<PAGE>
As filed with the Securities and Exchange Commission on August 5, 1998
Registration No. 333-_______
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARKET FACTS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 36-2061602
(State of Incorporation) (I.R.S. Employer
Identification Number)
3040 WEST SALT CREEK LANE, ARLINGTON HEIGHTS, ILLINOIS 60005
(Address, including Zip Code, of Registrant's Principal Executive Offices)
MARKET FACTS, INC. 1996 STOCK PLAN
(Full Title of the Plan)
TIMOTHY J. SULLIVAN
Chief Financial Officer
Market Facts, Inc.
3040 West Salt Creek Lane
Arlington Heights, Illinois 60005
(847) 590-7000
(Name, Address, and Telephone Number of Agent For Service)
COPIES TO:
Janet O. Love, Esq.
Lord, Bissell & Brook
115 South LaSalle Street
Chicago, Illinois 60603
(312) 443-0700
____________________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount Proposed maximum Proposed maximum
Title of securities to be offering price aggregate Amount of
to be registered registered(1)(2) per share offering price registration fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 800,000 $23.375 (3) $18,700,000 (3) $5,517 (3)
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement registers additional shares of the Registrant's
Common Stock issuable pursuant to an amendment to the Market Facts, Inc.
1996 Stock Plan (the "Plan"). Currently, Registration Statement No.
333-37333 is effective with respect to 1,000,000 shares of Common Stock
issuable pursuant to the Plan. Accordingly, pursuant to Instruction E of
Form S-8, the registration fee is being paid with respect to the additional
securities only.
(2) Together with an indeterminant number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Plan as a result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock of the Company.
(3) Estimated pursuant to Rule 457(c) and (h) of the Securities Act solely for
the purpose of calculating the registration fee and based on the average of
the high and low prices of the Common Stock as reported by the Nasdaq
National Market on July 31, 1998.
<PAGE>
INTRODUCTION
Registration Statement No. 333-37333 was filed with the
Securities and Exchange Commission on October 7, 1997 by Market Facts, Inc.
(the "Registrant") to register 1,000,000 shares of its common stock, $1.00
par value per share (the "Common Stock"), issuable pursuant to the Market
Facts, Inc. 1996 Stock Plan (the "Plan"). Registration Statement No.
333-37333 is still effective. This Registration Statement is being filed to
register an additional 800,000 shares of Common Stock issuable by the
Registrant pursuant to the Plan, as amended.
Pursuant to Instruction E of Form S-8, the contents of
Registration Statement No. 333-37333 are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this
Registration Statement the documents listed below which have been filed with
the Securities and Exchange Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997;
2. The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998;
3. The Registrant's Current Report on Form 8-K dated March 31,
1998, as amended; and
4. The description of the shares of the Registrant's Common
Stock, $1.00 par value per share, contained in the
Registrant's Form 8-A dated April 30, 1970, Registration
Statement No. M181500, registering such shares pursuant to
Section 12 of the Securities Exchange Act of 1934 including
any amendment or report updating such description.
In addition, each document or report subsequently filed by the
Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, and
15(d) of the Exchange Act after the date of this Registration Statement, but
prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered by this Registration
Statement have been sold or which deregisters all such securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement. Each document or report incorporated into this
Registration Statement by reference shall be deemed to be a part of this
Registration Statement from the date of the filing of such document with the
Commission until the information contained therein is superseded or updated
by any subsequently filed document which is incorporated by reference into
this Registration Statement or by any subsequently furnished appendix to this
Registration Statement.
II-1
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Village of
Arlington Heights, State of Illinois, on July 30, 1998.
MARKET FACTS, INC.
