OPTION AND VOTING AGREEMENT
OPTION AND VOTING AGREEMENT (the "Agreement"), dated as of April
29, 1999, among the undersigned stockholders (the "Stockholders") of Market
Facts, Inc., a Delaware corporation (the "Company"), and Aegis Group plc, a
company incorporated under the laws of England and Wales ("Aegis").
WHEREAS, concurrently with the execution of this Option and Voting
Agreement, the Company and Aegis have entered into an Agreement and Plan of
Merger (as the same may be amended from time to time, the "Merger
Agreement"), pursuant to which Aegis or a subsidiary of Aegis shall commence
(within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934,
as amended (the "1934 Act") an offer to purchase up to 100% of the shares of
the common stock, par value $1.00 per share, of the Company (the "Company
Common Stock") at a price of not less than $31.00 per share net to the
selling stockholder in cash (the "Offer") and, upon the consummation thereof,
shall cause to be effected a merger between the Company and a subsidiary of
Aegis;
WHEREAS, the Offer shall have as one of its conditions that not
less than a majority of the shares of Company Common Stock (on a fully
diluted basis), when added without duplication to the shares that are then
subject to this Agreement but have not been tendered in the Offer, shall have
been tendered and not withdrawn;
WHEREAS, in order to induce Aegis to enter into the Merger
Agreement, the Stockholders wish to agree (i) to grant Aegis an option to buy
the Shares (as defined below) at the Option Price (as defined below), (ii) to
vote the Shares, any other such shares of Company Common Stock and any shares
of Series B Preferred Stock, no par value, of the Company (the "Company
Preferred Stock") owned by the Stockholders (the "Preferred Shares"), so as
to facilitate consummation of the Offer, (iii) not to transfer or otherwise
dispose of any of the Shares or Preferred Shares, or any other shares of
Company Common Stock or Company Preferred Stock acquired hereafter and prior
to the Expiration Date (as defined below) and (iv) to deliver an irrevocable
proxy to vote the Shares and the Preferred Shares to Aegis.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders
represents and warrants to Aegis that now and at all times during the term of
this Agreement (a) such Stockholder lawfully owns beneficially (as such term
is defined in the Securities Exchange Act of 1934, as amended (the "1934
Act")) and of record each of the shares of Company Common Stock set forth
opposite such Stockholder's name on Exhibit A (such Stockholder's "Shares")
and each of the shares of Company Preferred Stock set forth opposite such
Stockholder's name on Exhibit A, free and clear of all liens, pledges,
claims, charges, security interests or other encumbrances of any kind (except
as otherwise noted on Exhibit A) and, except for this Agreement, there are no
options, warrants or other rights, agreements, arrangements or commitments of
any character to which such Stockholder is a party relating to the pledge,
disposition or voting of any shares of Company Common Stock or Company
Preferred Stock and there are no voting trusts or voting agreements with
respect to such Shares or Preferred Shares, (b) such Stockholder does not
beneficially own any shares of Company Common Stock or Company Preferred
Stock other than such Shares and Preferred Shares and does not have any
options, warrants or other rights to acquire any additional shares of Company
Common Stock or Company Preferred Stock or any security exercisable for or
convertible into shares of Company Common Stock or Company Preferred Stock,
except for options, warrants and/or other rights granted, awarded or issued
pursuant to the Market Facts 1996 Stock Plan, (c) except as noted in Exhibit
A, such Stockholder has full right, power and authority to enter into,
execute and deliver this Agreement and to perform fully its obligations
hereunder, and (d) except as noted in Exhibit A, the execution, delivery and
performance of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, constitute or result in (i) if
applicable, a breach or violation of, or a default under, its certificate or
by-laws or the comparable governing instruments, (ii) a breach or violation
of, or a default under, the acceleration of any obligations or the creation
of a lien on its assets (with or without notice, lapse of time or both)
pursuant to any agreement, lease, contract, note, mortgage, indenture,
arrangement or other obligation binding upon it or any of its assets or any
laws or governmental or non-governmental permit or license to which it is
subject or (iii) any change in the rights or obligations of any party under
any such agreement, lease, contract, note, mortgage, indenture, arrangement
or other obligation, including, without limitation, any change in rights of
reimbursement, termination, cancellation or modification except, with respect
to clauses (ii) and (iii), for any breach, violation, default, acceleration,
creation or change that, individually or in the aggregate, is not reasonably
likely to prevent, materially delay or materially impair the ability of such
Stockholder to consummate the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered and constitutes the
legal, valid and binding obligation of such Stockholder in accordance with
its terms, except as the enforcement hereof may be limited by general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
