Exhibit 99(c)(5)
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment"),
dated as of May 26, 1999, is by and among Aegis Group plc, a company
incorporated under the laws of England and Wales ("Parent"), Aegis Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), and Market Facts, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, Parent, Purchaser and the Company entered into an Agreement and
Plan of Merger dated as of April 29, 1999 (the "Merger Agreement"), pursuant to
which Parent proposed to acquire the Company and the Company proposed to be
acquired by Parent pursuant to the terms and conditions of the Merger Agreement;
and
WHEREAS, the parties now desire to amend and restate Annex I to the Merger
Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, Parent, the Purchaser and the Company
hereby agree as follows:
AGREEMENT
1. AMENDMENT. Annex I to the Merger Agreement shall be amended and
restated in its entirety as set forth on Annex I attached hereto.
2. EFFECTIVENESS OF MERGER AGREEMENT. Except as modified by this
Amendment, all of the terms and provisions of the Merger Agreement shall remain
in full force and effect.
3. COUNTERPARTS. This Amendment may be executed in one or more
counterparts which together shall constitute a single agreement.
IN WITNESS WHEREOF, Parent, the Purchaser and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
AEGIS GROUP PLC
By: /s/ Xxxxxxxx Xxxxxxxxx
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Xxxxxxxx Xxxxxxxxx, Group Legal Director
AEGIS ACQUISITION CORP.
By: /s/ Xxxxxxxx Xxxxxxxxx
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Xxxxxxxx Xxxxxxxxx, Vice President
MARKET FACTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
ANNEX I
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, Parent or Purchaser
shall not be required to accept for payment or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange
Act (relating to Purchaser's obligation to pay for or return tendered Shares
promptly after expiration or termination of the Offer), to pay for any Shares
tendered, and may postpone the acceptance for payment or, subject to the
restriction referred to above, payment for any Shares tendered, and may amend
or terminate the Offer if, prior to the time the Offer shall otherwise
expire, (i) there have not been validly tendered and not withdrawn a number
of Shares which constitutes a majority of the Shares outstanding on a
fully-diluted basis on such date ("on a fully-diluted basis" having the
meaning, as of any date: the number of Shares outstanding, together with
Shares the Company is then required to issue pursuant to obligations
outstanding at the date under employee stock option or other benefit plans),
less the number of Shares subject to the Option Agreements (the "Minimum
Condition"); (ii) all material regulatory and related approvals have not been
obtained or made on terms reasonably satisfactory to Purchaser; (iii) any
applicable waiting periods under the HSR Act shall not have expired or been
terminated; or (iv) at any time on or after the date of the Agreement and
prior to the time the Offer shall otherwise expire, any of the following
events shall occur:
(A) any governmental entity or federal, state or foreign court of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive order, decree, injunction
or other order which is in effect (or pending) and which (1) restricts,
prevents or prohibits the making or consummation of the Offer, the Merger
or any transaction contemplated by the Merger Agreement, (2) prohibits or
limits materially the ownership or operation by the Company, Parent or any
of their subsidiaries of all or any material portion of the business or
assets of the Company and its subsidiaries taken as a whole, or compels the
Company, Parent, or any of their subsidiaries to dispose of or hold
separate all or any material portion of the business or assets of the
Company and its subsidiaries taken as a whole, (3) imposes limitations on
the ability of Parent, Purchaser or any other subsidiary of Parent to
exercise effectively full rights of ownership of any Shares, including,
without limitation, the right to vote any Shares acquired by Purchaser
pursuant to the Offer or otherwise on all matters properly presented to the
Company's stockholders, including, without limitation, the approval and
adoption of the Merger Agreement and the transactions contemplated thereby,
or (4) requires divestitures by Parent, Purchaser or any other affiliate of
Parent of any Shares; provided that Parent shall have used all commercially
reasonable efforts to cause any such decree, judgment, injunction or other
order to be vacated or lifted;
(B) the representations and warranties of the Company contained in
the Merger Agreement (without giving effect to any materiality or similar
