<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1996
--------------------------------------
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
----------------- -----------------
Commission file number 0-4781
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MARKET FACTS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 36-2061602
- -------------------------------------------------- --------------------------
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
3040 West Salt Creek Lane, Arlington Heights, Illinois 60005
- ---------------------------------------------------------- ------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (847) 590-7000
------------------------------
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED
TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING
THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS
REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS.
YES [X] NO [_]
INDICATE THE NUMBER OF SHARES OUTSTANDING OF EACH OF THE REGISTRANT'S CLASSES OF
COMMON STOCK, AS OF THE LATEST PRACTICABLE DATE.
2,000,769 common shares as of April 24, 1996
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<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
Market Facts, Inc. and Subsidiaries
Condensed Consolidated Balance Sheets
As of March 31, 1996 and December 31, 1995
Assets
------
<TABLE>
<CAPTION>
March 31, December 31,
1996 1995
------------ ------------
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 646,420 $ 3,530,157
Certificate of deposit 50,000 50,000
Accounts receivable:
Trade, less allowance for doubtful accounts of
$887,882 in 1996 and $838,203 in 1995 10,884,247 9,547,035
Other 62,092 6,200
Notes receivable 64,674 79,214
Revenue earned on contracts in progress
in excess of billings 3,393,667 2,889,027
Current portion of deferred income taxes 747,434 747,314
Prepaid expenses and other assets 353,639 309,954
- ----------------------------------------------------------------------------------------
Total Current Assets $ 16,202,173 $17,158,901
- ----------------------------------------------------------------------------------------
Other Assets:
Goodwill, net of accumulated amortization 547,114 557,568
Mail panel acquired, net of accumulated amortization 81,270 101,587
- ----------------------------------------------------------------------------------------
Total Other Assets $ 628,384 $ 659,155
- ----------------------------------------------------------------------------------------
Property, at cost 26,969,457 26,083,047
Less accumulated depreciation and amortization (10,012,651) (9,524,466)
- ----------------------------------------------------------------------------------------
Net Property $ 16,956,806 $16,558,581
- ----------------------------------------------------------------------------------------
Total Assets $ 33,787,363 $34,376,637
========================================================================================
</TABLE>
Page 1
<PAGE>
Market Facts, Inc. and Subsidiaries
Condensed Consolidated Balance Sheets
As of March 31, 1996 and December 31, 1995
Liabilities and Stockholders' Equity
------------------------------------
<TABLE>
<CAPTION>
March 31, December 31,
1996 1995
------------ -----------
<S> <C> <C>
Current Liabilities:
Accrued expenses $ 5,115,152 $ 5,515,608
Billings in excess of revenues earned
on contracts in progress 2,843,927 3,328,937
Accounts payable 1,178,956 1,253,922
Income taxes 530,739 387,742
Current portion of note payable for acquisition of MFCL 339,126 339,126
Current portion of obligations under capital leases 223,693 225,903
Current portion of long-term debt 112,555 112,555
- ------------------------------------------------------------------------------------------------------------------------
Total Current Liabilities $10,344,148 $11,163,793
- ------------------------------------------------------------------------------------------------------------------------
Long-Term Liabilities:
Long-term debt 10,392,500 10,419,628
Obligations under capital leases, noncurrent portion 482,910 536,242
Deferred income taxes 205,578 205,545
Other long-term liabilities --- 1,622
- ------------------------------------------------------------------------------------------------------------------------
Total Long-Term Liabilities $11,080,988 $11,163,037
- ------------------------------------------------------------------------------------------------------------------------
Total Liabilities $21,425,136 $22,326,830
- ------------------------------------------------------------------------------------------------------------------------
Stockholders' Equity:
Preferred stock, no par value;
500,000 shares authorized; none issued $ --- $ ---
Common stock, $1 par value; 5,000,000 shares authorized;
2,183,237 and 2,106,237 shares issued in 1996 and 1995, respectively 2,183,237 2,106,237
Capital in excess of par value 2,637,387 2,328,137
Cumulative foreign currency translation (64,165) (69,144)
Retained earnings 9,860,671 9,525,401
- ------------------------------------------------------------------------------------------------------------------------
$14,617,130 $13,890,631
- ------------------------------------------------------------------------------------------------------------------------
Less 182,468 and 167,468 shares of treasury stock,
at cost, in 1996 and 1995, respectively (1,374,654) (1,189,029)
Less other transactions involving common stock (880,249) (651,795)
- ------------------------------------------------------------------------------------------------------------------------
Total Stockholders' Equity $12,362,227 $12,049,807
- ------------------------------------------------------------------------------------------------------------------------
Total Liabilities and Stockholders' Equity $33,787,363 $34,376,637
========================================================================================================================
</TABLE>
Page 2
<PAGE>
<TABLE>
<CAPTION>
Market Facts, Inc. and Subsidiaries
Condensed Consolidated Statements of Earnings
For The Three Months Ended March 31, 1996 and 1995
Three Months Ended March 31,
----------------------------
1996 1995
----------- -----------
<S> <C> <C>
Revenue $18,658,743 $15,333,400
- ------------------------------------------------------------------------------------------------------
Direct Costs:
Payroll $ 3,884,583 $ 3,402,759
Other expenses 6,817,951 5,347,866
- ------------------------------------------------------------------------------------------------------
Total $10,702,534 $ 8,750,625
- ------------------------------------------------------------------------------------------------------
Gross Margin $ 7,956,209 $ 6,582,775
- ------------------------------------------------------------------------------------------------------
Operating Expenses:
Selling $ 624,137 $ 588,749
General and administrative 5,963,264 4,821,450
Contributions to profit sharing and employee stock ownership plans 213,753 114,038
- ------------------------------------------------------------------------------------------------------
Total $ 6,801,154 $ 5,524,237
- ------------------------------------------------------------------------------------------------------
Income from operations $ 1,155,055 $ 1,058,538
- ------------------------------------------------------------------------------------------------------
Other Income (Expense):
Interest expense $ (273,368) $ (285,757)
Interest income 34,507 12,442
Other income, net 47,819 22,911
- ------------------------------------------------------------------------------------------------------
Total $ (191,042) $ (250,404)
- ------------------------------------------------------------------------------------------------------
Income Before Provision For Income Taxes $ 964,013 $ 808,134
Provision For Income Taxes 436,066 390,820
- ------------------------------------------------------------------------------------------------------
Net Income $ 527,947 $ 417,314
======================================================================================================
Earnings Per Share $ .27 $ .23
======================================================================================================
Common and Common Equivalent Shares 1,940,102 1,847,671
======================================================================================================
Cash Dividends Declared $ .10 $ .08
======================================================================================================
</TABLE>
Page 3
<PAGE>
Market Facts, Inc. and Subsidiaries
Condensed Consolidated Statements of Cash Flows
For The Three Months Ended March 31, 1996 and 1995
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
1996 1995
------------ -----------
<S> <C> <C>
Cash Flows From Operating Activities:
Net income $ 527,947 $ 417,314
Adjustments to reconcile net income to net cash used in
operating activities:
Depreciation and amortization 611,961 576,271
Vesting of restricted stock and demand notes receivable 16,546 13,858
Net gain on disposal of property (30,297) (8,262)
Change in assets and liabilities:
Accounts receivable (1,391,172) 221,035
Prepaid expenses and other assets (43,417) 171,458
Revenues earned in excess of billings on contracts in progress (988,437) (904,212)
Accounts payable and accrued expenses (470,053) (930,272)
Income taxes 143,122 (319,094)
- ----------------------------------------------------------------------------------------------------------------------------
Net cash used in operating activities $(1,623,800) $ (761,904)
- ----------------------------------------------------------------------------------------------------------------------------
Cash Flows From Investing Activities:
Purchases of property (984,286) (419,627)
Investment in notes receivable (245,000) (200,250)
Proceeds from notes receivable 14,540 40,588
Proceeds from the sale of property 30,297 15,517
- ----------------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities $(1,184,449) $ (563,772)
- ----------------------------------------------------------------------------------------------------------------------------
Cash Flows From Financing Activities:
Proceeds from exercise of stock options $ 386,250 $ 605,355
Dividends paid (192,677) (144,347)
Purchases of treasury stock (185,625) ---
Reduction in obligations under capital leases and long-term debt (83,619) (81,838)
Proceeds from short-term borrowings --- 600,000
Repayment of short-term borrowings --- (200,000)
- ----------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) financing activities $ (75,671) $ 779,170
- ----------------------------------------------------------------------------------------------------------------------------
Effect of exchange rate changes on cash $ 183 $ 1,363
- ----------------------------------------------------------------------------------------------------------------------------
Net decrease in cash and cash equivalents $(2,883,737) $ (545,143)
Cash and cash equivalents at beginning of period 3,530,157 911,209
- ----------------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents at end of period $ 646,420 $ 366,066
============================================================================================================================
Cash Paid During The Period For:
Interest $ 268,417 $ 282,093
Income taxes $ 292,945 $ 709,915
============================================================================================================================
Supplemental Schedule of Noncash Activity:
Capital lease obligations incurred on lease of equipment $ --- $ 105,297
============================================================================================================================
</TABLE>
Page 4
<PAGE>
NOTES TO FINANCIAL STATEMENTS
Note 1 - Basis of Presentation
- ------------------------------
The accompanying unaudited condensed consolidated financial statements of Market
Facts, Inc. and Subsidiaries (the Company) have been prepared in accordance with
instructions to Form 10-Q. The results of operations for interim periods are not
necessarily indicative of the results to be expected for the entire year. For
further information regarding the Company's most recent completed fiscal years,
refer to the consolidated financial statements included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1995.
