Exhibit 99.2
EXECUTION COPY
SUPPORT AGREEMENT, dated as of March 7, 2002 (this "Agreement"), between
PUBLICIS GROUPE S.A., a societe anonyme organized under the laws of the Republic
of France ("Parent") and PHILADELPHIA MERGER CORP., a Delaware corporation
("Merger Sub"), on the one hand, and Xxx X. Xxxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxx (each, a "Stockholder", and together, the
"Stockholders"), on the other hand.
WHEREAS, concurrently with the execution of this Agreement, Parent, Merger
Sub and Bcom3 Group, Inc., a Delaware corporation (the "Company"), are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which the Company will be merged with and into Merger
Sub (the "Merger");
WHEREAS, each of the Stockholders is a party to the Amended and Restated
Voting Trust Agreement, dated as of April 18, 2001 (the "Voting Trust
Agreement") between the employee-stockholders of the Company and the voting
trustees appointed thereunder (the "Voting Trustees"), and to a 2000 Stock
Purchase Agreement dated as of January 31, 2000 with the Company (each, a "2000
Stock Purchase Agreement");
WHEREAS, pursuant to Section 11(b) of the Voting Trust Agreement, with
respect to a shareholder vote on the merger of the Company, each Stockholder has
the right to direct the Voting Trustees in the voting of the Shares attributable
to such Stockholder;
WHEREAS, as of the date hereof, each Stockholder is the beneficial owner,
and (subject to the Voting Trust Agreement) has the power to direct the vote, of
the number of shares of Class A common stock, par value $0.01 per share, of the
Company (the "Class A Common Stock", such shares of Class A Common Stock and any
securities into which such shares may be converted or exchanged and any
securities issued in replacement of or as a dividend or distribution on or
otherwise in respect of such shares being referred to herein as the "Shares")
set forth opposite such Stockholder's name on Schedule A hereto;
WHEREAS, as a condition to entering into the Merger Agreement and incurring
the obligations set forth therein, Parent and Merger Sub have required that each
Stockholder enter into this Agreement; and
WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger
Agreement, each Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows (capitalized terms
used and not defined herein shall have the respective meanings assigned to them
in the Merger Agreement):
ARTICLE I
VOTING OF SHARES
Section 1.01 AGREEMENT TO VOTE. From the date hereof until the termination
of this Agreement in accordance with its terms, each Stockholder, acting
severally and not jointly, hereby agrees to direct the Voting Trustees to vote
the Shares beneficially owned by such
Stockholder at every annual, special or adjourned meeting of the stockholders of
the Company (or pursuant to any consent, certificate or other document relating
to the Company that the law of the State of Delaware may permit or require): (a)
in favor of the approval and adoption of the Merger Agreement and approval of
the Merger and all other transactions contemplated by the Merger Agreement and
this Agreement; (b) against any action, agreement, transaction (other than the
Merger Agreement or the transactions contemplated thereby) or proposal
(including, without limitation, any Competing Transaction) that would result in
Parent's or the Company's right to terminate the Merger Agreement; and (c) in
favor of any other matter necessary to the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon by the
stockholders of the Company generally; provided in each case that the Merger
Agreement is not hereafter amended in a manner materially adverse to the
interests of such Stockholder without such Stockholder's written consent. Each
Stockholder acknowledges receipt of a copy of the Merger Agreement and the
review thereof.
Section 1.02 NO SOLICITATION OF TRANSACTIONS. None of the Stockholders nor
any of their affiliates shall, directly or indirectly, and each Stockholder will
not permit his agents, advisors and other representatives (including, without
limitation, any investment banker, attorney or accountant retained by him) to,
directly or indirectly, (a) solicit, initiate or knowingly encourage the
initiation of (including by way of furnishing non-public information) any
inquiries or proposals regarding any Competing Transaction or (b) have any
discussions with or provide any non-public information or data to any third
party that would knowingly encourage, facilitate or further a Competing
Transaction, or engage in any negotiations concerning a Competing Transaction,
or knowingly facilitate any effort or attempt to make or implement a Competing
Transaction. Each Stockholder and each of his agents, advisors or other
representatives shall immediately cease and cause to be terminated any existing
discussions or negotiations with any person (other than Parent) conducted
heretofore with respect to any of the foregoing. Each Stockholder shall promptly
advise Parent orally and in writing of (a) any proposal for a Competing
Transaction or any request for information with respect to any proposal for a
Competing Transaction hereafter received by such Stockholder or any of his
agents, advisors or other representatives, the material terms and conditions of
such proposal for a Competing Transaction or request and the identity of the
person making such proposal for a Competing Transaction or request and (b) any
changes in any such proposal for a Competing Transaction or request; except to
the extent such information is furnished to Parent by the Company. The
undertakings set forth in this Section 1.02 are subject to Section 4.03 below in
all respects; provided, however, that nothing in this Agreement shall in any way
detract from the obligations and restrictions placed on the Stockholders in
their capacity as officers and directors of the Company under the terms of the
Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
Each Stockholder hereby represents and warrants to Parent and Merger Sub as
follows:
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Section 2.01 POWER; BINDING AGREEMENT. The execution and delivery of this
Agreement by the Stockholder will not violate any other agreement to which he is
a party including, without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming its due authorization, execution and
delivery by Parent, Merger Sub and the other Stockholders, constitutes a legal,
valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting creditors rights
generally and by general equitable principles.