By: /s/ Thomas H. Payne
-------------------------
Name: Thomas H. Payne
Its: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Timothy J. Sullivan
and Wesley S. Walton or either of them with power to act without the other,
as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all subsequent amendments and
supplements to this Registration Statement, and to file the same, or cause to
be filed the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto each said attorney-in-fact and agent full power to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that any said attorney-in-fact
and agent or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
NAME AND CAPACITY DATE
- ----------------- ----
/s/ Thomas H. Payne
- --------------------------------- July 30, 1998
Thomas H. Payne, Chief Executive Officer
and Director (Principal Executive Officer)
/s/ Timothy J. Sullivan
- --------------------------------- July 30, 1998
Timothy J. Sullivan, Chief Financial Officer
Senior Vice President, Treasurer, Assistant
Secretary and Director (Principal Financial
Officer)
II-2
<PAGE>
/s/ Anthony J. Solarz
- --------------------------------- July 30, 1998
Anthony J. Solarz, Vice President
and Controller
(Principal Accounting Officer)
/s/ William W. Boyd
- -------------------------------- July 30, 1998
William W. Boyd, Director
/s/ Verne B. Churchill
- -------------------------------- July 30, 1998
Verne B. Churchill, Chairman of the Board
and Director
/s/ Lawrence W. Labash
- -------------------------------- July 30, 1998
Lawrence W. Labash, Senior Vice President
and Director
/s/ Jeffery A. Oyster
- -------------------------------- July 30, 1998
Jeffery A. Oyster, Director
- -------------------------------- July 30, 1998
Karen E. Predow, Director
/s/ Sanford M. Schwartz
- -------------------------------- July 30, 1998
Sanford M. Schwartz, Executive Vice
President, President of Market Facts -
New York, Inc. and Director
/s/ Ned L. Sherwood
- -------------------------------- July 30, 1998
Ned L. Sherwood, Director
/s/ Jack R. Wentworth
- -------------------------------- July 30, 1998
Jack R. Wentworth, Director
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
- ------- -----------
4.1 Article Fourth of the Registrant's
Restated Certificate of Incorporation
(1), as amended (2)
4.2 Rights Agreement dated July 26, 1989
between the Registrant and First Chicago
Trust Registrant of New York, as amended
(3)
4.3 Certificate of Designation, Preferences
and Rights of Series B Preferred Stock
(4)
4.4 Market Facts, Inc. 1996 Stock Plan (5),
as amended (filed herewith)
5 Opinion of Lord, Bissell & Brook (filed
herewith)
23.1 Consent of KPMG Peat Marwick LLP (filed
herewith)
23.2 Consent of KPMG Peat Marwick LLP (filed herewith)
23.3 Consent of Lord, Bissell & Brook (included in
Exhibit 5 above)
24 Power of Attorney of certain officers
and directors of the Registrant
(included on the signature page)
____________________
(1) Exhibit is incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1996.
(2) Exhibit is incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1997.
(3) Exhibit is incorporated by reference to the Registrant's Form 8-A
dated July 3, 1996.
(4) Exhibit is incorporated by reference to Exhibit No. 99(c)(4) of the
Registrant's Schedule 13E-4 dated June 11, 1996.
(5) Exhibit is incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1996.
II-4
<PAGE>
EXHIBIT 4.4
MARKET FACTS, INC.
1996 STOCK PLAN (As Amended)
1. PREAMBLE.
Market Facts, Inc., a Delaware corporation (the "Company"), hereby
establishes the Market Facts, Inc. 1996 Stock Plan (the "Plan") as a means
whereby the Company may, through awards of (i) incentive stock options
("ISOs") within the meaning of Section 422 of the Code, (ii) non-qualified
stock options ("NSOs"), (iii) stock appreciation rights ("SARs"), and (iv)
restricted stock ("Restricted Stock"):
(a) provide officers, directors and key employees who have
substantial responsibility for the direction and management of
the Company with additional incentive to promote the success of
the Company's business;
(b) encourage such persons to remain in the service of the Company;
and
(c) enable such persons to acquire proprietary interests in the
Company.
The provisions of this Plan do not apply to or affect any option, stock,
stock appreciation right, restricted stock or phantom stock heretofore or
hereafter granted under any other stock plan of the Company, and all such
options, stock, stock appreciation rights, restricted stock or phantom stock
shall be governed by and subject to the applicable provisions of the plan
under which they were or will be granted.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
2.01 "Award" means the grant of Options, SARs and/or Restricted
Stock to a Participant.
2.02 "Award Date" means the date upon which an Option, SAR or
Restricted Stock is awarded to a Participant under the Plan.
2.03 "Board" or "Board of Directors" means the board of directors
of the Company.
