EXHIBIT 9.1
SUPPORT AGREEMENT, dated as of March 7, 2002 (this "Agreement"), between
BCom3 Group, Inc., a Delaware corporation ("Company"), on the one hand, and
Somarel, a French societe anonyme and Xxxxxxxxx Xxxxxxxx ("EB"), a French
national, acting in her capacity as stockholder of Parent (each, a
"Stockholder", and together, the "Stockholders"), on the other hand.
WHEREAS, concurrently with the execution of this Agreement, Publicis
Groupe S.A., a French societe anonyme (the "Parent"), Merger Sub, a Delaware
corporation and the Company"), are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to which
the Company will be merged with and into Merger Sub (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the owner, and has the
power to direct the vote, of the number of ordinary shares, par value 0.40 Euro
per share, of Parent (the "Parent Ordinary Shares", such shares and any
securities into which such shares may be converted or exchanged and any
securities issued in replacement of or as a dividend or distribution on or
otherwise in respect of such shares being referred to herein as the "Shares")
set forth opposite such Stockholder's name on Schedule A hereto;
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, the Company has required that each
Stockholder enter into this Agreement; and
WHEREAS, in order to induce the Company to enter into the Merger
Agreement, each Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows (capitalized terms
used and not defined herein shall have the respective meanings assigned to them
in the Merger Agreement):
ARTICLE I
VOTING OF SHARES
Section 1.01 Agreement to Vote. From the date hereof until the termination
of this Agreement in accordance with its terms, each Stockholder, acting
severally and not jointly, hereby agrees to vote the Shares at the meeting of
the stockholders of Parent: (a) in favor of the approval and adoption of the
Merger Agreement and approval of the Merger and all other transactions
contemplated by the Merger Agreement and this Agreement, including without
limitation (i) the issuance and delivery of Parent Ordinary Shares, the Parent
ORAs and the Parent OBSAs and (ii) modifications in the number and composition
of the Parent Supervisory Board and Management Board, in accordance with the
terms of the Merger Agreement; (b) against any action, agreement, transaction
(other than the Merger Agreement or the transactions contemplated thereby) or
proposal (including, without limitation, any Competing Transaction) that would
result in Parent's or the Company's right to terminate the Merger Agreement;
and (c) in favor of any other matter necessary to the consummation of the
transactions contemplated by the Merger Agreement and considered and voted upon
by the
stockholders of Parent. Each Stockholder acknowledges receipt of a copy of the
Merger Agreement and the review thereof.
Section 1.02 No Solicitation of Transactions. None of the Stockholders nor
any of their affiliates shall, directly or indirectly, and each Stockholder
will instruct his agents, advisors and other representatives (including,
without limitation, any investment banker, attorney or accountant retained by
it) not to, directly or indirectly, (a) solicit, initiate or encourage the
initiation of (including by way of furnishing non-public information) any
inquiries or proposals regarding any Competing Transaction or (b) have any
discussions with or provide any non-public information or data to any third
party that would encourage, facilitate or further a Competing Transaction, or
engage in any negotiations concerning a Competing Transaction, or knowingly
facilitate any effort or attempt to make or implement a Competing Transaction.
Each Stockholder and each of his agents, advisors or other representatives
shall immediately cease and cause to be terminated any existing discussions or
negotiations with any person (other than the Company) conducted heretofore with
respect to any of the foregoing. Each Stockholder shall promptly advise the
Company orally and in writing of (a) any proposal for a Competing Transaction
or any request for information with respect to any proposal for a Competing
Transaction received by such Stockholder or any of his agents, advisors or
other representatives, the material terms and conditions of such proposal for a
Competing Transaction or request and the identity of the person making such
proposal for a Competing Transaction or request (and provide the Company with
copies of any written proposal for a Competing Transaction or amendments or
supplements thereto) and (b) any changes in any such proposal for a Competing
Transaction or request.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
Each Stockholder hereby represents and warrants to the Company as follows:
SECTION 2.01 Power; Binding Agreement. The execution and delivery of this
Agreement by the Stockholder will not violate any other agreement to which he
is a party including, without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and validly executed
and delivered by the Stockholder and, assuming its due authorization, execution
and delivery by the Company and the other Stockholder, constitutes a legal,
valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms.
SECTION 2.02 Title to Shares. Except as disclosed on Schedule 2.02 hereof
and other than pursuant to this Agreement and the Merger Agreement, the
Stockholder is the legal and beneficial owner of, and has good and marketable
title to, the Shares, free and clear of any lien, pledge, security interest,
encumbrance, charge or other claim of third parties of any kind or nature,
proxy, voting restriction, limitation on disposition, adverse claim of
ownership or use or encumbrance of any kind, except for pledges on a certain
amount of shares held by EB in Philadelphia (in respect of which she has
retained voting rights).
