EXHIBIT 2
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AGREEMENT FOR THE TRANSFER OF THE NUE-PROPRIETE
OF CERTAIN PUBLICIS SHARES
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BETWEEN THE UNDERSIGNED
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Wilmington Trust Company, a Delaware banking corporation, acting as Special
Nominee (the "Nominee") for and on behalf of the Former Holders (as defined
below);
AND
DENTSU INC., a company organized under the laws of Japan, ("Dentsu");
together with the Nominee, the "Principal Parties";
AND
PUBLICIS GROUPE S.A., a company organized under the laws of France,
("Publicis") together with the Principal Parties, sometimes referred to
herein as the "Parties", for purposes of Sections 1.1 through 1.1.3, Sections
4.1 through 4.3 and Sections 5.5 through 5.8.
WHEREAS, Publicis, Philadelphia Merger Corp., Philadelphia Merger LLC and
Bcom3 Group, Inc. (the "Company") have entered into an Agreement and Plan of
Merger dated as of March 7, 2002 (as amended from time to time, the "Merger
Agreement"), which provides for the merger of the Company into Philadelphia
Merger Corp. (the "Merger");
WHEREAS, the Company and the Nominee have entered into a Special Nominee
Agreement pursuant to which the Company has engaged the Nominee to act as
"Special Nominee" as contemplated by Section 2.03(a) of the Merger Agreement;
WHEREAS, in such capacity, the Nominee has received the Transfer Shares (as
defined below) on behalf of holders of Class A common stock of the Company on
the effective time of the Merger (the "Former Holders");
WHEREAS, the Company has directed the Nominee to enter into this agreement
(the "Agreement") to implement the provisions of Section 2.03(b) of the
Merger Agreement; and
WHEREAS, in accordance with Section 2.01(a)(ii)(B) and Section 2.03(b) of the
Merger Agreement, Dentsu is to receive the bare legal title (NUE-PROPRIETE)
of the Transfer Shares as part of the Merger Consideration (as such term is
defined in the Merger Agreement), under the terms and conditions of this
Agreement.
IT HAS BEEN AGREED AS FOLLOWS:
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ARTICLE 1 - TRANSFER OF NUE-PROPRIETE BY WAY OF "PRET DE CONSOMMATION"
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1.1 The Transfer
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For and on behalf of the Former Holders, the Nominee hereby transfers
for the Term (as defined below) to Dentsu (sometimes referred to herein
as the "NU-PROPRIETAIRE") by way of a PRET DE CONSOMMATION, pursuant to
Articles 1892 sq. of the French Civil Code and the terms and conditions
set forth in this Agreement, the bare legal title ("NUE-PROPRIETE") to
6,827,629 shares, par value 0.40 euros each, of Publicis (the "Transfer
Shares") free and clear of all pledges, liens, options or encumbrances,
except as otherwise provided in this Agreement (the "Transfer").
Immediately after the Transfer, the Nominee shall transfer to the
Exchange Agent (as such term is defined in Section 2.05 of the Merger
Agreement) for deposit in the Class A Exchange Fund (in each case, as
defined in the Merger Agreement) the usufruct ("USUFRUIT") attached to
such Transfer Shares for distribution to the Former Holders. Each
holder of such usufruct at any time is referred to herein as a
"USUFRUITIER", and all such holders together are referred to herein as
the "USUFRUITIERS".
For purposes of this Agreement, the Transfer Shares shall also be
deemed to include (A) Free Shares as such term is defined in Section
3.2(iv), (B) New Shares as such term is defined in Section 3.3.2, and
(C) New Entity Shares as such term is defined in Section 3.4.1.
1.1.1 Term
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The Transfer shall be for a period commencing on the date hereof and
expiring on the earlier of (i) the second anniversary of the date
hereof, and (ii) the occurrence of any of the events referred to in
Section 1.1.2 (the "Term"). Upon expiration of the Term, the
NUE-PROPRIETE of the Transfer Shares shall automatically revert to the
USUFRUITIERS who, as a consequence, shall from such date hold full
ownership ("PLEINE PROPRIETE") in the Transfer Shares.
