Exhibit 1
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SHAREHOLDERS' AGREEMENT
BETWEEN
MADAME XXXXXXXXX XXXXXXXX
AND
DENTSU INC.
DATED AS OF NOVEMBER 30, 2003
TABLE OF CONTENTS
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PAGE
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Section 1. Definitions and Interpretation.................................2
1.1 Definitions.......................................................2
1.2 Terms Generally...................................................2
Section 2. General Acknowledgement........................................5
Section 3. Management of Publicis.........................................5
3.1 Supervisory Board.................................................5
(a) Election/Appointment of Dentsu's Representatives as Members
of the Supervisory Board....................................5
(b) Election/Appointment of Other Members of the
Supervisory Board...........................................9
3.2 Notices of Meetings...............................................9
3.3 Transformation of the Management Structure of Publicis...........10
3.4 The Committee....................................................10
(a) Appointment of the Members of the Committee................10
(b) Chairperson of the Committee...............................10
(c) Notice of Meetings, Voting Requirements....................11
(d) Role of the Committee......................................11
3.5 Audit Committee..................................................12
Section 4. Shareholders' Meetings........................................12
4.1 Voting Agreement.................................................12
4.2 Vote After Consultation..........................................13
4.3 Financial Statements.............................................14
Section 5. Transfer of Shares............................................14
5.1 Permitted Intercompany Transfers.................................14
5.2 Prohibition on Other Transfers From the Date Hereof Until the
Expiration Date..................................................15
5.3 Transfers Following the Expiration Date; Right of First Refusal..16
(a) Transfer to an Identified Person...........................16
(b) Other Transfers............................................17
(c) Tender Offers..............................................18
5.4 Standstill.......................................................20
(a) Standstill Provision.......................................20
(b) Exceptions to the Standstill...............................22
(c) Excess Voting Rights.......................................23
(d) Purchases..................................................23
(e) Consultations upon Acquisition by a Third Party of a
Position.....................................................23
(f) Registered Form............................................23
5.5 Transfers of ORANEs..............................................24
Section 6. Agreements with Third Parties, Etc............................24
(a) Dentsu's Agreements with Third Parties, etc................24
(b) Agreements Among Madame Badinter and Third Parties.........25
Section 7. Declarations and Covenants of Madame Badinter.................26
(a) Declaration................................................26
(b) Covenants..................................................26
Section 8. Anti-Dilution.................................................26
Section 9. Equity Accounting Requirements................................28
Section 10. Term of Agreement; Early Termination..........................28
10.1 Term.............................................................28
10.2 Early Termination................................................28
(a) Early Termination by Dentsu................................28
(b) Early Termination by Madame Badinter.......................28
(c) Automatic Termination......................................29
(d) Termination Upon Default...................................29
(e) Effect of Termination......................................29
(f) Different Votes............................................29
Section 11. Concerted Action - Regulatory Matters.........................29
11.1 Concerted Action.................................................29
11.2 Filing Requirement...............................................30
Section 12. Miscellaneous.................................................30
12.1 Notices..........................................................30
12.2 Governing Law, etc...............................................31
12.3 Arbitration......................................................31
12.4 Judicial Procedure...............................................32
12.5 Binding Effect...................................................32
12.6 Assignment.......................................................32
12.7 No Third-Party Beneficiaries.....................................32
12.8 Amendment; Waivers, etc..........................................33
12.9 Severability.....................................................33
12.10 Confidentiality..................................................33
12.11 Execution Copies.................................................33
12.12 Entire Agreement.................................................33
Exhibit 1 Major Publicis Competitors
Exhibit 2 Article 8, paragraphs 3, 4, and 7 of the Japanese Minsterial
Regulation regarding Financial Statements
Exhibit 3 Form of By-laws (statuts) of Special Purpose Entity (Societe en
Participation)
SHAREHOLDERS' AGREEMENT dated as of November 30, 2003 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 Yukata Narita, 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, as of the date hereof, owns (i) directly
approximately 4.1% of the total outstanding ordinary shares (actions ordinaires)
of Publicis Groupe S.A. ("PUBLICIS"), a societe anonyme organized under the laws
of the Republic of France, with a share capital of (euro)78,118,930, having its
registered office at 000, Xxxxxx xxx Xxxxxx Xxxxxxx, 00000 Xxxxx, registered
with the Commercial Registry of Paris under number 542 080 601, which ordinary
shares represent approximately 7.1% of the voting rights of Publicis, and (ii)
the usufruct interest (usufruit) in approximately 8.1% of the total outstanding
ordinary shares of Publicis, representing approximately 13.1% of the voting
rights of Publicis;
WHEREAS, as a result of such ownership of ordinary shares (actions
ordinaires) of Publicis and of usufruct interest (usufruit) in ordinary shares
of Publicis, Madame Badinter is the controlling shareholder of Publicis;
WHEREAS, Publicis has entered into an Agreement and Plan of Merger dated as
of March 7, 2002, (as amended, the "MERGER AGREEMENT") with Bcom3 Group, Inc., a
corporation organized under the laws of Delaware ("BCOM3"), Philadelphia Merger
Corp., a corporation organized under the laws of Delaware and a wholly-owned
subsidiary of Publicis (the "MERGER SUB"), and Philadelphia Merger LLC, a
limited liability company organized under the laws of Delaware, as amended by
Amendment No. 1 to Agreement and Plan of Merger, dated as of August 13, 2002,
providing among other things for the merger (the "MERGER") of Bcom3 into the
Merger Sub;
WHEREAS, upon the consummation of the Merger, which occurred on September
24, 2002, Dentsu became the owner of ordinary shares (actions ordinaires) of
Publicis and of the bare legal title (nue-propriete) of ordinary shares of
Publicis, representing in the aggregate not less than 15% of the voting rights
of Publicis;
WHEREAS, Dentsu has entered into a Memorandum of Understanding, dated March
7, 2002, with Publicis providing for certain rights and obligations for Dentsu
as a shareholder of Publicis and for certain obligations of Publicis toward
Dentsu (the "PUBLICIS MOU");
WHEREAS, Dentsu has also entered into a Memorandum of Understanding, dated
March 7, 2002, with Madame Badinter providing for certain rights and obligations
for Dentsu as a shareholder of Publicis to Madame Badinter and for certain
rights and obligations for Madame Badinter as the controlling shareholder of
Publicis toward Dentsu (the "EB MOU");
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WHEREAS, Dentsu and Publicis are entering into a Strategic Alliance
Agreement, dated as of the date hereof (the "STRATEGIC ALLIANCE AGREEMENT")
giving effect to a Memorandum of Understanding, dated March 7, 2002, between
Publicis and Dentsu;
WHEREAS, Dentsu and Publicis are entering into a Shareholders' Agreement,
dated as of the date hereof, giving effect to the Publicis MOU (the "PUBLICIS
SHAREHOLDERS' AGREEMENT"); and
WHEREAS, Dentsu and Madame Badinter wish to enter into this Agreement in
order to regulate their relations with respect to the governance of Publicis and
their respective shareholdings in Publicis and to give further effect to the EB
MOU.
In consideration of the foregoing recitals and the terms and conditions
hereinafter set forth, Dentsu and Madame Badinter agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
For the purpose of this Agreement, and unless the context requires
otherwise, the following terms shall have the respective meanings given to them
below:
"AFFILIATE" means with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person.
"AGREEMENT" means this Shareholders' Agreement, as the same may be amended
from time to time in accordance with its terms.
"APPLICABLE LAWS" means all applicable provisions of all laws, rules,
regulations, ordinances, codes, orders, decisions, judgments, and decrees,
of any court, tribunal or governmental or regulatory authority.
"BUSINESS DAY" shall mean any day, other than (i) a Saturday or Sunday and
(ii) any other day on which commercial banks in Tokyo, Japan, Paris, France
or New York City, New York are authorized or obligated by law or executive
order to close.
"BY-LAWS" shall mean the by-laws (statuts) of Publicis, as the same may be
amended from time to time.
"CHAIRPERSON OF THE DIRECTORATE" means the chairperson (Presidente or
President, as the case may be) of the Directorate.
"CHAIRPERSON OF THE SUPERVISORY BOARD" means the chairperson (Presidente or
President, as the case may be) of the Supervisory Board.
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"CONTROL" means the definition of "control" set forth in Article L.233-3 of
the French Code de Commerce.
"DIRECTORATE" means the directorate (Directoire) of Publicis composed of
members duly appointed by the Supervisory Board.
"EB REPRESENTATIVES ON THE SUPERVISORY BOARD" means the Members of the
Supervisory Board who are also members of Madame Badinter's nuclear family,
consisting of her spouse and her children.
"EQUITY ACCOUNTING DATE" means (i) March 31st of each calendar year, (ii)
September 30 of each calendar year and (iii) the date of each Shareholders'
Meeting of Publicis.
"MAJOR PUBLICIS COMPETITOR" means any significant competitor of Publicis
set forth on Exhibit 1 hereto, as such Exhibit may be updated from time to
time by Madame Badinter and Publicis by written notice to Dentsu, subject
to Dentsu's written agreement to such change (which is not to be
unreasonably withheld).
"MEMBER OF THE DIRECTORATE" means a duly appointed member of the
Directorate.
"MEMBER OF THE SUPERVISORY BOARD" means a duly elected or appointed member
of the Supervisory Board.
"PARTY" means any party to this Agreement (and "PARTIES" shall mean all of
them, collectively), provided that such term shall also include any
additional Person who becomes a party to this Agreement pursuant to Section
12.5.
"PERSON" means any individual, company, corporation, limited liability
company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or other entity or organization,
including any government or political subdivision or any agency or
instrumentality thereof.
"PUBLICIS SHARE" means any share of Publicis with voting rights (including
shares with double voting rights) as issued from time to time by Publicis
as a result of a cash contribution, a merger, a split-off, a contribution
of assets, or otherwise.
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"SECURITY" means (i) any Publicis Share, (ii) any other security issued,
from time to time, by Publicis giving right, at any time, directly or
indirectly, by conversion, exchange, redemption, presentation or exercise
of a warrant or otherwise, to Publicis Shares or other securities
representing or giving access to a portion of the share capital and/or the
voting rights of Publicis (including, without limitation, investment
certificates, bonds convertible into and/or exchangeable for Publicis
Shares, bonds redeemable into Publicis Shares, bonds with warrants
attached), (iii) any preferential subscription rights or any right (such as
attribution right or priority right (droit de priorite)) that would entitle
their holders to subscribe to Publicis Shares, (iv) any division
(demembrement) of the rights relating to the Publicis Shares or the
securities referred to in clauses (i) and (ii) above, or (v) any securities
of a nature similar to the securities described in clause (ii) above, as
issued from time to time by any Person, which may give any rights to
Publicis Shares or voting rights of Publicis.
"SUBSIDIARY" means any Person that is a subsidiary of Dentsu for purposes
of paragraphs 3, 4 and 7 of Article 8 of the Japanese Ministerial
Regulation regarding Financial Statements
(saimushohyo-no-yogo-yoshiki-oyobi-sakuseihoho-ni-kansuru-kisoku), a copy
of which paragraphs, along with an English translation thereof, are
attached hereto as Exhibit 2.
"SUPERVISORY BOARD" means the supervisory board (Conseil de Surveillance)
of Publicis composed of members duly elected by a shareholders' meeting of
Publicis or duly appointed in accordance with Applicable Laws.
"TRADING DAY" shall mean any day on which the Paris stock exchange is open
for business and the Publicis Shares or Warrants, as the case may be, have
not been suspended from trading thereon.
"TRANSFER" means the transfer of any rights or obligations and in the
context of Securities includes (i) all transfers, sales or assignments of
partial (e.g., jouissance, usufruit, or nue-propriete) or full title by any
legal means, (ii) any gratuitous or onerous transfer (including by reason
of death), or transfer made pursuant to a public auction ordered by any
court, (iii) any transfer which is the result of any contribution, apport
partiel d'actif, merger or split-off (scission) or any transmission
universelle de patrimoine, (iv) any transfer of droits d'attribution in
connection with an increase of share capital by way of capitalization of
reserves or profits, any transfer of preferential subscription rights in
connection with an increase of share capital by way of contribution in cash
or individual waiver to such preferential subscription rights in favor of
identified persons and, more generally, (v) any transfer with or without
division of legal and beneficial title, loan, transfer to a trust or a
fiduciary or as a guarantee (including constitution of a pledge) or
convention de croupier. For the avoidance of doubt, the conversion of any
Security from registered form to bearer form, or from bearer form to
registered form, shall not constitute a "Transfer" under this Agreement.
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"WARRANT" means any warrant (bons de souscription d'actions) of Publicis
detached from the obligations a bons de souscription d'actions issued as
part of the consideration in connection with the Merger.
1.2 TERMS GENERALLY
The definitions in this Agreement shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine, neuter, singular
and plural forms. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". The terms "hereof",
"herein" and words of similar import shall be deemed to refer to this Agreement
as a whole and not to any particular provision, paragraph or Section hereof. All
references herein to Sections, paragraphs and clauses shall be deemed references
to Sections, paragraphs or clauses of this Agreement unless the context requires
otherwise. A reference to any Person includes its permitted successors and
assigns. Headings are inserted for convenience only and shall not affect the
construction of this Agreement.
SECTION 2. GENERAL ACKNOWLEDGEMENT
Dentsu hereby acknowledges that (i) Publicis was founded by Xxxxxx
Xxxxxxxxx-Xxxxxxxx, (ii) Madame Badinter is the daughter of such founder, (iii)
Publicis is a French company with French roots, the domicile and headquarters of
which are in Paris, France, and it is intended that it will so remain, and (iv)
the leadership of Publicis is French and it is intended that any change to
Publicis' leadership will only be made with the agreement of Madame Badinter.
