FIRST AMENDMENT TO THE SHAREHOLDERS' AGREEMENT
BETWEEN
MADAME XXXXXXXXX XXXXXXXX
AND
DENTSU INC.
DATED AS OF SEPTEMBER 24, 2004
FIRST AMENDMENT dated as of September 24, 2004 (the "FIRST AMENDMENT") to
the shareholders' agreement dated as of November 30, 2003 (the "EB SHAREHOLDERS'
AGREEMENT"), between DENTSU INC. ("DENTSU"), a company organized under the laws
of Japan with its principal office at 0-0-0, Xxxxxxx-Xxxxxxxxx, Xxxxxx-xx, Xxxxx
000-0000, Xxxxx, duly represented by Tateo Mataki, and XXXXXXXXX XXXXXXXX
("MADAME BADINTER"), a French citizen born in Boulogne Billancourt (Hauts de
Seine) on March 5, 1944 and residing at 00, xxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx.
WHEREAS, Madame Badinter and Dentsu are Parties (such term and other
capitalized terms used herein without definition, having the meanings set forth
in the EB Shareholders' Agreement) to the EB Shareholders' Agreement, whereby
Madame Badinter and Dentsu have organized their relations with respect to the
governance of Publicis Groupe S.A. ("PUBLICIS") and their respective
shareholdings in Publicis.
WHEREAS, pursuant to Section 12.8 of the EB Shareholders' Agreement, Madame
Badinter and Dentsu wish to amend the EB Shareholders' Agreement as provided
below in connection with the Transfer by Dentsu of any of the SEP Shares.
In consideration of the foregoing recitals and the terms and conditions
hereinafter set forth, Madame Badinter and Dentsu agree as follows:
SECTION 1. AMENDMENT TO SECTION 5
1.1 Amendment to Section 5.2(i)
Section 5.2(i) is amended and now reads in its entirety as follows:
"(i) required under Section 5.4(a) or Section 5.4(b)(ii) to comply with
Dentsu's obligations set forth therein or permitted under 5.4(b)(iii) or Section
5.6;"
1.2 Amendment to Section 5.5
Sub-paragraph (ii) of the last sentence of Section 5.5 is amended and now
reads as follows:
"and (ii) after the termination of such transfer restrictions and orderly
marketing procedures, to the right of first refusal by Publicis as provided in
Section 4.4(h) of the Publicis Shareholders' Agreement."
1.3 New Section 5.6
The following Section 5.6 is added at the end of Section 5:
"5.6 Transfer of SEP Shares
Dentsu may Transfer at any time all or part of the SEP Shares in compliance
with the SEP By-laws and with this Section 5.6.
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(a) Notice of Proposed Transfer
In the event that Dentsu wishes to Transfer all or part of the SEP Shares
(the "PROPOSED SHARES"), Dentsu shall, prior to such Transfer, give notice (the
"PROPOSED TRANSFER NOTICE") to Madame Badinter and the Directorate of the number
of the Proposed Shares, the nature of the Transfer contemplated with respect to
the Proposed Shares and the proposed price at which Madame Badinter could
exercise her right of first offer as set forth in paragraph (b) below (the
"PROPOSED PRICE").
(b) Right of First Offer
(i) The delivery of a Proposed Transfer Notice by Dentsu shall
entitle Madame Badinter to make an offer to purchase all or part of
such Proposed Shares for cash under the conditions set forth in this
Section 5.6(b).
(ii) Madame Badinter shall have 15 Business Days from the date she
receives the Proposed Transfer Notice in which to notify Dentsu in
writing whether she, or one of the Designee elects to purchase all or
part of the Proposed Shares described in the Proposed Transfer Notice
(the "SEP OFFER"), it being agreed that the 15th Business Day
following the delivery of the Proposed Transfer Notice by Dentsu to
Madame Badinter shall be referred to hereinafter as the Expiry Date of
the SEP Offer.
(iii) If Madame Badinter validly notifies to Dentsu in such SEP Offer
that she or her Designee elects to purchase all or part of the
Proposed Shares, Madame Badinter or her Designee shall purchase upon
the terms set forth in the SEP Offer and pay in immediately available
funds, by bank or certified check or other means specified by Dentsu,
for the aggregate number of the Proposed Shares set forth in the SEP
Offer, and Dentsu shall sell to Madame Badinter or her Designee the
Proposed Shares set forth in the SEP Offer, on the fifth Business Day
following the Expiry Date of the SEP Offer. The purchase of such
Proposed Shares by Madame Badinter or her Designee shall be effected
off-market, provided that either (x) the conditions set forth in
Articles 4.1.32 and subsequent of the Reglement General du - Conseil
des Marches Financiers (or any successor provisions under Applicable
Law) are met, or (y) Dentsu and Madame - Badinter or her Designee may
rely on another exemption to effect the purchase off-market. If Madame
Badinter notified in a timely manner the SEP Offer but fails to
validly consummate such purchase of the Proposed Shares set forth in
the SEP Offer within such 5-business day period or such other date as
specified by Dentsu, Dentsu shall be free, from such date and during
the remaining of the Effective Period, to Transfer such Proposed
Shares at any price subject to Section 5.6(d) below.