1.1.2 Early Termination
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The Transfer shall terminate and the NUE-PROPRIETE of the Transfer
Shares shall revert to the USUFRUITIERS upon the occurrence of any of
the following events (without notice except as otherwise expressly set
forth below):
(i) In the event of a merger of Publicis into another company or split up
("SCISSION") of Publicis with the result, in either case, that Publicis
ceases to exist as a legal entity, and in each case in accordance with
and subject to the provisions of Section 3.4 below.
(ii) On the date of publication of an opening notice (AVIS D'OUVERTURE) for
the launching of a public tender offer (OFFRE PUBLIQUE D'ACHAT OU
D' ECHANGE) for Publicis shares, being understood that such early
termination shall be subject to the provisions of paragraph (B) below.
(A) In the event that a public tender offer (including, as the case
may be, any revised public tender offer and/or any competing
tender offer), whether or not recommended by the Supervisory
Board of Publicis (the "Public Offer") is
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consummated and, as a result, the Transfer Shares are purchased
in such Public Offer, the early termination of the Transfer
pursuant to this Section 1.1.2(ii) shall be deemed to be
irrevocable and shall not be affected by third party claims
contesting the opening or the launching of such Public Offer.
(B) In the event that the Public Offer is NOT consummated and, as a
result, the Transfer Shares are NOT purchased in such Public
Offer, the Principal Parties hereby agree that the early
termination under paragraph (A) above shall be deemed null
and void and this Agreement and the Transfer thereunder shall
automatically re-enter into full force and effect as of the date of
publication of the opening notice (STATU QUO ANTE).
(iii) In case of a final arbitral award, in accordance with Section
5.7, upholding a claim by the Nominee on behalf of the USUFRUITIERS
that Dentsu has committed a material breach of this Agreement, the date
of early termination shall be the 45th day following delivery of notice
of such final award by the Nominee to Publicis and Dentsu.
Notwithstanding the foregoing, in the event that, prior to the
expiration of such 45-day period, Dentsu provides Publicis and the
Nominee with documentary evidence that Dentsu has duly exercised any
right of recourse before a court with jurisdiction, the date of early
termination shall be the date of notification by the Nominee to
Publicis and Dentsu of the final decision of the competent court
upholding the arbitral award referred to in the preceding sentence.
1.1.3 Early Reversion
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In addition to the foregoing, with respect to each Former Holder who is
an individual, in the event of the death of such Former Holder after
the date hereof, the Transfer relating to the USUFRUIT received by such
Former Holder in the Merger shall be deemed to have terminated and
shall terminate as of the day preceding his or her death. Upon such
termination, the relevant NUE-PROPRIETE shall automatically revert to
the USUFRUITIER. Upon Publicis's and Dentsu's receipt from the Nominee
of a "Notice of Early Reversion" in the form attached hereto as Annex
A, Publicis shall, without further notice or action by Dentsu, any
USUFRUITIER or any Former Holder, cause the PLEINE PROPRIETE of the
number of Transfer Shares set forth in such Notice, to be inscribed in
the name of the USUFRUITIER set forth in such Notice. In no event will
Dentsu and/or Publicis have or be deemed to have, any liability to the
USUFRUITIERS as a result of Dentsu's exercising voting rights attached
to the NUE-PROPRIETE prior to Publicis and Dentsu's having received
such Notice of Early Reversion.
ARTICLE 2 - CREATION OF THE USUFRUIT
The USUFRUIT of the Transfer Shares is hereby created for the duration of the
Transfer in accordance with the terms and conditions of Articles 578 to 624
of the French Civil Code and the provisions set forth in this Agreement.