SECTION 3. MANAGEMENT OF PUBLICIS
3.1 SUPERVISORY BOARD
(a) ELECTION/APPOINTMENT OF DENTSU'S REPRESENTATIVES AS MEMBERS OF THE
SUPERVISORY BOARD
(i) The Parties hereby acknowledge that, as of the date hereof, the
Supervisory Board is composed of 15 members.
(ii) So long as Dentsu shall own, directly or indirectly, not less
than 10% of the outstanding Publicis Shares, Madame Badinter shall use her
voting rights in Publicis to vote for two Members of the Supervisory Board
(as such number may be adjusted pursuant to clause (vi) below) from among
the slate of candidates designated by Dentsu (the "DENTSU MEMBERS"), one of
the Dentsu Members so elected to be a representative director of Dentsu,
and to maintain such Dentsu Members in office. Whether Dentsu owns the
requisite percentage of Publicis Shares shall be determined, as of the
Reference Date defined below, for the purposes of each shareholders'
meeting of Publicis for which the agenda prepared by the Directorate or the
Supervisory Board, as the
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case may be, shall expressly include the election of one or more Members of
the Supervisory Board (the "ELECTION MEETING"). Madame Badinter shall use
her best efforts to give Dentsu notice of the value of the CP and NP terms
set forth in the numerator and the denominator, respectively, of the
formula that appears in clause (iii) below (the "OWNERSHIP NOTICE") not
later than 45 days before the scheduled date for the Election Meeting.
"REFERENCE DATE" means the twentieth day following Dentsu's receipt of the
Ownership Notice if such twentieth day is a Business Day, and if it is not,
the next succeeding Business Day.
(iii) The percentage of outstanding Publicis Shares owned by Dentsu
shall be determined in accordance with the following formula:
Percentage of ownership = ND + CP X 100
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NP
in which:
o "ND" shall mean the aggregate number of outstanding Publicis Shares
fully held or held in nue-propriete by Dentsu (including in such
aggregate any Publicis Shares so held by any of Dentsu's Subsidiaries
as well as any of the SEP Shares referred to in Section 5.4(b)(iii))
on the Reference Date;
o "NP" shall mean the aggregate number of ordinary shares of Publicis,
including without limitation any ordinary shares of Publicis owned by
Publicis, outstanding on the date of the Ownership Notice;
o "CP" shall mean, with respect to each capital increase of Publicis
occurring subsequent to the date of the consummation of the Merger in
accordance with the Merger Agreement (the "MERGER DATE") and on or
prior to the date of the Ownership Notice, to which capital increase
Dentsu was not entitled to subscribe, in all or in part, for its pro
rata shareholding interest in Publicis, a number of Publicis Shares
equal to (A) the number of Publicis Shares that Dentsu would have
been entitled to subscribe to for its pro rata shareholding in such
capital increase if Dentsu had had the right to subscribe to such
capital increase by exercising its preemptive right (droit
preferentiel de souscription) or any other right that would have
entitled it to subscribe to Publicis Shares so issued on the same
terms and in the same quantity as if Dentsu were exercising such
preemptive right, less (B) the number of Publicis Shares Dentsu was
actually entitled to subscribe for in such capital increase.
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(iv) Madame Badinter may, at her discretion, cause Publicis to give
Dentsu a notice (the "ADDITIONAL OWNERSHIP NOTICE") setting forth, as of
the date of the Additional Ownership Notice, the percentage of outstanding
Publicis Shares owned by Dentsu calculated pursuant to the formula that
appears in clause (iii) above, except that the ND, CP and NP terms shall be
calculated as of the date of the Additional Ownership Notice. If on the
90th day following Dentsu's receipt of the Additional Ownership Notice if
it is a Business Day, and if it is not, the next succeeding Business Day
(the "FINAL DATE"), Dentsu owns, directly or indirectly, a number of
Publicis Shares representing less than 10% of the outstanding Publicis
Shares calculated on the basis of the formula set forth in the Additional
Ownership Notice, except that the ND term shall be calculated as of the
Final Date, then as of the Final Date, Dentsu shall cause the Dentsu
Members to immediately resign from the Supervisory Board.
(v) Dentsu shall be entitled from time to time to request (Madame
Badinter's obligations being as set forth hereafter) the removal of any
Dentsu Member by notice addressed to Madame Badinter. In such event, Madame
Badinter shall (a) use her best efforts to cause the Directorate to take
all necessary corporate actions and (b) vote her Publicis Shares so as to
remove and replace promptly the Dentsu Member desired to be so removed and
replaced as set forth in such notice from Dentsu. In the event of a vacancy
on the Supervisory Board caused by the resignation, death or incapacity of
any Dentsu Member, Dentsu may request (Madame Badinter's obligations being
as set forth hereafter) by notice addressed to Madame Badinter the
replacement of such Dentsu Member by a new Dentsu member to be elected or
appointed from among a slate of candidates designated by Dentsu, subject to
the terms of this Agreement. Madame Badinter shall in each such case (x)
cause the EB Representatives on the Supervisory Board, or use her best
efforts to cause the Directorate, as may be appropriate, to take all
necessary corporate action to the extent of their power (including with
respect to the Supervisory Board cooptation to the extent permitted by
Applicable Laws), and/or (y) vote her Publicis Shares so as to vote for or
appoint and maintain in office such new Dentsu Member. If the Dentsu
Member to be replaced is a representative director of Dentsu, Madame
Badinter shall perform her obligations as set forth under this clause (v)
so that such Dentsu Member is replaced only by another representative
director of Dentsu.
(vi) If the total number of Members of the Supervisory Board becomes
greater than 15, Madame Badinter shall take, shall cause the EB
Representatives on the Supervisory Board to take, and shall use her best
efforts to cause the Chairperson of the Directorate, the Directorate and
the Chairperson of the Supervisory Board, as may be appropriate, to take,
to the extent of their power, all necessary action to increase the number
of Dentsu Members so that such number is equal to 15% of the total number
of Members of the Supervisory Board (rounding such number of Dentsu Members
up to the
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nearest whole number). Madame Badinter shall inform, or use her best
efforts to cause the Supervisory Board or the Directorate to inform, Dentsu
as soon as possible of any contemplated increase of the total number of
Members of the Supervisory Board.
(vii) Notwithstanding the foregoing provisions of this Section 3.1(a),
in the event that Madame Badinter establishes that none of the candidates
included in the slate of candidates designated by Dentsu (other than any
representative director included in such slate) has reasonably appropriate
qualifications to serve as a Member of the Supervisory Board, Dentsu shall
designate one or more other candidates for election to the Supervisory
Board in place of candidates proposed on such slate; provided that the
qualifications of a representative director of Dentsu shall not be subject
to challenge. Madame Badinter shall send to Dentsu notice of her objections
to the qualifications of any candidate included in such slate (other than
any representative director included in such slate) no later than five
Business Days after the receipt by her of such slate.
(viii) In the event that Madame Badinter shall no longer be, alone or
acting in concert with others, the controlling shareholder of Publicis,
Madame Badinter shall, nonetheless, use her best efforts to take such
action as is required and appropriate to the end that Dentsu shall have
full enjoyment of the benefits of this Section 3.1(a).
(ix) In the event Madame Badinter fails to comply with the provisions
of clauses (ii), (v), (vi), or (viii) of this Section 3.1(a), and as a
result, any Dentsu Member is not elected to the Supervisory Board at the
relevant shareholders' meeting of Publicis and, within 30 day period after
such shareholders' meeting, the Supervisory Board has not appointed by
cooptation a Dentsu Member, or, such appointment by cooptation has been
validly made within such 30 day period but the next general shareholders'
meeting of Publicis fails to ratify such cooptation, then Dentsu may
terminate this Agreement with immediate effect by notice to Madame
Badinter, without any further formalities being required.
(x) In the event that Madame Badinter shall have complied with all of
the provisions of clauses (ii), (v), (vi) and (viii) of this Section
3.1(a), but any Dentsu Member is not elected to the Supervisory Board at
the relevant shareholders' meeting of Publicis, and within 30 days of such
shareholders' meeting, the Supervisory Board has not appointed by
cooptation a Dentsu Member, or, such appointment by cooptation has been
validly made within such 30 day period, but the next general shareholders'
meeting of Publicis fails to ratify such cooptation, then Dentsu may
terminate Sections 5.1, 5.2, 5.3 and 5.5 of this Agreement with immediate
effect by notice to Madame Badinter (with a copy to Publicis), without any
other formalities being required, provided that thereafter any Transfer by
Dentsu of Publicis Shares, ORANEs and Warrants owned by it will be subject
to a right of first refusal
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and right of first offer by Madame Badinter on the terms and subject to the
conditions described in Section 5.3 of this Agreement, and, if Madame
Badinter does not purchase such Securities pursuant to such rights, such
Securities may otherwise be sold only in accordance with the orderly
marketing provisions of clauses (i), (ii) and (iii) of Section 4.3 of the
Publicis Shareholders' Agreement, further provided that Dentsu shall not
knowingly transfer any such Securities to a Major Publicis Competitor.
(b) ELECTION/APPOINTMENT OF OTHER MEMBERS OF THE SUPERVISORY BOARD
Without prejudice to any of Dentsu's rights hereunder, Dentsu shall vote
and shall require the Dentsu Members to vote, unless such vote would expose
Dentsu or any such Dentsu Member to legal liability:
(i) to elect Madame Badinter (or any person designated by Madame
Badinter) Chairperson of the Supervisory Board, and to maintain such person
in office;
(ii) to elect Members of the Supervisory Board from a slate of
candidates proposed by Madame Badinter, and to maintain such persons in
office; and
(iii) in favor of appointments to, or changes in the members of,
management (including at the Directorate) of Publicis from a slate of
candidates proposed by Madame Badinter, provided that Madame Badinter shall
have previously consulted Dentsu on such appointments or changes.
3.2 NOTICES OF MEETINGS
Madame Badinter shall, or shall cause the EB Representatives on the
Supervisory Board, or shall cause the Chairperson of the Supervisory Board or
the vice-president of the Supervisory Board, as may be appropriate in any given
case, to give Dentsu at least five Business Days' notice before convening any
meeting of the Supervisory Board (or such shorter notice period agreed in
writing by at least one of the Dentsu Members). Such notice shall include an
agenda of the proposed meeting of the Supervisory Board as well as any
information and documents that are necessary or appropriate for the Members of
the Supervisory Board to have a clear understanding of the matters covered by
the agenda of the meeting, in a manner customary for the Supervisory Board (it
being understood that such documents may be made available only three Business
Days prior to the meeting). Each such notice of meeting, agenda, and any other
information or documents to be provided to the Members of the Supervisory Board
in accordance with the preceding sentence shall be prepared and delivered to
Dentsu in the French and English languages. In the event that Applicable Laws do
not prohibit attendance of meetings of the Supervisory Board or of the Audit
Committee (defined below) by videoconference, then any Dentsu Member may, upon
request, attend any such meeting by videoconference, together with a Dentsu
Accounting Executive (defined below), if applicable. Madame
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Badinter shall, and shall cause the EB Representatives on the Supervisory Board
to, take all necessary action to (i) allow an interpreter to attend any meeting
of the Supervisory Board and any meeting of the Audit Committee at the request
of any Dentsu Member, (ii) ensure that discussions at any meeting of the
Supervisory Board and at any meeting of the Audit Committee that are held in
French shall, if requested by any Dentsu Member, be simultaneously translated to
English and/or Japanese, and (iii) cause to be provided to the Dentsu Members,
an English translation of the minutes of each meeting of the Supervisory Board
(and any meeting of the Audit Committee attended by any Dentsu Member), (A) in
draft form within 30 days following each such meeting, and (B) in final form by
the date of the next meeting of the Supervisory Board (or Audit Committee, as
applicable), provided that if such next meeting occurs sooner than 30 days after
the preceding meeting, then minutes of the preceding meeting need not be
provided in draft form.
3.3 TRANSFORMATION OF THE MANAGEMENT STRUCTURE OF PUBLICIS
Madame Badinter shall not, and shall not permit the Directorate or the
Supervisory Board to, take any action so as to change the management structure
of Publicis from that of a societe anonyme with a Directorate and a Supervisory
Board into a societe anonyme with a board of directors (conseil
d'administration), unless (i) such change has been previously approved in
writing by Dentsu, or (ii) Dentsu's representation on such board of directors
remains proportionately the same as its representation on the Supervisory Board
provided for in Section 3.1. In such case, Dentsu's rights under this Section 3
shall apply mutatis mutandis to the board of directors (conseil
d'administration).
3.4 THE COMMITTEE
(a) APPOINTMENT OF THE MEMBERS OF THE COMMITTEE
Dentsu and Madame Badinter shall create a special committee (the
"COMMITTEE") to be composed of Members of the Supervisory Board designated by
Madame Badinter and Members of the Supervisory Board designated by Dentsu (e.g.,
two by Madame Badinter and one by Dentsu, or three by Madame Badinter and two by
Dentsu) provided, in any case, that Madame Badinter shall designate a majority
of the members of the Committee.
(b) CHAIRPERSON OF THE COMMITTEE
The chairperson of the Committee shall be Madame Badinter or any person
designated by Madame Badinter (the "CHAIRPERSON OF THE COMMITTEE"). Any meeting
of the Committee shall be chaired by the Chairperson of the Committee, or in the
absence of the Chairperson of the Committee, by any member present at such
meeting designated to act as Chairperson of the Committee for the purpose of
that meeting by a majority of the members of the Committee present or duly
represented.