qualifications contained therein) shall not be true and correct as of the
date the Offer shall otherwise expire as though made on and as of such date
except (1) for changes specifically permitted by the Merger Agreement, (2)
that those representations and warranties which address matters only as of
a particular date shall remain true and correct as of such date, (3) in any
case where such failure to be true and correct would not, in the aggregate,
have a Material Adverse Effect, and
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(4) notwithstanding anything in this Agreement or Annex I to the
contrary, in the event that any of the representations and warranties of
the Company with respect to any subsidiaries are determined to be
inaccurate, and all such inaccuracies capable of measurement in dollar
amounts, in the aggregate, exceed $3 million, then only the amounts in
excess of $3 million will be taken into account in determining whether
such inaccuracies, taken together with all other breaches of
representations and warranties generally, result in a Material Adverse
Effect;
(C) the Company shall not have performed or complied with any of its
obligations, covenants and agreements under the Merger Agreement to be
performed or complied with by it unless all such failures together in their
entirety would not have a Material Adverse Effect;
(D) the Merger Agreement shall have been terminated in accordance
with its terms;
(E) the Company shall have received any offer (other than pursuant to
this Agreement) for the purchase of Shares, the purchase of substantially
all of the Company's assets, the merger of the Company or any other
transaction which would require the withdrawal or material modification of
the Offer, the Merger Agreement or the Merger and the Board shall have
withdrawn or materially modified or changed (including by amendment of the
Schedule 14D-9) in a manner adverse to Purchaser its recommendation of the
Offer, the Merger Agreement or the Merger;
(F) (1) any person or group shall have entered into a definitive
agreement or agreement in principle with the Company with respect to a
merger, consolidation, sale of a material portion of the assets of the
Company, or other business combination with the Company; (2) (A) the Board
of Directors of the Company or any committee thereof shall have withdrawn,
modified or changed in a manner adverse to Parent or Purchaser its approval
or recommendation of the Offer, the Merger or the Agreement, or approved or
recommended any Competing Transaction, or (B) the Board of Directors of the
Company or any committee thereof shall have resolved to do any of the
foregoing;
(G) there shall have occurred any change, condition, event or
development that has a Material Adverse Effect (excluding any change,
condition, event or development arising out of or attributable to general
economic conditions);
(H) there shall have occurred (1) any general suspension of, or
limitation on prices for, trading in securities on the New York Stock
Exchange, the NASDAQ\NMS or the London Stock Exchange for a period in
excess of 24 hours (excluding any coordinated trading halt triggered solely
as a result of a specified decrease in a market index and suspensions or
limitations resulting solely from physical damage or interference with such
exchange or association not related to market conditions), (2) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or the United Kingdom or (3) any
material limitation (whether or not mandatory) by any government or
governmental authority of the United States or the United Kingdom on the
extension of credit by banks or other lending institutions; or
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(I) the Stockholders (as defined in the Option Agreements) shall have
failed to comply with their obligations pursuant to the Option Agreements,
which, in the reasonable judgment of Purchaser in any such case, and regardless
of the circumstances giving rise to any such condition, makes it inadvisable to
proceed with such acceptance for payment or payments.
The foregoing conditions are for the sole benefit of Purchaser and its
affiliates and may be asserted by Purchaser regardless of the circumstances
giving rise to any such condition or may be waived by Purchaser, in whole or in
part, from time to time in its sole discretion, except as otherwise provided in
the Agreement. The failure by Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right and may be asserted at any time and from
time to time. Any determination by Purchaser concerning any of the events
described herein shall be final and binding. Unless otherwise defined herein,
capital terms used herein shall have the meanings ascribed to them in the
Acquisition Agreement among the Parent, Purchaser and the Company to which this
Annex I is attached (the "Agreement").