2. THE OPTION.
(1) Each Stockholder hereby grants to Aegis or its Permitted
Assign (the "Holder") an unconditional, irrevocable option (the "Option") to
purchase, subject to the terms hereof, all but not fewer than all of the
Shares and New Shares (as defined in Section 7 hereof) at any time on or
prior to the Expiration Date if after the date of this Agreement a Takeover
Proposal (as hereinafter defined) has been made. "Takeover Proposal" means,
any proposal or offer, other than by Aegis or any Affiliate thereof, for a
"Competing Transaction" (as such term is defined in Section 6.5 of the Merger
Agreement). Following the occurrence of a Takeover Proposal, Holder may
purchase the Shares and New Shares at a purchase price of $31.00 per Share
and New Share. The purchase price per share set forth in the immediately
preceding sentence, as adjusted pursuant to paragraph 2(b) below, is
hereinafter referred to as the "Option Price." If the Holder wishes to
exercise the Option, it shall send to the Stockholder a written notice (the
date of which is referred
-2-
to herein as the "Notice Date") on or prior to the Expiration Date specifying
(i) the total number of shares that the Holder will purchase from such
Stockholder pursuant to such exercise, which must be all of the Shares and
New Shares, and (ii) a place and date (a "Closing Date") not later than the
later of (A) two (2) business days following the expiration or earlier
termination of any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and (B) one (1) business day
following the consummation of the Offer, for the closing of such purchase (a
"Closing"). At each Closing, the Holder shall pay to such Stockholder the
aggregate purchase price for the Shares or New Shares purchased pursuant to
the exercise of the Option in immediately available funds by a wire transfer
to a bank account designated by such Stockholder; provided that failure or
refusal of such Stockholder to designate such a bank account shall not
preclude the Holder from exercising the Option. At such Closing,
simultaneously with the payment of the aggregate Option Price by the Holder,
such Stockholder shall deliver to the Holder a certificate or certificates
representing the number of Shares or New Shares purchased by the Holder
accompanied by duly executed stock powers. The Stockholders agree that they
will not tender the Shares into the Offer, without the prior written consent
of the Holder.
(2) Aegis shall purchase all Shares held by each Stockholder
by 11:59 p.m. on the first business day immediately following the purchase of
Company Common Stock pursuant to the Offer at the Option Price. Payment of
the aggregate Option Price for the Shares on such date shall be in
immediately available funds by a wire transfer to a bank account designated
by each Stockholder; provided that failure or refusal of any Stockholder to
designate such a bank account shall not preclude the Holder from purchasing
the Shares. At such Closing, simultaneously with the payment of the aggregate
Option Price by the Holder, such Stockholder shall deliver to the Holder a
certificate or certificates representing the number of Shares or New Shares
purchased by the Holder accompanied by duly executed stock powers.
(3) If at any time the Company shall (i) pay a dividend
(other than regular cash dividends) or otherwise make a distribution to the
holders of Company Common Stock, (ii) subdivide its outstanding shares of
Company Common Stock into a larger number of shares of Company Common Stock
or combine its outstanding shares of Company Common Stock into a smaller
number of shares of Company Common Stock (iii) reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
entity or sell, transfer or otherwise dispose of all or substantially all of
its property, assets or business to another entity or (iv) engage in any
similar dilutive transaction, the parties agree to adjust the Option Price
and/or the number of Shares or New Shares or other securities or property
subject to the Option as necessary and equitable in order to ensure that
Aegis shall receive, upon exercise of the Option, the number of Shares or New
Shares or other securities or property which Aegis would have received in
connection with or as a result of such dividend, distribution or other
transaction, if it had exercised the Option immediately prior to (i) the
record date for any such dividend or other distribution or (ii) the effective
time of any such other transaction.
