Exhibit 99.5
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 is the holder of 4,284,873 shares of the Class B Common
Stock (the "B|Com3 Shares") of B|Com3;
WHEREAS, Dentsu has entered into a Support Agreement (the "Support
Agreement") with Publicis, providing among other things for Dentsu to vote its
B|Com3 Shares in favor of the Merger; and
WHEREAS, Dentsu has expertise in providing advertising agency services,
Publicis (together with B|Com3) has expertise in providing advertising agency
services in Australia, Central, Eastern and Western Europe, and in the Americas,
and the parties recognize that entering into a Strategic Alliance Agreement
would result in substantial efficiencies by allowing Dentsu and Publicis to
learn from each other's expertise and thereby enable both firms to compete more
effectively with global advertising agencies such as WPP, IPG and Omnicon, as
well as many local competitors;
THE PARTIES HERETO, intending to be bound, agree as follows:
1. In accordance with the Support Agreement, Dentsu will vote its B|Com3
Shares in favor of approval of the Merger Agreement at the meeting of B|Com3
shareholders called for the purpose of approving the Merger Agreement, provided
that:
(i) as a result of the Merger, Dentsu will own that number of ordinary
shares (actions ordinaires) of Publicis ("Publicis Shares") required to
entitle Dentsu to not less than 15% of the voting power of Publicis; and
(ii) the conditions set forth in Section 2 hereof shall have been
satisfied; and
(iii) Dentsu shall not have determined (based on the opinion of
Dentsu's legal counsel) that its investment in Publicis and the
arrangements contemplated by the Memorandum of Understanding, dated this
date, between Dentsu and Madame EB, a complete and correct copy of which is
attached hereto as Exhibit A, will require Dentsu
and Madame EB to make a public tender offer for Publicis under French law
or the Conseil des Marches Financiers shall have granted an exemption to
the obligation to file a tender offer;
2. On or before the first date on which Dentsu is required pursuant to the
Support Agreement to vote its B|Com3 Shares in favor of the Merger, Dentsu and
Publicis will enter into a Strategic Alliance Agreement providing for the
following, it being provided that absent agreement by the date of such vote, the
Parties will be bound by the terms of this Memorandum of Understanding:
(i) Publicis will cause its affiliates S&S and Zenith & Publicis to
terminate in an orderly manner and with respect for its current partners,
within 12 to 18 months after the effective time of the merger, their
respective current arrangements and agreements with partners in Japan.
Publicis will have terminated its arrangements relating to possible
acquisitions of advertising agencies in Japan.
(ii) Publicis will partner exclusively with Dentsu in Japan and will
not initiate any new activity in Japan without prior consultation with
Dentsu.
(iii) Publicis companies will, as and when requested by Dentsu,
represent Dentsu and its clients, subject to limitations imposed by client
conflict policies, in the Americas, Central, Eastern and Western Europe and
Australia and New Zealand, provided that:
(x) subject to conflict limitations, Dentsu may choose the member
of the Publicis group it wishes to partner with to develop global
client relationships; and
(y) where it is in the mutual interest of the parties, Dentsu will
consolidate its existing business with the operations of the Publicis
group in Europe and the Americas, on mutually acceptable terms and
conditions.
(iv) Dentsu will agree to consult with Publicis before making any
investments, initiating joint ventures or new ventures in Australia,
Central, Eastern and Western Europe, and the Americas, provided that Dentsu
and Publicis agree that:
(x) Dentsu may invest in such markets independently of Publicis if
Dentsu determines that it is in its best interest to do so, and if it
so determines it will inform Publicis of such determination before
entering into binding commitments therefor;
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(y) Dentsu will not partner with WPP, IPG, Omnicom or Havas; and
(z) Publicis will not partner with WPP, IPG, Omnicon, Havas or
Hakuhodo.
(v) Publicis will agree to the continued expansion of the Dentsu
Network in Asia and acknowledge the existing Dentsu partnership with WPP
and DYR, but Dentsu will agree not to expand such partnership.
(vi) Dentsu and Publicis will agree to the mutual development of a
global media alliance on terms satisfactory to them respectively.
(vii) Dentsu and Publicis will agree to share, on terms satisfactory to
them and to the extent permitted by relevant contractual obligations,
knowledge, research, and learning that can be used to develop and improve
services to multinational clients.
(viii) Publicis will acknowledge that Dentsu has built relationships
and new business programs with ▇▇▇ ▇▇▇▇▇▇▇, and will, wherever possible,
facilitate the continuation of such relationship and programs following the
Merger.
(ix) Dentsu and Publicis expect to conduct joint development activities
of various communication businesses internationally, including, in
particular, sports marketing businesses where Dentsu is the global leaders
in the market. Such development activities may include the formation of one
or more joint ventures that will bear the names of both Publicis and
Dentsu.
(x) Dentsu and Publicis will form an Executive Group to manage the
relationship. Its members will be the CEO and COO of Publicis and two
executives from Dentsu. The Executive Group will meet quarterly. Dentsu and
Publicis will keep each other informed through the mechanism of the
Executive Group of their respective expansion plans in Asia (exclusive, in
the case of Dentsu, of Japan).
(xi) The term of the Strategic Alliance Agreement will be 20 years,
subject to earlier termination by either party, on suitable notice to be
agreed by the parties, in the event the percentage of outstanding ordinary
shares of Publicis owned directly or indirectly by Dentsu shall become less
than 10% by reason of the transfer by Dentsu of any of its Publicis
ordinary shares, or by the 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, in each case with
respect to any new issuance of Publicis ordinary shares.
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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 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. This Memorandum of Understanding shall be governed in all respects,
including as to validity, interpretation and effect, by the internal laws of the
State of New York without giving effect to principles or rules of conflict of
laws to the extent such principles or rules would require or permit the
application of laws of a jurisdiction other than the State of New York.
5. All disputes arising under this Memorandum of Understanding or the
Strategic Alliance 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 jointly
chosen by the two arbitrators (and absent agreement, by the President of the
"Tribunal de Premiere Instance du Canton de Geneve"). The arbitration shall be
conducted in the English language.
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 the
other party and the other party must be given a reasonable opportunity to
comment thereon.
DENTSU INC. PUBLICIS GROUP S.A.
/s/ Yutake Narita /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
By: ------------------------ By: ----------------------------
President President du Directoire
▇▇▇▇▇▇ ▇▇▇▇▇▇
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APPROVED:
B|COM3 GROUP, INC.
By: ----------------------------
Chief Executive Officer
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