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ARTICLE 3 - RESPECTIVE RIGHTS OF THE NU-PROPRIETAIRE AND USUFRUITIERS
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3.1 Voting rights attached to the NUE-PROPRIETE
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By express agreement between the Principal Parties, the NU-PROPRIETAIRE
shall have all voting rights attached to the Transfer Shares including
without limitation the right to vote in Ordinary, Extraordinary and
Special General Meetings, that may be exercised by the holders of
ordinary shares in accordance with the provisions of the French
Commercial Code and the by-laws of Publicis.
3.2 Economic rights attached to the USUFRUIT
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In accordance with the provisions contained in Article 582 of the French
Civil Code, the USUFRUITIERS shall be entitled to all economic rights
attached to the Transfer Shares.
Without limiting the generality of the foregoing:
(i) Any distribution of dividends within the meaning of Article L.
232-12 of the French Commercial Code shall inure to the
exclusive benefit of the USUFRUITIERS, including any dividends
for which the option to be paid in shares has been exercised.
The Principal Parties expressly agree that only the USUFRUITIER,
and not Dentsu, shall have the right to exercise an option to be
paid dividends in the form of shares. In the event that the
USUFRUITIER exercises such option, the new shares thereby
acquired shall inure to the exclusive benefit of such USUFRUITIER.
In the event of an amount distributed to shareholders from
shareholders' equity (DISTRIBUTION PRELEVEE SUR UN COMPTE DE
CAPITAUX PROPRES), in respect of the Transfer Shares apart from
distributable profits, which distribution supplements a dividend
within the meaning of Article L. 232-12 of the French Commercial
Code (regardless of the amount or respective proportions of the
distributable profits and such supplementary amount), such
distribution shall be deemed to constitute a dividend for the
purposes of this Section 3.2(i) and shall inure to the exclusive
benefit of the USUFRUITIER.
(ii) Any distribution in cash in respect of the Transfer Shares OTHER
than dividends, including but not limited to distributions of
reserves or premiums, reduction of capital, reimbursement of
capital, redemption of capital or a distribution in liquidation
(BONI DE LIQUIDATION) shall be subject to the right of
"QUASI-USUFRUIT" in respect of all such amounts and shall be
enjoyed by the USUFRUITIER pursuant to Article 587 of the
French Civil Code. Pursuant to such Article 587, solely the
USUFRUITIER shall be entitled to receive all such amounts. Upon
termination of the Transfer and the resulting automatic
reversion of the NUE-PROPRIETE to the USUFRUITIER, the
contingent rights of the NU-PROPRIETAIRE against the
USUFRUITIER in respect to such distributions shall be
extinguished under Article 1300 of the French Civil Code as a
result of the debtor thereby acquiring the rights to payment of the
debt (extinction par confusion).
(iii) Subject to the provisions set forth in Section 3.2(iv), in the
event of any distribution in kind in respect of the Transfer
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Shares other than dividends, including but not limited to
distributions of reserves or premiums, reduction of capital,
reimbursement of capital, redemption of capital or a distribution
in liquidation, if and to the extent Dentsu acquires or is deemed
to hold any interest therein, such interest shall automatically
be transferred to the USUFRUITIERS without further consideration,
such that the entire distribution in kind shall inure to the
exclusive benefit of the USUFRUITIERS.
(iv) The Principal Parties agree that (A) in the event of an
attribution of shares of Publicis in respect of the Transfer
Shares, as a result of a reduction or an increase in the nominal
value of the Transfer Shares, or (B) in accordance with
sub-section 3 of Article L. 225-140 of the French Commercial
Code, in the event of a free attribution of shares of Publicis in
respect of the Transfer Shares by way of capitalization of
reserves, profits or premiums giving rise to newly issued shares
of Publicis (the shares set forth in the preceding clauses (A)
and/or (B) being herein referred to as the "Free Shares"), such
Free Shares shall be deemed Transfer Shares for all purposes
under this Agreement, and shall be subject to all of the terms
and conditions of this Agreement for the remainder of the Term.
