Exhibit 99.4
MEMORANDUM OF UNDERSTANDING, dated March 7, 2002, between DENTSU INC., a
company organized under the laws of Japan ("Dentsu"), and PUBLICIS GROUPE S.A.,
a societe anonyme organized under the laws of the Republic of France
("Publicis"):
WHEREAS, Publicis has entered into an Agreement and Plan of Merger (the
"Merger Agreement") with B|Com3 Group, Inc., a corporation organized under the
laws of Delaware ("B|Com3"), and a wholly-owned Delaware subsidiary of Publicis
(the "Acquisition Company"), providing among other things for the merger (the
"Merger") of B|Com3 into the Acquisition Company;
WHEREAS, Dentsu has entered into a support agreement, dated this date
(the "Support Agreement"), with Publicis and the Acquisition Company;
WHEREAS, Dentsu has entered into a Memorandum of Understanding (the
"Support Agreement MOU") with Publicis, a complete and correct copy of which is
attached hereto as Exhibit A; and
WHEREAS, upon the consummation of the Merger and the transactions
contemplated by the Support Agreement and the Support Agreement MOU, Dentsu will
be the owner of voting ordinary shares (actions ordinaires) of Publicis
representing in the aggregate not less than 15% of the voting power of Publicis
(the "Publicis Shares");
THE PARTIES HERETO desiring to be bound have agreed as follows:
1. Publicis wishes Dentsu to become, and Dentsu wishes to become, a
holder of the Publicis Shares on the terms and conditions set out in the Merger
Agreement, the Support Agreement and the Support Agreement MOU.
2. On or before the first date on which Dentsu is required pursuant to
the Support Agreement to vote in favor of the Merger, Dentsu and Publicis will
enter into a shareholders' agreement (the "Publicis Shareholders' Agreement")
providing for the following:
(i) So long as Dentsu owns directly or indirectly not less
than 10% of the outstanding ordinary shares of Publicis (taking into
account only diminutions in Dentsu's ownership by reason of any transfer
of Publicis Shares by Dentsu or any failure by Dentsu to exercise its
preemptive rights (droits preferentiels de souscription) or any rights
of Dentsu that would entitle it to subscribe to shares on the same terms
and in the same quantity as if it were exercising such preemptive
rights), Publicis will present to its shareholders one or several
resolutions for the appointment of two members of the Supervisory Board
of Publicis designated by Dentsu (one of such designees to be a
representative director of Dentsu) and such
designees may be replaced by Dentsu in its discretion. If the size of
the Supervisory Board is increased, the number of members that Dentsu
may appoint will be increased so that Dentsu will be entitled to appoint
a number of members of the Supervisory Board that is proportionate to
its voting power in Publicis (rounded up to the nearest whole number).
(ii) Until July 1, 2012 (the "Expiration Date"), Dentsu will
be subject to a "standstill" limiting its ownership of Publicis shares
to the number of shares that entitles it to 15% of the voting power of
Publicis, and to other customary standstill provisions such as those
provisions of the Investment Agreement between Dentsu and B|Com3 (the
"Investment Agreement"), subject to exceptions no less (or more)
favorable to Dentsu than those set out in the standstill provision of
the Investment Agreement, except such provisions as would not be
relevant in the context of the Merger, the other provisions of the
Publicis Shareholders' Agreement and the provisions of the EB
Shareholders' Agreement that is contemplated by the Memorandum of
Understanding, dated this date, between Dentsu and Madame Xxxxxxxxx
Xxxxxxxx. Notwithstanding the foregoing, Dentsu shall be entitled to buy
Publicis shares on the open market to the extent it has not been given
by Publicis the opportunity to keep its level of voting power at the
percentage permitted by this clause (ii) of Section 2 through the
exercise of preemptive rights (droits preferentiels de souscription). To
permit Dentsu to comply with this clause (ii), Publicis shall give
notice to Dentsu not later than the fifteenth day of each month of the
total number of voting rights of all Publicis shareholders existing, to
the best of its knowledge, as of the first day of such month.
(iii) Publicis will present to its shareholders' meetings such
resolutions as may be necessary or appropriate to protect Dentsu against
any dilution resulting from a capital increase in cash to which Dentsu
may not subscribe by using preemptive rights (droits preferentiels de
souscription).
(iv) Until the Expiration Date, Dentsu shall be prohibited
from transferring any ordinary shares of Publicis. Thereafter, the
transfer of ordinary shares of Publicis by Dentsu shall be subject to
restrictions that are substantially identical to those set out in
Section 8.2(d) and (e) of the Investment Agreement, subject to
modifications necessary to reflect the structure of the Merger.
(v) The term of the Publicis Shareholders' Agreement will
expire on the Expiration Date unless it is renewed for an additional
term of 10 years by agreement of Dentsu and Publicis.
3. Dentsu and Publicis agree that, if any of the arrangements
contemplated by this Memorandum of Understanding would result in Dentsu's
inability to equity account for
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its investment in Publicis, Dentsu and Publicis shall use their respective best
efforts to adjust such arrangements to the extent necessary so as to permit
Dentsu to equity account for its investment in Publicis, provided that the
economic and legal substance of such adjusted arrangements will be substantially
equivalent to that of the arrangements contemplated initially by this Memorandum
of Understanding.
4. Dentsu and Publicis will instruct their respective advisers to
negotiate and draft expeditiously the Publicis Shareholders' Agreement giving
effect to this Memorandum of Understanding, and will execute and deliver the
same. The Publicis Shareholders' Agreement will be in the English language and
will be governed by the laws of the Republic of France. Absent the execution and
delivery of the Publicis Shareholders' Agreement on or before the first date on
which Dentsu is required pursuant to the Support Agreement to vote in favor of
the Merger, Dentsu and Publicis will continue to be bound by the terms of this
Memorandum of Understanding. All disputes arising under this Memorandum of
Understanding or the Publicis Shareholders' Agreement or relating hereto or
thereto will be settled by binding arbitration in Geneva under the Rules of the
London Court of International Arbitration (the "LCIA"). The arbitral tribunal
will be composed of two arbitrators chosen by the respective parties and a
chairman chosen by such arbitrators, and if they fail to agree, by the President
of the "Tribunal de Premiere Instance du Canton de Geneve". The arbitration will
be conducted in the English language.
5. This Memorandum of Understanding will be governed in all respects,
including as to validity, interpretation and effect, by the laws of the Republic
of France.
6. The parties will keep this Memorandum of Understanding strictly
confidential and will not disclose it or the transactions contemplated hereby
except as may be required by applicable law and stock exchange rules and to
their respective advisers. Except as may be required by applicable law or the
rules of any securities exchange on which a party's securities are traded, any
press release or similar communication by either party as to this Memorandum of
Understanding or the transactions contemplated hereby must be reviewed by and
approved in advance in writing by the other party and the other party must be
given a reasonable opportunity to comment thereon.
DENTSU INC. PUBLICIS GROUPE S.A.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxx
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By: President By: President du Directeur
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