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(iv) If Madame Badinter fails to validly deliver such SEP Offer
within such 15 Business Day period, or if Madame Badinter notifies to
Dentsu that she (or her Designee) elects not to purchase any of the
Proposed Shares, or that she or her Designee elects to purchase only a
portion of the Proposed Shares, Dentsu shall be free, from such date
and during a period ending at the 80th Business Day following the
Expiry Date of the SEP Offer (the "EFFECTIVE PERIOD"), to Transfer any
of the Proposed Shares not included in the SEP Offer to any Person
other than Madame Badinter or her Designee, provided that (i) if the
contemplated Transfer as set forth in the Proposed Transfer Notice is
a sale, the price per such Proposed Share shall be equal to or greater
than the Proposed Price (being noted that, if Dentsu and such Person
have agreed on any purchase price downward adjustment mechanism, such
mechanism shall not be taken into account for the purposes of
verifying that the price per Proposed Share is equal to or greater
than the Proposed Price) and (ii) if such Transfer of such Proposed
Shares is not consummated on or prior to the last day of the Effective
Period, then any Transfer by Dentsu of the related Proposed Shares
shall be once again subject to the requirements of this Section 5.6,
and subject to Section 5.6(d) below.
(c) Contribution to the Societe en Participation
If Dentsu fails to Transfer any of the Proposed Shares, on or prior to the
last day of the Effective Period, to any Person other than Madame Badinter or
her Designee, Dentsu shall contribute the right to enjoyment (jouissance) of
such not Transferred Publicis Shares to the societe en participation as
mentioned in Section 5.4(b)(iii).
(d) Conditions of the Transfer of the SEP Shares
(i) If Dentsu elects to Transfer all or part of the SEP Shares
pursuant to this Section 5.6, Dentsu shall (i) use its commercially
reasonable efforts to Transfer such SEP Shares in a manner which
Dentsu reasonably believes will minimize any adverse significant
impact on the market price of the Publicis Shares and (ii) not
knowingly Transfer such Shares to any of the Major Publicis
Competitors. In addition, for any Transfer made pursuant to this
Section 5.6, Dentsu shall consult with Publicis to discuss any
potential impact on the market price of the Publicis Shares of the
said Transfer (it being noted for the avoidance of doubt, that upon
such consultation process, Dentsu shall remain entitled to Transfer
the SEP Shares subject to the provisions set forth in 5.6(a) through
(c) above).
(ii) Dentsu will give Madame Badinter and Publicis notice of the
estimated maximum number of SEP Shares that Dentsu reasonably expects
to Transfer not later than two months prior to the date when
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the Transfer is expected to occur (it being noted that such notice
shall be given for information purposes only and shall not prevent
Dentsu from Transferring a number of SEP shares in excess of the
number of SEP shares set forth in such notice).
SECTION 2. AMENDMENT TO EXHIBIT 3 (SEP BY-LAWS)
Section 5.2 of the form of the SEP by-laws which is attached to the EB
Shareholders' Agreement as Exhibit 3 is amended and now reads in its entirety as
follows:
"If, during the duration of the Partnership, Dentsu's shareholding in
Publicis (excluding those shares as to which the right to enjoyment has been
contributed to the Partnership), as reflected in a "Challenge Notice", or in an
"Interim Basic Notice", as defined in the Agreement, entitles it to voting
rights below 15% of the voting rights, the contribution of the right to
enjoyment will immediately end in order to allow Dentsu to reach the threshold
of ownership of 15% of voting rights in Publicis. In the event that any "Basic
Notice," as defined in the Agreement, will specify that Dentsu's shareholding in
Publicis (excluding those shares as to which the right to enjoyment has been
contributed to the Partnership) entitles it to voting rights below 15% and no
Challenge Notice has been issued in respect of such Basic Notice within the time
limit set forth in the Agreement, the right to enjoyment will immediately end
pursuant to the conditions described above on the basis of the information
contained in such Basic Notice.
In addition, notwithstanding the paragraph above, and provided that Dentsu
has complied with Section 5.6 of the Agreement, the right to enjoyment
pertaining to the number of Publicis Shares as set forth in a Proposed Transfer
Notice will immediately end on the last day of the period in which Madame
Badinter or any of her Designee (as defined in the Agreement) shall have the
right to notify an SEP Offer to Dentsu as provided in Section 5.6(b)(ii) of the
Agreement.
The termination of the contribution of rights to enjoyment will be binding
on Publicis and on Madame Xxxxxxxxx Xxxxxxxx each of whom will take all actions
necessary to allow Dentsu to exercise immediately the voting rights so
released."
SECTION 3. EFFECTIVENESS OF AGREEMENT
The EB Shareholders' Agreement, as amended and supplemented hereby, remains
in full force and effect.
SECTION 4. GOVERNING LAW
This First Amendment shall be governed in all respects, including as to
validity, interpretation and effect thereof, by the laws of the Republic of
France.
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IN WITNESS WHEREOF, the Parties have caused this First Amendment to be duly
executed as of the day and year first above written.
/s/ XXXXXXXXX XXXXXXXX
----------------------------
Madame Xxxxxxxxx Xxxxxxxx DENTSU INC.
duly represented by:
/s/ TATEO MATAKI
------------------
Tateo Mataki
President & CEO
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