STOCK PURCHASE AGREEMENT
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Stock Purchase Agreement (this "Agreement"), dated as of March 12, 1998,
between The Great Universal Stores P.L.C., a corporation incorporated under the
laws of England ("Parent"), and ____________________ ("Executive").
WHEREAS, Executive owns (both beneficially and of record) __________ shares
(together with any shares to be issued to Executive on or about March 31, 1998
pursuant to the Company's Stock Purchase Plan) (the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Metromail Corporation, a Delaware
corporation (the "Company"), and options (the "Options") to acquire ___________
shares of Common Stock (the shares issuable upon exercise of the Options are
referred to herein as the "Option Shares"); and
WHEREAS, concurrently herewith, Parent and an indirect wholly owned
subsidiary of Parent ("Purchaser") are entering into an agreement and plan of
merger with the Company, dated as of March 12, 1998 (the "Merger Agreement"),
pursuant to which Purchaser has agreed to make a cash tender offer (the "Offer")
for, among other things, all outstanding shares of Common Stock at $31.50 per
share (or any higher price paid in the Offer, the "Offer Price"), net to the
seller in cash, to be followed by a merger of Purchaser with and into the
Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that Executive agree, and in order to
induce Parent to enter into the Merger Agreement, Executive has agreed, among
other things, (i) to exercise the Options and sell the Shares and the Option
Shares to Parent, (ii) to appoint Parent as Executive's proxy to vote the Shares
and the Option Shares, and (iii) with respect to certain questions put to
stockholders of the Company for a vote, to vote the Shares and the Option
Shares, in each case, in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Purchase and Sale of Shares.
1.1. Purchase of Shares. On the terms and subject to the conditions
set forth in this Agreement, on (and assuming the occurrence of) the
Closing Date (as defined herein), Parent will purchase from the Executive,
and the Executive will sell and transfer to the Parent, all of the Shares
and the Option Shares at a purchase price per share equal to the Offer
Price, free and clear of all mortgages, pledges, security interests,
encumbrances, liens, options, debts, charges, claims and restrictions of
any kind.
1.2. Conditions to Closing. The obligations of the parties to
consummate the transactions contemplated by Section 1.1 hereof are subject
to the following conditions: (a) any waiting period under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
applicable to the delivery of the Shares and the Option Shares shall have
expired or been terminated; and (b) there shall be no preliminary or
permanent injunction or other order by any court of competent jurisdiction
restricting, preventing or prohibiting the delivery of the Shares or the
Option Shares. Parent and the Executive shall each promptly after the date
hereof make such filings and provide such information as may be required
under the HSR Act with respect to the sale of the Shares and the Option
Shares.
1.3. Closing. Subject to the conditions contained in this Agreement,
the closing of the transactions contemplated by Section 1.1 hereof (the
"Closing") shall occur at a site designated by Parent simultaneously with
the acceptance by Purchaser of the shares of Common Stock validly tendered
and not withdrawn pursuant to the terms of the Offer in accordance with the
terms and conditions of the Offer and the Merger Agreement (the "Closing
Date"). Prior to the Closing, Executive shall exercise all of the Options,
pay the Company the aggregate exercise price thereof in cash and obtain a
certificate evidencing all of the Option Shares duly executed by the
Company and registered in the name of Executive. Notwithstanding anything
in the agreements evidencing the Options to the contrary, the Executive
shall not pay the Company the exercise price of the Options in any
consideration other than cash (whether by cashless exercise or otherwise).
At the Closing and subject to the conditions contained in this Agreement,
Parent hereby directs Executive to deliver to Purchaser a certificate or
certificates evidencing the Shares and the Option Shares, each such
certificate being duly endorsed in blank and accompanied by such stock
powers and such other documents as may be necessary in Purchaser's judgment
to transfer record ownership of the Shares and the Option Shares into
Purchaser's name on the stock transfer books of the Company, and Parent
will purchase the Shares and the Option Shares at a purchase price equal to
the Offer Price. All payments made by Parent to Executive pursuant to this
Section 1.3 shall be made by wire transfer of immediately available funds
to an account designated by Executive or by certified bank check payable to
Executive, in an amount equal to the sum of the product of (i) the Offer
Price and (ii) the total number of Shares and Option Shares delivered at
the Closing.