3. AGREEMENT TO VOTE SHARES; GRANT OF IRREVOCABLE PROXY;
AGREEMENT TO GRANT FURTHER PROXIES. During the term of this Agreement each
of the Stockholders shall vote such
-3-
Stockholder's Shares and any New Shares and such Stockholder's Preferred
Shares and any New Preferred Shares for the closing of the Merger (a
"Closing"), and cause any holder of record of such Shares or New Shares and
Preferred Shares or New Preferred Shares to vote, (a) in favor of adoption
and approval of the transactions contemplated by the Merger Agreement at
every meeting of the stockholders of the Company at which such matters are
considered and at every adjournment or postponement thereof, (b) against any
action or agreement that could reasonably be expected to impede, interfere
with or otherwise materially adversely affect the Merger or inhibit the
timely consummation of the Merger, (c) against any action or agreement that
could reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation of the Company under the
Merger Agreement, and (d) except for the Merger, against any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
subsidiaries.
The undersigned, for consideration received, hereby appoints
Xxxxxxx Xxxxx, Xxxxx Xxx and Xxxxxxxx Xxxxxxxxx, and each of them its
proxies, with power of substitution and resubstitution, to vote all Shares
and New Shares and Preferred Shares and New Preferred Shares of the Company
owned by the undersigned at any meeting of stockholders of the Company, and
at any adjournment or postponement thereof or to give consent with respect to
such Shares or New Shares and Preferred Shares or New Preferred Shares (i)
FOR approval and adoption of the Merger and (ii) AGAINST (x) any action or
agreement that could reasonably be expected to impede, interfere with or
otherwise materially adversely affect the Merger or inhibit the timely
consummation of the Merger, (y) any action or agreement that could reasonably
be expected to result in a breach of any covenant, representation or warranty
or any other obligation of the Company under the Merger Agreement and (z)
except for the Merger, any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of the Company or its subsidiaries. This proxy is coupled
with an interest, revokes all prior proxies granted by the undersigned and is
irrevocable until the Expiration Date or such other time as this Agreement
terminates in accordance with its terms.
Each Stockholder further agrees to deliver to Aegis upon request
one or more additional proxies substantially in the form attached hereto as
Exhibit B, which proxy shall be irrevocable for the period specified for
irrevocability in the prior paragraph to the extent permitted under Delaware
law.
4. NO VOTING TRUSTS. Each of the Stockholders shall not, and
shall not permit any entity under its control to, deposit any of their Shares
or New Shares or Preferred Shares or New Preferred Shares in a voting trust
or subject any of their Shares or New Shares or Preferred Shares or New
Preferred Shares to any arrangement with respect to the voting of such Shares
or New Shares or Preferred Shares or New Preferred Shares (including,
without limitation, the granting of proxies) other than agreements entered
into with Aegis.
5. NO PROXY SOLICITATIONS. Each of the Stockholders shall not,
and shall not permit any entity under such Stockholder's control to, (a)
solicit proxies or become a "participant"
-4-
in a "solicitation" (as such terms are defined in Regulation 14A under the
0000 Xxx) in opposition to or competition with the consummation of the Merger
or otherwise encourage or assist any party in taking or planning any action
which could reasonably be expected to impede, interfere with or otherwise
materially adversely affect the Merger or inhibit the timely consummation of
the Merger in accordance with the terms of the Merger Agreement, (b) directly
or indirectly initiate or cooperate in a stockholders' vote or action by
consent of the Company's stockholders in opposition to or in competition with
the consummation of the Merger, or (c) become a member of a "group" (as such
term is used in Section 13(d) of the 0000 Xxx) with respect to any voting
securities of the Company for the purpose of opposing or competing with the
consummation of the Merger; provided that the foregoing shall not restrict
any director or officer of the Company from taking any action such director
or officer reasonably believes after consultation with outside counsel is
necessary to satisfy such director's or officer's fiduciary duty as a
director or officer of the Company or its stockholders.