Note 2 - Adjustments
- --------------------
The information furnished herein includes all adjustments, consisting of normal
recurring adjustments, which are, in the opinion of management, necessary for a
fair presentation of the interim financial statements.
Note 3 - Foreign Currency Translation
- -------------------------------------
Assets and liabilities of Market Facts of Canada, Ltd. (MFCL), the Company's
only foreign subsidiary, have been translated using the exchange rate in effect
at the balance sheet date. MFCL's results of operations are translated using the
average exchange rate prevailing throughout the period. Resulting translation
gains and losses are reported as a component of stockholders' equity.
Note 4 - Revenue Recognition
- ----------------------------
The Company recognizes revenue under the percentage of completion method of
accounting. Revenue on client projects is recognized as services are performed.
Losses expected to be incurred on jobs in progress are charged to income as soon
as such losses are known. Revenue earned on contracts in progress in excess of
billings is classified as a current asset. Amounts billed in excess of revenue
earned are classified as a current liability. Client projects are expected to be
completed within a twelve month period.
Page 5
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
Liquidity and Capital Resources
- -------------------------------
The ratio of current assets to current liabilities was 1.6 to 1 as of March 31,
1996 versus 1.5 to 1 as of December 31, 1995. The improvement in the ratio is
primarily attributable to an increase in accounts receivable due to growth in
business and a reduction in net billings in excess of revenues earned on
contracts in progress due to less timely billings on contracts in progress.
Cash and cash equivalents decreased by $2,883,737 from December 31, 1995 to
March 31, 1996. This is primarily the result of cash used by operating
activities of $1,623,800 and purchases of property of $984,286, partially offset
by proceeds from the exercise of stock options of $386,250.
The Company maintains established bank lines of credit totaling $7,650,000 which
are renewed annually. The Company believes that cash flow from future
operations, its ability to secure additional leases and borrowings available
from its lines of credit will be adequate to fund both short-term and long-term
investing and financing activities and growth for the foreseeable future.
Results of Operations
- ---------------------
Comparison of First Quarter 1996 to First Quarter 1995
- ------------------------------------------------------
During the first quarter of 1996, the Company had revenue of $18,658,743, an
increase of 21.7% over the same period in 1995. The increase in revenue is
attributable to significant expansion of major program services for existing as
well as new clients.
Gross margin for the first quarter of 1996 was $7,956,209, an increase of 20.9%
over the same period in 1995. The increase in gross margin is due to the growth
in revenue. Gross margin as a percentage of revenue was 42.6% during the first
quarter of 1996 compared to 42.9% for the same period in 1995.
Operating expenses for the first quarter of 1996 increased by $1,276,917, an
increase of 23.1% compared to the same period in 1995. The increase is
primarily attributable to growth in business, higher overhead payroll expense
and a larger accrual for year end employee bonuses. Operating expenses as a
percentage of revenue increased from 36.0% in 1995 to 36.5% in 1996.
Provision for income taxes for the first quarter of 1996 reflects an effective
income tax rate of 45.2% versus 48.4% in 1995. The decrease in the effective
rate is primarily due to lower state, local and foreign income taxes.
Net income for the first quarter of 1996 was $527,947 or 2.8% of revenue
compared with $417,314 and 2.7% of revenue during the same period in 1995.
Page 6
<PAGE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
See Index to Exhibits immediately following the signature page.
(b) Reports on Form 8-K.
None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Market Facts, Inc.
---------------------------------------
(Registrant)
Date: April 24, 1996 Timothy J. Sullivan
- ------------------------- ---------------------------------------
Timothy J. Sullivan
Vice President, Treasurer and Assistant
Secretary
(Principal Accounting Officer)
Date: April 24, 1996 Glenn W. Schmidt
- ------------------------- ---------------------------------------
Glenn W. Schmidt
Executive Vice President, Assistant
Secretary and Assistant Treasurer
(Principal Financial Officer)
Page 7
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
(2)(1) Stock Purchase Agreement by and among Market Facts, Inc. and
John C. Robertson and Roberta Robertson dated as of April 27,
1994.
(3)(a) Restated Certificate of Incorporation.
(3)(b) By-laws as Amended and Currently in Effect.
(4)(a) Article Fourth of Restated Certificate of Incorporation is
included in Exhibit (3)(a) above.
(4)(b)(4) The Stockholder Rights Plan.
(10.1)(6) Term Note dated February 23, 1995 between Market Facts, Inc. and
Verne Churchill.
(10.2)(6) Term Note dated February 23, 1995 between Market Facts, Inc. and
Lawrence Labash.
(10.3)(6) Term Note dated February 23, 1995 between Market Facts, Inc. and
Thomas Payne.
(10.4)(6) Term Note dated February 23, 1995 between Market Facts, Inc. and
Glenn Schmidt.
(10.5)(6) Term Note dated March 1, 1995 between Market Facts, Inc. and
Stephen J. Weber.
(10.6)(5) Promissory Note dated April 1, 1994 between Market Facts, Inc.
and Stephen J. Weber.
(10.7)(1) Employment Agreement by and among Market Facts of Canada, Ltd.,
Market Facts, Inc. and John C. Robertson dated as of April 14,
1994.
(10.8) Master Promissory Note and Procedures Letter between Market
Facts, Inc. and NBD Bank.
(10.9)(3) Mortgage and Security Agreement dated April 11, 1990 between
American National Bank and Trust Company as Trustee under Trust
No. 110201-04 and The Manufacturers Life Insurance Company
together with Mortgage Note.
(10.10)(2) Unsecured Note and Procedures Letter between Market Facts, Inc.
and Harris Trust and Savings Bank.
(10.11)(2) Employment Agreement with Verne B. Churchill.
(10.12)(2) Employment Agreement with Lawrence W. Labash.
(10.13)(2) Employment Agreement with Timothy Q. Rounds.
(10.14)(2) Employment Agreement with Glenn W. Schmidt.
(10.15)(2) Employment Agreement with Sanford M. Schwartz.
Page 8
<PAGE>
Exhibit Number Description
- -------------- -----------
(10.16)(2) Indemnity Agreement with Jack R. Wentworth. Substantially
identical agreements were also entered into with the following
directors:
William W. Boyd John C. Robertson
Verne B. Churchill Timothy Q. Rounds
Lawrence W. Labash Glenn W. Schmidt
Thomas H. Payne Sanford M. Schwartz
Karen E. Predow-James Wesley S. Walton
(10.17) Term Note dated March 29, 1996 between Market Facts, Inc. and
Verne Churchill.
(10.18) Term Note dated March 29, 1996 between Market Facts, Inc. and
Thomas Payne.
(10.19) Term Note dated March 29, 1996 between Market Facts, Inc. and
Glenn Schmidt.
(10.20) Term Note dated March 29, 1996 between Market Facts, Inc. and
Lawrence Labash.
(27) Financial Data Schedule.
_____________
(1) Incorporated by reference to Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1994.
(2) Incorporated by reference to Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1994.
(3) Incorporated by reference to Registrant's Annual Report on Form 10-K for
its fiscal year ended December 31, 1992.
(4) Incorporated by reference to Exhibit No. 4 of Registrant's Form 8-K dated
August 7, 1989, commission file number 0-4781.
(5) Incorporated by reference to Registrant's Quarterly Report on Form 10-Q/A-1
for the quarterly period ended June 30, 1994.
(6) Incorporated by reference to Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1995.
Page 9
<PAGE>
EXHIBIT 3A
RESTATED
CERTIFICATE OF INCORPORATION
----------------------------
OF
--
MARKET FACTS, INC.
------------------
It is hereby certified that:
1. The present name of the corporation (hereinafter called the "corporation")
is Market Facts, Inc., which is the name under which the corporation was
originally incorporated; and the date of filing the original Certificate of
Incorporation of the corporation with the Secretary of State of the State of
Delaware is August 19, 1966.
2. The provisions of the Certificate of Incorporation of the corporation as
heretofore amended and/or supplemented, are hereby restated and integrated into
the single instrument which is hereinafter set forth, and which is entitled
Restated Certificate of Incorporation of Market Facts, Inc., without further
amendment and without any discrepancy between the provisions of the Certificate
of Incorporation as heretofore amended and supplemented and the provisions of
the said single instrument hereinafter set forth.