1.4. Adjustments Upon Changes in Capitalization. In the event of any
change in the number of issued and outstanding shares of Common Stock by
reason of any stock dividend, subdivision, merger, recapitalization,
combination, conversion or exchange of shares, or any other change in the
corporate or capital structure of the Company (including, without
limitation, the declaration or payment of an extraordinary dividend of cash
or securities) which would have the effect of diluting or otherwise
adversely affecting Parent's rights and privileges under this Agreement,
the number and kind of the Shares and the Option Shares and the
consideration
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payable in respect of the Shares and the Option Shares shall be
appropriately and equitably adjusted to restore to Parent its rights and
privileges under this Agreement.
1.5. Tender of Shares and Option Shares. Upon the request of Parent
after 11:59 p.m., Chicago time, on March 30, 1998, Executive agrees to
tender and sell to Purchaser pursuant to the Offer all of the Shares and
the Option Shares. If requested by Parent to so tender and sell the Shares
and the Option Shares, Executive shall exercise all of the Options, pay the
Company the aggregation exercise price thereof in cash and obtain a
certificate evidencing all of the Option Shares duly executed by the
Company and registered in the name of Executive. Notwithstanding anything
in the agreements evidencing the Options to the contrary, Executive shall
not pay the Company the exercise price of the Options in any consideration
other than cash (whether by cashless exercise or otherwise). If requested
by Parent to so tender and sell the Shares and the Option Shares, Executive
agrees that Executive shall deliver to the depository for the Offer for
receipt prior to the Expiration Date (as defined in the Offer) of the
Offer, either a letter of transmittal together with the certificates for
the Shares and the Option Shares, if available, or a "Notice of Guaranteed
Delivery", if the Shares or the Option Shares are not available.
Stockholder agrees not to withdraw any Shares or Option Shares tendered
into the Offer.
2. Representations and Warranties of Executive. Executive hereby
represents and warrants to Parent as follows:
2.1. Title. Executive is the owner (both beneficially and of record)
of the Shares and the Options. Except for the Shares and the Options,
Executive is not the record or beneficial owner (as defined in the Merger
Agreement) of, and does not have any other rights of any nature to acquire
any additional shares of, any shares of capital stock of the Company. All
of the Options are fully vested and exercisable, and any acceleration of
the vesting of the Options has been duly and validly authorized by all
necessary corporate action on the part of the Company. Executive owns all
of the Shares and, upon exercise of the Options and payment therefor, will
own all of the Option Shares, in each case free and clear of all security
interests, liens, claims, pledges, options, restrictions, rights of first
refusal, agreements, limitations on Executive's voting rights, charges and
other encumbrances of any nature whatsoever, and, except as provided in
this Agreement, Executive has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to any of the Shares
or the Option Shares. The Executive has sole power of disposition with
respect to all of the Shares and the Option Shares and sole voting power
with respect to the matters set forth in Section 5 hereof. Upon the
delivery to Parent by Executive of a certificate or certificates evidencing
the Shares and the Option Shares, Parent will receive good, valid and
marketable title to the Shares and the Option Shares, in each case free and
clear of all security interests, liens, claims,
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pledges, options, restrictions, rights of first refusal, agreements,
limitations on Parent's voting rights, charges and other encumbrances of
any nature whatsoever.
2.2. Authority Relative to This Agreement. Executive has all
necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Executive and, assuming the due authorization, execution and
delivery by Parent, constitutes a legal, valid and binding obligation of
Executive, enforceable against Executive in accordance with its terms.
2.3. No Conflict. The execution and delivery of this Agreement by
Executive does not, and the performance of this Agreement by Executive will
not, (a) except for any filings required under the HSR Act and for
requirements of federal and state securities laws, require any consent,
approval, authorization or permit of, or filing with or notification to,
any governmental or regulatory authority, domestic or foreign, or (b)
conflict with, violate or result in any breach of or constitute a default
under (or an event which with notice or lapse of time or both would become
a default under) any agreement, judgment, injunction, order, law, rule,
regulation, decree or arrangement to which Executive is a party or is
bound.
2.4. Brokers. Except for Xxxxxx Brothers Inc., whose fees will be
paid by the Company and a true and correct copy of whose engagement letter
has been provided by Purchaser, no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Executive.