SECTION 2.03 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the Stockholder do
not, and the performance of this Agreement by the Stockholder will not, (i)
conflict with or violate any law applicable to the Stockholder or by which any
properties or assets of the Stockholder are bound or affected or (ii) result in
any breach of or constitute a default (or an event which, with notice or lapse
of time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of the
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Stockholder is a party or by which the Stockholder or any of his
properties or assets are bound or affected, except, with respect to clauses (i)
and (ii), for any such conflicts, violations, breaches, defaults or other
occurrences which, individually or in the aggregate, would neither prevent nor
materially delay the performance by the Stockholder of any of his obligations
under this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder do
not, and the performance of this Agreement by the Stockholder will not, require
any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Authority, except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not, individually or in the aggregate, prevent or
materially delay the performance by the Stockholder of any of his obligations
under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to each Stockholder as follows:
Section 3.01 Due Organization; Authority Relative to this Agreement. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Company has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation by
the Company of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action and no other corporate proceedings
on the part of the Company or any affiliate thereof are necessary to authorize
this Agreement or to consummate such transactions. This Agreement has been duly
and validly executed and delivered by the Company and, assuming its due
authorization, execution and delivery by each Stockholder, constitutes a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.01 No Disposition or Encumbrance of Shares. Each Stockholder
agrees that, prior to the termination of this Agreement in accordance with the
terms hereof, he shall not, directly or indirectly, (a) sell, assign, transfer
(including by operation of law), pledge, encumber or otherwise dispose of any
of his Shares except for pledges to secure indebtedness (in respect of which
the Stockholder shall have retained voting rights, (b) deposit any of his
Shares into a voting trust or enter into a voting agreement or arrangement or
grant any proxy or power of attorney with respect thereto which is inconsistent
with this Agreement, (c) enter into any contract, option or other arrangement
or undertaking with respect to the direct or indirect sale, assignment,
transfer (including by operation of law) or other disposition of his Shares
that would occur prior to the consummation of the transactions contemplated in
the Merger Agreement or should deprive any Stockholder of any of its respective
voting rights or limit its full discretion in exercising its respective voting
rights prior to such consummation, except where the same would not deprive or
restrict any Stockholder from exercising its voting right in accordance with
the terms of this Agreement or (d) take any action that would make any
representation or warranty in Article II hereof untrue or incorrect in any
material respect or have the effect of preventing or disabling him from
performing his obligations hereunder.
SECTION 4.02 Disclosure. Each Stockholder agrees to permit the Company to
publish and disclose in filings under the securities laws in connection with
the Merger and under French law such Stockholder's identity and ownership of
Shares and the nature of his commitments, arrangements and understandings under
this Agreement and other information to the extent required by applicable law.
ARTICLE V
TERMINATION
Section 5.01 Termination. The covenants and agreements contained herein
(other than Article V) shall terminate upon the earlier of (a) the date the
Merger Agreement is terminated; (b) the date the Company terminates this
Agreement; and (c) the Effective Time. Nothing in this Section 5.01 shall
relieve any party of liability for any breach of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Additional Shares. In the event any Stockholder becomes the
legal or beneficial owner of any additional shares or other securities of
Parent and any securities into which such shares or securities may be converted
or exchanged and any securities issued in replacement of, or as a dividend or
distribution on, or otherwise in respect of, such shares or securities, then
the terms of this Agreement shall apply to such additional securities.
Section 6.02 Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such costs and expenses.
Section 6.03 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by an
overnight or expedited courier service, by telecopy (provided that any notice
received by telecopy at the addressee's location on any business day after 5:00
p.m. (addressee's local time) shall be deemed to have been received at 9:00
a.m. (addressee's local time) on the next business day), or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 6.03):
(a) If to the Company:
Bcom3 Group
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX, 00000, XXX
Facsimile: call first: (000) 000 00 00
Attention: Xxxxxxxxx X. Xxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxx
Xxxxxx Prat
000, xxx xx Xxxxxxxx Xxxxx-Xxxxxx
00000 Xxxxx - Xxxxxx
Facsimile: 00 (0)0 00 00 00 73
Attention: Xxxxx Xxxxxx & Xxxxxxx Assant
(b) If to the Stockholders:
Madame Xxxxxxxxx Xxxxxxxx
00, xxx Xxxxxxxx
00000 Xxxxx
SOMAREL
Madame Xxxxxxxxx Xxxxxxxx
000, xxxxxx xxx Xxxxxx Xxxxxxx
00000 Xxxxx
with a copy to:
Darrois Villey Maillot Brochier
00, Xxxxxx Xxxxxx Xxxx
00000 Xxxxx
Facsimile: 00 (0)0 00 00 00 34
Attention: Xxxx-Xxxxxx Darrois & Xxxxxxx Xxxx
Section 6.04 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, the application of such term or provision to other
persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in
any other jurisdiction, and all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
Section 6.05 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether pursuant to a merger, by operation of law or otherwise),
without the prior written consent of the other parties except that the Company
may assign all or any of its rights and obligations hereunder to any direct or
indirect subsidiary.
Section 6.06 Amendment; Waiver. This Agreement may not be amended except
by an instrument in writing signed by all the parties hereto. Any party to this
Agreement may (a) extend the time for the performance of any of the obligations
or other acts of any other party, (b) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
document delivered by any other party pursuant hereto or (c) waive compliance
with any of the agreements or conditions of any other party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
Section 6.07 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section 6.08 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof for which money damages
would not be an adequate remedy and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law or in equity. Each of the parties further agrees that in any proceeding
seeking specific performance such party will waive (a) the defense of adequacy
of a remedy at law and (b) any requirement for the securing or posting of any
bond.
Section 6.09 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Republic of France.
Section 6.10 Headings The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 6.11 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Section 6.12 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof.
Section 6.13 Further Assurances. From time to time at the request of the
other party, and without further consideration, each party shall execute and
deliver or cause to be executed and delivered such additional documents and
instruments and take all such further action as may be reasonably necessary or
desirable to effect the matters contemplated by this Agreement.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned as of the date first above written.
BCOM3 GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chairman and
Chief Executive Officer
Madame Xxxxxxxxx Xxxxxxxx
/s/ Xxxxxxxxx Xxxxxxxx
SOMAREL
/s/ Xxxxxxxxx Xxxxxxxx
By:
Name: Xxxxxxxxx Xxxxxxxx
Title: President du conseil
d'administration
Acting in her capacity as
Stockholder of Parent