3. The Board of Directors of the corporation has duly adopted this Restated
Certificate of Incorporation pursuant to the provisions of Section 245 of the
General Corporation Law of the State of Delaware in the form set forth as
follows:
FIRST: The name of this corporation is Market Facts, Inc.
SECOND: Its principal office in the State of Delaware is:
The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
THIRD: The nature, object and purposes of the business proposed to be
transacted, promoted and carried on are to do any or all things mentioned herein
as fully and to the same extent as natural persons could do, and in any part of
the world, namely:
1. To engage generally in the business of market research, conducting
market surveys and market tests, collecting and analyzing facts and data,
and rendering opinions interpreting the findings.
<PAGE>
2. To buy, sell, lease, dispose of, distribute, import, export,
manufacture, produce, and trade or otherwise deal in and with all
materials, devices, implements, goods, wares, merchandise and services of
any and every character.
3. To acquire by purchase, lease or otherwise, real estate located
anywhere within or without the United States, and interests of any kind
therein; to own, hold, use, occupy, improve, develop, alter, enlarge,
rebuild and manage said real estate and any improvements thereon; to erect
or cause to be erected buildings and structures of any kind and
description, with their appurtenances; to lease, mortgage or otherwise
encumber any and all such real estate and any improvements thereon; and to
sell, exchange, transfer or otherwise dispose of any or all of the
corporation's interests in any and all said real estate and any
improvements thereon.
4. To manufacture, purchase, lease or otherwise acquire equipment,
goods, wares, merchandise and other personal property of any and every
class and description, and interests of any and every kind therein; to own,
hold, lease, hypothecate and use said property; and to sell, trade, deal in
or otherwise dispose of any or all the corporation's interests therein.
5. To enter into, make, perform and become assignee of and to execute
and deliver performance bonds in connection therewith, contracts of every
kind and description with any person, firm, association or corporation, and
with the United States of America or any territory, state, county,
municipality, or any department, agency, commission, corporation or
political subdivision thereof, and with any foreign government, colony,
body politic or political entity thereof.
6. To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, mortgage, pledge or otherwise dispose of, letters patent,
patent rights, patent applications, licenses, privileges, inventions,
improvements, processes, copyrights, service-marks, trade-marks, trade-
names and the like, either of the United States or of a foreign country,
relating to or useful in connection with the business of the corporation.
7. To lend money or extend credit or both to any person, firm,
association or corporation that purchases, leases or otherwise acquires
real or personal property from the corporation; to lend money or extend
credit to, or guarantee the payment of dividends, interest or other
obligations of, or otherwise financially assist any person, firm,
association or corporation, whenever such loan, credit extension, guarantee
or other financial assistance is deemed by the corporation to be desirable
and to promote the interests of the corporation.
8. To acquire the good will, business, rights, assets and property
of, and to undertake or assume the whole or any part of the obligations or
liabilities of any person, firm, association or corporation; to pay for the
same in cash, stock or other securities of the corporation or otherwise; to
hold or in any manner to dispose of the whole or any
-2-
<PAGE>
part of the property so purchased or acquired, to conduct in any lawful
manner the whole or any part of the business so acquired, and to exercise
all the powers necessary or convenient to conduct and manage such business;
and to merge or consolidate with any corporation in such manner as may be
permitted by law.
9. To borrow or raise monies for corporate purposes, and, from time
to time, without limit as to amount, to draw, make, accept, endorse,
execute and issue, and to redeem, purchase, resell and reissue, promissory
notes, drafts, bills of exchange, warrants, bonds, debentures, convertible
or otherwise, and other negotiable or non-negotiable instruments and
evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment
in trust of the whole or any part of the property of the corporation,
whether at the time owned or thereafter acquired, and to sell, pledge or
otherwise dispose of such bonds or other obligations of the corporation for
its own corporate purposes.
10. To purchase, hold, sell and transfer the shares of its own stock:
Provided it shall not use its funds or property for the purchase of its own
shares of stock when such use would cause any impairment of its capital,
except as may be permitted by law, and provided further that shares of its
own stock belonging to it shall not be voted upon directly or indirectly.
11. To have offices, keep its books and records of account, conduct
its business and promote its purposes within and without the State of
Delaware and the other States of the United States of America and its
Territories and Possessions and the District of Columbia, and in foreign
countries, without restrictions as to place or amount.
12. In general, to have and exercise all the powers now conferred or
which may hereafter be conferred by the laws of the State of Delaware upon
corporations formed thereunder, and to do any or all things hereinabove set
forth to the same extent as natural persons could do.
13. The powers specified in the foregoing clauses of this Article,
except where otherwise expressed, shall be in nowise limited or restricted
by reference to or inference from the terms of any other clause in this
Certificate of Incorporation, but shall be regarded as independent powers;
and it is hereby expressly provided that the foregoing enumeration of
specific powers shall not be held to limit or restrict in any manner any
other powers of this corporation.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is 5,500,000 shares, of which 500,000
shares shall be Preferred Stock of no par value (hereinafter called "Preferred
Stock"), and 5,000,000 shares shall be Common Stock of the par value of $1.00
per share (hereinafter called "Common Stock").
-3-
<PAGE>
The designations, voting powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of the above classes of stock and other general provisions
relating thereto shall be as follows:
PROVISIONS RELATING TO THE PREFERRED STOCK
(a) The Preferred Stock may be issued from time to time in one or
more series, the shares of each series to have such voting powers, full or
limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights and
qualifications, limitations and restrictions thereof as are stated and
expressed herein or in the resolution or resolutions providing for the
issue of such series, adopted by the Board of Directors as hereinafter
provided.
(b) Authority is hereby granted to the Board of Directors of the
corporation, subject to the provisions of this Article Fourth and to the
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in one or more series, with such voting powers, full or
limited, or without voting powers and with such designations, preferences
and relative, participating, optional and other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue thereof
adopted by the Board of Directors, and as are not stated and expressed in
the Certificate of Incorporation, including, but not limited to, the
following:
(1) The designation of such series.
(2) The dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the preferences or relation which
such dividends shall bear to the dividends payable on any other class or
classes or series of stock, and whether such dividends shall be cumulative
or noncumulative.
(3) Whether the shares of such series shall be subject to redemption
by the corporation and, if made subject to such redemption, the times,
prices and other terms and conditions of such redemption.
(4) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series.
(5) Whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or classes or of any
other series of any class or classes of stock of the corporation, and, if
provision be made for conversion or exchange, the times, prices, rates,
adjustments, and other terms and conditions of such conversion or exchange.
-4-
<PAGE>
(6) The extent, if any, to which the holders of the shares of such
series shall be entitled to vote with respect to the election of directors
or otherwise.
(7) The restrictions, if any, on the issue or reissue of any
additional Preferred Stock.
(8) The rights of the holders of the shares of such series upon the
dissolution of, or upon the distribution of assets of, the corporation.
(c) Except as otherwise required by law and except for such voting
powers with respect to the election of directors or other matters as may be
stated in the resolution or resolutions of the Board of Directors providing
for the issue of any series of Preferred Stock, the holders of any such
series shall have no voting power whatsoever. Subject to such restrictions
as may be stated in the resolution or resolutions of the Board of Directors
providing for the issue of any series of Preferred Stock, any amendment to
the Certificate of Incorporation which shall increase or decrease the
authorized stock of any class or classes may be adopted by the affirmative
vote of the holders of a majority of the outstanding shares of the voting
stock of the Corporation.
(d) No holder of shares of the Preferred Stock of the corporation
shall be entitled as a matter of right, to any preemptive right to
subscribe to any additional issues of stock of the corporation of any
class, or any securities convertible into any class of stock of the
corporation.
(e) The corporation may from time to time issue and dispose of any of
the authorized and unissued shares of Preferred Stock for such
consideration, not less than its par value, as may be fixed from time to
time by the Board of Directors, without action by the stockholders. The
Board of Directors may provide for payment therefor to be received by the
corporation in cash, property or services. Any and all such shares of the
Preferred Stock of the corporation, the issuance of which has been so
authorized, and for which consideration so fixed by the Board of Directors
has been paid or delivered, shall be deemed fully paid stock and shall not
be liable to any further call or assessment thereon.