6. TRANSFER AND ENCUMBRANCE. On or after the date hereof and
until the Expiration Date, each of the Stockholders shall not transfer, sell,
offer, assign, exchange, pledge or otherwise dispose of or encumber any of
such Stockholder's Shares or New Shares or Preferred Shares or New Preferred
Shares or enter into any contract, option or other arrangement with respect
to any of the foregoing except that a Stockholder may transfer Shares or New
Shares or Preferred Shares or New Preferred Shares held thereby to any
partner of such Stockholder so long as the transferee shall agree to be bound
by this Agreement.
7. ADDITIONAL PURCHASES. Each of the Stockholders shall not
purchase or otherwise acquire beneficial ownership of any shares of Company
Common Stock ("New Shares") or Company Preferred Stock ("New Preferred
Shares") after the execution of this Agreement, nor will any Stockholder
voluntarily acquire the right to vote or share in the voting of any shares of
Company Common Stock or Company Preferred Stock other than the Shares and the
Preferred Shares, respectively, unless such Stockholder agrees to deliver to
Aegis immediately after such purchase or acquisition an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such
New Shares or New Preferred Shares. Each of the Stockholders also severally
agrees that any New Shares or New Preferred Shares acquired or purchased by
him or her shall be subject to the terms of this Agreement to the same extent
as if they constituted Shares or Preferred Shares.
8. SPECIFIC PERFORMANCE. Each party hereto acknowledges that it
will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of
any such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto agrees that injunctive relief or
other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of
such relief on the basis that the other party has an adequate remedy at law.
Each party hereto agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any
other party's seeking or obtaining such equitable relief.
-5-
9. PUBLICITY. Each Stockholder, in its capacity as such, and not
as a director or officer of the Company, hereby agrees that it shall, when
acting in its capacity as a Stockholder of the Company and not as a director
or officer thereof, obtain the written permission of Aegis prior to issuing
any press release or otherwise making public announcements with respect to
the transactions contemplated by this Agreement and prior to making any
filings with any third party and/or any governmental entity (including any
national securities exchange or interdealer quotation service) with respect
thereto, except as may be required by law.
10. EXPENSES. Each party shall bear its own expenses with
respect to the review, execution, delivery and performance of this Agreement.
11. NON-ASSIGNMENT; ENTIRE AGREEMENT. Aegis shall not assign any
of its rights under this Agreement except to Aegis Acquisition Corp., or to
such other assignee (a "Permitted Assign") as may be permitted under, or
which assumes Aegis' obligations under, the Merger Agreement. This Agreement
supersedes all prior agreements, written or oral, among the parties hereto
with respect to the subject matter hereof and, together with the Merger
Agreement, contains the entire agreement among the parties with respect to
the subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all the parties hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
12. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
facsimile or like transmission and on the next business day when sent by
Federal Express, Express Mail or other reputable overnight courier service to
the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
If to Aegis:
Aegis Group plc
00X Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX0 X0XX, Xxxxxx Xxxxxxx
Attention: Xxxxxxx Xxxxx, Chief Executive Officer
Facsimile: (00) 000 000 0000
With a copy to:
Aegis Group plc
0 Xxxxx xx Xxxxxxx
00000 Xxxxx Xx Defense
-0-
Xxxxx 000
Xxxxxx
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
Facsimile: (00) 0 00 00 00 00
and to:
Xxxxxxxx Xxxxxxxxxx & Xxxxx LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to a Stockholder, to the address or facsimile number set forth
for such Stockholder on the signature page hereof.