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(c) NOTICE OF MEETINGS, VOTING REQUIREMENTS
The Committee shall be convened, (i) within a reasonable notice period
prior to any meeting of the Supervisory Board and/or any shareholders' meeting
of Publicis as the case may be in order to allow its members to take part and/or
to vote (including through proxies) at any such meeting and (ii) otherwise at
the reasonable request of any member of the Committee designated by Dentsu (a
"SPECIAL COMMITTEE MEETING") given to the Chairperson of the Committee in order
to examine any other matters identified in writing by such member of the
Committee designated by Dentsu. The Committee shall be so convened by the
Chairperson of the Committee, or by any other member of the Committee, if the
Chairperson of the Committee fails to convene such meeting at the reasonable
request of such other member of the Committee. Meetings of the Committee shall
be held at the registered office of Publicis or at such other place as may be
agreed upon between the members of the Committee designated by Dentsu and the
members of the Committee designated by Madame Badinter. Members of the Committee
may attend any meeting of the Committee by videoconference at the request of any
member of the Committee and at the expense of the member making such request.
Discussions at any meeting of the Committee that are held in French, shall, if
requested by any member of the Committee designated by Dentsu, be simultaneously
translated into English and/or Japanese at Dentsu's expense. An interpreter
designated by the members of the Committee designated by Dentsu shall be allowed
to attend any meeting of the Committee at Dentsu's expense. Madame Badinter
shall, and shall cause the members of the Committee designated by her to, take
all necessary action to cause to be provided to Dentsu's representatives on the
Committee, as promptly as possible following any meeting of the Committee, an
English translation of the minutes of such meeting at Dentsu's expense. Any
amounts to be paid by Dentsu or the members of the Committee appointed by Dentsu
pursuant to this Section 3.4(c) shall be paid by Dentsu following presentation
to Dentsu by Publicis or Madame Badinter, as the case may be, of a reasonably
detailed invoice therefor.
A majority of all of the members of the Committee (including at least one
member designated by Dentsu), present in person, shall constitute a quorum at
any meeting of the Committee. The Committee shall act, after consultation, by
consensus of its members present in person or duly represented, or, in the
absence of consensus, by a simple majority vote of the members present in person
or duly represented. In the event of a tie, the Chairperson of the Committee
(or, in the absence of the Chairperson of the Committee, any person present
designated to act on his or her behalf as provided for in paragraph (b) above)
shall cast a tie-breaking vote.
(d) ROLE OF THE COMMITTEE
The Committee shall (i) examine all strategic decisions to be submitted for
the approval of the Supervisory Board (including without limitation the
decisions submitted to the prior approval of the Supervisory Board as provided
for in Article 12 of the By-Laws) and/or the vote of the shareholders' meetings
of Publicis, (ii) determine the vote on matters on which Dentsu has agreed to
vote as directed by
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Madame Badinter pursuant to Section 4.1 below, and (iii) in the case of a
Special Committee Meeting, examine such other matters identified in writing by a
member of the Committee designated by Dentsu.
Madame Badinter shall, as Chairperson of the Committee, or shall cause the
Chairperson of the Committee or any other appropriate person, to provide
Dentsu's representatives on the Committee, within a reasonable period of time
prior to any meeting of the Committee, with materials (prepared in English)
providing a general description of the strategic decisions or other issues to be
discussed at such meeting.
3.5 AUDIT COMMITTEE.
Madame Badinter shall cause the Supervisory Board or the President of the
audit committee of the Supervisory Board (the "AUDIT COMMITTEE") (i) to give the
Dentsu Members at least ten Business Days' notice before convening any meeting
of the Audit Committee (or such shorter notice period agreed in writing by all
of the Dentsu Members), which notice shall include an agenda for the proposed
meeting of the Audit Committee and shall be prepared and delivered to the Dentsu
Members in both the French and English languages, and (ii) to permit one Dentsu
Member and an accounting executive of Dentsu identified by such Dentsu Member
(the "DENTSU ACCOUNTING EXECUTIVE") to attend each such meeting of the Audit
Committee, subject to any restrictions that may be imposed by Applicable Laws.
SECTION 4. SHAREHOLDERS' MEETINGS
Dentsu shall vote its Publicis Shares at any shareholders' meeting of
Publicis in its own discretion, subject only to the duties set forth below in
Sections 4.1, 4.2 and 4.3.
4.1 VOTING AGREEMENT
After due consultation between Dentsu and Madame Badinter, Dentsu shall
vote its Publicis Shares as directed by Madame Badinter on the following
matters:
(i) any decision to amend the By-Laws to change Publicis' corporate
name or registered office, the number of Members of the Supervisory Board,
the number of Members of the Directorate, the duration of the terms in
office of any such members, and the number of qualifying Publicis Shares
required to be owned by any such member, provided that in the case of a
change in the number of Members of the Supervisory Board (A) such
amendment shall be consistent with Dentsu's right to have a number of
Dentsu Members as set forth in Section 3.1(a)(vi), and (B) Madame Badinter
shall vote her Publicis Shares so as to elect, at the shareholders'
meeting of Publicis approving such amendment to the By-Laws, the number of
Dentsu Members called for by Section 3.1(a)(vi) in accordance with the
provisions of this Agreement;
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(ii) any merger, consolidation or similar business combination of
Publicis with or into any other Person as a result of which those
shareholders who were shareholders of Publicis immediately prior to such
business combination shall have a majority of the outstanding votes and
share capital of the surviving Person in such business combination;
(iii) declaration of dividends, so long as Madame Badinter directs
Dentsu to vote in favor of reasonable dividends, it being agreed that
Dentsu shall only be required to vote in favor of declaration of dividends
with respect to any fiscal year if the aggregate amount of dividends
distributed for such fiscal year (after giving effect to such declaration
of dividends) shall not exceed 40% of Publicis' distributable profits for
such fiscal year;
(iv) share capital increases (through issuance of Securities) to which
Dentsu is entitled to subscribe by exercising preemptive rights (droit
preferentiel de souscription) or equivalent rights that would entitle
Dentsu to subscribe to such share capital increase (through issuance of
Securities) on the same terms and in the same quantity as if it were
exercising preemptive rights ("EQUIVALENT RIGHTS"), provided that the share
capital increases referred to in this Section 4.1(iv) with respect to which
Madame Badinter may direct Dentsu to vote shall not exceed in the aggregate
10% of the outstanding share capital of Publicis as constituted as of March
7, 2002 (i.e., 5,591,274 euros); and
(v) reductions of share capital of Publicis resulting from
cancellation of Publicis Shares pursuant to Publicis' stock repurchase
program, unless such reduction of share capital of Publicis in the
reasonable opinion of Dentsu would result in Dentsu's being required to
launch a tender offer for Publicis Shares and/or Securities.
4.2 VOTE AFTER CONSULTATION
After due consultation between Dentsu and Madame Badinter, Dentsu may vote
its Publicis Shares as it may determine on each of the following:
(i) decisions to issue Securities which decisions are not within the
scope of Section 4.1(iv) above;
(ii) reserved share capital increases (through the issuance of
Securities) to identified Persons;
(iii) Securities offerings by Publicis giving rights to less than 10%
of the outstanding share capital or of the voting rights of Publicis, to
which Dentsu is not entitled to subscribe by exercising preemptive rights
(droit preferentiel de souscription) or Equivalent Rights;
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(iv) without prejudice to Section 4.1(ii), decisions to contribute or
Transfer assets of Publicis to a Person, to the extent such decision is
submitted to the approval of Publicis' shareholders; and
(v) decisions to approve any related party transaction involving
Madame Badinter or Dentsu or any other Affiliate of Publicis.
4.3 FINANCIAL STATEMENTS
Except as provided for below, after due consultation between Dentsu and
Madame Badinter, Dentsu will vote its Publicis Shares as it shall determine with
respect to the approval of the financial statements of Publicis for any fiscal
year.
Notwithstanding the foregoing, Dentsu shall vote at any relevant
shareholders' meeting of Publicis in favor of the acceptance of Publicis'
financial statements if all of the following conditions are satisfied:
(i) a Dentsu Member and a Dentsu Accounting Executive have been given
an opportunity to participate in meetings of the Audit Committee in
accordance with Section 3.5, including any meeting at which such financial
statements or any matters relating to the preparation of such financial
statements have been discussed;
(ii) the statutory auditors of Publicis (commissaires aux comptes)
have presented to the Audit Committee financial statements certified by
them together with an unqualified opinion pursuant to Article L.225-235 of
the French Code de Commerce;
(iii) no Dentsu Member raised any objections at such meeting of the
Audit Committee to the financial statements referred to in clause (ii)
above, or any objections to such financial statements raised by any such
Dentsu Member is considered by such statutory auditors and the result of
such statutory auditors' analysis is reviewed by them with the Audit
Committee in a meeting to which a Dentsu Member and a Dentsu Accounting
Executive have been given an opportunity to participate; and
(iv) having considered any objections raised by such Dentsu Member,
such statutory auditors maintain their certification of such financial
statements without any qualification as to any matters in respect of which
the Dentsu Member raised an objection.
SECTION 5. TRANSFER OF SHARES
5.1 PERMITTED INTERCOMPANY TRANSFERS
Dentsu may at any time Transfer all or a part of its Publicis Shares or
Warrants in a Permitted Intercompany Transfer. A "PERMITTED INTERCOMPANY
TRANSFER" means a Transfer of some or all of the Publicis Shares or Warrants
then
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owned by Dentsu to a direct or indirect wholly-owned Subsidiary of Dentsu (a
"PERMITTED DENTSU TRANSFEREE"), provided that (x) such transferee shall have
first agreed in a writing in form reasonably satisfactory to Madame Badinter to
be bound by the provisions of this Agreement to the same effect as if it were
named herein instead of Dentsu, (y) such Transfer shall be in compliance with
Applicable Laws, and (z) Dentsu shall be responsible for any taxes and other
charges imposed in connection with such Transfer (including any increased
withholding taxes that may result therefrom). Upon any such Transfer, any
reference to "Dentsu" in this Agreement shall be deemed to include a reference
to Dentsu and/or such Permitted Dentsu Transferee, as may be appropriate. For so
long as such Permitted Dentsu Transferee continues to own Publicis Shares or
Warrants Transferred to it pursuant to this Section 5.1, Dentsu shall (i) not
permit such Permitted Dentsu Transferee to cease to be a direct or indirect
wholly-owned Subsidiary of Dentsu unless Dentsu first causes such Permitted
Dentsu Transferee to Transfer such Publicis Shares or Warrants to another
Permitted Dentsu Transferee in a Permitted Intercompany Transfer, and (ii)
provide to Madame Badinter, by October 15th of each year and otherwise within 10
Business Days of the written request of Madame Badinter, reasonable evidence
that such Permitted Dentsu Transferee is a direct or indirect wholly-owned
Subsidiary of Dentsu.
5.2 PROHIBITION ON OTHER TRANSFERS FROM THE DATE HEREOF UNTIL THE
EXPIRATION DATE
From the date hereof until July 12, 2012 (the "EXPIRATION DATE"), or such
earlier date on which the term of this Agreement may end in accordance with
Section 10, Dentsu shall not effect the Transfer of any of the Publicis Shares
or Warrants owned by Dentsu, except as provided in Section 5.1 and except for
Transfers:
(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);
(ii) resulting from the reversion of the bare ownership
(nue-propriete) of the Publicis Shares held by Dentsu to the holders of the
usufruct interest in such Publicis Shares pursuant to the Agreement for the
Transfer of the Nue-Propriete of Certain Publicis Shares, dated as of
September 24, 2002, among Dentsu, Wilmington Trust Company, and Publicis;
and
(iii) into any Tender Offer (as such term is defined in Section
5.3(c)(i) below) (A) in respect of which (1) the Supervisory Board (x) has
recommended that the holders of Securities tender any such Securities into
such Tender Offer and (y) has indicated that such Tender Offer is in the
interest of Publicis, and (2) the Directorate has not publicly (x)
recommended that the holders of Securities not tender any such Securities
in such Tender Offer and/or (y) indicated that such Tender Offer is not in
the interest of Publicis, (B) into which any of Madame Badinter or Madame
Badinter's Affiliates tender any Securities owned by them, or (C) described
in clause (2) of the first paragraph of Section 6(b).
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5.3 TRANSFERS FOLLOWING THE EXPIRATION DATE; RIGHT OF FIRST REFUSAL
From the Expiration Date until the end of the term of this Agreement,
Dentsu may Transfer all or any portion of the Publicis Shares or Warrants owned
by Dentsu as provided in Section 5.1 or otherwise in compliance with this
Section 5.3.
(a) TRANSFER TO AN IDENTIFIED PERSON
(i) In the event that Dentsu (A) receives from one or more Persons
(the "OFFEROR") a binding offer (an "OFFER") to purchase all or a portion
of the Publicis Shares or Warrants owned by Dentsu (the "OFFERED
SECURITIES"), and (B) wishes to sell the Offered Securities under the
conditions set forth in the Offer, Dentsu shall make a written offer for
the sale of such Offered Securities to Madame Badinter at the same price
and on the same terms as have been offered by the Offeror (the "OFFERED
PRICE"), by notice (the "NOTICE") to Madame Badinter and the Directorate.
(ii) The Notice shall set forth the terms and conditions of the Offer,
including (A) the number of Offered Securities, (B) the Offered Price, (C)
the terms of payment (including any proposed purchase price adjustment)
and, as the case may be, the representations and warranties to be made by
Dentsu, (D) the identity of the Offeror, and (E) a copy of the Offer. In
addition to the information set forth in the Notice, Dentsu shall further
provide Madame Badinter with additional information relating to such Offer
as Madame Badinter may reasonably request.
(iii) Madame Badinter shall have 10 Business Days from the date the
Offer is given in which to notify Dentsu in writing whether she, or one or
more persons designated by her (each, a "DESIGNEE"), elects to purchase all
but not part of the Offered Securities set forth in such Offer. The
10-Business Day period shall be extended to 45 days in the event that the
value of the proposed Offer exceeds any of the thresholds referred to in
Article 4.1.32 of the Reglement General du Conseil des Marches Financiers
(i.e., as of the date of this Agreement, 5% of Publicis' capitalization or
7.5 million euros) or any successor provisions under Applicable Law as such
thresholds may be amended from time to time.
