Exhibit 99.1
EXECUTION COPY
SUPPORT AGREEMENT, dated as of March 7, 2002 (this "Agreement"), between
PUBLICIS GROUPE S.A., a societe anonyme organized under the laws of the Republic
of France ("Parent"), PHILADELPHIA MERGER CORP., a Delaware corporation ("Merger
Sub"), and DENTSU INC., a Japanese corporation (the "Stockholder").
WHEREAS, concurrently with the execution of this Agreement, Parent, Merger
Sub and Boston Corporation, a Delaware corporation (the "Company"), are entering
into an Agreement and Plan of Merger, dated as of the date hereof and in the
form attached hereto as Exhibit A (the "Merger Agreement"), pursuant to which
the Company will be merged with and into Merger Sub (the "Merger");
WHEREAS, as of the date hereof, the Stockholder is the record and
beneficial owner, and has the power to vote or to direct the vote, of 4,284,873
shares of Class B common stock, par value $0.01 per share, of the Company (the
"Class B Common Stock", such shares of Class B Common Stock and any securities
into which such shares may be converted or exchanged and any securities issued
in replacement of or as a dividend or distribution on or otherwise in respect of
such shares being referred to herein as the "Shares");
WHEREAS, as a condition to entering into the Merger Agreement and incurring
the obligations set forth therein, Parent and Merger Sub have required that the
Stockholder enter into this Agreement; and
WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger
Agreement, the 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, and subject to the conditions
set forth in Sections 4.03 and 4.05, the Stockholder hereby agrees to vote the
Shares at every annual, special or adjourned meeting of the stockholders of the
Company (or pursuant to any consent, certificate or other document relating to
the Company that the law of the State of Delaware may permit or require): (a) in
favor of the approval and adoption of the Merger Agreement and approval of the
Merger and all other transactions contemplated by the Merger Agreement and this
Agreement; (b) against any action, agreement, transaction (other than the Merger
Agreement or the transactions contemplated thereby) or proposal (including,
without limitation, any Competing Transaction) that would result in Parent's or
the Company's right to terminate the Merger Agreement; and (c) in favor of any
other matter necessary to the consummation of the transactions contemplated by
the Merger Agreement and considered and voted upon by the stockholders of the
Company.
Section 1.02 NO SOLICITATION OF TRANSACTIONS. The Stockholder and its
subsidiaries shall not, directly or indirectly, and the Stockholder will
instruct its officers, directors, employees, subsidiaries, agents or advisors or
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. The Stockholder and each of its subsidiaries
shall immediately cease and cause to be terminated any existing discussions or
negotiations with any persons (other than Parent) conducted heretofore with
respect to any of the foregoing. The Stockholder shall promptly advise Parent
orally and in writing of (a) any proposal for a Competing Transaction or any
request for information with respect to any proposal for a Competing Transaction
received by the Stockholder or any of its subsidiaries, 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 Parent 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.
Section 1.03 ACTION IN STOCKHOLDER CAPACITY ONLY. The Stockholder
acknowledges that this Agreement is entered into by it in its capacity as a
stockholder of the Company and that nothing in this Agreement shall in any way
restrict or limit any director, officer or employee of the Stockholder or its
affiliates from taking any action in his or her capacity as such in order to
comply with his or her fiduciary obligations.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and Merger Sub as
follows:
Section 2.01 POWER; BINDING AGREEMENT. The Stockholder is a corporation
organized under the laws of Japan, duly organized and validly existing under the
laws of Japan and has all requisite corporate power and authority to perform its
obligations under this Agreement. The execution and delivery of this Agreement
by the Stockholder will not violate any other agreement to which it is a party
including, without limitation, any voting agreement, stockholders agreement or
voting trust. This Agreement has been duly and validly executed and delivered by
the Stockholder and, assuming its due authorization, execution and delivery by
Parent and Merger Sub, 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,
the Stockholder is the record 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
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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, other
than pursuant to this Agreement and the Merger Agreement.