3.3 Preferential subscription rights
--------------------------------
3.3.1 In accordance with sub-section 4 of Article L. 225-140 of the French
Commercial Code, the Principal Parties agree that the provisions of
sub-sections 1, 2 and 3 of said Article shall not apply and that as a
result, in the event of a capital increase in cash or of any other
issuance giving rise to preferential subscription rights or priority
rights (DROITS DE PRIORITE), the preferential subscription rights or
priority rights attached to the Transfer Shares shall inure to the
exclusive benefit of the USUFRUITIERS.
3.3.2 In the event that some or all of the USUFRUITIERS exercise in whole or
in part such preferential subscription rights or priority rights in
respect of the Transfer Shares, the Principal Parties hereby agree that:
(i) shares subscribed for by any USUFRUITIER in the case of a cash
capital increase; and/or
(ii) shares issued or delivered pursuant to the exercise by any
USUFRUITIER of a right conferred by securities giving access to
Publicis share capital (TITRES DONNANT ACCES AU CAPITAL)
subscribed by such USUFRUITIER
shall be deemed to be Transfer Shares for all purposes of this
Agreement. The transfer of any of the shares referred to in clauses (i)
and (ii) above (the "New Shares") shall automatically take effect upon
the issuance or delivery (as the case may be) of such New Shares and
shall be subject to all of the terms and conditions of this Agreement
for the remainder of the Term.
3.4 Merger or SCISSION
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3.4.1 In the event of a merger of Publicis into another company or a SCISSION
of Publicis, in either case, with the result that Publicis ceases to
exist as legal entity, the Principal Parties hereby agree that Transfer
Shares shall be substituted by means of a SUBROGATION REELLE
CONVENTIONNELLE for the new shares issued of the surviving entity (or
entities) received in exchange for the Transfer Shares as a result of
such merger or SCISSION (the "New Entity Shares"). Such New Entity
Shares shall be deemed to be Transfer Shares for all purposes of this
Agreement and
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shall be subject to all of the terms and conditions of this Agreement
for the remainder of the Term, subject to the provisions of Section
3.4.2. Such SUBROGATION REELLE CONVENTIONNELLE shall enter into full
force and effect upon receipt by the USUFRUITIERS of the New Entity
Shares.
3.4.2 In the event of a merger or SCISSION of Publicis described in Section
3.4.1 that results in (i) those shareholders who were the shareholders
of Publicis immediately prior to the effective date of such merger or
SCISSION, as the case may be, not holding, in the aggregate, a majority
of the outstanding votes and share capital of the surviving entity or
entities on the effective date of such merger or SCISSION, and (ii)
Dentsu's and its Subsidiaries' (as such term is defined in Annex B)
holding on the effective date of such merger or SCISSION, in the
aggregate, less than 10 % of the voting rights in the new entity or
entities (including the voting rights attached to the NUE-PROPRIETE of
the New Entity Shares), then the Transfer of the New Entity Shares shall
terminate as of such effective date.
ARTICLE 4 - RECORDING IN THE SHARE REGISTERS/IMPLEMENTATION OF RIGHTS
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4.1 Publicis shall take all necessary actions to ensure that the
respective rights of the USUFRUITIERs and NU-PROPRIETAIRE pursuant to
this Agreement will (i) be properly reflected within three trading days
in its share registers and (ii) be implemented with respect to voting
rights (Section 3.1) and economic rights (Section 3.2) in each case in
accordance with the provisions of this Agreement. Notwithstanding the
foregoing, Publicis (or Publicis's successor) shall not be obligated to
reflect the termination pursuant to Section 3.4.2 above unless Publicis
(or Publicis's successor) has determined that the condition set forth in
clause (ii) of Section 3.4.2 above has been satisfied based on
Publicis's (or Publicis's successor's) best knowledge of the aggregate
percentage of voting rights held by Dentsu and its Subsidiaries on the
basis of its statutory and/or by-laws threshold notifications
(DECLARATIONS DE FRANCHISSEMENT DE SEUILS STATUTAIRES ET/OU ▇▇▇▇▇▇), its
shareholders' identification requests ("RELEVES DE TITRES AU PORTEUR
IDENTIFIABLE"), the information provided by Dentsu and/or its
Subsidiaries to Publicis pursuant to any agreement entered into with
Dentsu and/or its Subsidiaries, and/or on the basis of any other
information relating thereto required to be filed by it with French
regulatory authorities or otherwise disclosed under French law.
