EXHIBIT (c)(4)
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 Metromail Corporation, a Delaware corporation
(the "Company").
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 the Company's common stock,
par value $.01 per share ("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, concurrently herewith, Parent and X.X. Xxxxxxxxx & Sons Company
(the "Stockholder") are entering into a Stock Purchase Agreement (the
"Stockholder Purchase Agreement"), pursuant to which Parent will purchase
8,600,000 shares of Common Stock (the "Stockholder Shares") from the Stockholder
in accordance with the terms and conditions set forth therein; and
WHEREAS, concurrently herewith, Parent and each of Xxxxxx X. Xxxxx, Xxxxxx
X. Xxxxxxx and Xxxxxx X. Xxxxxx (collectively, the "Management Group") are
entering into Stock Purchase Agreements (the "Management Purchase Agreements"),
pursuant to which Parent will purchase the Shares and the Option Shares (each as
defined in the Management Purchase Agreements) (collectively, the "Management
Shares") from each member of the Management Group in accordance with the terms
and conditions set forth therein; and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that the Company agree, and in order to
induce Parent to enter into the Merger Agreement, the Company has agreed, to
sell to Parent authorized but unissued Shares (as defined herein) 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 shall purchase from the Company,
and the Company shall issue and sell to Parent, that number of shares of
Common Stock, if any (the "Shares"), equal to the number of shares of
Common Stock that when added to the
sum of (a) the number of shares of Common Stock accepted by Purchaser and
its affiliates for purchase pursuant to the terms of the Offer, (b) the
number of Stockholder Shares, if any, purchased by Parent from the
Stockholder pursuant to the Stockholder Purchase Agreement simultaneously
with the acceptance of shares of Common Stock by Parent and its affiliates
for payment pursuant to the Offer and (c) the number of Management Shares,
if any, purchased by Parent from the Management Group pursuant to the
Management Purchase Agreements simultaneously with the acceptance of shares
of Common Stock by Parent and its affiliates for payment pursuant to the
Offer, shall constitute 51% of the outstanding shares of Common Stock on a
fully diluted basis giving effect to the issuance of the Shares, at a per
share purchase price equal to the Offer Price (the "Purchase Price").
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 issuance and delivery of the 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 issuance and delivery of the
Shares. Parent and the Company 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.
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"). At the Closing and subject to the conditions contained in this
Agreement, Parent hereby directs the Company to deliver to Purchaser a
certificate or certificates evidencing the number of Shares to be
purchased, each such certificate being duly executed by the Company and
registered in the name of Purchaser, and Parent will purchase the delivered
Shares at a purchase price equal to the Offer Price. All payments made by
Parent to the Company pursuant to this Section 1.3 shall be made by wire
transfer of immediately available funds to an account designated by the
Company or by certified bank check payable to the Company, in an amount
equal to the sum of the product of (i) the Offer Price and (ii) the total
number of shares of Common Stock 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
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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
consideration payable in respect of the Shares shall be appropriately and
equitably adjusted to restore to Parent its rights and privileges under
this Agreement.
1.5. Vesting of Options. The Company hereby covenants and agrees to
accelerate the vesting of all of the Options (as defined in the Management
Purchase Agreements) and restricted Common Stock to be sold by the
Management Group to Parent pursuant to the terms of the Management Purchase
Agreements (the "Restricted Stock") prior to the earlier of (i) if so
requested by Purchaser pursuant to the Management Purchase Agreements, the
timely tender and sale by Executive of all of the Option Shares pursuant to
the Offer and (ii) the closing of the transactions contemplated by the
Management Purchase Agreements. The Company hereby represents and warrants
to Parent that any acceleration of the vesting of the Options (as defined
in the Management Purchase Agreements) and the Restricted Stock has been
duly and validly authorized by all necessary corporate action on the part
of the Company.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to Parent as follows:
2.1. Shares. The Company has taken all necessary corporate action to
authorize and reserve the Shares for issuance and will take all necessary
corporate action to authorize and reserve for issuance all additional
shares of Common Stock or other securities which may be issued as a result
of Section 1.4 hereof. The Shares (or such other securities) to be issued,
when paid for as provided herein, will be duly authorized, validly issued,
fully paid and nonassessable and will be delivered free and clear of all
security interests, liens, claims, pledges, options, preemptive rights,
rights of first refusal, agreements, limitations on the Company's voting
rights, charges and other encumbrances of any nature whatsoever. Upon the
delivery to Parent by the Company of a certificate or certificates
evidencing the Shares, Parent will receive good, valid and marketable title
to the Shares.
2.2. 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 to Parent, 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 the Company.
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3. Representations and Warranties of Parent. Parent hereby represents
and warrants to the Company 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
the Company, 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, (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 the Company 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. Termination. This Agreement shall terminate automatically in the event
that the Merger Agreement is terminated in accordance with the terms and
conditions thereof.
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5. Miscellaneous.
5.1. Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
5.2. Further Assurances. The Company 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.
5.3. 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.
5.4. Entire Agreement. This Agreement constitutes the entire
agreement between Parent and the Company with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written
and oral, between Parent and the Company with respect to the subject matter
hereof.
5.5. 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.
5.6. 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.
5.7. 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.
5.8. 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
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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.
5.9. 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 5.9):
if to Parent:
The Great Universal Stores P.L.C.
c/o Experian Corporation
000 Xxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
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
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if to the Company:
Metromail Corporation
000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President and
General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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
5.10. 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 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.
5.11. 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.
5.12. 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
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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.
THE GREAT UNIVERSAL STORES P.L.C.
/s/ Xxxxxx Xxxxxxxxx
By: ___________________________________
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
METROMAIL CORPORATION
/s/ Xxxxxx X. Xxxxx
By: ___________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman, President and Chief Executive
Officer
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