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and not withdrawn;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.
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(a) 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 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.
(b) 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.
(c) 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 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" 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.
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 La Defense
Cedex 106
France
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.
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(a) 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 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).
(b) 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.
(c) 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.
(d) 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.
(e) Each party hereto shall execute and deliver such additional
documents as may be necessary or desirable to effect the transactions
contemplated by this Agreement.
(f) 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.
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:
EXHIBIT A
LIST OF STOCKHOLDERS OF
THE COMPANY
NAME # SHARES OF COMMON STOCK
---- ------------------------
Xxxxxxx X. Oyster 4,800
Xxx X. Xxxxxxxx 2,042,732*
MFI Investors, L.P. 2,037,332
* Includes 2,037,332 shares held by MFI Investors, L.P.
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)