Without limiting the generality of the foregoing, Publicis shall take
all necessary actions to ensure that all necessary and appropriate
inscriptions are made in Publicis's share registers (x) to give effect
to the reversion of the NUE-PROPRIETE of any Transfer Shares to the
USUFRUITIERS and their full ownership (PLEINE PROPRIETE) in such
Transfer Shares as provided herein, and (y) upon issuance and/or
delivery (as the case may be), to inscribe in the Publicis share
registers, Dentsu as the NU-PROPRIETAIRE and the USUFRUITIERS as
USUFRUITIERS of the Free Shares and the New Shares pursuant to the
provisions of, respectively, Sections 3.2(iv) and 3.3.2; IT BEING
PROVIDED, however, that Publicis shall not be responsible for (and the
Principal Parties hereby release Publicis and its officers from
liability in respect of) any delay or failure to make the appropriate
inscriptions in its share registers (except to the extent the same is
attributable to a failure of Publicis to comply with the provisions set
forth in this Agreement) (1) in the case that such delay or failure
results from any dispute or claim arising among the Principal Parties,
or (2) in the case that such delay or failure is caused by an act or an
omission of any of the Principal Parties.
4.2 For the avoidance of doubt, Dentsu shall not be responsible for any
delay or failure to register the full ownership of the Former Holders
in any Transfer Shares in accordance with the terms of this Agreement or
any errors or inaccuracies in connection with such
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registration except to the extent the same is attributable to a failure
of Dentsu to comply with the provisions set forth in this Agreement.
4.3 Upon request of the Nominee, Publicis and Dentsu undertake to provide
promptly to the Nominee copies of all notices and other communications
between them (including without limitation, all notices by Dentsu to
Publicis required by the "STATUTS" of Publicis and all notices by
Publicis to Dentsu or Publicis' calculation percentage of the voting
rights then held by Dentsu) concerning the number of ordinary shares
and/or of the percentage of voting rights of Publicis held by Dentsu and
its Subsidiaries, from time to time during the Term of this Agreement.
Publicis further undertakes to respond to inquiries by the Nominee
and/or Dentsu, at reasonable intervals and from time to time, with
respect to the foregoing, provided that in such case, Publicis'
obligations shall only be to provide such information on the basis of
its share registers, its statutory and/or by-laws threshold
notifications ("DECLARATIONS DE FRANCHISSEMENT DE SEUILS STATUTAIRES
ET/OU ▇▇▇▇▇▇"), its shareholders' identification requests ("RELEVES DE
TITRES AU PORTEUR IDENTIFIABLE") and/or on the basis of any other
information relating thereto required to be filed by it with French
regulatory authorities or otherwise disclosed under French law.
ARTICLE 5 - MISCELLANEOUS PROVISIONS
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5.1 This Agreement shall enter into full force and effect on the date hereof.
5.2 Dentsu undertakes not to transfer in any manner whatsoever the
NUE-PROPRIETE of the Transfer Shares or any interest therein, including
without limitation, by way of sale, contribution, exchange, encumbrance,
swap or otherwise, provided that Dentsu shall be allowed to transfer the
NUE-PROPRIETE of Transfer Shares to any of its wholly owned subsidiaries
that have agreed in advance of such transfer to be bound by the terms of
this Agreement in a writing in form and substance acceptable to the
Nominee.
5.3 Each USUFRUITIER shall have the right to transfer freely to any one or
more individuals, entities or trusts (the "Transferee") the USUFRUIT in
the Transfer Shares and its rights under this Agreement. Notice of any
such transfer shall be given to Dentsu and Publicis by the Nominee, and
Publicis and Dentsu shall be entitled to rely on such notice. Publicis
shall, upon receipt of such notice from the Nominee, cause the
Transferee to be inscribed as the USUFUITIER in the Publicis share
registers.