3. Representations and Warranties of Parent. Parent hereby represents
and warrants to Executive as follows:
3.1. Authority Relative to This Agreement. Parent has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and the
consummation by Parent of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part
of Parent. This Agreement has been duly and validly executed and delivered
by Parent and, assuming the due authorization, execution and delivery by
Executive, constitutes a legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms.
3.2. No Conflict. The execution and delivery of this Agreement by
Parent does not, and the performance of this Agreement by Parent will not,
(a) except for any filings required under the HSR Act and for requirements
of federal and state securities laws, require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign,
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(b) conflict with or violate the certificate of incorporation or bylaws of
Parent, (c) conflict with, violate or result in any breach of or constitute
a default under (or an event which with notice or lapse of time or both
would become a default under) any agreement, judgment, injunction, order,
law, rule, regulation, decree or arrangement applicable to Parent or by
which any property or asset of Parent is bound or affected, other than, in
the case of clause (c), any such conflicts, violations, breaches or
defaults that, individually or in the aggregate, would not materially
impair the ability of Parent to perform its obligations hereunder.
3.3. Brokers. Except for Bear Xxxxxxx & Co. Inc., whose fees will be
paid by Parent, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission from Executive in connection
with the transactions contemplated hereby based upon arrangements made by
or on behalf of Parent.
3.4. Investment Intent. Parent hereby represents that any securities
it purchases pursuant to this Agreement are being purchased for its own
account for investment and not with a view to, or for sale in connection
with, any public distribution thereof
4. Covenants of Executive.
4.1. No Disposition or Encumbrance. Executive hereby covenants and
agrees that, except as contemplated by this Agreement and except pursuant
to the Offer, Executive shall not, and shall not offer or agree to, sell,
transfer, tender, assign, hypothecate or otherwise dispose of, or create or
permit to exist any security interest, lien, claim, pledge, option,
restriction, right of first refusal, agreement, limitation on Executive's
voting rights, charge or other encumbrance of any nature whatsoever with
respect to the Shares, the Options or the Option Shares now owned or that
may hereafter be acquired by Executive.
4.2. No Solicitation of Transactions. Executive and his affiliates
shall not, and Executive and his affiliates shall use their best efforts to
ensure that Executive's representatives and agents (including, but not
limited to, investment bankers, attorneys and accountants) and his
affiliates' officers, directors, employees, representatives and agents
(including, but not limited to, investment bankers, attorneys and
accountants) do not, directly or indirectly, encourage, solicit,
participate in or initiate discussions or negotiations with, or provide any
information to, any corporation, partnership, person or other entity or
group (other than Parent, any of its affiliates or representatives)
concerning any proposal or offer to acquire all or a substantial part of
the business or properties of the Company or any of its subsidiaries or any
capital stock of the Company or any of its subsidiaries, whether by merger,
tender offer, exchange offer, sale of assets or similar transaction
involving the Company or any subsidiary, division or operating or principal
business unit of the
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Company (an "Acquisition Proposal"), unless the Company is permitted to do
so in accordance under the terms of the Merger Agreement. Executive shall
immediately cease and cause to be terminated any existing activities,
discussions or negotiations by Executive or his affiliates or any
investment banker, attorney, accountant or other advisor or representative
of, Executive or his affiliates with parties conducted heretofore with
respect to any of the foregoing.
4.3. Compliance of Executive with This Agreement. Executive shall
take all actions and forbear from all actions, in each case, necessary in
order that (a) all of Executive's representations and warranties hereunder
are true and correct and (b) Executive fulfills all of its obligations
hereunder.
5. Voting Agreement; Proxy of Executive.
5.1. Voting Agreement. Executive hereby agrees that, during the time
this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, and in any action by written consent of the
stockholders of the Company, Executive shall, to the extent applicable, (a)
vote (or execute a consent in respect of) all of the Shares and the Option
Shares and any shares of Common Stock or other securities acquired of
record or beneficially by the Executive after the date hereof (the
"Executive Shares") in favor of the Merger, the Merger Agreement (as
amended from time to time) and any of the transactions contemplated by the
Merger Agreement; (b) vote (or execute a consent in respect of) the Shares,
the Option Shares and the Executive Shares against any action or agreement
that would result in a breach of any covenant, representation or warranty
or any other obligation of the Company under the Merger Agreement; and (c)
vote (or execute a consent in respect of) the Shares, the Option Shares and
the Executive Shares against any action or agreement that would reasonably
be expected to impede, interfere with, delay or attempt to discourage the
Offer or the Merger, including, but not limited to: (i) any extraordinary
corporate transaction (other than the Merger), such as a merger,
reorganization, recapitalization or liquidation involving the Company or
any of its Subsidiaries (as defined in the Merger Agreement) or any
proposal made in opposition to or in competition with the Merger; (ii) a
sale or transfer of a material amount of assets of the Company or any of
its Subsidiaries; (iii) any change in the management or board of directors
of the Company, except as otherwise agreed to in writing by Parent; (iv)
any material change in the present capitalization or dividend policy of the
Company; or (v) any other material change in the corporate structure or
business of the Company or any of its Subsidiaries.
