase Agreement and (i) may have been used for purposes of allocating risk between the respective parties rather than establishing matters as
facts, (ii) may have been qualified in the Purchase Agreement by confidential disclosure schedules that were delivered to the other parties in connection with the signing of the Purchase Agreement, which disclosure schedules may contain
information that modifies, qualifies, and creates exceptions to the representations, warranties, and covenants set forth in the Purchase Agreement, (iii) may be subject to a contractual standard of materiality applicable to the parties that
differs from what a stockholder may view as material and (iv) may have been made only as of the date of the Purchase Agreement or as of another
date or dates as may be specified in the Purchase Agreement, and information concerning the subject matter of the representations and
warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected in Parent’s public disclosures, if at all. Accordingly, stockholders should not rely upon representations and
warranties or any descriptions thereof as characterizations of the actual state of facts or condition of Parent or Publicis or their respective subsidiaries and affiliates.