(iv) If Madame Badinter or her Designee elects to purchase the Offered
Securities, Dentsu shall Transfer to her or such Designee, and, in each
case, such Person shall purchase, the Offered Securities, upon the terms
set forth in the Offer within (a) 10 days of the date of expiration of the
10-Business Day period where applicable, or (b) 20 days of the date of
expiration of the 45-day period where applicable, by payment of the same
consideration set forth in the Notice for such Offered Securities against
delivery by Dentsu of all documents necessary to Transfer such Offered
Securities. The purchase of the Offered Securities by Madame Badinter or
her Designee shall be effected off-market, provided that either (x) the
conditions
16
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.
(v) If Madame Badinter or her Designee does not elect to purchase all
of the Offered Securities within the 10-Business Day period (or the 45-day
period where applicable) in accordance with the foregoing or fails to
consummate the purchase of all the Offered Securities within the 10-day
period (or the 20-day period where applicable), Dentsu shall be free to
sell and Transfer such Offered Securities without restriction, provided
that if such sale and Transfer of the Offered Securities is not consummated
within 60 days of the expiration of such 10-Business Day period or within
180 days of the expiration of such 45-day period (if Madame Badinter fails
to notify Dentsu of an election to purchase all of the Offered Securities)
or the expiration of such 10-day period or 20-day period (if Madame
Badinter notifies Dentsu in a timely manner of an election to purchase all
of the Offered Securities, but fails to consummate the purchase), as the
case may be, then any Transfer by Dentsu of the Offered Securities shall be
once again subject to the requirements of this Section 5.3(a).
(b) OTHER TRANSFERS
(i) If Dentsu wishes to sell any of the Publicis Shares or Warrants
owned by Dentsu on the open market or to an underwriter or in another
organized selling effort (such as a bookbuilding or a secondary offering),
Dentsu shall notify Madame Badinter thereof by delivery of a written notice
(the "RFO NOTICE") stating: (A) the number of Publicis Shares and/or
Warrants proposed to be Transferred (the "SALE SECURITIES"); (B) the
proposed price (the "RFO CONSIDERATION"); and (C) an offer to sell the Sale
Securities to Madame Badinter at the RFO Consideration.
(ii) Madame Badinter will have 10 days from the date the RFO Notice is
given in which to notify Dentsu whether she, or her Designee, elects to
purchase all but not part of the Sale Securities on the terms stated in
such RFO Notice. The 10-day period shall be extended to 30 days in the
event that the value of the proposed Transfer of the Sale Securities
exceeds any of the thresholds referred to in Article 4.1.32 of the
Reglement General du conseil des Marches Financiers (i.e., as of the date
of this Agreement, 5% of Publicis' capitalization or 7.5 million euros) or
any successor provisions under Applicable Law as such thresholds may be
amended from time to time.
(iii) If Madame Badinter or her Designee elects to purchase all but
not part of the Sale Securities, she or her Designee shall consummate the
purchase of such Sale Securities within (a) 10 days of the date of
expiration of the 10-day period where applicable, or (b) 20 days of the
date of expiration of the 30-day period where applicable, by payment of
cash in the amount of the
17
RFO Consideration for such Sale Securities against delivery by Dentsu of
all documents necessary to Transfer such Sale Securities. The purchase of
the Sale Securities by Madame Badinter or her Designee will be effected
off-market, provided that either (x) the conditions set forth in Article
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.
(iv) If Madame Badinter or her Designee does not elect to purchase all
of the Sale Securities within the 10-day period (or the 30-day period where
applicable) or fails to consummate the purchase of all the Sale Securities
within the 10-day period (or the 20-day period where applicable), then
Dentsu may sell and Transfer all of the Sale Securities to any other Person
without restriction for cash at a price equal to or greater than the RFO
Consideration, provided that if Dentsu (x) does not accept an offer from
any such other Person to purchase the Sale Securities within 30 Business
Days of the expiration of the 10-day or 30-day period specified above (if
Madame Badinter fails to notify Dentsu of an election to purchase all of
the Sale Securities) or the expiration of the 10-day or 20-day period
specified above (if Madame Badinter notifies Dentsu in a timely manner of
an election to purchase all of the Sale Securities, but fails to consummate
the purchase), as the case may be, or (y) if Dentsu does accept such an
offer from any such other Person within such 30 Business Days period but
does not consummate the sale and Transfer of the Sale Securities to such
other person by the sixtieth day following such thirtieth Business Day,
then any Transfer by Dentsu of the Sale Securities shall once again be
subject to the requirements of this Section 5.3(b).
(c) TENDER OFFERS
(i) In the event of a cash tender offer, an exchange offer, or any
combination thereof (offre publique d'achat, offre publique d'echange,
offre alternative, offre avec reglement en titres et en numeraire, garantie
de cours) (the "TENDER OFFER") is launched by a Person other than Dentsu or
any of its Subsidiaries at any time after the Expiration Date, Dentsu shall
have the right without any restriction to tender all or part of the
Publicis Shares and/or Warrants owned by Dentsu into such Tender Offer if
(A)(1) the Supervisory Board (x) has recommended that the holders of
Securities tender any such Securities into such Tender Offer and (y) has
indicated that such Tender Offer is in the interest of Publicis, and (2)
the Directorate has not publicly (x) recommended that the holders of
Securities not tender any such Securities in such Tender Offer and/or (y)
indicated that such Tender Offer is not in the interest of Publicis, or (B)
Madame Badinter or Madame Badinter's Affiliates have tendered any
Securities owned by them into such Tender Offer or (C) the Tender Offer is
a Tender Offer described in clause (2) of the first paragraph of Section
6(b).
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(ii) In the event that (A) the Supervisory Board (1) has recommended
that the holders of Securities not tender any Securities into a Tender
Offer and/or (2) has indicated that such Tender Offer is not in the
interest of Publicis, or (B) the Supervisory Board has stated that it will
remain neutral or is unable to take a position with respect to a Tender
Offer, and/or (C) the Directorate has publicly (1) recommended that the
holders of Securities not tender any such Securities into such Tender Offer
and/or (2) indicated that such Tender Offer is not in the interest of
Publicis, and (D) none of Madame Badinter or Madame Badinter's Affiliates
have tendered any Securities owned by them into a Tender Offer referred to
in the preceding clause (A) or (B) and (C) the Tender Offer is not a Tender
Offer described in Section 5.3(c)(i)(C) (a "HOSTILE TENDER OFFER"), Dentsu
shall nevertheless have the right to tender all or part of the Publicis
Shares and/or Warrants owned by Dentsu into such Hostile Tender Offer (the
"TENDERED SECURITIES"), subject to Madame Badinter's right to purchase or
cause her Designee to purchase all but not part of the Tendered Securities
under the terms set forth below. In the event of such recommendation or
indication, if Dentsu wishes to tender the Tendered Securities into the
Hostile Tender Offer, Dentsu shall provide Madame Badinter with prior
notice (the "TENDER OFFER NOTICE") of such intention no later than five
Trading Days following the decision of the Conseil des Marches Financiers
(the "CMF") that declares admissible the Hostile Tender Offer, it being
agreed that any such Tender Offer Notice shall be deemed automatically
renewed upon occurrence of a competing Tender Offer (offre concurrente) or
improved Tender Offer (surenchere). The Tender Offer Notice shall indicate
the number of Tendered Securities.
(iii) In the event that Madame Badinter wishes to acquire or have her
Designee (whose performance will be personally guaranteed by Madame
Badinter) acquire all but not part of the Tendered Securities set forth in
the Tender Offer Notice, Madame Badinter or her Designee shall notify
Dentsu of her or its election to purchase such Tendered Securities no later
than the fourth Trading Day preceding the closing of the Hostile Tender
Offer. In such case, the purchase of the Tendered Securities shall be
effected no sooner than the fourth Trading Day preceding the closing of the
Hostile Tender Offer, and in the event of a competing Tender Offer or an
improved Tender Offer, the price at which Madame Badinter or her Designee
shall acquire the Tendered Securities shall be the highest price offered,
provided that if the highest price offered exceeds by more than 5% the
price set forth in Madame Badinter's or her Designee's notice, Madame
Badinter or her Designee shall have the right to abandon the transaction if
she or her Designee notifies Dentsu in writing at least 96 hours before the
closing of the competing Tender Offer or improved Tender Offer, whichever
is earlier.
(iv) The price at which Madame Badinter or her Designee shall be
entitled to acquire the Tendered Securities shall be determined as follows:
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(X) in the event of a cash tender offer or an alternative offer (offre
alternative), the price shall be the highest price of the relevant Tender
Offer for a share of Publicis capital stock or a Warrant, as the case may
be; and
(Y) in the event of an exchange offer or offer combining delivery of
shares and payment in cash, the price shall be the average of the opening
stock exchange trading price of a share of Publicis capital stock or a
Warrant, as the case may be, during a period of 15 Trading Days starting
from the opening of the relevant Tender Offer.
(v) In the event that Madame Badinter or her Designee fails to notify
Dentsu of her or its election to purchase the Tendered Securities or,
having made such election, Madame Badinter or her Designee, as the case may
be, fails to purchase the Tendered Securities in compliance with this
Section 5.3(c), Dentsu shall be entitled to Transfer all or a portion of
the Tendered Securities into the Tender Offer in compliance with the terms
of the Tender Offer Notice without prejudice to such rights as Dentsu may
have against Madame Badinter.
5.4 STANDSTILL
(a) STANDSTILL PROVISION
Except as provided in paragraph (b) below, from the date hereof until the
Expiration Date or such earlier date on which this Agreement shall have been
terminated in accordance with Section 10, Dentsu shall not, except with the
prior consent of Madame Badinter, hold, alone or in concert with others (other
than with Madame Badinter or any of her successors), more than 15% of the voting
rights of Publicis Shares, as determined on each Reduction Date (defined below)
and calculated pursuant to the Fraction (defined below), the numerator of which
shall be determined as of the Reduction Date and the denominator of which shall
be determined as of the Basic Date (defined below) (the foregoing, the
"PERMITTED LEVEL").
Dentsu shall give Madame Badinter and the Chairperson of the Directorate
notice (the "BASIC NOTICE"), not later than the fifteenth day of every even
calendar month beginning on October 2003, of (i) the total number of voting
rights, as calculated pursuant to the numerator of the Fraction, pertaining to
all Publicis Shares owned by Dentsu and its Subsidiaries as of the last day of
the month (the "BASIC DATE") immediately preceding the month in which such Basic
Notice is given, (ii) an estimate of the aggregate voting rights pertaining to
all Publicis Shares owned by all shareholders of Publicis (including Dentsu) as
of the Basic Date, based on information then known to Dentsu, and (iii) the
percentage of the voting rights of Publicis Shares represented by Publicis
Shares owned by Dentsu as calculated pursuant to the Fraction as of the Basic
Date. The Basic Notice shall state the source
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of information used to determine the number of voting rights set forth in the
Basic Notice.
Madame Badinter may, at her discretion, cause the Chairperson of the
Directorate to give Dentsu notice (the "CHALLENGE NOTICE"), not later than 20
days following receipt by Madame Badinter of the Basic Notice, setting forth (i)
the aggregate voting rights pertaining to all Publicis Shares owned by all
shareholders of Publicis (including Dentsu) as of the Basic Date and (ii) the
percentage of the voting rights of Publicis Shares represented by Publicis
Shares owned by Dentsu as calculated pursuant to the Fraction as of the Basic
Date.
If Dentsu holds in excess of 15% of the voting rights of Publicis Shares as
determined pursuant to the Fraction as of the applicable Basic Date, and either
(x) the Basic Notice so states or (y) a Challenge Notice has been given to
Dentsu in accordance with the preceding paragraph, then Dentsu shall, by (A) if
a Challenge Notice has not been given to Dentsu, by the fortieth day following
the delivery by Dentsu of the Basic Notice if it is a Business Day, and if it is
not, by the next succeeding Business Day, and (B) if a Challenge Notice has been
given to Dentsu, by the twentieth day following Dentsu's receipt thereof if it
is a Business Day, and if it is not, by the next succeeding Business Day (the
Business Day as determined in each of clauses (A) and (B), the "REDUCTION
DATE"), reduce its aggregate ownership of voting rights of Publicis Shares
(whether by contributing the right to enjoyment (jouissance) of the voting
rights pertaining to Publicis Shares to the SEP (defined below), by converting
Publicis Shares held in registered form to bearer form, by selling Publicis
Shares or otherwise) to the Permitted Level and provide Madame Badinter (with a
copy to the Chairperson of the Directorate) with information as to how the
reduction was accomplished.
For the purposes of this Section 5.4(a), Dentsu shall be deemed to include
its Subsidiaries, and the Publicis Shares and the voting rights pertaining to
Publicis Shares owned by Dentsu and its Subsidiaries shall be aggregated. The
percentage of the voting rights of Publicis Shares represented by Publicis
Shares owned by Dentsu shall be the percentage that results from a fraction (the
"FRACTION"), the numerator of which shall be the aggregate voting rights
pertaining to Publicis Shares owned by Dentsu other than the SEP Shares referred
to in Section 5.4(b)(iii), less any voting rights pertaining to Publicis Shares
that have been issued or delivered to Dentsu upon exercise of any Warrants, and
the denominator of which shall be the aggregate voting rights pertaining to all
Publicis Shares owned by all shareholders of Publicis (including Dentsu). None
of the voting rights pertaining (x) to any Publicis Shares issuable, issued or
delivered to Dentsu upon the exercise of any Warrants, (y) to any Publicis
Shares issuable to Dentsu upon redemption of the ORANEs (defined below), or (z)
to the qualifying Publicis Shares required to be owned by each Dentsu Member
pursuant to the By-Laws, in any such case, shall be taken into account in the
numerator of the Fraction for the purpose of any calculation of the Permitted
Level.