5.4 Dentsu shall be the registered holder of the Transfer Shares and shall
cause such Transfer Shares to be inscribed in the share registers of
Publicis in pure registered form (NOMINATIF PUR).
5.5 If notwithstanding the express terms of this Agreement and the clear
intentions of the Parties evidenced hereby, Dentsu is deemed to acquire
any economic interest (contingent or otherwise) whatsoever in the
Transfer Shares, Dentsu will be deemed to hold such economic interest
for and on behalf of the USUFRUITIERS and shall promptly take such
action as is necessary to reconvey without further consideration such
economic interest to the USUFRUITIERS and if applicable their respective
Transferee(s). If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law, all other
terms and provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any term or other
provision of this Agreement is invalid, illegal or incapable of being
enforced, the Parties shall negotiate in good faith to modify this
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Agreement so as to effect the original intent of the Parties as closely
as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally
contemplated to the fullest extent possible.
5.6 This Agreement shall be governed and construed in accordance with French
law.
5.7 (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 Paris, France. The arbitration shall be conducted in the English
language, PROVIDED that any Party may submit testimony or documentary
evidence in the French or Japanese language if it furnishes, upon the
request of any other Party, interpretation or translation, as the case
may be, into English of any such testimony or documentary evidence.
(ii) The arbitration shall be conducted by three arbitrators appointed
in accordance with the LCIA Rules provided that any arbitrator appointed
pursuant to this Section 5.7 shall be an expert in French law (an AVOCAT
admitted to practice in France or a Professor of French law). If only
two Parties are party to the arbitration then the arbitral tribunal
shall be formed as set forth in clause (A) to this Section 5.7(ii). If
more than two Parties are party to the arbitration, then the arbitral
tribunal shall be formed as set forth in clause (B) to this Section
5.7(ii).
(A) 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 and shall promptly notify the Parties of such
nomination. If the first two arbitrators appointed fail to
nominate a third arbitrator or so to notify the Parties within
the aforementioned 30 day period, or if the third arbitrator
fails to accept the nomination within 10 days thereafter, then
the LCIA shall nominate the third arbitrator and shall promptly
notify the Parties of the nomination. The third arbitrator so
nominated shall act as Chair of the arbitral tribunal.
(B) If, in the request for arbitration (the "Request"), the
Claimant(s) contend that the Parties are aligned into two
separate sides for the purposes of the formation of the arbitral
tribunal, then the Claimant(s) shall nominate in the Request one
arbitrator for appointment. If the Respondent(s) agree with the
Claimant(s) contention on alignment, then the Respondent(s)
shall, within 30 days of receipt of the Request by the
Respondent(s), nominate one arbitrator for appointment. The
first two arbitrators so nominated shall nominate a third
arbitrator within 30 days after the nomination of the second
arbitrator and shall promptly notify the Parties of such
nomination. If the first two arbitrators nominated fail to
nominate a third arbitrator or so to notify the Parties within
the aforementioned 30 day period, or if the third arbitrator
fails to accept the nomination within 10 days thereafter, then
the LCIA shall nominate the third arbitrator and shall promptly
notify the Parties of the nomination. The third arbitrator so
nominated shall act as Chair of the arbitral tribunal. If,
however, (i) the Respondent(s) do not agree
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with the Claimant(s)contention on alignment within 30 days of
receipt of the Request by the Respondent(s) or (ii) one or more
of the other Parties cited as a Respondent(s) in the Request
objects to such alignment in writing within 15 days after receipt
of the Request by the Respondents, and if the Parties do not then
agree within 15 days thereafter on an alignment of the Parties
into two groups each of which shall appoint an arbitrator, then
all three arbitrators shall be appointed as set forth in the LCIA
Rules' provisions for arbitrations with three or more
parties, the Claimant(s)' nomination of an arbitrator for
appointment in the Request being deemed null and void.