PROVISIONS RELATING TO SERIES A PREFERRED STOCK
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Stock" (the "Series A Preferred Stock")
and the number of shares constituting the Series A Preferred Stock shall be
25,000. Such number of shares may be increased or decreased by resolution
of the Board of Directors; provided, however, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or
upon
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the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of capital stock of the Corporation ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares
of Series A Preferred Stock, in preference to the holders of Common Stock,
$1.00 par value per share (the "Common Stock"), of the Corporation, and of
any other junior stock, shall be entitled to receive, when and as declared
by the Board of Directors out of funds legally available for the purpose,
cumulative dividends payable in cash quarterly on the first days of
January, April, July and October in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided,
however, that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
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(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
100 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law or by the resolution
or resolutions providing for the creation and issue of any other series of
Preferred Stock, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class
on all matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein or as otherwise provided by law, the
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not
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be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably
on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A Preferred
Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation
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unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized
but unissued shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock subject to the conditions and restrictions on
issuance set forth herein, in the Certificate of Incorporation, as amended,
or in any other Certificate of Designations creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. In the event of
liquidation, dissolution or winding up of the Corporation, the holders of
Series A Preferred Stock shall be entitled to be paid out of the assets of
the Corporation then available for distribution to its stockholders before
any payment shall be made to the holders of shares of Common Stock or any
other stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock an amount equal
to the greater of (a) $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, and (b) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of shares of Common
Stock. If upon any liquidation, dissolution or winding up of the
Corporation the assets of the Corporation available for distribution to its
stockholders shall be insufficient to pay the holders of Series A Preferred
Stock, and all other shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, the full amounts to which they respectively shall be
entitled, the holders of Series A Preferred Stock and all other such parity
stock shall share ratably in any distribution of assets according to the
respective amounts which would be payable in respect of the shares of
Series A Preferred Stock and other such parity stock held by them upon such
distribution if all amounts payable on or with respect to Series A
Preferred Stock and other such parity stock of all series were paid in
full. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the first sentence of
this Section 6 shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event. Neither the merger or consolidation of the Corporation into or with
another corporation, nor the merger or consolidation
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of any other corporation into or with the Corporation, nor the sale,
transfer or lease of all or substantially all of the assets of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
of the Corporation.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case
each share of Series A Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change
of shares of Series A Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. Redemption. Prior to August 7, 2009, the Series A
Preferred Stock shall not be redeemable. The Series A Preferred Stock shall
be redeemable, at the option of the Corporation, as a whole or from time to
time in part, at any time on or after August 7, 2009, at a redemption price
per share of $1000 in cash plus accrued and unpaid dividends to the date
fixed for redemption (the "Redemp-tion Price"). The Corporation may, if it
shall so elect, provide moneys for the payment of the Redemption Price by
depositing the amount thereof for the account of the holders of Series A
Preferred Stock entitled thereto with a bank or trust company doing
business in New York, New York, or Chicago, Illinois, and having capital
and surplus of at least $20,000,000. The date upon which such deposit may
be made by the Corporation (hereinafter called the "date of deposit") shall
be prior to the date fixed as the date of redemption. In any such case
there shall be included in the notice of redemption a statement of the date
of deposit and of the name and address of the bank or trust company with
which the deposit has been or will be made. On and after the date fixed in
any such notice of redemption as the date of redemption (unless default
shall be made by the Corporation in providing moneys for the payments of
the Redemption Price pursuant to such notice) or, if the Corporation shall
have made such deposit on or before the date specified therefor in the
notice, then on and after the date of deposit all rights of the holders of
the Series A Preferred Stock to be redeemed as stockholders of the
Corporation, except the right to receive the Redemption Price as
hereinafter provided, shall cease and terminate. Anything contained herein
or in the Corporation's Certificate
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of Incorporation, as amended, to the contrary notwithstanding, the
Corporation shall not be required to declare or pay on such Series A
Preferred Stock to be redeemed, and the holders thereof shall not be
entitled to receive, any dividends in addition to those included in the
Redemption Price; provided, however that the Corporation may pay in regular
course any dividends included in the Redemption Price either to the holders
of record on the record date fixed for the determination of stockholders
entitled to receive such dividends (in which event, anything herein or in
the Corporation's Certificate of Incorporation, as amended, to the contrary
notwithstanding, the amount so deposited need not include any dividends so
paid or to be paid) or as a part of the Redemption Price upon surrender of
the certificates for the shares redeemed. At any time on or after the date
fixed as aforesaid for such redemption or, if the Corporation shall elect
to deposit the moneys for such redemption as herein provided, then at any
time on or after the date of deposit and without awaiting the date fixed as
aforesaid for such redemption, the respective holders of record of the
Series A Preferred Stock to be redeemed shall be entitled to receive the
Redemption Price upon actual delivery to the Corporation, or, in the event
of such deposit, to the bank or trust company with which such deposit shall
be made, of certificates for the shares to be redeemed, such certificates,
if required, to be properly stamped for transfer and duly endorsed in blank
or accompanied by proper instruments of assignment and transfer thereof
duly executed in blank. Any moneys so deposited which shall remain
unclaimed by the holders of such Series A Preferred Stock at the end of
four years after the redemption date shall be paid by such bank or trust
company to the Corporation and any interest accrued on moneys so deposited
shall belong to the Corporation and shall be paid to it from time to time.
Section 9. Rank. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior
to all series of any other class of Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation, as amended,
of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the outstanding
shares of Series A Preferred Stock, voting together as a single class.
PROVISIONS RELATING TO THE COMMON STOCK
(a) Except as provided by law or this Certificate of Incorporation,
each holder of Common Stock shall have one vote in respect of each share of
stock held by him of record on the books of the corporation on all matters
voted upon by the stockholders.
(b) Subject to the provisions relating to all classes of stock having
prior rights as to dividends at the time outstanding, the holders of Common
Stock shall be entitled to receive, to the extent permitted by law, such
dividends as may be declared from time
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to time by the Board of Directors out of the assets of the corporation
legally available therefor.
(c) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation, after
the payment in full of all preferential amounts to which the holders of
outstanding shares of all classes of stock having prior rights at the time
shall be entitled, holders of Common Stock shall be entitled to receive all
of the remaining assets of the corporation of whatever kind available for
distribution to such stockholders ratably in proportion to the number of
shares of Common Stock held by them respectively. The Board of Directors
may distribute in kind to the holders of Common Stock such remaining assets
of the corporation or may sell, transfer or otherwise dispose of all or any
part of such remaining assets to any other corporation, trust or entity,
and receive payment therefor in cash, stock or obligations of such other
corporation, trust or entity, or any combination thereof, and may sell all
or any part of the consideration so received and distribute any balance
thereof in kind to holders of Common Stock. The merger or consolidation of
the corporation into or with any other corporation, or the merger of any
other corporation into it, or any purchase or redemption of shares of stock
of the corporation of any class, shall not be deemed to be a dissolution,
liquidation or winding up of the corporation for the purposes of this
paragraph.
(d) No holder of shares of the Common Stock of the corporation shall
have preemptive rights or otherwise be entitled as a matter of right to
purchase or subscribe for any part of any unissued stock of any class, or
of any additional stock of any class of capital stock of the corporation,
or of any bonds, certificates of indebtedness, debentures, or other
securities convertible into stock of the corporation, now or hereafter
authorized, but any such stock or other securities convertible into stock
may be issued and disposed of pursuant to resolution by the Board of
Directors to such persons, firms, corporations or associations and upon
such terms and for such consideration (not less than the par value or
stated value thereof) as the Board of Directors in the exercise of its
discretion may determine and as may be permitted by law without action by
the stockholders. The Board of Directors may provide for payment therefor
to be received by the corporation in cash, personal property, real property
(or leases thereof) or services. Any and all shares of stock so issued for
which the consideration so fixed has been paid or delivered, shall be
deemed fully paid and not liable to any further call or assessment.
FIFTH: The names and places of residence of the incorporators are as
follows:
Names Residences
----- ----------
David K. Hardin Chicago, Illinois
Edward H. Baker, Jr. Chicago, Illinois
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Scott Ellwood Chicago, Illinois
SIXTH: The existence of this corporation is and shall be perpetual.
SEVENTH: The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
EIGHTH: The following provisions are hereby adopted with respect to
and for the management of the business of the corporation and for the purpose of
creating, defining, limiting and regulating the powers of the corporation, the
Board of Directors and the stockholders, which powers shall be construed in
furtherance of the powers expressly conferred by statute:
1. The Board of Directors may at any time and from time to time make,
alter, amend or repeal the by-laws of the corporation.
2. The Board of Directors may set apart, out of any of the funds of
the corporation available for dividends, a reserve or reserves for any
proper purpose and may abolish any such reserve in the manner in which it
was created.
3. The Board of Directors may at any time initiate, authorize and
adopt plans for pensions, profit sharing, deferred compensation, insurance
benefits of all types and descriptions, and rights, options or other
arrangements for the purchase of stock of the corporation, and to make the
benefits of any such plans available to the directors, officers or
employees of the corporation or to persons associated with or participating
in the business of the corporation.
4. The Board of Directors may provide for the payment by the
corporation of reasonable director's fees and of the travel and other
expenses incurred by the directors in connection with attendance at
meetings or otherwise incurred on business for and on behalf of the
corporation.
5. No election of directors need be by ballot unless the by-laws
shall provide otherwise.
6. The by-laws shall determine the circumstances under which, and the
manner in which, the stockholders shall be permitted to inspect the books,
accounts and documents of the corporation.