21
Each Challenge Notice may state that it has been given to the best of
Publicis's knowledge, after due inquiry, which inquiry, for the avoidance of
doubt, shall not include any obligation to conduct a titres au porteur
identifiable procedure.
Upon the request of Madame Badinter given in writing to Dentsu, Dentsu
shall provide to Madame Badinter, within 15 days of receipt of such written
request, a notice (the "INTERIM BASIC NOTICE") setting forth the same
information as is required to be set forth in a Basic Notice, except that such
information shall be as of the date specified in Madame Badinter's written
request (which date shall be no later than the date such written request is
given to Dentsu). For purposes of this Section 5.4(a), an Interim Basic Notice
shall constitute a Basic Notice and the date as of which such information is
provided in such Interim Basic Notice shall constitute the Basic Date. Upon
Dentsu's giving an Interim Basic Notice to Madame Badinter, Dentsu shall not be
required to (i) take any further actions in respect of any then outstanding
Basic Notice and/or Challenge Notice, or (ii) give the next succeeding Basic
Notice as determined in accordance with the second paragraph of this Section
5.4(a).
(b) EXCEPTIONS TO THE STANDSTILL
Neither Dentsu nor any Subsidiary of Dentsu shall be deemed to have
exceeded the Permitted Level by reason of any of the following:
(i) (A) any repurchase of Publicis Shares or other reduction of
capital by Publicis, (B) the loss of double voting rights attached to
Publicis Shares held in registered form by third parties including, without
limitation, as a result of the Transfer of such Publicis Shares or the
conversion of such Publicis Shares to bearer form, (C) any sanction whereby
any shareholder of Publicis is deprived of the voting rights attached to
its Publicis Shares, or (D) any other event the occurrence of which results
in Dentsu's and its Subsidiaries' having, in the aggregate, "passively"
(i.e., without taking any action) exceeded the Permitted Level;
(ii) inadvertent or unintentional acquisition of voting rights in
excess of the Permitted Level, for reasons other than those set forth in
clause (i) of this paragraph (b), provided that, upon notice thereof from
Publicis or Madame Badinter pursuant to Section 5.4(a) or upon Dentsu's
otherwise acquiring knowledge thereof, Dentsu and/or any of its
Subsidiaries shall promptly reduce their aggregate ownership of voting
rights in respect of Publicis Shares (whether by contributing the right to
enjoyment (jouissance) of Publicis Shares to the SEP, by converting
Publicis Shares held in registered form to bearer form, or otherwise) to
the Permitted Level; or
(iii) the ownership of any Publicis Shares (the "SEP SHARES") (A) the
right to enjoyment (jouissance) of which has been contributed from time to
time to a special purpose entity (societe en participation) in accordance
with the by-laws (statuts) of such entity, which by-laws are in the form
attached hereto as Exhibit 3, along with an English translation thereof
22
(such entity, the "SEP"), and (B) which Dentsu is not entitled to vote,
which right to enjoyment and voting restrictions shall automatically
terminate from time to time to the extent that the ownership of full
property rights in the Publicis Shares the right to the enjoyment of which
is so terminated would not cause the Permitted Level to be exceeded.
(c) EXCESS VOTING RIGHTS
In the event that Dentsu or any of its Subsidiaries shall in the aggregate
exceed the Permitted Level for any reason, including any of the reasons set
forth in clauses (i) through (iii) of Section 5.4(b) above, then, without
prejudice to any of Madame Badinter's rights hereunder, neither Dentsu nor any
such Subsidiary shall vote at any shareholders' meeting of Publicis such number
of Publicis Shares owned by Dentsu or such Subsidiary that represent voting
rights in excess of the Permitted Level and Dentsu shall take, agree to take or
cause to be taken all necessary and appropriate actions (but not including the
sale of any Securities owned by Dentsu or any of its Subsidiaries if the
Permitted Level is exceeded for the reasons set forth in clause (i) of Section
5.4(b) above) to give effect to this Section 5.4(c).
(d) PURCHASES
Notwithstanding any provision of this Section 5.4, Dentsu and each of its
Subsidiaries may acquire Publicis Shares on the open market or otherwise up to
the Permitted Level.
(e) CONSULTATIONS UPON ACQUISITION BY A THIRD PARTY OF A POSITION
If any Person or group of Persons acting in concert (other than with Madame
Badinter or any of her successors), acquires in a single transaction or a series
of related transactions, an aggregate number of Publicis Shares (a "POSITION")
entitling such Person or group of Persons to a percentage of voting rights of
Publicis equal to or more than the percentage of voting rights pertaining to
Publicis Shares held by Madame Badinter alone or in concert with others (other
than with Dentsu and its Subsidiaries), then Madame Badinter and Dentsu shall
consult promptly thereafter in good faith in order to determine how to proceed
in respect of such Person or group of Persons acquiring a Position and shall
take such actions as may be agreed upon pursuant to such consultation.
(f) REGISTERED FORM
Dentsu and its Subsidiaries shall hold all Publicis Shares and Warrants
owned by them in pure registered form ("nominatif pur"), provided that Dentsu
and its Subsidiaries may convert and hold any number of Publicis Shares and
Warrants in bearer form in order to comply with their obligations under this
Section 5.4.
23
5.5 TRANSFERS OF ORANES
The provisions of this Section 5 shall not apply in any respect to the
obligations remboursables en actions nouvelles ou existantes received by Dentsu
as consideration in the Merger (the "ORANEs"). During the term of this
Agreement, the ORANEs shall be subject (i) to the same transfer restrictions and
orderly marketing procedures applicable to the obligations remboursables en
actions nouvelles ou existantes received by the former Class A stockholders of
Bcom3 as consideration in the Merger for so long as such restrictions shall be
in force; and (ii) after the termination of such transfer restrictions and
orderly marketing procedures, to the right of first offer by Publicis as
provided in Section 4.4(h) of the Publicis Shareholders' Agreement.
SECTION 6. AGREEMENTS WITH THIRD PARTIES, ETC.
(a) DENTSU'S AGREEMENTS WITH THIRD PARTIES, ETC.
Dentsu shall not enter into any agreement concerning the direction and
management of Publicis with any Person without the prior written permission of
Madame Badinter.
Notwithstanding Section 5.4(b), Dentsu shall not, and shall not permit any
of its Affiliates, without Madame Badinter's prior written permission, to take
any action (including without limitation the acquisition of Publicis Shares or
voting rights in Publicis) or omit to take any action that results, or in the
reasonable opinion of Madame Badinter (supported, if disputed in good faith by
Dentsu, by a decision or a ruling of the CMF) would result, in Dentsu's or any
of its Affiliates' being required to launch a tender offer for Publicis Shares
and/or Securities and/or Madame Badinter's being required to join Dentsu and/or
its Affiliates in making such a tender offer.
In the event that Dentsu or any of its Affiliates shall fail to comply with
the foregoing provisions of this Section 6(a), Madame Badinter may, without
prejudice to her other rights (including any right to require Dentsu to
terminate immediately or undo such action), terminate this Agreement with
immediate effect by notice to Dentsu without any other formalities being
required, provided that any notice by Madame Badinter to Dentsu terminating this
Agreement based on Madame Badinter's reasonable opinion as set forth in the
immediately preceding paragraph, shall not be effective unless by the fifth day
following delivery of such notice (or delivery of the decision or ruling of the
CMF, if applicable), Dentsu shall not have cured such failure to comply, in
which case, this Agreement shall be terminated effective as of such fifth day.
24
(b) AGREEMENTS AMONG MADAME BADINTER AND THIRD PARTIES
Madame Badinter shall not, and shall not permit any Affiliate of Madame
Badinter, without Dentsu's prior written permission to (x) enter into any
agreement concerning the direction and management of Publicis with any Person or
(y) take any action (including without limitation the acquisition of Publicis
Shares or voting rights in Publicis) or omit to take any action that results, or
in the reasonable opinion of Dentsu (supported, if disputed in good faith by
Madame Badinter, by a decision or a ruling of the CMF) would result, in either
case, (1) in Dentsu's or any of its Affiliates being required to join Madame
Badinter or any of her Affiliates or any such Person in launching a tender offer
for Publicis Shares and/or Securities, or (2) in Madame Badinter's and/or any of
her Affiliates' launching or being required to launch a tender offer, on her own
or together with any such Person, for Publicis Shares and/or Securities unless
Dentsu and its Affiliates are permitted to sell any Publicis Shares and/or other
Securities owned by them into such tender offer on the same terms and conditions
offered to the other holders of Publicis Shares and/or Securities.
Madame Badinter shall provide, or shall cause any Affiliate of Madame
Badinter to provide, Dentsu with copies of any draft agreement to be entered by
any of them with any Person relating to the management and the direction of
Publicis as a result of which Madame Badinter or any such Affiliate may be
deemed to act in concert with such Person.
In the event that Madame Badinter and/or any Affiliate of Madame Badinter
shall fail to comply with the foregoing provisions of this Section 6(b), Dentsu
may terminate this Agreement with immediate effect by notice to Madame Badinter
without any other formalities being required. Dentsu may terminate this
Agreement in the same manner and with the same effect, in the event that, at any
time following the conclusion of any agreement concerning the direction and
management of Publicis with any Person, any of Madame Badinter, any Affiliate of
Madame Badinter or such Person, takes any action or actions which results, or in
Dentsu's reasonable opinion would result, in Dentsu's being required to join
with any such Person in making a tender offer for Publicis. Notwithstanding the
foregoing, any notice by Dentsu to Madame Badinter terminating this Agreement
based on Dentsu's reasonable opinion as set forth in the immediately preceding
sentence or in the first paragraph of this Section 6(b), shall not be effective
unless by the fifth day following delivery of such notice (or delivery of the
decision or ruling of the CMF, if applicable), Madame Badinter shall not have
cured such failure to comply, in which case, this Agreement shall be terminated
effective as of such fifth day. Termination by Dentsu of this Agreement pursuant
to this Section 6(b) shall be without prejudice to Dentsu's other rights
(including any rights to require Madame Badinter to terminate immediately or
undo any action giving rise to Dentsu's right of termination under this Section
6(b)).
25
SECTION 7. DECLARATIONS AND COVENANTS OF MADAME BADINTER
(a) DECLARATION
Madame Badinter expressly declares that she owns her Publicis Shares under
the French marital regime of separate property (regime de separation de biens).
(b) COVENANTS
(i) Madame Badinter shall use her best efforts, and shall cause the EB
Representatives on the Supervisory Board to use their respective best efforts,
to cause Publicis, to comply with the provisions of the Publicis Shareholders'
Agreement. Madame Badinter shall use her best efforts to, and shall cause the EB
Representatives on the Supervisory Board to use their respective best efforts,
to cause Publicis, to take all actions required to be taken by Publicis pursuant
to the Strategic Alliance Agreement.
(ii) Madame Badinter shall (A) use her best efforts to provide to Dentsu,
promptly upon any increase or decrease in the number of Publicis Shares or
voting rights of Publicis Shares held by Madame Badinter or any Affiliate of
Madame Badinter, notice containing a detailed table showing such increase or
decrease in the number of such Publicis Shares or voting rights of Publicis
Shares, which notice in any event shall be provided within 30 days of any
increase thereof due to the acquisition of Publicis Shares (whether by purchase,
issuance, upon exercise or redemption of any Security or otherwise) by Madame
Badinter or any of her Affiliates and within 60 days of any other increase
thereof or any decrease thereof and (B) notify such increase or decrease to the
CMF to the extent required by Applicable Laws.
SECTION 8. ANTI-DILUTION
(a) Madame Badinter shall use her best efforts to ensure that, so long as
this Agreement remains in force, Dentsu will be protected against any dilution
from a capital increase of Publicis through the issuance of Securities (a
"DILUTIVE ISSUANCE") to which Dentsu is not entitled to subscribe by exercising
preemptive rights (droits preferentiels de souscription) as provided in the
Publicis Shareholders' Agreement.
To this effect, Madame Badinter shall, and shall cause the EB
Representatives on the Supervisory Board and shall use her best efforts to cause
the Directorate to, comply with the anti-dilution provisions set forth in
Section 5 of the Publicis Shareholders' Agreement.
Accordingly, Madame Badinter (x) shall not take, and shall not permit the
EB Representatives on the Supervisory Board to take, any action or permit any
action to be taken (and shall use her best efforts to cause the Directorate not
to take any action), including, without limitation, the proposal at any Publicis
shareholders' meeting of any Dilutive Issuance, that may result in a violation
of the anti-dilution provisions set
26
forth in Section 5 of the Publicis Shareholders' Agreement or would restrict
Dentsu's ability to benefit fully from the method of anti-dilution protection
agreed upon pursuant to Section 5 of the Publicis Shareholders' Agreement
(including, without limitation, by the acquisition by Madame Badinter or any of
her Affiliates of voting rights in Publicis), and (y) shall vote her Publicis
Shares for the approval of any reserved issuance of Securities or sale of
treasury shares to Dentsu proposed by the Directorate and/or the Supervisory
Board in compliance with the anti-dilution provisions set forth in Section 5 of
the Publicis Shareholders' Agreement.
(b) In the event that Madame Badinter shall fail to comply with any of the
provisions of Section 8(a) and a Dilutive Issuance is implemented, as a result
of which Dentsu falls below the Permitted Level as calculated pursuant to
Section 5(b) of the Publicis Shareholders' Agreement, then Dentsu may terminate
this Agreement with immediate effect by notice to Madame Badinter, without any
other formalities being required.