Section 2.02 TITLE TO SHARES. Other than pursuant to this Agreement, the
Merger Agreement, the Voting Trust Agreement and his 2000 Stock Purchase
Agreement, the Stockholder is the beneficial owner of, and has good and
marketable title to, the Shares, free and clear of any lien, pledge, security
interest, encumbrance, charge or other claim of third parties of any kind or
nature, proxy, voting restriction, limitation on disposition, adverse claim of
ownership or use or encumbrance of any kind.
Section 2.03 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The execution
and delivery of this Agreement by the Stockholder do not, and the performance of
this Agreement by the Stockholder will not, (i) conflict with or violate any law
applicable to the Stockholder or by which any properties or assets of the
Stockholder are bound or affected or (ii) result in any breach of or constitute
a default (or an event which, with notice or lapse of time or both would become
a default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of the Stockholder pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Stockholder is a party
or by which the Stockholder or any of his properties or assets are bound or
affected, except, with respect to clauses (i) and (ii), for any such conflicts,
violations, breaches, defaults or other occurrences which, individually or in
the aggregate, would neither prevent nor materially delay the performance by the
Stockholder of any of his obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder do not,
and the performance of this Agreement by the Stockholder will not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Authority, except for any filings required under applicable
securities and antitrust laws and regulations, including the HSR Act, and except
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not, individually or in the
aggregate, prevent or materially delay the performance by the Stockholder of any
of his obligations under this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUB
Each of Parent and Merger Sub represents and warrants to each Stockholder
as follows:
Section 3.01 DUE ORGANIZATION; AUTHORITY RELATIVE TO THIS AGREEMENT. Each
of Parent and Merger Sub is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation. Each of
Parent and Merger Sub has all necessary power and authority to execute and
deliver this Agreement, to perform their obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation by Parent and Merger Sub of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of Parent or
Merger Sub or any affiliate thereof are necessary to authorize this Agreement or
to consummate such transactions. This Agreement has been duly and validly
executed and delivered by Parent and Merger Sub and, assuming its due
authorization, execution and delivery by each Stockholder, constitutes a legal,
valid and binding obligation of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with its terms.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.01 NO DISPOSITION OR ENCUMBRANCE OF SHARES. Each Stockholder
agrees that, prior to the termination of this Agreement in accordance with the
terms hereof, he shall not, directly or indirectly, (a) sell, assign, transfer,
pledge, encumber or otherwise dispose of any of his Shares, (b) other than with
respect to the Voting Trust Agreement, deposit any of his Shares into a voting
trust or enter into a voting agreement or arrangement or grant any proxy or
power of attorney with respect thereto which is inconsistent with this
Agreement, (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect sale, assignment, transfer or
other disposition of his Shares, or (d) take any action that would make any
representation or warranty in Article II hereof untrue or incorrect in any
material respect or have the effect of preventing or disabling him from
performing his obligations hereunder; provided in each case that the foregoing
shall not apply to (i) any transfer of Shares to the estate, heirs or legatees
of a Stockholder upon his death, subject to Section 6.05 below; or (ii) any
transfer of Shares to the Company required pursuant to the terms of the 2000
Stock Purchase Agreement.
Section 4.02 DISCLOSURE. Each Stockholder agrees to permit Parent and
Merger Sub to publish and disclose in filings under applicable securities laws
in connection with the Merger such Stockholder's identity and ownership of
Shares (but, for ownership amounts or percentages, only with respect to the
Stockholders collectively as a group) and the nature of his commitments,
arrangements and understandings under this Agreement and other information to
the extent required by applicable law.