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 Stockholder will not, (i) conflict with or violate the
organizational documents of Stockholder, (ii) assuming that all consents,
approvals, authorizations and permits described in subsection (b) have been
obtained and all filings and obligations described in subsection (b) have been
made, conflict with or violate any law applicable to Stockholder or by which any
property or asset of Stockholder is bound or affected or (iii) 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 Stockholder
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which
Stockholder is a party or by which Stockholder or any of its property or assets
is bound or affected, except, with respect to clauses (ii) and (iii), for any
such conflicts, violations, breaches, defaults or other occurrences which would
neither, individually or in the aggregate, prevent or materially delay the
performance by Stockholder of any of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Stockholder do not, and
the performance of this Agreement by 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 Stockholder of any of its obligations under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUB
Parent and Merger Sub each represents and warrants to the Stockholder as
follows:
Section 3.01 DUE ORGANIZATION; AUTHORITY RELATIVE TO THIS AGREEMENT. Each
of Parent and Merger Sub is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation. Each of
Parent and Merger Sub has all necessary power and authority to execute and
deliver this Agreement, to perform their obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation by Parent and Merger Sub of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of Parent or
Merger Sub or any affiliate thereof are necessary to authorize this Agreement or
to consummate such transactions. This Agreement has been duly and validly
executed and delivered by Parent and Merger Sub and, assuming its due
authorization, execution and delivery by the Stockholder, constitutes a
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legal, valid and binding obligation of Parent and Merger Sub, enforceable
against Parent and Merger Sub in accordance with its terms.
Section 3.02 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The execution
and delivery of this Agreement by Parent and Merger Sub do not, and the
performance of this Agreement by Parent and Merger Sub will not, (i) conflict
with or violate the organizational documents of Parent or Merger Sub, (ii)
assuming that all consents, approvals, authorizations and permits described in
subsection (b) have been obtained and all filings and obligations described in
subsection (b) have been made, conflict with or violate any law applicable to
Parent or Merger Sub or by which any property or asset of Parent or Merger Sub
is bound or affected or (iii) 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 Parent or Merger Sub pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent or Merger Sub is a party or by which
Parent or Merger Sub or any property or asset of either of them is bound or
affected, except, with respect to clauses (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other occurrences which would
neither, individually or in the aggregate, prevent or materially delay the
performance by Parent or Merger Sub of any of its respective obligations under
this Agreement.
(b) The execution and delivery of this Agreement by Parent and Merger Sub
do not, and the performance of this Agreement by Parent and Merger Sub 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 Parent and Merger Sub of any of their
obligations under this Agreement.
SECTION 3.03 PARENT VOTING SECURITIES. As of March 5, 2002, Parent had
issued and outstanding (i) 38,926,601 Parent Ordinary Shares that were entitled
to double voting rights and (ii) 6,593,302 Parent Ordinary Shares in registered
form that were not entitled to double voting rights, in each case pursuant to
the applicable laws of the Republic of France.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.01 NO DISPOSITION OR ENCUMBRANCE OF SHARES. The Stockholder
agrees that, prior to the termination of this Agreement in accordance with the
terms hereof, it shall not, directly or indirectly, (a) sell, assign, transfer
(including by operation of law), pledge, encumber or otherwise dispose of any of
the Shares, (b) deposit any of the 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 any Shares, or (d) take any action that would make any
representation or warranty of the Stockholder herein untrue or incorrect in
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any material respect or have the effect of preventing or disabling the
Stockholder from performing its obligations hereunder.
Section 4.02 DISCLOSURE. The Stockholder agrees to permit Parent and Merger
Sub to publish and disclose in filings under the securities laws in connection
with the Merger the Stockholder's identity and ownership of Shares and the
nature of its commitments, arrangements and understandings under this Agreement
and other information to the extent required by applicable law.
Section 4.03 REPRESENTATIONS IN MERGER AGREEMENT. The obligations of the
Stockholder under this Agreement shall be subject to the condition that the
representations and warranties set forth in Article IV of the Merger Agreement
shall be true in all material respects on the date of which made and on the date
of any action to be taken by the Stockholder hereunder, and the Stockholder
shall have received a certificate to that effect from Parent.
SECTION 4.04 AMENDMENT OF MERGER AGREEMENT. Parent agrees that it shall not
amend the Merger Agreement without the consent of the Stockholder, which consent
shall not be unreasonably withheld or delayed.