7. No contract or other transaction between the corporation and any
other corporation, partnership, person, association, syndicate or other
form of organization which requires approval of the Board of Directors
shall in any way be affected or invalidated by the fact that a director of
the corporation is pecuniarily or otherwise interested, directly or
indirectly, in said contract or other transaction or in such other
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corporation, partnership, person, association, syndicate or other form of
organization, if (a) the contract or other transaction is presented for
approval at a duly called meeting of the Board of Directors, (b) a majority
of directors present at such meeting are not thus interested, and (c) the
interested director discloses the nature of his interest at such meeting.
If the preceding conditions are fulfilled, then such interested director
may be counted in determining the existence of a quorum at such meeting,
his vote may be counted with respect to the action taken and the other
directors voting in favor of such contract or transaction shall not be
personally liable for having so voted merely by virtue of the existence of
the interest of the interested director. None of the restrictions or
requirements of this paragraph shall be applicable if the contract or other
transaction is between or with a corporation, partnership, association,
syndicate or other business organization which is controlled, directly or
indirectly, by the corporation.
8. Indemnity of Officers, Directors and Employees
The Corporation shall indemnify, to the full extent that it
shall from time to time have power under applicable law so to do
and in the manner permitted by such law, any person made or
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is
or was a Director or officer of the Corporation. The Corporation
may indemnify, to the full extent it shall from time to time have
power under applicable law so to do and in a manner permitted by
such law, any person made or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was an employee or agent of the
Corporation, or is or was serving at the request of the Corporation
as a Director, officer, employee or agent of, or participant in,
another corporation, partnership, joint venture, trust or other
enterprise. The indemnification provided by this paragraph 8 shall
not be deemed exclusive of any other rights to which any person
seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or vote of disinterested Directors
or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall
continue as to a person who has ceased to be such director,
officer, employee, agent or participant and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
9. Directors
(a) Number. The number of directors which shall constitute
the whole Board of Directors shall not be less than six (6) nor
more than twelve (12) as determined from time to time by resolution
adopted by a majority of the entire Board of Directors. No decrease
in the number of directors shall shorten the term of any incumbent
director.
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(b) Classification of Board of Directors. The Board of
Directors shall be classified, with respect to the time for which
they severally hold office, into three (3) classes, as nearly equal
in number as possible. At the annual meeting of stockholders in
1994, the three classes of directors shall be elected to serve
terms expiring in 1995, 1996 and 1997, respectively, and at each
annual meeting of stockholders thereafter, the successors of the
class of directors whose term is expiring at such meeting shall be
elected to hold office for a term expiring at the annual meeting of
the stockholders to be held in the third year following their
election, with each such director in each case to hold office until
his or her successor is elected and qualified.
(c) Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors
may be filled by a majority of the remaining directors, although
less than a quorum, or by a sole remaining director, and any
director so appointed shall hold office for a term expiring at the
next election of the class for which such director was appointed
and until his or her successor is elected and qualified.
(d) Removal. Any director may be removed from office at
any time, but only for cause and only upon the affirmative vote of
the holders of at least 66-2/3% of the voting power of the then
outstanding shares of the capital stock of the corporation.
(e) Amendment, Etc. Notwithstanding any provision in this
Certificate of Incorporation to the contrary, the affirmative vote
of the holders of at least 66-2/3% of the voting power of the then
outstanding shares of the capital stock of the corporation shall be
required to repeal, amend, modify or adopt any provision
inconsistent with the provisions of this Part 9 of Article EIGHTH.
NINTH: No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, as the same exists or hereafter may be amended, or (iv) for any transaction
from which the director derived an improper personal benefit. If the Delaware
General Corporation Law is amended after approval by the stockholders of this
Article Ninth to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
Any repeal or modification of this Article Ninth by the stockholders
of the corporation shall be prospective only and shall not adversely affect any
right or protection of a director of the corporation existing at the time of
such repeal or modification.
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TENTH: The corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred herein
upon stockholders and directors are granted subject to this reservation.
IN WITNESS WHEREOF, said MARKET FACTS, INC. has caused this
certificate to be signed by Thomas H. Payne, its President, and Wesley S.
Walton, its Secretary, this 1 day of February, 1995.
MARKET FACTS, INC.
By: Thomas H. Payne
---------------------------------------
President
ATTEST:
Wesley S. Walton
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Secretary
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EXHIBIT 3B
As Amended through 4/27/94
BY-LAWS
OF MARKET FACTS, INC.
ARTICLE I
OFFICES
Section 1. Delaware Office. The registered office of the corporation in
the State of Delaware shall be in the City of Wilmington and County of New
Castle.
Section 2. Other Offices. The corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Location. All meetings of the stockholders for the election of
directors shall be held in the City of Chicago, State of Illinois, at such place
as may be fixed from time to time by the board of directors, or at such other
place either within or without the State of Delaware as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting. Annual meetings of stockholders shall be held
on the third Wednesday in April in each year, if not a legal holiday, and if a
legal holiday, then on the next business day following, or on such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a simple
majority vote a board of directors, and transact such other business as may
properly be brought before the meeting.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the secretary of the corporation.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the corporation, not less than 50 days nor
more than 75 days prior to the meeting;
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provided, however, that in the event that less than 65 days' notice or prior
public disclosure of the date of the meeting is given or made to the
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made whichever first occurs. A stockholder's notice to the secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of the stockholder proposing such
business, (iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, and (iv) any material interest of the
stockholder in such business.
Notwithstanding anything in these by-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Article II, Section 2, provided, however, that
nothing in this Article II, Section 2 shall be deemed to preclude discussion by
any stockholder of any business properly brought before the annual meeting.
The chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Article II, Section 2, and if
he should so determine, he shall so declare to the meeting any such business not
properly brought before the meeting shall not be transacted. (Amended 2/3/93)
Section 3. Notice. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
Section 4. Voting Lists. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
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notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the chairman of the board of
directors or the president and shall be called by the president or secretary at
the request in writing of a majority of the board of directors, or at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Notice. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Purpose. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. Quorum. The holders of a majority of each class of stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 9. Vote Required For Action. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting,
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unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Section 10. Proxies. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on or
after three years from its date, unless the proxy provides for a longer period.
Section 11. Informal Action. Unless otherwise provided in the certificate
of incorporation, any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
Section 12. Nomination of Directors. Only persons who are nominated in
accordance with the following procedure shall be eligible for election as
directors. Nominations of persons for election to the board of the corporation
at the annual meeting may be made at a meeting of stockholders or by or at the
direction of the board of directors, by any nominating committee or person
appointed by the board, or by any stockholder of the corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures set forth in this Article II, Section 12. Such nominations, other
than those made by or at the direction of the board, shall be made pursuant to
timely notice in writing to the secretary of the corporation. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at the
principal executive offices of the corporation, not later than (1) with respect
to an election to be held at an annual meeting of stockholders, 90 days in
advance of the meeting or no later than 270 days after the date of the last
annual meeting, and (2) with respect to an election to be held at a special
meeting of stockholders for the election of directors, the close of business on
the 7th day following the earlier of (x) the date on which notice of such
meeting is first given to stockholders and (y) the date on which a public
announcement of
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such meeting is first made. Such stockholder's notice to the secretary shall
set forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the person, (iv) the consent of each
nominee to serve as a director of the corporation if so elected and (v) any
other information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a under
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving the notice (i) the name and record address of the stockholder and (ii)
the class and number of shares of capital stock of the corporation which are
beneficially owned by the stockholder. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of the proposed nominee to serve as
director of the corporation. No person shall be eligible for election as
director of the corporation unless nominated in accordance with the procedures
set forth herein.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedures, and if he should so determine, he shall so declare to the
meeting and defective nomination shall be disregarded. (Adopted 2/3/93)
ARTICLE III
DIRECTORS
Section 1. Number. The number of directors which shall constitute the
whole board shall not be less than six (6) nor more than twelve (12) as
determined from time to time by resolution adopted by the board of directors.
The directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. Vacancies. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the remaining directors, although less than a quorum, or by a sole
remaining director, and any director so appointed shall hold office for a term
expiring at the next election of the class for which such
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director was appointed and until his or her successor is elected and qualified
[Amended 4/27/94].
Section 3. Powers. The business of the corporation shall be managed by
its board of directors which may exercise all such powers of the corporation and
do all such lawful acts and things as are not by statute or by the certificate
of incorporation or by these by-laws directed or required to be exercised or
done by the stockholders.
Section 4. Location. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. Meeting. The first meeting of each newly elected board of
directors shall be held without notice immediately after the annual meeting of
stockholders in each year.
Section 6. Notice Regular Meetings. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board.
Section 7. Notice Special Meetings. Special meetings of the board may be
called by the chairman of the board or the president on five days' notice to
each director, either personally or by mail or by telegram; special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of two directors.
Section 8. Quorum. At all meetings of the board, a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Informal Action. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board.