2.04 "Code" means the Internal Revenue Code of 1986, as amended
from time to time or any successor thereto.
<PAGE>
2.05 "Committee" means two (2) or more directors elected by the
Board of Directors from time to time; provided, however, that in the absence
of an election by the Board, the Committee shall mean the Compensation
Committee of the Board of Directors.
2.06 "Common Stock" means the common stock of the Company, par
value $1.00 per share.
2.07 "Company" means Market Facts, Inc., a
Delaware corporation, and any successor thereto.
2.08 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as it exists now or from time to time may hereafter be amended.
2.09 "Fair Market Value" as of any date means the average closing
sale price for the Common Stock as of the close of business on the three most
recent trading days (including such date) on which actual sales occurred (as
reported by the Nasdaq Stock Market System or any securities exchange or
automated quotation system of a registered securities association on which
the Common Stock is then traded or quoted).
2.10 "ISO" means incentive stock options within the meaning of
Section 422 of the Code.
2.11 "NSO" means non-qualified stock options, which are not
intended to qualify under Section 422 of the Code.
2.12 "Option" means the right of a Participant, whether granted as
an ISO or an NSO, to purchase a specified number of shares of Common Stock,
subject to the terms and conditions of the Plan.
2.13 "Option Price" means the price per share of Common Stock at
which an Option may be exercised.
2.14 "Participant" means an individual to whom an Award has been
granted under the Plan.
2.15 "Plan" means the Market Facts, Inc. 1996 Stock Plan, as set
forth herein and from time to time amended.
2.16 "Restricted Stock" means the Common Stock awarded to a
Participant pursuant to Section 8 of this Plan.
2.17 "SAR" means a stock appreciation right issued to a Participant
pursuant to Section 9 of this Plan.
2.18 "Subsidiary" means any entity of which the Company owns or
controls more than 50 percent of (i) the outstanding capital stock, or (ii)
the combined voting power of all classes of stock.
<PAGE>
2.19 Rules of Construction:
2.19.1 GOVERNING LAW. The construction and operation of this
Plan are governed by the laws of the State of Illinois.
2.19.2 UNDEFINED TERMS. Unless the context requires another
meaning, any term not specifically defined in this Plan is used in the
sense given to it by the Code.
2.19.3 HEADINGS. All headings in this Plan are for reference
only and are not to be utilized in construing the Plan.
2.19.4 CONFORMITY WITH SECTION 422. Any ISOs issued under
this Plan are intended to qualify as incentive stock options described in
Section 422 of the Code, and all provisions of the Plan relating to ISOs
shall be construed in conformity with this intention. Any NSOs issued
under this Plan are not intended to qualify as incentive stock options
described in Section 422 of the Code, and all provisions of the Plan
relating to NSOs shall be construed in conformity with this intention.
2.19.5 GENDER. Unless clearly inappropriate, all nouns of
whatever gender refer indifferently to persons or objects of any gender.
2.19.6 terms refer also to the plural and vice versa.
2.19.7 SEVERABILITY. If any provision of this Plan is
determined to be illegal or invalid for any reason, the remaining
provisions are to continue in full force and effect and to be construed and
enforced as if the illegal or invalid provision did not exist, unless the
continuance of the Plan in such circumstances is not consistent with its
purposes.
3. STOCK SUBJECT TO THE PLAN.
Except as otherwise provided in Section 12, the aggregate number of
shares of Common Stock that may be issued under Options or as Restricted
Stock through this Plan may not exceed One Million Eight Hundred Thousand
(1,800,000) shares. Reserved shares may be either authorized but unissued
shares or treasury shares, in the Board's discretion. If any Awards of
Options and Restricted Stock hereunder shall terminate or expire, as to any
number of shares, new Options and Restricted Stock may thereafter be awarded
with respect to such shares.