(iii) The arbitral award shall be in writing, state the reasons for the
award, and be final and binding on the parties to the arbitration. 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.
(iv) Nothing in Section 5.7 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 5.7, 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.
5.8 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:
(a) If to Dentsu, to:
Dentsu Inc.
▇-▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
with copies to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
Debevoise & ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇)
Fax: ▇▇-▇-▇▇-▇▇-▇▇-▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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or to such other address as Dentsu may have designated by notice
hereunder; and
(b) if to Publicis, to:
Publicis Groupe S.A.
▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇)
Fax: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
Attention: M. ▇▇▇▇▇▇▇ ▇▇▇▇
M. Jean-▇▇▇▇ ▇▇▇▇▇
With a copy to:
Darrois Villey Maillot Brochier
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 16
Fax: (▇▇-▇) ▇▇-▇▇-▇▇-▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
or to such other address as Publicis may have designated by
notice hereunder; and
(c) if to the Nominee or any Former Holder, to:
Wilmington Trust Company
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Custody
With a copy to:
White & Case LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
or to such other address as the Nominee may have designated by
notice hereunder.
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 copy of
such communication also being sent by reputable overnight courier).
Executed on September 24, 2002
In seven (7) originals
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DENTSU WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ --------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and CEO Title: Authorized Signer
PUBLICIS
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-In-Fact
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Annex A
NOTICE OF EARLY REVERSION
FROM : Wilmington Trust Company
TO: DENTSU
CC: PUBLICIS
Wilmington Trust Company hereby informs Publicis and Dentsu that, pursuant to
Section 1.1.3 of the Agreement for the Transfer of certain Publicis shares
between Dentsu, Publicis and Wilmington Trust Company acting on behalf of the
USUFRUITIERS, dated September 24, 2002 (the "Usufruct Agreement"), Wilmington
Trust Company has received the attached notice of death of [NAME OF THE
FORMER HOLDER].
In accordance with Section 1.1.3 of the Usufruct Agreement, the NUE-PROPRIETE
of [NUMBER] Transfer Shares reverts, as of the date of the day preceding the
death of the Former Holder, to [Name, address of USUFRUITIER] as USUFRUITIER
of such [Number] Transfer Shares, and Publicis is hereby instructed to
inscribe the pleine propriete of such Transfer Shares in the name of
[USUFRUITIER].
----------------
For Wilmington Trust Company
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ATTACHED ATTESTATION OF DEATH OF A FORMER HOLDER
TO BE SIGNED BY ANY PERSON INFORMING THE NOMINEE OF THE DEATH OF A FORMER
HOLDER IN ACCORDANCE WITH SECTION 1.1.3 OF THE AGREEMENT AND TO WHICH SHALL
BE ATTACHED COPY OF A DEATH CERTIFICATE OR ANY OTHER OFFICIAL DOCUMENT
(INCLUDING FROM THE DECEASED'S TREATING PHYSICIAN) EVIDENCING THE DEATH OF
SUCH FORMER HOLDER.
FROM :[____]
TO: Wilmington Trust Company
I:
[NAME, ADDRESS, RELATIONSHIP WITH THE DECEASED]
hereby informs Wilmington Trust Company that [NAME OF THE FORMER HOLDER] died
in [PLACE OF DEATH: CITY, STATE, COUNTRY ] on [DATE OF DEATH], as documented
by [NAME OF OFFICIAL DOCUMENT] attached to this notice.
This attestation is being given in accordance with Section 1.1.3 of the
Agreement for the Transfer of the NUE-PROPRIETE of certain Publicis shares
between Dentsu, Publicis and Wilmington Trust Company acting on behalf of the
USUFRUITIERs, dated September 24, 2002.
[DATE]
________________
[NAME]
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Annex B
DEFINITION OF SUBSIDIARY
"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), an English translation of which is provided for below.
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;
c. There is a contract controlling the decision-making of the
material policy of finance, operation or business of another corporation;
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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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