5.2. Irrevocable Proxy. Executive agrees that, in the event
Executive shall fail to comply with the provisions of Section 5.1 hereof as
determined by Parent in its sole discretion, such failure shall result,
without any further action by Executive, in the irrevocable appointment of
Parent as the attorney and proxy of Executive, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise)
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with respect to all shares of Common Stock and other securities, including
the Shares, the Option Shares and the Executive Shares, that Executive is
entitled to vote at any meeting of stockholders of the Company (whether
annual or special and whether or not an adjourned or postponed meeting) or
consent in lieu of any such meeting or otherwise, on the matters and in the
manner specified in Section 5.1. THIS PROXY AND POWER OF ATTORNEY IS
IRREVOCABLE AND COUPLED WITH AN INTEREST AND IS EXECUTED AND INTENDED TO BE
IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 212(e) OF THE
DELAWARE GENERAL CORPORATION LAW ("DGCL"). Executive hereby revokes,
effective upon the execution and delivery of the Merger Agreement by the
parties thereto, all other proxies and powers of attorney with respect to
the Shares, the Option Shares and the Executive Shares that Executive may
have heretofore appointed or granted, and no subsequent proxy or power of
attorney (except in furtherance of Executive's obligations under Section
5.1 hereof) shall be given or written consent executed (and if given or
executed, shall not be effective) by Executive with respect thereto so long
as this Agreement remains in effect.
6. Termination. This Agreement shall terminate automatically in the
event that the Merger Agreement is terminated in accordance with the terms and
conditions thereof.
7. Miscellaneous.
7.1. Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
7.2. Further Assurances. Executive and Parent shall execute and
deliver all such further documents and instruments and take all such
further action as may be necessary in order to consummate the transactions
contemplated hereby.
7.3. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
7.4. Entire Agreement. This Agreement constitutes the entire
agreement between Parent and Executive with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written
and oral, between Parent and Executive with respect to the subject matter
hereof.
7.5. Assignment. This Agreement shall not be assigned by operation
of law or otherwise, except that Parent may assign all or any of its rights
and obligations hereunder to any affiliate of Parent, provided that no such
assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
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7.6. Parties in Interest. This Agreement shall be binding upon,
inure solely to the benefit of, and be enforceable by, the parties hereto
and their successors and permitted assigns. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person
any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
7.7. Amendment; Waiver. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto. Any party hereto
may (a) extend the time for the performance of any obligation or other act
of any other party hereto, (b) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant
hereto and (c) waive compliance with any agreement or condition contained
herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
7.8. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated to the fullest extent possible.
7.9. Notices. Except as otherwise provided herein, all notices,
requests, claims, demands and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by cable, facsimile transmission,
telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 7.9):
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if to Parent:
The Great Universal Stores P.L.C.
c/o Experian Corporation
000 Xxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Senior Vice President, Secretary
and General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to Executive:
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Facsimile: ______________
Telephone: ______________
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
7.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed in Delaware without regard to
any principles of choice of law
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or conflicts of law of such State. All actions and proceedings arising out
of or relating to this Agreement shall be heard and determined in any state
or federal court sitting in Delaware. Each of the parties hereto (i)
consents to submit such party to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware state court in the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court, (iii) agrees that such party will not bring any action
relating to this Agreement or the transactions contemplated hereby in any
court other than a Federal court sitting in the state of Delaware or a
Delaware state court and (iv) waives any right to trial by jury with
respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
7.11. Headings. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
7.12. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered as of the date first written above.
By: ____________________________
THE GREAT UNIVERSAL STORES P.L.C.
By: _____________________________
Name:
Title:
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