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Section 10. Telephonic Meetings. Unless otherwise restricted by the
certificate of incorporation or these by-laws, members of the board of
directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 11. Powers of Committees. The board of directors may, by
resolution passed by unanimous vote, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate numbers of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors, shall have and may
exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the by-laws of the corporation; and, unless the resolution or the
certificate of incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
Section 13. Voting Shares of Other Corporations. Unless otherwise ordered
by the board of directors the chairman of the board and the president or such
other persons as the board of directors may appoint shall have full power and
authority on behalf of the corporation to attend any meeting of stockholders
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of any corporation in which this corporation may hold stock, and to vote the
shares held by this corporation at such meeting and to possess and exercise any
and all the rights and powers incident to the ownership of such shares which
this corporation as the owner thereof might have, possess and exercise.
Section 14. Compensation. Unless otherwise restricted by the certificate
of incorporation or these by-laws, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
ARTICLE IV
NOTICES
Section 1. Notice. Whenever, under the provisions of the statutes or of
the certificate of incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Section 2. Notice by Telegraph, Cable or Radio. Whenever, under the
provisions of these by-laws, notice is required to be given to any director or
officer, such notice may be given by prepaid telegram, cablegram or radiogram
addressed to such director or officer at such address as appears on the books of
the corporation, or in default of other address, at his place of residence or
usual place of business last known to the corporation, and such notice shall be
deemed to be given at the time such telegram, cablegram or radiogram shall be
delivered to the telegraph, cable or radio company for transmittal.
Section 3. Notice by Telephone, Wireless or Other Means of Voice
Communication. Whenever, under the provisions of these by-laws, notice is
required to be given to any director or officer, such notice shall be deemed to
have been given when such notice has been transmitted by telephone, wireless or
other means
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of voice communication to such number or call designation as may appear on the
records of the corporation for such person, or in default of other address, at
his place of residence or usual place of business known to the corporation.
Section 4. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the certificate of incorporation or
of these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. Number. The officers of the corporation shall be chosen by the
board of directors and shall be a chairman of the board of directors, a
president, a secretary and a treasurer. The board of directors may also choose
one or more vice-presidents, assistant secretaries and assistant treasurers.
Any number of offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
Section 2. Election. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a chairman of the board of
directors, a president, one or more vice-presidents, a secretary and a
treasurer.
Section 3. Other Officers. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. Salaries. The board of directors shall fix and determine the
salaries of the officers of the corporation: Provided, however, that the board
of directors by resolution duly adopted may delegate to the chief executive
officer the power to fix and determine the salaries of all officers and to
increase and decrease such salaries from time to time in his sole discretion,
subject, however, to the power of the board of directors to review and increase
or decrease the salary of any officer at any time. No officer whose salary is
fixed and determined in an annual amount or at an annual rate shall have any
contractual right to receive the salary so fixed and determined for any period
of time beyond the period of time that such officer shall
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hold the office to which he is elected and perform the duties thereof; and the
fixing and determining of any salary in an annual amount shall constitute the
rate at which such officer is to be compensated during the period he is
performing the duties of his office. (Amended 7/26/89)
Section 5. Term of Office. The officers of the corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the board of directors may be removed at any time by vote of the
board of directors. Any vacancy occurring in any office of the corporation may
be filled by the board of directors.
Section 6. The Chief Executive Officer. The chief executive officer of
the corporation shall have general direction over the general policies and
affairs of the corporation and of compliance with the by-laws and resolutions
and directions of the board of directors, subject only to the control and
direction of the board of directors. He may sign with the secretary or other
proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation, any deeds, mortgages,
contracts, bonds and all other corporate obligations or instruments for and in
the name of the corporation except where the signing and execution thereof is
expressly delegated by the board of directors or by these by-laws to some other
officer or agent, or shall be required by law to be otherwise signed or
executed. As to all employees, except those selected by the board of directors,
he shall employ such employees, prescribe their duties, fix their salaries and
he may discharge any such employee.
Section 7. The Chief Operating Officer. The chief operating officer shall
have general direction over the day to day management of the affairs of the
corporation and perform such other duties as from time to time may be assigned
by the chief executive officer. In the absence of the chief executive officer
or in the event of his inability or refusal to act, the chief operating officer
shall perform the duties of the chief executive officer and when so acting shall
have all the powers of and be subject to all the restrictions upon the chief
executive officer.
Section 8. Chairman of the Board. The chairman of the board shall, when
present, preside as chairman at all meetings of the shareholders and the board
of directors. He may call meetings of the board of directors and of any
standing committee of the board of directors when he deems it necessary. He may
appoint special committees and prescribe the scope of their duties and
authority. He shall, in the absence or incapacity of the president, perform all
duties and functions and exercise all of
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the powers of the president. The chairman shall have such other powers and
perform such other duties as from time to time may be prescribed by the board of
directors.
Section 9. The Vice Chairman of the Board. The vice chairman shall assist
the chairman and the president in the discharge of their duties as the board of
directors may direct from time to time and will perform such other duties as
from time to time may be assigned by the chairman of the board or the board of
directors.
Section 10. The President. The president shall report to the chairman and
keep the chairman informed concerning the affairs and condition of the business
of the corporation. He shall, in the absence or incapacity of the chairman,
perform all duties and functions and exercise all of the powers and perform such
other duties as are incident to the office of the chairman, and as from time to
time may be prescribed by the board of directors or the chairman thereof. In
the absence of the chairman, he shall preside as chairman of all meetings of the
shareholders and the board of directors.
Section 11. The Vice Presidents. There shall be one or more executive
vice presidents and one or more vice presidents who shall assist the chairman
and the president in the discharge of their duties as the president and/or the
chairman may direct and shall perform such other duties as from time to time may
be assigned by the president or by the board of directors. In the absence of
the chairman and of the president, or in the event of their inability or refusal
to act, the executive vice president shall perform the duties of the chairman
and/or the president, and when so acting shall have all the powers of and be
subject to all the restrictions upon the chairman and the president. In the
absence of the chairman, vice chairman, the president and the executive vice
president, the vice presidents in the order designated by the board of
directors, or in the absence of any designation, then in the order of seniority
of tenure as vice president, shall perform the duties of the president and/or
the chairman, and when so acting shall have all the powers of and be subject to
all the restrictions upon the chairman and the president.
Section 12. The Secretary and Assistant Secretary. The secretary shall
attend all meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of the corporation
and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall
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perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
The assistant secretary, if any, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
Section 13. The Treasurer and Assistant Treasurers. The treasurer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated
by the board of directors.
He shall disburse the funds of the corporation as may be ordered by the
board of directors, taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its regular meetings, or
when the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the corporation.
If required by the board of directors, he shall give the corporation a bond
(which shall be renewed every six years) in such sum with such surety or
sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control, belonging to the corporation.
The assistant treasurer, if any, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and
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shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Signatures. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by
the chairman of the board of directors or the president or a vice-president and
the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation, certifying the number of shares owned by him in
the corporation.
Section 2. Facsimile Signatures. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfer of Stock. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
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Section 5. Fixing Record Date. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
Section 6. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise required by
the laws of Delaware.
Section 7. Inspection of Records. The directors shall determine from time
to time whether and if allowed, when and under what conditions and regulations
the accounts and books of the corporation (except such as may by statute be
specifically open to inspection) or any of them shall be open to the inspection
of the stockholders, and the stockholders' rights in this respect are and shall
be restricted and limited accordingly.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall indemnify all directors of the corporation acting in
such capacity and may indemnify any and all persons whom it has the power to
indemnify under the General Corporation Law of Delaware against any and all
expenses, judgments, fines, amounts paid in settlement, and any other
liabilities to the fullest extent permitted by such Law and may, at the
discretion of the board of directors, purchase and maintain in-
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surance, at its expense, to protect itself and such persons against any such
expense, judgment, fine, amount paid in settlement or other liability, whether
or not the corporation would have the power to so indemnify such person under
the General Corporation Law of Delaware.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Before payment of any dividend, there may be set aside out of any funds of
the corporation available for dividends such sums or sums as the directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
Section 2. Contracts. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
Section 3. Loans. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
Section 4. Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositories as the board of directors may
select.
Section 5. Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or
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officers or such other person or persons as the board of directors may from time
to time designate.
Section 6. Fiscal Year. The fiscal year of the corporation shall be the
calendar year.
Section 7. Seal. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
These by-laws may be altered, amended or repealed or new by-laws may be
adopted by the stockholders entitled to vote or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation, at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new by-
laws be contained in the notice of such special meeting.
-16-
<PAGE>
Exhibit 10.8
NBD Bank
Corporate Banking Group
55 East Euclid Avenue
Mount Prospect, Illinois 60056
Phone 708.506.7760
708.506.7799
Daniel A. Lange
Second Vice President
October 1, 1995
Mr. Timothy Sullivan
Markets Facts, Inc.