SECTION 4.05 NO PUBLIC TENDER OFFER. The obligation of Stockholder to vote
to approve the Merger Agreement shall be subject to the Stockholder having
reasonably determined that its investment in Parent and the arrangements
contemplated by the memorandum of understanding dated the date hereof between
the Stockholder and Madame Xxxxxxxxx Xxxxxxxx do not require the Shareholder and
Madame Xxxxxxxxx Xxxxxxxx to make a public tender offer for Parent under French
law, or the Conseil des Marches Financiers shall have granted an exemption to
the obligation to file a tender offer.
SECTION 4.06 NOTICES. Parent agrees that it shall provide the Stockholder
with a copy of all notices or other communications delivered to the Company (as
such term is defined in the Merger Agreement) by Parent pursuant to Section 9.02
of the Merger Agreement.
SECTION 4.07 SHORT SWING PROFITS. (a) Neither Parent nor any subsidiary of
Parent shall institute suit or otherwise seek to recover short-swing profits
pursuant to Section 16(b) of the Securities Exchange Act of 1934 (the "1934
Act") that Stockholder or its subsidiaries may realize in connection with the
Merger. (b) In addition, Parent agrees to indemnify Denver and its subsidiaries
for any short-swing profits that Denver or any such subsidiary is required to
pay pursuant to Section 16(b) of the 34 Act as a result of the completion of the
Merger. Notwithstanding any provision to the contrary herein, the obligations of
Parent in this Section 4.07(b) shall be governed by the laws of the Republic of
France.
ARTICLE V
TERMINATION
Section 5.01 TERMINATION. The covenants and agreements contained herein
(other than this Article V and Section 4.07) shall terminate upon the earlier of
(a) the date the Merger Agreement is terminated and (b) the Effective Time.
Nothing in this Section 5.01 shall relieve any party of liability for any breach
of this Agreement.
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ARTICLE VI
MISCELLANEOUS
Section 6.01 ADDITIONAL SHARES. In the event the Stockholder becomes the
beneficial owner of any additional Shares or other securities of the Company and
any securities into which such shares or securities may be converted or
exchanged and any securities issued in replacement of, or as a dividend or
distribution on, or otherwise in respect of, such shares or securities, then the
terms of this Agreement shall apply to such additional securities.
Section 6.02 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such costs and expenses.
Section 6.03 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by an
overnight or expedited courier service, by telecopy (provided that any notice
received by telecopy at the addressee's location on any business day after 5:00
p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m.
(addressee's local time) on the next business day), or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 6.03):
(a) If to Parent or Merger Sub:
Publicis Groupe, S.A.
Xxxxxx xxx Xxxxxx Xxxxxxx
00000 Xxxxx, Xxxxxx
Facsimile: 011-331-44-43-75-50
Attention: M. Xxxxxxx Xxxx
M. Jean-Xxxx Xxxxx
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with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxx
(b) If to the Stockholder:
Dentsu, Inc.
0-00, Xxxxxxx, Xxxx-xx
Xxxxx 000-0000, Xxxxx
Facsimile: (000) 0000-0000
Attention: Xx. Xxxxx Xxxxxx, Managing Director
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx
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 Parent and Merger Sub
may assign all or any of their rights and obligations hereunder to Parent's
ultimate parent company or any direct or indirect subsidiary of Parent or
Parent's ultimate parent company, provided that no such assignment shall relieve
the assigning party of its obligations hereunder if such assignee does not
perform such obligations.
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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 State of Delaware applicable to
contracts executed in and to be performed in that State.
Section 6.10 HEADINGS. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
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 and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
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Section 6.13 FURTHER ASSURANCES. From time to time, at the request of
Parent, in the case of the Stockholder, or at the request of the Stockholder, in
the case of Parent and Merger Sub, and without further consideration, each party
shall execute and deliver or cause to be executed and delivered such additional
documents and instruments and take all such further action as may be reasonably
necessary or desirable to effect the matters contemplated by this Agreement.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned as of the date first above written.
PUBLICIS GROUPE S.A.
By: /S/ Xxxxxxx Xxxx
----------------------------
Name: Xxxxxxx Xxxx
Title: President du Directoire
PHILADELPHIA MERGER CORP.
By: /s/ Xxxx-Xxxx Xxxxx
----------------------------
Name: Xxxx-Xxxx Xxxxx
Title: Treasurer and Secretary
DENTSU, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: President
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