4. ADMINISTRATION.
The Committee shall administer the Plan. All determinations of the
Committee are made by a majority vote of its members. The Committee's
determinations are final and binding on all Participants. In addition to any
other powers set forth in this Plan, the Committee has the following powers:
(a) to construe and interpret the Plan;
<PAGE>
(b) to establish, amend and rescind appropriate rules and regulations
relating to the Plan;
(c) subject to the terms of the Plan, to select the individuals who
will receive Awards, the times when they will receive them, the
number of Options, Restricted Stock and/or SARs to be subject to
each Award, the Option Price, the vesting schedule (including any
performance targets to be achieved in connection with the vesting
of any Award), the expiration date applicable to each Award and
other terms and provisions and restrictions of the Awards (which
need not be identical) and to amend or modify any of the terms of
outstanding Awards;
(d) to contest on behalf of the Company or Participants, at the
expense of the Company, any ruling or decision on any matter
relating to the Plan or to any Awards;
(e) generally, to administer the Plan, and to take all such steps and
make all such determinations in connection with the Plan and the
Awards granted thereunder as it may deem necessary or advisable;
and
(f) to determine the form in which tax withholding under Section 15
of this Plan will be made (I.E., cash, Common Stock or a
combination thereof).
5. ELIGIBLE PARTICIPANTS.
Present and future directors, officers and key employees of the Company
shall be eligible to participate in the Plan. The Committee from time to
time shall select those officers, directors and key employees of the Company
and any Subsidiary or affiliate of the Company who shall be designated as
Participants and shall designate in accordance with the terms of the Plan the
number, if any, of ISOs, NSOs, SARs and shares of Restricted Stock or any
combination thereof, to be awarded to each Participant.
6. TERMS AND CONDITIONS OF NON-QUALIFIED STOCK OPTIONS.
Subject to the terms of the Plan, the Committee, in its discretion, may
award an NSO to any Participant. Each NSO shall be evidenced by an
agreement, in such form as is approved by the Committee, and except as
otherwise provided by the Committee in such agreement, each NSO shall be
subject to the following express terms and conditions, and to such other
terms and conditions, not inconsistent with the Plan, as the Committee may
deem appropriate:
6.01 OPTION PERIOD. Each NSO will expire as of the earliest of:
(i) the date on which it is forfeited under the provisions of
Section 11.1;
(ii) ten (10) years from the Award Date;
<PAGE>
(iii) three (3) months after the Participant's termination of
employment with the Company and its parent and Subsidiaries
or service on the Board for any reason other than for cause
or death or total and permanent disability;
(iv) immediately upon the Participant's termination of employment
with the Company and its parent and Subsidiaries or service
on the Board for cause;
(v) twelve (12) months after the Participant's death or total
and permanent disability; or
(vi) any other date specified by the Committee when the NSO is
granted.
6.02 OPTION PRICE. At the time granted, the Committee shall
determine the Option Price of any NSO, and in the absence of such
determination, the Option Price shall be One Hundred percent (100%) of the
Fair Market Value of the Common Stock subject to the NSO on the Award Date.
6.03 VESTING. Unless otherwise determined by the Committee and set
forth in the Award agreement, NSO Awards shall vest in accordance with
Section 11.1; provided, that in no event shall an NSO granted to a
Participant who is subject to Section 16 of the Exchange Act be exercisable
earlier than six (6) months from the Award Date.
6.04 OTHER OPTION PROVISIONS. The form of NSO authorized by the
Plan may contain such other provisions as the Committee may from time to time
determine.
7. TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS
Subject to the terms of the Plan, the Committee, in its discretion, may
award an ISO to any employee Participant. Each ISO shall be evidenced by an
agreement, in such form as is approved by the Committee, and except as
otherwise provided by the Committee, each ISO shall be subject to the
following express terms and conditions and to such other terms and
conditions, not inconsistent with the Plan, as the Committee may deem
appropriate:
7.01 OPTION PERIOD. Each ISO will expire as of the earliest of:
(i) the date on which it is forfeited under the provisions of
Section 11.1;
(ii) ten (10) years from the Award Date, except as set forth in
Section 7.02 below;
<PAGE>
(iii) immediately upon the Participant's termination of
employment with the Company and any parent and Subsidiary of
the Company for cause;
(iv) three (3) months after the Participant's termination of
employment with the Company and any parent and Subsidiary of
the Company for any reason other than for cause or death or
total and permanent disability;
(v) twelve (12) months after the Participant's death or total
and permanent disability; or
(vi) any other date (within the limits of the Code) specified by
the Committee when the ISO is granted.