3040 West Salt Creek Lane
Arlington Heights, IL 60005
Dear Tim:
NBD Bank (the "Bank") is pleased to inform you that the Bank has approved
an uncommitted credit authorization to Market Facts, Inc., (the "Borrower") in
a principal amount not to exceed Three Million and 00/100 Dollars ($3,000,000)
in the aggregate at any one time outstanding (the "Credit Facility"), under the
terms and conditions set forth in this letter agreement, so long as the Bank is
continually satisfied with the Borrower's managerial and financial status.
1. Master Promissory Note. All borrowings under the Credit Facility shall be
evidenced by a Master Promissory Note in the form attached as Exhibit A,
executed concurrently with this letter agreement (the "Master Note"). The Bank
shall, in the ordinary course of its business, make notations in its records of
the date, amount, interest rate and maturity of each borrowing, the amount of
each payment and other information. Such records shall, in the absence of
manifest error, be conclusive as to the outstanding principal balance of and
interest rate or rates applicable to the Master Note.
2. Interest Rates. Disbursements under the Master Note shall bear interest at
a rate established by the Bank under its "Purchased Note Program" which may be
above or below the Bank's prime rate and which may not be the lowest rate
charged by the Bank to any of its customers.
3. Maturities of Rate Advances. Each advance of funds under this agreement
shall be repayable at a stated maturity (not to exceed 90 days) established by
the Bank at the time of advance or, if no such stated maturity is established,
upon demand. If repayable at a stated maturity, the advance shall bear interest
at a rate established by the Bank on the date of the advance and may not be
prepaid prior to its stated maturity with the Bank's consent. If repayable on
demand, the advance shall bear interest at a rate established by the Bank from
time to time, which rate is subject to change daily.
<PAGE>
Mr. Timothy Sullivan
October 1, 1995
Page 2
4. Interest Payments. Interest on each advance of funds under this agreement
shall be due and payable at the stated maturity, if any, or, if the advance is
payable on demand, on the first day of each month, commencing on the first such
date following the advance. Interest shall be paid by the Bank's debiting the
Borrower's account at the Bank, with written confirmation to the Borrower or by
wire transfer in immediately available funds.
5. Request for Advance. Upon request given by telephone, tested wire, or
letter, by a person designated to the Bank as the Borrower's duly authorized
representative, the Bank will advance and credit to the Borrower's account at
the Bank, or transfer to another bank designated by the Borrower, such sums of
money as may mutually be agreed upon at the time of the request.
The Borrower and the Bank each shall, upon the request of the other,
forward to the other a written confirmation of any advance of funds under this
agreement, including confirmation of the date, maturity and amount of, and the
interest rate applicable to, the advance of funds. Any loans with a maturity of
7 days or longer will in all cases require the Borrower's written confirmation.
The Borrower shall provide the Bank with a list of the persons
designated by the Borrower as its duly authorized representatives. The Bank may
act upon the oral instructions of any person reasonably designated by the
Borrower as its authorized representative.
Each advance of funds or repayment shall be in the minimum amount of
$500,000.00. and shall be made in immediately available funds at the principal
office of the Bank in Wheaton, Illinois.
6. Advances at Bank's Discretion. Advanced under the Credit Facility are
solely at the Bank's discretion. Any advance on one or more occasions shall
not commit the Bank to make any subsequent advance. Unless earlier withdrawn,
the Credit Facility shall expire on October 1, 1996.
7. Representations. The Borrower represents that it is a corporation
duly organized, existing and in good standing under the laws of the State of
Delaware, and that the execution and delivery of this agreement and the
performance of the obligations it imposes are within its corporate powers,
have been duly authorized by all necessary action of its board of directors,
and do not contravene the terms of its articles of
<PAGE>
Mr. Timothy Sullivan
October 1, 1995
Page 3
incorporation or by-laws. The Borrower further represents that the execution and
delivery of this agreement and the performance of the obligations it imposes do
not violate any law and do not conflict with any agreement by which it is bound,
and that no consent or approval of any governmental authority or any third party
is required for the execution or delivery of this agreement or the performance
of the obligations it imposes and that this agreement is a valid and binding
agreement, enforceable according to its terms. The Borrower further represents
that all balance sheets, profit and loss statements, and other financial
statements furnished to the Bank are accurate in all material respects and
fairly reflect the financial condition of the organizations and persons to which
they apply on their effective dates, including contingent liabilities of every
type, which financial condition has not changed materially and adversely since
those dates.
8. Default. If any of the following events occurs:
(1) The Borrower fails to pay when due any amount payable under the
Master Note or this agreement, or under any agreement or instrument evidencing
debt to any creditor, (2) Any representation of the Borrower contained in this
agreement is untrue in any material respect, (3) The Borrower makes an
assignment for the benefit of creditors or is adjudicated bankrupt, or (4)
proceedings are instituted against the Borrower under the United States
Bankruptcy Code or under any bankruptcy, reorganization or insolvency law or
other law for the relief of debtors and such proceedings are not stayed or
dismissed within 60 days of commencement, then whether or not the Bank has made
demand, the Credit Facility shall terminate and all borrowings under it shall be
due immediately, without notice, at the Bank's option.
9. Remedies. If borrowings under the Credit Facility are not paid at
maturity, whether by demand, acceleration or otherwise, the Bank shall have all
of the rights and remedies provided by any law or agreement. The Borrower is
liable to the Bank for all reasonable costs and expenses of every kind incurred
in the making and collection of the Credit Facility, including, without
limitation, reasonable attorneys' fees and court costs. These costs and expenses
shall include, without limitation, any costs or expenses incurred by the Bank in
any bankruptcy, reorganization, insolvency or other similar proceeding.
10. Waivers. No delay on the part of the Bank in the exercise of any right
or remedy shall operate as a waiver. No single or partial exercise by the
Bank of any right
<PAGE>
Mr. Timothy Sullivan
October 1, 1995
Page 4
or remedy shall preclude any other future exercise of that right or remedy or
the exercise of any other right or remedy. No waiver or indulgence by the Bank
of any default shall be effective unless it is in writing and signed by the
Bank, nor shall a waiver on one occasion be construed as a bar to or waiver of
that right on any future occasion.
11. Entire Agreement/Severability. This agreement and the Master Note embody
the entire agreement and understanding between the Borrower and the Bank and
supersede all prior agreements and understandings relating to their subject
matter. If any one or more of the obligations of the Borrower under this
agreement or the Master Note shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrower shall not in any way be affected or impaired, and
such validity, illegality or unenforceability in one jurisdiction shall not
affect the validity, legality or enforceability of the obligations of the
Borrower under this agreement or the Master Note in any other jurisdiction.
12. Miscellaneous. This agreement and the Master Note are governed by
Illinois law. This agreement and the Master Note are binding on the Borrower
and its successors, and shall inure to the benefit of the Bank, its successors
and assigns. Section headings are for convenience of reference only and shall
not affect the interpretation of this agreement or the Master Note.
13. Waiver of Jury Trial. The Bank and the Borrower, after consulting or
having had the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by jury in any
litigation based upon or arising out of this letter agreement, the Master Note
or any related instrument or agreement or any of the transactions contemplated
by this letter agreement, or any course of conduct, dealing, statements whether
oral or written, or actions of either of them. Neither the Bank nor the
Borrower shall seek to consolidate, by counterclaim or otherwise, any such
action in which a jury trial has been waived with any other action in which a
jury trial cannot be or has not been waived. These provisions shall not be
deemed to have been modified in any respect or relinquished by either the Bank
or the Borrower except by a written instrument executed by both of them.
<PAGE>
Mr. Timothy Sullivan
October 1, 1995
Page 5
NBD BANK ADDRESS FOR NOTICES:
By: /s/ Daniel A. Lange 55 E. EUCLID
-------------------------- Mount Prospect, IL 60056
Attn: Daniel A. Lange
Its: Second Vice President Corporate Banking Group
-------------------------- Telefacsimile #: 708/240-1705
Accepted and Agreed to on November 9, 1995, which shall be the effective
date of the agreement, notwithstanding the date first written above.
MARKETS FACTS, INC. ADDRESS FOR NOTICES:
By: /s/ Timothy Sullivan 3040 West Salt Creek Lane
-------------------------- Arlington Heights, IL 60005
Its: Vice President & Treasurer Attn: Mr. Timothy Sullivan
-------------------------- Telefacsimile #: 708/590-7294
<PAGE>
MASTER PROMISSORY NOTE
$3,000,000.00 Wheaton, Illinois
October 1, 1995
For value received, on demand or at such other maturity set forth in the
Bank's records, Market Facts, Inc., (the "Borrower") promises to pay to the
order of NBD Bank (the "Bank"), at the Bank's principal office in the state of
Illinois, in lawful money of the United States of America and in immediately
available funds, the principal sum of Three Million and 00/100 Dollars
($3,000,000.00) or such lesser amount as is indicated on the Bank's records
together with interest computed on the balance from time to time unpaid on the
basis of the actual number of days elapsed in a year of 360 days at the rate(s)
per annum determined from time to time pursuant to the "Letter Agreement," as
defined below, and reflected on the Bank's records, which interest shall be
payable in accordance with the terms set forth in the Letter Agreement, and to
pay interest on overdue principal from the date of demand or default until paid
at the rate which is three percent (2%) per annum in excess of the Rate
announced from time to time by the Bank as its "prime rate."