(c) In the event that Madame Badinter shall have complied with all of the
provisions of Section 8(a) and a Dilutive Issuance is implemented (irrespective
of whether Madame Badinter has voted for or against the approval of the Dilutive
Issuance), as a result of which Dentsu falls below the Permitted Level as
calculated pursuant to Section 5(b) of the Publicis Shareholders' Agreement,
then Dentsu may terminate Sections 5.1, 5.2, 5.3 and 5.5 of this Agreement with
immediate effect by notice to Madame Badinter (with a copy to Publicis), without
any other formalities being required, provided, that any notice terminating this
Agreement pursuant to this Section 8(c) (a "DILUTION TERMINATION NOTICE") shall
not be effective until the earlier of (X) the thirtieth day following the date
on which such Dilution Termination Notice is given to Madame Badinter and (Y)
the Equity Accounting Date next following delivery of such Dilution Termination
Notice to Publicis (such earlier date, the "DILUTION TERMINATION DATE"), if, and
only if between the date of delivery of such Dilution Termination Notice to
Publicis and the Dilution Termination Date, Madame Badinter shall have complied
with all the provisions set forth in Section 8(a) and, notwithstanding such
compliance and Dentsu's continuing compliance with Section 5(a)(ii) of the
Publicis Shareholders' Agreement, on the Dilution Termination Date, Dentsu's
voting rights in Publicis remain below the Permitted Level as calculated
pursuant to Section 5(b) of the Publicis Shareholders' Agreement following the
issuance of Securities discussed in Section 5(a) of the Publicis
Shareholders'Agreement, further provided that after any Dilution Termination
Notice becomes effective on the Dilution Termination Date any Transfer by Dentsu
of Publicis Shares, ORANEs and Warrants owned by it will be subject to a right
of first refusal and right of first offer by Madame Badinter on the terms and
subject to the conditions described in Section 5.3 of this Agreement, and, if
Madame Badinter does not purchase such Securities pursuant to such rights, such
Securities may otherwise be sold only in accordance with the orderly marketing
provisions of clauses (i), (ii) and (iii) of Section 4.3 of the Publicis
Shareholders' Agreement, and further provided that Dentsu shall not knowingly
transfer any such Securities to a Major Publicis Competitor.
27
SECTION 9. EQUITY ACCOUNTING REQUIREMENTS
Dentsu and Madame Badinter agree that, if any of the arrangements
contemplated by this Agreement would result in Dentsu's inability to equity
account under Japanese regulations and/or generally accepted accounting
principles as the same may be changed from time to time for its investment in
Publicis, Dentsu and Madame Badinter will 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 Agreement. Dentsu
agrees to (i) notify Madame Badinter if at any time the arrangements
contemplated by this Agreement would result in Dentsu's inability to equity
account for its investment in Publicis, which notice shall set forth in
reasonable detail the basis upon which Dentsu believes it would be unable to
equity account for its investment in Publicis, and (ii) make available Dentsu's
accountants to discuss such matters with Madame Badinter and her
representatives.
SECTION 10. TERM OF AGREEMENT; EARLY TERMINATION
10.1 TERM
This Agreement shall terminate on July 12, 2014, unless prior to such date
it shall have been extended for a renewal term of 12 years by written agreement
of the Parties.
10.2 EARLY TERMINATION
(a) EARLY TERMINATION BY DENTSU
Dentsu may terminate this Agreement with immediate effect by notice to
Madame Badinter, without any other formalities being required:
(i) pursuant to Section 6(b) (subject to the second to last sentence
of the third paragraph of Section 6(b));
(ii) pursuant to Section 3.1(a)(ix) or Section 8(b) or Section 8(c);
or
(iii) in the event that Dentsu has terminated the Strategic Alliance
Agreement due to breach by Publicis of its obligations under Section
1(iv)(b) thereof.
(b) EARLY TERMINATION BY MADAME BADINTER
Madame Badinter may terminate this Agreement as specified by Section 6(a).
28
(c) AUTOMATIC TERMINATION
This Agreement shall terminate automatically, upon the occurrence of any of
the following events ("TERMINATION EVENTS"):
(i) the Parties shall agree in writing to terminate the Agreement; or
(ii) during any period of three consecutive months, any of the Parties
shall individually hold less than 5% of the Publicis Shares or the voting
rights in Publicis, except as a result of such Party's breach of this
Agreement.
(d) TERMINATION UPON DEFAULT
Subject to Sections 10.2(a) and 10.2(b), either Party may terminate this
Agreement with immediate effect by notice to the other Party, without any other
formalities being required, if such other Party is in material default under
this Agreement and has failed to cure such default within 30 days following its
receipt of notice of default from the other Party.
(e) EFFECT OF TERMINATION
In the event of the termination of this Agreement, this Agreement shall
have no further force or effect except as expressly provided for herein, and no
Party shall have any liability to the other Party hereunder except for any
liability resulting from any Party's breach of any of its obligations under this
Agreement, provided that the provisions of Sections 12.2, 12.3, and 12.4 shall
survive any such termination.
(f) DIFFERENT VOTES
Without prejudice to the obligations set forth in Section 4, the Parties
expressly acknowledge that a Party's casting at any meeting of Publicis'
shareholders one or more votes differently from the votes cast by the other
Party shall not constitute sufficient ground for either Party to seek the
termination of this Agreement.
Section 11. CONCERTED ACTION - REGULATORY MATTERS
11.1 CONCERTED ACTION
Pursuant to the decision issued by the CMF under n(degree) 20260590 dated
May 24, 2002 whereby the CMF has granted to Madame Badinter and Dentsu an
exemption from the obligation to launch a tender offer as a result of the
Merger, the Parties acknowledge that the provisions of this Agreement constitute
a concerted action (action de concert) among the Parties pursuant to Article
L.233-10 of the French Code de Commerce. As a result of such concerted action,
the Parties acknowledge that they will be jointly liable for the performance of
any of their respective obligations under French stock market regulations as
long as this concerted action remains in force.
29
The Parties also agree that if and when such concerted action ceases as a
result of the termination of this Agreement or otherwise, they shall promptly so
declare to the CMF.
11.2 FILING REQUIREMENT
Pursuant to Article L. 233-11 of the French Code de Commerce, the Parties
shall cooperate (i) to file this Agreement with the CMF no later than 8 days
following the date hereof for publication purposes and (ii) to respond to any
queries the CMF may have in connection therewith.
Section 12. MISCELLANEOUS
12.1 NOTICES
(a) All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be either (i) personally delivered, (ii)
sent by Federal Express or other reputable overnight courier or (iii) sent by
telecopier (with a copy also sent by reputable overnight courier) to the Party
for which it is intended at the following address:
(1) if to Dentsu, to:
Dentsu Inc.
0-0-0 Xxxxxxx-Xxxxxxxxx
Xxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attention: Xx. Xxxxx Xxxxxx, Executive Vice President
Telecopier No. (000) 0000-0000
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000, U. S. A.
Attention: Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxxx
Telecopier No. 000-000-0000
and
Debevoise & Xxxxxxxx
00, Xxxxxx Xxxxxx X
00000 Xxxxx, Xxxxxx
Attention: Xxxxxxx X. Xxxxx
Telecopier No. 00-0 0000-0000
or to such other address as Dentsu may have designated by notice hereunder; and
30
(2) if to Madame Badinter, to:
Madame Xxxxxxxxx Xxxxxxxx
c/o Publicis Groupe S.A.
000, Xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx, Xxxxxx
Telecopier No. (00) 0 00 00 00 00
with a copy to:
Darrois Villey Maillot Brochier
00, xxxxxx Xxxxxx Xxxx
00000 Xxxxx, Xxxxxx
Attention: M. Xxxx-Xxxxxx Darrois
Telecopier No. (00) 0 00 00 00 00
or to such other address as Madame Badinter may have designated by notice
hereunder.
(b) Every notice, demand, request or other communication hereunder shall be
deemed to have been duly given or served: (i) on the date on which personally
delivered, with receipt acknowledged, (ii) two Business Days after timely
delivery to Federal Express or other reputable overnight courier, if sent by
courier or (iii) upon transmission thereof by the sender and issuance by the
transmitting machine of a confirmation slip confirming that the number of pages
constituting the communication have been transmitted without error, if sent by
telecopy (subject to a copy of such communication also being sent by reputable
overnight courier).
12.2 GOVERNING LAW, ETC.
This Agreement shall be governed in all respects, including as to validity,
interpretation and effect thereof, by the laws of the Republic of France.
12.3 ARBITRATION
(i) Any dispute, controversy or claim arising out of, relating to, or
in connection with, this Agreement, or the breach, termination or validity
thereof, shall be referred to and finally settled by arbitration conducted
in accordance with the Arbitration Rules of the London Court of
International Arbitration (the "LCIA RULES") in effect at the time of the
arbitration, except as they may be modified herein or by mutual agreement
of the Parties. The seat of the arbitration shall be Geneva, Switzerland.
The arbitration shall be conducted in the English language, provided that
either Party may submit testimony or documentary evidence in the French or
Japanese language if it furnishes, upon the request of the other Party,
interpretation or translation, as the case may be, into English of any such
testimony or documentary evidence.
31
(ii) The arbitration shall be conducted by three arbitrators. The
Party commencing the arbitration (the "CLAIMANT") and the other Party (the
"RESPONDENT") shall each nominate one arbitrator for appointment according
to the procedure set forth in the LCIA Rules. The first two arbitrators so
nominated shall nominate a third arbitrator within 30 days after the
nomination of the second arbitrator. When the third arbitrator has accepted
the nomination, the two arbitrators making the nomination shall promptly
notify the Parties of the nomination. If the first two arbitrators
appointed fail to nominate a third arbitrator or so to notify the Parties
within the time period prescribed above, then the President of the Tribunal
de Premiere Instance du Canton de Geneve shall nominate the third
arbitrator and shall promptly notify the Parties of the nomination. The
third arbitrator so-appointed shall act as Chair of the arbitral tribunal.
(iii) The arbitral award shall be in writing, state the reasons for
the award, and be final and binding on the Parties. The award may include
an award of costs, including reasonable attorneys' fees and disbursements.
Judgment upon the award may be entered by any court having jurisdiction
thereof or having jurisdiction over the relevant Party or its assets.
12.4 JUDICIAL PROCEDURE
Nothing in Section 12.3 shall be construed to prevent any Party from
seeking from a court a temporary restraining order or other temporary or
preliminary relief to preserve the status quo pending final resolution of a
dispute, controversy or claim pursuant to Section 12.3, or if such Party makes a
good faith determination that a breach of the terms of this Agreement by another
Party is such that a temporary restraining order or other temporary or
preliminary relief is the only appropriate and adequate remedy at such time.
12.5 BINDING EFFECT.
This Agreement will be binding upon and inure to the benefit of the Parties
hereto and their respective heirs, successors and permitted assigns, and any
reference to a Party in this Agreement shall be deemed to be a reference to such
Party's heirs, successors and permitted assigns.
12.6 ASSIGNMENT
This Agreement will not be assignable or otherwise transferable by any
Party without the prior written consent of the other Party.
12.7 NO THIRD-PARTY BENEFICIARIES
Nothing in this Agreement shall confer any rights upon any Person other
than the Parties and their respective heirs, successors and permitted assigns.
32
12.8 AMENDMENT; WAIVERS, ETC.
No amendment, modification or discharge of this Agreement, and no waiver
hereunder, will be valid or binding unless set forth in writing and duly
executed by the Party against whom enforcement of the amendment, modification,
discharge or waiver is sought. Any such waiver will constitute a waiver only
with respect to the specific matter described in such writing and will in no way
impair the rights of the Party granting such waiver in any other respect or at
any other time. Neither the waiver by any of the Parties of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any of
the Parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, will be construed as
a waiver of any other breach or default of a similar nature, or as a waiver of
any of such provisions, rights or privileges hereunder. The rights and remedies
herein provided are cumulative and none is exclusive of any other, or of any
rights or remedies that any Party may otherwise have at law or otherwise.
12.9 SEVERABILITY
If any provision, including any phrase, sentence, clause, or Section, of
this Agreement is invalid, inoperative or unenforceable for any reason, such
circumstances will not have the effect of rendering such provision in question
invalid, inoperative or unenforceable in any other case or circumstance, or of
rendering any other provision herein contained invalid, inoperative, or
unenforceable to any extent whatsoever.
12.10 CONFIDENTIALITY
The Parties shall keep this Agreement strictly confidential and will not
disclose the provisions hereof except as may be required by Applicable Laws and
stock exchange rules and to their respective advisers. Except as may be required
by Applicable Laws or such rules, any press release or similar communication as
to this Agreement by either Party must be reviewed and approved in advance in
writing by the other Party, and the other Party must be given a reasonable
opportunity to comment thereon.
12.11 EXECUTION COPIES
This Agreement shall be executed in four original copies, each of which
shall be an original.
12.12 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior agreements and understandings, both written and oral,
between the Parties with respect to the subject matter hereof, including without
limitation the EB MOU and the letter agreement, dated March 7, 2002, among
Dentsu, Madame Badinter and Publicis in respect of the EB MOU.
33
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
/s/ XXXXXXXXX XXXXXXXX
----------------------------
Madame Xxxxxxxxx Xxxxxxxx DENTSU INC.
duly represented by:
/s/ XXXXXX XXXXXX
---------------------
Xxxxxx Xxxxxx
Chairman & CEO
34
EXHIBIT 1
MAJOR PUBLICIS COMPETITORS
--------------------------
1. WPP
2. IPG
3. Omnicom
4. Havas
1
EXHIBIT 2
ARTICLE 8, PARAGRAPHS 3, 4 AND 7 OF THE JAPANESE
MINISTERIAL REGULATION REGARDING
FINANCIAL STATEMENTS
[PROVIDED IN JAPANESE; TRANSLATION INCLUDED AS THE FOLLOWING DOCUMENT.]