Notwithstanding the foregoing provisions granting discretion to the Committee
to determine the terms and conditions of ISOs, such terms and conditions
shall meet the requirements set forth in Section 422 of the Code or any
successor thereto.
7.02 OPTION PRICE AND EXPIRATION. The Option Price of any ISO
shall be determined by the Committee at the time an ISO is granted, and shall
be no less than one hundred percent (100%) of the Fair Market Value of the
Common Stock subject to the ISO on the Award Date; provided, however, that if
an ISO is granted to a Participant who, immediately before the grant of the
ISO, beneficially owns stock representing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or its
parent or subsidiary corporations, the Option Price shall be at least one
hundred ten percent (110%) of the Fair Market Value of the Common Stock
subject to the ISO on the Award Date and in such cases, the exercise period
specified in the Option agreement shall not exceed five (5) years from the
Award Date.
7.03 VESTING. Unless otherwise determined by the Committee and set
forth in the Award agreement, ISO Awards shall vest in accordance with
Section 11.1; provided that in no event shall an ISO granted to a
Participant who is subject to Section 16 of the Exchange Act be exercisable
earlier than six (6) months from the Award Date.
7.04 OTHER OPTION PROVISIONS. The form of ISO authorized by the
Plan may contain such other provisions as the Committee may, from time to
time, determine; provided, however, that such other provisions may not be
inconsistent with any requirements imposed on incentive stock options under
Code Section 422 and related Treasury regulations.
8. TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS.
Subject to the terms of the Plan, the Committee, in its discretion,
may award Restricted Stock to any Participant at no additional cost to the
Participant. Each Restricted Stock Award shall be evidenced by an agreement,
in such form as is approved by the Committee, and all shares of Common Stock
awarded to Participants under the Plan as Restricted Stock shall be subject
to the following express terms and conditions and to such other terms and
conditions, not inconsistent with the Plan, as the Committee shall deem
appropriate:
<PAGE>
(a) RESTRICTED PERIOD. Shares of Restricted Stock awarded under this
Section 8 may not be sold, assigned, transferred, pledged or
otherwise encumbered before they vest.
(b) VESTING. Restricted Stock Awards under this Section 8 shall vest
in accordance with Section 11.2.
(c) CERTIFICATE LEGEND. Each certificate issued in respect of shares
of Restricted Stock awarded under this Section 8 shall be
registered in the name of the Participant and shall bear the
following (or a similar) legend until such shares have vested:
"The transferability of this certificate and the shares
of stock represented hereby are subject to the terms
and conditions (including forfeiture) relating to
Restricted Stock contained in Section 8 of the Market
Facts, Inc. 1996 Stock Plan and an Agreement entered
into between the registered owner and Market Facts,
Inc. Copies of such Plan and Agreement are on file at
the principal office of Market Facts, Inc."
9. TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS.
The Committee may, in its discretion, grant an SAR to any Participant
under the Plan. Each SAR shall be evidenced by an agreement between the
Company and the Participant, and may relate to and be associated with all or
any part of a specific ISO or NSO. An SAR shall entitle the Participant to
whom it is granted the right, so long as such SAR is exercisable and subject
to such limitations as the Committee shall have imposed, to surrender any
then exercisable portion of his SAR and, if applicable, the related ISO or
NSO, in whole or in part, and receive from the Company in exchange, without
any payment of cash (except for applicable employee withholding taxes), that
number of shares of Common Stock having an aggregate Fair Market Value on the
date of surrender equal to the product of (i) the excess of the Fair Market
Value of a share of Common Stock on the date of surrender over the Fair
Market Value of the Common Stock on the date the SARs were issued, or, if the
SARs are related to an ISO or an NSO, the per share Option Price under such
ISO or NSO on the Award Date, and (ii) the number of shares of Common Stock
subject to such SAR, and, if applicable, the related ISO or NSO or portion
thereof which is surrendered.