In no event shall the interest rate exceed the maximum rate allowed by law.
Any interest which would for any reason be deemed unlawful under applicable law
shall be applied to principal.
Waiver: The Borrower and each endorser of this note and any other party
liable for the debt evidenced by this note severally waives demand, presentment,
notice of dishonor and protest of this note, and consents to any extension or
postponement of time of its payment without limit as to number or period, to any
substitution, exchange or release of all or any part of any collateral
securing this note, to the addition of any party, and to the release, discharge,
or suspension of any rights and remedies against any person who may be liable
for the payment of this note. No delay on the part of the holder in the exercise
of any right or remedy shall operate as a waiver. No single or partial exercise
by the holder of any right or remedy shall preclude any future exercise of that
right or remedy or the exercise of any other right or remedy. No waiver or
indulgence by the holder of any default shall be effective unless it is in
writing and signed by the holder, nor shall a waiver on one occasion be
construed as a bar to or waiver of any right on any future occasion.
<PAGE>
This note evidences a debt under the terms of a certain Letter Agreement
between the Bank and the Borrower dated October 1, 1995, and any amendments,
(the "Letter Agreement"), which is incorporated by reference for additional
terms and conditions, including default and acceleration provisions.
WAIVER OF JURY TRIAL: The Bank and the Borrower, after consulting or having
had the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by jury in
any litigation based upon or arising out of this note, or any related
instruments or agreement, or any of the transactions contemplated by this note
or any related instrument or agreement, or any course of conduct, dealing,
statements whether oral or written, or actions of either of them. Neither the
Bank nor the Borrower shall seek to consolidate, by counterclaim or otherwise,
any such action in which a jury trial has been waived with any other action in
which a jury trial cannot be or has not been waived. These provisions shall not
be deemed to have been modified in any respect or relinquished by either the
Bank or the Borrower except by a written instrument executed by both of them.
3040 West Salt Creek Lane MARKET FACTS, INC.
Arlington Heights, IL 60005
By: /s/ Timothy Sullivan
---------------------------------
Its: Vice President & Treasurer
---------------------------------
<PAGE>
Exhibit 10.17
TERM NOTE
March 29, 1996
For value received, VERNE B. CHURCHILL promises to pay on April 1, 2000 to the
order of Market Facts, Inc., 3040 Salt Creek Lane, Arlington Heights, Illinois,
60005, or at any such other place as the payee or legal holder hereof may in
writing appoint, the sum of THIRTY THOUSAND DOLLARS ($30,000.00) together with
interest.
Interest will be billed to the undersigned annually for the period of March 1
through February 28 ("Interest Rate Year") and will be calculated based upon the
balance of the Note outstanding on the first day of the Interest Rate Year. The
rate of interest will be 8.25%.
The undersigned agrees to surrender to Market Facts, Inc. 6,000 shares of Market
Facts common stock to be held as collateral for this Note until such time as the
unpaid balance of principal and interest are paid in full.
The undersigned hereby authorizes, irrevocably, any attorney of any Court of
Record to appear for VERNE B. CHURCHILL in such Court if this Note is not paid
when due, and at any time thereafter to confess judgment, without due process,
in favor of the holder of this Note, for such amount as may appear to be due and
unpaid thereon, together with reasonable costs of collection, including
reasonable attorney fees, and to waive and release all errors which may
intervene in any such proceedings, and to consent to immediate execution upon
judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
VERNE B. CHURCHILL TIMOTHY J. SULLIVAN
- ------------------ -----------------------------
Verne B. Churchill Timothy J. Sullivan
Vice President and Treasurer
MARKET FACTS, INC.
<PAGE>
Exhibit 10.18
TERM NOTE
March 29, 1996
For value received, THOMAS H. PAYNE promises to pay on April 1, 2000 to the
order of Market Facts, Inc., 3040 Salt Creek Lane, Arlington Heights, Illinois,
60005, or at any such other place as the payee or legal holder hereof may in
writing appoint, the sum of SEVENTYFIVE THOUSAND DOLLARS ($75,000.00) together
with interest.
Interest will be billed to the undersigned annually for the period of March 1
through February 28 ("Interest Rate Year") and will be calculated based upon the
balance of the Note outstanding on the first day of the Interest Rate Year. The
rate of interest will be 8.25%.
The undersigned agrees to surrender to Market Facts, Inc. 15,000 shares of
Market Facts common stock to be held as collateral for this Note until such time
as the unpaid balance of principal and interest are paid in full.
The undersigned hereby authorizes, irrevocably, any attorney of any Court of
Record to appear for THOMAS H. PAYNE in such Court if this Note is not paid when
due, and at any time thereafter to confess judgment, without due process, in
favor of the holder of this Note, for such amount as may appear to be due and
unpaid thereon, together with reasonable costs of collection, including
reasonable attorney fees, and to waive and release all errors which may
intervene in any such proceedings, and to consent to immediate execution upon
judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
THOMAS H. PAYNE TIMOTHY J. SULLIVAN
- --------------- ----------------------------
Thomas H. Payne Timothy J. Sullivan
Vice President and Treasurer
MARKET FACTS, INC.
<PAGE>
Exhibit 10.19
TERM NOTE
March 29, 1996
For value received, GLENN W. SCHMIDT promises to pay on April 1, 2000 to the
order of Market Facts, Inc., 3040 Salt Creek Lane, Arlington Heights, Illinois,
60005, or at any such other place as the payee or legal holder hereof may in
writing appoint, the sum of THIRTY THOUSAND DOLLARS ($30,000.00) together with
interest.
Interest will be billed to the undersigned annually for the period of March 1
through February 28 ("Interest Rate Year") and will be calculated based upon the
balance of the Note outstanding on the first day of the Interest Rate Year. The
rate of interest will be 8.25%.
The undersigned agrees to surrender to Market Facts, Inc. 6,000 shares of Market
Facts common stock to be held as collateral for this Note until such time as the
unpaid balance of principal and interest are paid in full.
The undersigned hereby authorizes, irrevocably, any attorney of any Court of
Record to appear for GLENN W. SCHMIDT in such Court if this Note is not paid
when due, and at any time thereafter to confess judgment, without due process,
in favor of the holder of this Note, for such amount as may appear to be due and
unpaid thereon, together with reasonable costs of collection, including
reasonable attorney fees, and to waive and release all errors which may
intervene in any such proceedings, and to consent to immediate execution upon
judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
GLENN W. SCHMIDT TIMOTHY J. SULLIVAN
- ---------------- ----------------------------
Glenn W. Schmidt Timothy J. Sullivan
Vice President and Treasurer
MARKET FACTS, INC.
<PAGE>
Exhibit 10.20
TERM NOTE
March 29, 1996
For value received, LAWRENCE W. LABASH promises to pay on April 1, 2000 to the
order of Market Facts, Inc., 3040 Salt Creek Lane, Arlington Heights, Illinois,
60005, or at any such other place as the payee or legal holder hereof may in
writing appoint, the sum of TWENTYFIVE THOUSAND DOLLARS ($25,000.00) together
with interest.
Interest will be billed to the undersigned annually for the period of March 1
through February 28 ("Interest Rate Year") and will be calculated based upon the
balance of the Note outstanding on the first day of the Interest Rate Year. The
rate of interest will be 8.25%.
The undersigned agrees to surrender to Market Facts, Inc. 5,000 shares of Market
Facts common stock to be held as collateral for this Note until such time as the
unpaid balance of principal and interest are paid in full.
The undersigned hereby authorizes, irrevocably, any attorney of any Court of
Record to appear for LAWRENCE W. LABASH in such Court if this Note is not paid
when due, and at any time thereafter to confess judgment, without due process,
in favor of the holder of this Note, for such amount as may appear to be due and
unpaid thereon, together with reasonable costs of collection, including
reasonable attorney fees, and to waive and release all errors which may
intervene in any such proceedings, and to consent to immediate execution upon
judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
LAWRENCE W. LABASH TIMOTHY J. SULLIVAN
- ------------------ ----------------------------
Lawrence W. Labash Timothy J. Sullivan
Vice President and Treasurer
MARKET FACTS, INC.
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<PAGE>
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<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<CASH> 646,420
<SECURITIES> 50,000
<RECEIVABLES> 11,772,129
<ALLOWANCES> 887,882
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<CURRENT-ASSETS> 16,202,173
<PP&E> 26,969,457
<DEPRECIATION> 10,012,651
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0
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<OTHER-SE> 10,178,990
<TOTAL-LIABILITY-AND-EQUITY> 33,787,363
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