ENGLISH TRANSLATION OF ARTICLE 8, PARAGRAPHS 3, 4 AND 7 OF THE
JAPANESE MINISTERIAL REGULATION REGARDING FINANCIAL STATEMENTS
---------------------------------------------------------------
Paragraph 3
"Parent" means a corporation controlling an organ (general shareholders meeting
and the like; hereinafter, the "Control Organ") of another corporation
(including other business entity (which may include foreign entity comparable
thereto) such as partnership and the like) which decides the policy of finance,
operation or business of such another corporation. "Subsidiary" means such
another corporation. When the parent together with the subsidiary or the
subsidiary controls the Control Organ of another corporation, such another
corporation is deemed to be the subsidiary of the parent.
Paragraph 4
"A corporation controlling the Control Organ of another corporation" in
paragraph 3 above mean the corporation as set forth in the following items: -
1. A corporation which owns in its account the majority of the voting right
of another corporation (excluding a corporation subject to the declaration of
commencement of reorganization proceedings under the Corporate Reorganization
Law, of rehabilitation proceedings under the Civil Rehabilitation Law or of
corporate arrangement under the Commercial Code or of the bankruptcy under the
Bankruptcy Law and other corporation subject to similar procedure, there
existing no effective control relationship); or
2. A corporation which owns in its account 40 percent or more (but 50
percent or less) of the voting right of another corporation, falling under any
of the following:
a. Owning another corporation's majority of voting right, when the voting
right it holds in its own account, and the voting right held by those
who are expected to exercise the voting right in the same way as the
corporation because of close relationship between the two corporations
based on investment, personnel affaires, funds, technology or business
transactions, and those who have agreed to exercise the voting right
in the same way, are aggregated;
b. The directors, statutory auditors or employees (or those who had been
such persons) of the corporation who may influence the determination
of policies of another corporation in respect of its finance,
operation or business occupy the majority of the members of the board
of directors or the like;
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c. There is a contract controlling the decision-making of the material
policy of finance, operation or business of another corporation;
d. Majority of the aggregate amount of borrowings (including guarantee
and providing of collateral) (only those which are shown on the
liabilities part of sheet) of another corporation is made by the
corporation (including the cases where the corporation holds the
majority when the amount of borrowing made by those who have close
relationship in respect of investment, personnel affairs, funds,
technology and business transactions is aggregated to the amount held
by the corporation);
e. There is a fact by which it is inferred that the corporation controls
another corporation's Control Organ in the method other than a. to d.
as above; or
3. A corporation which owns majority of another corporation's voting right
when the voting right it owns in its account, and the voting rights held by
those who are expected to exercise the voting rights in the same way as the
corporation because of close relationship between the two corporations based on
investment, personnel affairs, fund, technology or business transactions, and
the voting right held by those who have agreed to exercise the voting right in
the same way as the corporation (including the cases where none of the voting
right is held in its account), are aggregated, provided that the corporation
must fall under any of 2. b. to e. as above.
Paragraph 7
A special purpose company (meaning the Special Purpose Company as defined
in paragraph 3 of Article 2 of the Asset Securitization Law and the entity
operating the same type of business as such Special Purpose Company, change
in the corporate purpose of which is restricted) is considered to be
independent of investors in the relevant special purpose company or a
company which sold its asset to the relevant special purpose company (such
investors and company are hereinafter referred to as investors), and
notwithstanding the provisions of paragraphs 3 and 4 above, is presumed not
to be a subsidiary of such investors, if and when the special purpose
company has been incorporated for the purpose of enabling the holders of
the securities issued by the special purpose company to enjoy the benefit
generated from the asset which the special purpose company purchased at the
fair price and the business of the special purpose company is properly
operated in compliance with such purpose.
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EXHIBIT 3
FORM OF BY-LAWS (STATUTS) OF SPECIAL PURPOSE
ENTITY (SOCIETE EN PARTICIPATION)
---------------------------------------------
[THIS DOCUMENT IS IN FRENCH.
AN ENGLISH TRANSLATION IS INCLUDED IN THE FOLLOWING PAGES.]
1
==============================================================================
SOCIETE EN PARTICIPATION
==============================================================================
2
ENTRE LES SOUSSIGNES
--------------------
- Dentsu, une societe de droit japonais, ayant son siege social a 0-00,
Xxxxxxx-Xxxxxxxxx, Xxxxxx-xx, Xxxxx 000-0000, Japon (ci-apres
"Dentsu"),
D'une part,
ET:
- Madame Xxxxxxxxx Xxxxxxxx, nee le 5 Mars 1944 et demeurant au 00 xxx
Xxxxxxxx, 00000 Xxxxx,
X'xxxxx part,
EN PRESENCE DE:
- Publicis, une societe anonyme au capital de 78,118,930 euros, ayant
son siege social 000 xxxxxx xxx Xxxxxx Xxxxxxx, 00000 Xxxxx, et
immatriculee au Registre du Commerce de Paris sous le numero 542 080
601.
Madame Xxxxxxxxx Xxxxxxxx et Dentsu etant egalement designes
individuellement comme une "PARTIE" et ensemble comme les "PARTIES".
IL A D'ABORD ETE EXPOSE CE QUI SUIT
-----------------------------------
Les Parties sont les deux principaux actionnaires de Publicis et
signataires d'un accord en date du 17 juin 2003 organisant leurs relations
a ce titre (le "PACTE").
Le Pacte prevoit notamment que la participation de Dentsu dans Publicis ne
doit pas depasser 15 % en droits de vote, toutes les actions dont les
droits de vote excedent ce seuil de 15% devant etre placees en jouissance
au sein d'une societe en participation dont Madame Badinter serait la
gerante statutaire.
Les Parties ont souhaite arreter les statuts de cette societe en
participation.
CECI AYANT ETE EXPOSE, IL A ETE CONVENU CE QUI SUIT
---------------------------------------------------
ARTICLE 1 - FORME DE LA SOCIETE
-------------------------------
Il est constitue entre les associes une societe en participation (la
"Societe") regie par les articles 1871 et suivants du code civil et par les
presents statuts.
Cette societe n'aura pas la personnalite morale. Elle sera revelee aux
tiers, et notamment a Publicis, a qui le transfert par les Parties de la
jouissance des actions Publicis determinee conformement a l'article 5
ci-apres est notifie par les presentes.
3
Les Parties demeureront pleinement et individuellement proprietaires de la
totalite de leurs actions Publicis, seule la jouissance determinee
conformement a l'article 5 ci-apres etant transferee a la Societe, etant
entendu que les Parties continueront a percevoir directement les produits
(en ce inclus les dividendes, autres distributions, droits preferentiels de
souscription et delai de priorite, boni de liquidation) attaches aux
actions Publicis determinees conformement a l'article 5 ci-apres.
ARTICLE 2 - OBJET
-----------------
La Societe a pour objet:
o l'exercice des droits de vote attaches aux actions de Publicis
dont la jouissance lui est apportee conformement a l'article 5 ci-apres;
et
o la realisation des actes necessaires a l'accomplissement de son
objet.
ARTICLE 3 - DUREE
-----------------
La Societe a une duree commencant a courir le jour de signature des
presents statuts et se terminant a la date la plus proche entre (i)
l'expiration d'une periode xx xxx ans et (ii) la date d'expiration ou de
resiliation du Pacte, sauf cas de prorogation ou de dissolution anticipee
decidee par les associes a l'unanimite.
ARTICLE 4 - DENOMINATION - SIEGE
--------------------------------
4.1 La Societe sera designee entre les associes sous le nom de [ ].
4.2 Le siege de la Societe sera localise a [ ].
ARTICLE 5 - APPORTS
-------------------
5.1 Dentsu fait apport a la Societe, pour la duree figurant a l'article
5.2, de la jouissance de [____] actions de Publicis qu'elle detient a
la date des presentes, soit [____] droits de vote. En outre, Dentsu
s'engage a apporter a la Societe, pour la duree figurant a l'article
5.2, la jouissance de toute action de Publicis qu'elle pourrait
detenir et qui lui ferait depasser le seuil de detention de 15 % des
droits de vote de Publicis.
Madame Badinter fait apport a la Societe, pour la duree de celle-ci, de la
jouissance d'une action Publicis.
La jouissance des actions Publicis apportees par les Parties s'entend pour
les besoins des presentes comme la jouissance et l'exercice des droits de
vote attachees a ces actions aux assemblees generales d'actionnaires,
qu'elles soient reunies a titre ordinaire, extraordinaire ou mixte.
Il est ainsi rappele que chacune des Parties demeure pleinement et
individuellement proprietaire de la totalite des actions Publicis qu'elle
detient ou pourrait detenir et que
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chacune des Parties conserve pleinement et personnellement l'ensemble des
droits financiers (en ce inclus les dividendes, autres distributions,
droits preferentiels de souscription et delai de priorite, boni de
liquidation) attaches aux actions dont la jouissance est apportee.
Chacune des Parties fait egalement apport de la somme de 100 euros en
numeraire.
5.2 Si, au cours de la vie de la Societe, la participation de Dentsu (hors
actions apportees en jouissance a la Societe) telle qu'il ressort
d'une "Challenge Notice" ou d'une "Interim Basic Notice", tels que ces
termes sont xxxxxxx au Pacte, devenait inferieure a 15 % des droits de
vote, l'apport en jouissance prendrait fin immediatement afin de
permettre a Dentsu de revenir au seuil de detention de 15 % des droits
de vote de Publicis. Dans l'eventualite ou une "Basic Notice", tel que
ce terme est defini dans le Pacte, indiquerait que la participation de
Dentsu (hors actions apportees en jouissance a la Societe) serait
inferieure a 15% et que cette Basic Notice ne ferait pas l'objet d'une
Challenge Notice dans les delais prevus par le Pacte, l'apport en
jouissance prendra fin dans les conditions visees ci-dessus, sur la
base des informations figurant dans ladite Basic Notice.
La fin de l'apport en jouissance s'imposera a Publicis et Madame Xxxxxxxxx
Xxxxxxxx qui devront faire le necessaire pour que Dentsu puisse exercer
immediatement les droits de vote ainsi liberes.
ARTICLE 6 - DROITS SOCIAUX
--------------------------
Les droits des associes sont representes, a titre de regle interne, par des
parts reparties a concurrence du nombre d'actions Publicis apportees en
jouissance conformement a l'article 5 ci-dessus.
Les parts des associes ne peuvent etre representees par des titres
negociables. Les droits de chaque associe resultent des seuls statuts, des
actes pouvant les modifier et des cessions regulierement intervenues.
ARTICLE 7 - GERANCE
-------------------
7.1 La Societe sera geree par un (1) gerant (le "GERANT"), nomme et
revoque par les Parties statuant a l'unanimite (y compris par le
Gerant) moyennant le respect d'un preavis de trois mois.
7.2 Le premier Gerant de la Societe est Madame Badinter, designee pour la
duree de la Societe.
7.3 La remuneration du Gerant sera fixee par les associes statuant a
l'unanimite.
7.4 Le Gerant gerera la Societe et notamment exercera les droits attaches
a la jouissance des actions Publicis apportees par les associes
conformement a
5
l'article 5 ci-dessus, conformement a la realisation de l'objet social
et des decisions prises par les associes et dans le respect des xxxx
et reglements applicables.
ARTICLE 8 - TRANSMISSION DES PARTS
----------------------------------
Les mutations de parts de la Societe seront soumises a l'agrement du
Gerant, qui pourra le refuser sans justifier de ses motifs.
Des lors qu'une Partie souhaitera ceder ses parts, elle xxxxx adresser aux
Gerants une notification de sa decision. Cette notification (la
"NOTIFICATION DE CESSION") xxxxx indiquer:
o le nombre de parts que la Partie souhaite ceder (les "PARTS
CONCERNEES"),
o le prix ou, si la mutation n'a pas lieu contre numeraire payable
comptant, l'equivalent prix et les conditions de paiement souhaitees.
A compter du jour de reception de la Notification de Cession, le Gerant
disposera d'un delai de six (6) mois pour adresser a ladite Partie la
notification de sa decision d'agreer ou de ne pas agreer la cession.
Nonobstant ce qui precede, la transmission des parts aux ayants-droit, et
s'agissant de Dentsu egalement aux "Permitted Dentsu Transferees", tel que
ce terme est defini dans le Pacte et selon les modalites definies dans le
Pacte, ne sera pas soumise a l'agrement.
ARTICLE 9 - COMPTES SOCIAUX - REPARTITION DES RESULTATS
-------------------------------------------------------
9.1 Les comptes de la Societe sont tenus par le Gerant.
Le Gerant arrete le bilan, le compte de resultats et l'annexe de la
Societe au decembre de chaque annee, et pour la premiere fois au 31
decembre 2003. Cet arrete xxxxx etre fait dans les 2 mois de chaque
date de cloture.
9.2 Les comptes ainsi arretes sont soumis a l'approbation des associes
statuant a l'unanimite.
9.3. Les resultats, positifs ou negatifs, ainsi approuves seront repartis
ou pris en charge par les associes, au prorata des parts qu'ils
detiennent.
ARTICLE 10 - FINANCEMENT DE LA SOCIETE
--------------------------------------
Les Parties s'engagent, a premiere demande du Gerant, a apporter en compte
courant toute somme necessaire au financement des operations de la Societe.
Ces apports seront effectues dans la meme proportion que leurs droits sur
les resultats dans la limite d'un montant de [__] (euro) par exercice.
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ARTICLE 11 - LIQUIDATION
------------------------
A l'expiration du terme prevu a l'article Duree ou, en cas de dissolution
anticipee, le xxxxxx xxxxx arreter les comptes de liquidation de la
Societe.