13. MISCELLANEOUS.
(1) This agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance
with the laws of the State of Delaware without regard to the conflict of law
principles of the State of Delaware or any other jurisdiction that would call
for the application of the law of any jurisdiction other than the State of
Delaware. The parties hereby irrevocably submit to the exclusive
jurisdiction of the courts of the State of California and the Federal courts
of the United States of America located in the State of California solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that
the venue thereof may not be appropriate or that this Agreement may not be
enforced in or by such courts, and the parties hereto irrevocably agree that
all claims with respect to such action or proceeding shall be heard and
determined in such a California State or Federal court. The parties hereby
consent to and grant any such court jurisdiction over the person of such
parties and over the subject matter of such dispute and agree that mailing of
process or other papers in connection with any such action or proceeding in
the manner provided in Section 12 or in such other manner as may be permitted
by law shall be valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES
-7-
AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 13(a).
(2) The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability or the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may
be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such 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.
(3) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(4) This Agreement shall terminate upon the earliest to occur
of (i) the closing of the Merger, (ii) 11:59 p.m. on the first business day
immediately following the expiration of the Offer or the consummation of the
purchase of the Company Common Stock pursuant to the Offer, (iii) in the
event that the Merger Agreement shall have been terminated prior to any
Takeover Proposal having been made, the termination date of the Merger
Agreement, (iv) the date specified in a written agreement duly executed and
delivered by Aegis and each of the Stockholders, and (v) November 2, 1999
(the earliest such date, the "Expiration Date"); provided, however, that if
Aegis shall have exercised the Option in accordance with the terms of Section
2 hereof on or before the date that would otherwise have been the Expiration
Date, the Expiration Date shall be the date of the Closing under Section 2.
(5) Each party hereto shall execute and deliver such
additional documents as may be necessary or desirable to effect the
transactions contemplated by this Agreement.
(6) All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
-8-
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
Aegis Group plc
By: ____________________________
Name:
Title:
THE STOCKHOLDERS:
_____________________________
Name:
Address:
Facsimile:
_____________________________
Name:
Address:
Facsimile:
-9-
EXHIBIT A
LIST OF STOCKHOLDERS OF
THE COMPANY
NAME # SHARES OF COMMON STOCK
---- ------------------------
Xxxxx X. Xxxxxxxxx 64,198
Xxxxxxxx X. Xxxxxx 118,171
Xxxxxxx X. Oyster 4,800
Xxxxxx X. Xxxxx 144,494
Xxxxxxx X. Xxxxxxxx 251,794
Xxx X. Xxxxxxxx 2,042,732*
Xxxxxxx X. Xxxxxxxx 134,295
MFI Investors, L.P. 2,037,332
* Includes 2,037,332 shares held by MFI Investors, L.P.
-10-
EXHIBIT B
FORM OF PROXY
The undersigned, for consideration received, hereby appoints
Xxxxxxx Xxxxx and Xxxxx Xxx and each of them his or her proxies, with power
of substitution and resubstitution, to vote all shares of common stock, par
value $1.00 per share, and Series B Preferred Stock, no par value (the
"Capital Stock"), of Market Facts, Inc., a Delaware corporation (the
"Company"), owned by the undersigned at any meeting of stockholders of the
Company, and at any adjournment or postponement thereof or to give consent
with respect to such shares (i) FOR approval of a merger between a subsidiary
of Aegis Group plc, a corporation organized under the laws of England and
Wales ("Aegis"), and the Company in accordance with an Agreement and Plan of
Merger, dated as of April 29, 1999, between Aegis and the Company (the
"Merger"), and (ii) AGAINST (x) any action or agreement that could reasonably
be expected to impede, interfere with or otherwise materially adversely
affect the Merger or inhibit the timely consummation of the Merger, (y) any
action or agreement that could reasonably be expected to result in a breach
of any covenant, representation or warranty or any other obligation of the
Company under the Merger Agreement and (z) except for the Merger, any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
subsidiaries. This proxy is coupled with an interest, revokes all prior
proxies granted by the undersigned and is irrevocable until such time as the
Option and Voting Agreement, dated as of ____________________, 1999, among
certain stockholders of the Company, including the undersigned, and Aegis
terminates in accordance with its terms.
Dated _______________, 1999
__________________________
(Name of Stockholder)
__________________________
(Signature of Stockholder)