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Section 4.03 STOCKHOLDER CAPACITY ONLY. The parties acknowledge and agree
that the undertakings of the Stockholders in this Agreement shall apply to them
only in their capacity as stockholders of the Company. Accordingly, nothing in
this Agreement shall be deemed to be apply to, or to limit, restrict or prohibit
in any manner, any decisions or actions taken or omitted to be taken by the
Stockholders in their capacities as officers, directors or employees of the
Company or as voting trustees under the Voting Trust Agreement.
ARTICLE V
TERMINATION
Section 5.01 TERMINATION. The covenants and agreements contained herein
(other than this Article V) shall terminate upon the earlier of (a) the date the
Merger Agreement is terminated; (b) the date Parent terminates this Agreement;
and (c) the Effective Time. Nothing in this Section 5.01 shall relieve any party
of liability for any breach of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 ADDITIONAL SHARES. In the event any Stockholder becomes the
beneficial owner of any additional shares or other securities of the Company and
any securities into which such shares or securities may be converted or
exchanged and any securities issued in replacement of, or as a dividend or
distribution on, or otherwise in respect of, such shares or securities, then the
terms of this Agreement shall apply to such additional securities.
Section 6.02 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such costs and expenses.
Section 6.03 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by an
overnight or expedited courier service, by telecopy (provided that any notice
received by telecopy at the addressee's location on any business day after 5:00
p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m.
(addressee's local time) on the next business day), or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 6.03):
(a) If to Parent or Merger Sub:
Publicis Groupe S.A.
Xxxxxx xxx Xxxxxx Xxxxxxx
00000 Xxxxx, Xxxxxx
Facsimile: 011-331-44-43-75-50
Attention: M. Xxxxxxx Xxxx
M. Jean-Xxxx Xxxxx
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with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxx
(b) If to the Stockholders:
Xxx X. Xxxxxxx
South Manursing Island
Xxx, XX 00000
Xxxxx X. Xxxxx
00 Xxxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxx. 0X-X
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxx & Xxxxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx
Section 6.04 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, the application of such term or provision to other persons or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction, and
all other terms and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of this
Agreement is not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
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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 terms of
this Agreement remain as originally contemplated to the fullest extent possible.
Section 6.05 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether pursuant to a merger, by operation of law or otherwise), without
the prior written consent of the other parties except that Parent and Merger Sub
may assign all or any of their rights and obligations hereunder to any direct or
indirect subsidiary of Parent which becomes a party to the Merger Agreement.
This Agreement shall be binding upon the estate, heirs or legatees of a
Stockholder in the event of any transfer of Shares to such estate, heirs or
legatees upon the death of such Stockholder.
Section 6.06 AMENDMENT; WAIVER. This Agreement may not be amended except by
an instrument in writing signed by all the parties hereto. Any party to this
Agreement may (a) extend the time for the performance of any of the obligations
or other acts of any other party, (b) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
document delivered by any other party pursuant hereto or (c) waive compliance
with any of the agreements or conditions of any other party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
Section 6.07 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
Section 6.08 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof for which money damages would
not be an adequate remedy and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or in
equity. Each of the parties further agrees that in any proceeding seeking
specific performance such party will waive any requirement for the securing or
posting of any bond.
Section 6.09 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
Section 6.10 HEADINGS. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
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Section 6.11 COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Section 6.12 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
Section 6.13 FURTHER ASSURANCES. From time to time at the request of the
other party, and without further consideration, each party shall execute and
deliver or cause to be executed and delivered such additional documents and
instruments and take all such further action as may be reasonably necessary or
desirable to effect the matters contemplated by this Agreement.
[Signatures on following page.]
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S-1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned as of the date first above written.
PUBLICIS GROUPE S.A.
By: /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
Title: President du Directoire
PHILADELPHIA MERGER CORP.
By: /s/ Xxxx-Xxxx Xxxxx
----------------------------
Name: Xxxx-Xxxx Xxxxx
Title: Treasurer and Secretary
XXX X. XXXXXXX
By: /s/ Xxx X. Xxxxxxx
----------------------------
Name: Xxx X. Xxxxxxx
XXXXX X. XXXXX
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
XXXXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
XXXXX X. XXXXX
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
X-0