Le partage du boni de liquidation, s'il en existe un, ou la repartition des
pertes eventuelles suivront les regles prevues pour la repartition des
resultats.
ARTICLE 12 - MODIFICATIONS
--------------------------
Les presents statuts peuvent etre modifies par les associes statuant a
l'unanimite. Toute modification doit etre constatee par ecrit et ne peut
prendre effet qu'apres une telle constatation.
ARTICLE 13 - LOI APPLICABLE - COMPETENCE
----------------------------------------
13.1 Les presents statuts sont regis par le droit francais.
13.2 Tous differends qui pourraient naitre entre les associes en
participation sur la validite, l'interpretation ou l'execution des
presents statuts seront soumis et definitivement tranches par une
procedure d'arbitrage effectuee selon les Regles d'Arbitrage de la
Cour d'Arbitrage Internationale de Londres (les "REGLES XXXX") en
vigueur a la date de l'arbitrage en question, sous reserve des
modifications stipulees dans les presents statuts et a moins que les
Parties n'en conviennent autrement. Le siege du tribunal arbitral sera
situe a Geneve (Suisse). La procedure d'arbitrage sera conduite en
langue anglaise, etant precise que chaque Partie pourra produire des
depositions ou des preuves ecrites en langue francaise ou japonaise si
elle fournit, a la demande de l'autre Partie, une interpretation ou
une traduction, selon les cas, en langue anglaise de cette deposition
ou de cette preuve ecrite.
La procedure d'arbitrage sera conduite par trois arbitres. La Partie
initiant la procedure d'arbitrage (le "DEMANDEUR") et l'autre Partie
(le "DEFENDEUR") designeront chacune un (1) arbitre devant etre nomme
selon la procedure prevue par les Regles XXXX. Les deux premiers
arbitres ainsi nommes nommeront ensuite un troisieme arbitre dans un
delai de 30 jours suivant la nomination du deuxieme arbitre. Lorsque
le troisieme arbitre a accepte se nomination, les deux arbitres
l'ayant nomme devront notifier cette nomination aux Parties dans les
meilleurs delais. Dans l'hypothese ou les deux premiers arbitres ne
parviennent pas a nommer un troisieme arbitre ou a notifier sa
nomination dans le delai susmentionne, le President du Tribunal de
Premiere Instance du Canton de Geneve nommera le troisieme arbitre et
notifiera cette nomination aux Parties dans les meilleurs delais. Le
troisieme arbitre ainsi nomme agira en qualite de President du
tribunal arbitral.
La sentence arbitrale sera rendue par ecrit, enoncera les motifs de la
sentence et s'imposera aux Parties de maniere definitive. La sentence
pourra inclure
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une condamnation aux depens, comprenant les honoraires d'avocats
evalues de maniere raisonnable et les debours. L'execution judiciaire
de la sentence pourra etre prononcee par tout tribunal dont la
competence s'etend a la sentence, la Partie concernee ou ses actifs.
13.3 L'article 13.2 ne peut pas etre interprete comme empechant une Partie
de demander aupres d'un tribunal une ordonnance de refere ou toute
autre mesure provisoire ou preliminaire afin de preserver un status
quo dans l'attente de la resolution finale du litige, differend ou
demande conformement a l'article 13.2, ou si cette Partie determine de
bonne foi que le non-respect des presents statuts est tel que seule
une ordonnance de refere ou toute autre mesure provisoire ou
preliminaire constitue le recours adequat a cette date.
Fait en [o] exemplaires originaux dont un pour l'enregistrement.
A [o]
Le [o]
--------------------
Dentsu,
representee par
--------------------
Xxxxxxxxx Xxxxxxxx
--------------------
Publicis,
representee par
8
ENGLISH TRANSLATION OF FORM OF BY-LAWS (STATUTS) OF SPECIAL PURPOSE
ENTITY (SOCIETE EN PARTICIPATION)
-------------------------------------------------------------------
PARTNERSHIP
("Societe en Participation")
9
BETWEEN:
o Dentsu, a 0-0-0 Xxxxxxx-Xxxxxxxxx, Xxxxxx-xx, Xxxxx 000-0000,
Xxxxx, company organized under the laws of Japan with its registered
office at 0-00, Xxxxxxx, Xxxx-Xx, Xxxxx 000-0000, Xxxxx (hereafter
"DENTSU");
On the one hand,
AND
o Madame Xxxxxxxxx Xxxxxxxx, born on March 5, 1944 and residing at
00, xxx Xxxxxxxx, 00000 Xxxxx;
On the other hand
IN THE PRESENCE OF:
o Publicis, a societe anonyme with a capital of 78,118,930 euros,
with its registered office at 000, xxxxxx xxx Xxxxxx-Xxxxxxx, 00000
Xxxxx, and registered at the Registre du Commerce de Paris under the
number 542 080 601.
Madame Xxxxxxxxx Xxxxxxxx and Dentsu being also individually defined as a
"Party" and together as the "PARTIES".
WHEREAS:
The Parties are the two principal shareholders of Publicis and signatories
of an agreement dated July ___, 2003, organizing their relations (the
"AGREEMENT").
The Agreement provides, among other things, that the participation of
Dentsu in Publicis may not exceed 15% of voting rights, the enjoyment
("JOUISSANCE") of shares of Publicis with voting rights that exceed such
15% threshold being required to be contributed to a partnership ("SOCIETE
EN PARTICIPATION") of which Madame Badinter would be the Manager appointed
pursuant to its articles.
The Parties have wished to establish the articles of the partnership.
THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
ARTICLE 1 - FORM OF THE PARTNERSHIP
-----------------------------------
The partners have organized a partnership ("SOCIETE EN PARTICIPATION") (the
"PARTNERSHIP") governed by the articles 1871 et seq. of the French Civil
Code and by the present articles.
10
The Partnership will not constitute a legal entity. It will be disclosed to
third parties, and in particular to Publicis, to which the transfer of the
enjoyment of shares of Publicis by the Parties as determined pursuant to
article 5 below is notified hereby.
The Parties will continue to own fully and individually all of their shares
of Publicis, only the enjoyment of shares of Publicis as determined
pursuant to article 5 below being transferred to the Partnership, it being
understood that the Parties will continue to receive directly the income
(including dividends, other distributions, preferential subscription rights
and priority subscription period, liquidation surplus) with respect to
shares of Publicis the enjoyment of which is contributed to the Partnership
pursuant to article 5 below.
ARTICLE 2 - PURPOSE
-------------------
The purpose of the Partnership is to:
o exercise voting rights attached to shares of Publicis the
enjoyment of which is contributed to it in accordance with article 5
below; and
o take all actions necessary to achieve its purpose.
ARTICLE 3 - TERM
----------------
The term of the Partnership will commence on the date of the signature
hereof and will end on the earlier of (i) the expiration of a ten-year
period and (ii) the termination date of the Agreement, except in the event
of extension or prior dissolution, decided by the partners unanimously.
ARTICLE 4 - NAME - REGISTERED OFFICE
------------------------------------
4.1 The Partnership will be called by the partners [__].
4.2 The registered office of the Partnership will be located at [__].
ARTICLE 5 - CONTRIBUTIONS
-------------------------
5.1 Dentsu contributes to the Partnership, for the duration set forth in
article 5.2, the enjoyment of [__] shares of Publicis it owns at the
date hereof, which shares have, in the aggregate, [__] voting rights
attached to them. In addition, Dentsu will contribute to the
Partnership, for the duration set forth in article 5.2, the enjoyment
of every share of Publicis it may hold and which would cause Dentsu to
exceed the threshold of ownership of 15% of voting rights.
Madame Badinter contributes to the Partnership, for the term thereof,
the right to enjoyment of one share of Publicis. For the purposes of
these articles, the enjoyment of shares of Publicis contributed by the
Parties will mean the enjoyment and exercise of voting
11
rights attached to such shares at general meetings of shareholders,
whether ordinary, extraordinary or xxxxx.Xx is hereby confirmed that
each Party continues to own fully and individually all of shares of
Publicis that it holds or may hold and that each Party continues to
retain fully and individually all economic rights (including
dividends, other distributions, preferential subscription rights and
priority subscription period, liquidation surplus) with respect to
each share of Publicis the enjoyment of which is contributed to the
Partnership.
Each Party also contributes in cash the sum of 100 euros.
5.2 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.
The end 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.
ARTICLE 6 - INTERESTS
---------------------
The interests of the partners are represented, as between them, by
interests proportionate to the number of shares of Publicis the
enjoyment of which has been contributed pursuant to article 5 above.
The interests of the partners may not be represented by negotiable
instruments. The rights of each partner result only from these
articles, instruments that may modify the articles and valid
transfers.
ARTICLE 7 - MANAGEMENT
----------------------
7.1 The Partnership will be managed by a (1) Manager (the "MANAGER"),
appointed and dismissed unanimously by the Parties (including the
Manager) on three months' notice.
12
7.2 The first Manager of the Partnership will be Madame Badinter,
appointed for the term of the Partnership.
7.3 The compensation of the Manager will be fixed unanimously by the
partners.
7.4 The Manager will manage the Partnership and among other things shall
exercise the rights attached to the enjoyment of shares of Publicis
contributed by the partners pursuant to article 5 above, in
furtherance of its purpose and in compliance with the decisions of the
partners and with applicable laws.
ARTICLE 8 - TRANSFER OF INTERESTS
---------------------------------
The transfer of interests in the Partnership must be authorized by the
Manager, who may refuse without justification of motives.
A Party desiring to transfer its interests shall give to the Manager notice
thereof. Such notice (the "TRANSFER NOTICE") shall specify:
o the number of interests to be transferred (the "INTERESTS
CONCERNED");
o the price or, if there is no consideration in cash for such
transfer, the equivalent price and conditions of payment desired.
The Manager shall have a period of six (6) months from the date of the
receipt of the Transfer Notice to notify to such Party her decision to
accept or not the transfer.
Notwithstanding the above, the transfer of interests to the legal
successors, and in the case of Dentsu, also to "PERMITTED DENTSU
TRANSFEREES", as defined in, and in accordance with, the Agreement, shall
not require authorization.
ARTICLE 9 - FINANCIAL STATEMENTS - ALLOCATION OF PROFITS
--------------------------------------------------------
9.1 The Partnership's accounts will be kept by the Manager.
The Manager will prepare the Partnership's balance sheet, the profit and
loss statement and the notes thereto as of December of each year, and for
the first time as of December 31, 2003. Such financial statements will be
prepared within 2 months of the end of each period.
9.2 Such financial statements will be submitted for unanimous approval by
partners.
9.3 The profits or losses as approved will be divided or assumed by the
partners in proportion to their interests.
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ARTICLE 10 - FINANCING OF THE PARTNERSHIP
-----------------------------------------
The Parties undertake at the Manager's request to contribute as working
capital all amounts necessary for the financing of the Partnership's
operations.
Such contributions will be made proportionately to the rights to profits
and losses, up to an aggregate amount of [__] (euro) per fiscal year.
ARTICLE 11 - LIQUIDATION
------------------------
At the expiration of the term provided by the article Term or in the event
of prior dissolution the Manager will prepare the liquidation accounts of
the Partnership.
The liquidation surplus, if any, or the allocation of possible losses, will
follow the regulations provided for the allocation of profits.
ARTICLE 12 - MODIFICATIONS
--------------------------
These articles may be modified by the partners unanimously. Each
modification shall be in writing and shall take effect only after such
decision.
ARTICLE 13 - APPLICABLE LAW - LEGAL CAPACITY
--------------------------------------------
13.1 These articles are governed by French law.
13.2 All disputes arising between the partners as to the validity,
interpretation or the execution of present articles will be referred
to and finally settled by arbitration conducted in accordance with the
Arbitration Rules of the London Court of International Arbitration
(the "LCIA RULES") in effect at the time of the arbitration, except as
they may be modified herein or by mutual agreement of the Parties. The
seat of the arbitration will be Geneva, Switzerland. The arbitration
will be conducted in the English language, provided that either Party
may submit testimony or documentary evidence in the French or Japanese
language if it furnishes, upon the request of the other Party,
interpretation or translation, as the case may be, into English of any
such testimony or documentary evidence.
The arbitration will be conducted by three arbitrators. The Party
commencing the arbitration (the "CLAIMANT") and the other Party (the
"RESPONDENT") will each nominate one arbitrator for appointment
according to the procedure set forth in the LCIA Rules. The first two
arbitrators so nominated will nominate a third arbitrator within 30
days after the nomination of the second arbitrator. When the third
arbitrator has accepted the nomination, the two arbitrators making the
nomination will promptly notify the Parties of the nomination. If the
first two arbitrators appointed fail to nominate a third arbitrator or
so to notify the Parties within the time period prescribed above, then
the President of the Tribunal de Premiere Instance du Canton de Geneve
will nominate the
15
third arbitrator and will promptly notify the Parties of the
nomination. The third arbitrator so-appointed will act as Chair of the
arbitral tribunal.
The arbitral award will be in writing, state the reasons for the
award, and be final and binding on the Parties. The award may include
an award of costs, including reasonable attorneys' fees and
disbursements. Judgment upon the award may be entered by any court
having jurisdiction thereof or having jurisdiction over the relevant
Party or its assets.
13.3 Nothing in article 13.2 will be construed to prevent any Party from
seeking from a court a temporary restraining order or other temporary
or preliminary relief to preserve the status quo pending final
resolution of a dispute, controversy or claim pursuant to article
13.2, or if such Party makes a good faith determination that a breach
of these articles by another Party is such that a temporary
restraining order or other temporary or preliminary relief is the only
appropriate and adequate remedy at such time.
Executed in [__] duplicate originals, including one for registration.
Location:
Date:
15