An SAR granted in conjunction with an ISO or NSO shall terminate on the
same date as the related ISO or NSO and shall be exercisable only if the Fair
Market Value of a share of Common Stock exceeds the Option Price for the
related ISO or NSO, and then shall be exercisable to the extent, and only to
the extent, that the related ISO or NSO is exercisable. The Committee may at
the time of granting any SAR add such additional conditions and limitations
to the SAR as it shall deem advisable, including, but not limited to,
limitations on the period or periods within which the SAR shall be
exercisable and the maximum amount of appreciation to be recognized with
regard to such SAR. If a Participant is subject to Section 16(a) and Section
16(b) of the Exchange Act, the Committee may at any time add such additional
conditions and limitations to such SAR which, in
<PAGE>
its discretion, the Committee deems necessary or desirable to comply with
such Section 16(a) or Section 16(b) and the rules and regulations issued
thereunder, or to obtain any exemption therefrom. Any ISO or NSO or portion
thereof which is surrendered with an SAR shall no longer be exercisable. An
SAR that is not granted in conjunction with an ISO or NSO shall terminate on
such date as is specified by the Committee in the SAR agreement and shall
vest in accordance with Section 11.2. The Committee, in its sole discretion,
may allow the Company to settle all or part of the Company's obligation
arising out of the exercise of an SAR by the payment of cash equal to the
aggregate Fair Market Value of the shares of Common Stock which the Company
would otherwise be obligated to deliver.
10. MANNER OF EXERCISE OF OPTIONS.
To exercise an Option in whole or in part, a Participant (or, after his
death, his executor or administrator) must give written notice to the
Committee, stating the number of shares with respect to which he intends to
exercise the Option. The Company will issue the shares with respect to which
the Option is exercised upon payment in full of the Option Price. The
Committee may permit the Option Price to be paid in cash or shares of Common
Stock held by the Participant having an aggregate Fair Market Value, as
determined on the date of delivery, equal to the Option Price. The Committee
may also permit the Option Price to be paid by any other method permitted by
law, including by delivery to the Committee from the Participant of an
election directing the Company to withhold the number of shares of Common
Stock from the Common Stock otherwise due upon exercise of the Option having
an aggregate Fair Market Value on that date equal to the Option Price. If a
Participant pays the Option Price with shares of Common Stock which were
received by the Participant upon exercise of one or more ISOs, and such
Common Stock has not been held by the Participant for at least the greater of:
(a) two (2) years from the date the ISOs were granted; or
(b) one (1) year after the transfer of the shares of Common Stock to
the Participant;
the use of the shares shall constitute a disqualifying disposition and the
ISO underlying the shares used to pay the Option Price shall no longer
satisfy all of the requirements of Code Section 422.
11. VESTING.
11.1 OPTIONS. A Participant may not exercise an Option until it has
become vested. The portion of an Award of Options that is vested depends upon
the period that has elapsed since the Award Date. The following schedule
applies to any Award of Options under this Plan unless the Committee establishes
a different vesting schedule on the Award Date:
NUMBER OF YEARS SINCE AWARD DATE VESTED PERCENTAGE
Fewer than one None
One but fewer than two 20%
Two but fewer than three 40%
<PAGE>
Three but fewer than four 60%
Four but fewer than five 80%
Five or more 100%
If a Participant's employment with the Company or service on the Board
is terminated due to: (i) retirement on or after his sixty-fifth (65th)
birthday; (ii) retirement on or after his fifty-fifth (55th) birthday with
consent of the Company; (iii) retirement at any age on account of total and
permanent disability as determined by the Company; (iv) death; or (v) a
change in control of the Company (as determined by the Committee), the
Committee may, in its discretion, accelerate vesting. Unless the Committee
otherwise provides in the Award agreement, if a Participant's employment with
or service to the Company terminates for any other reason, any Awards that
are not yet vested are forfeited. A transfer from the Company to a
Subsidiary or affiliate, or vice versa, is not a termination of employment
for purposes of this Plan.
11.2 RESTRICTED STOCK AND SARS. The Committee shall establish the
vesting schedule to apply to any Award of Restricted Stock or SAR that is not
associated with an ISO or NSO granted under the Plan to a Participant, and in
the absence of such a vesting schedule, such Award shall vest according to
the vesting schedule set forth in Section 11.1. In no event, however, will a
SAR or Restricted Stock Award granted to a Participant who is subject to
Section 16 of the Exchange Act be exercisable until at least six (6) months
from its Award Date.
If a Participant's employment with the Company or service on the
Board is terminated due to: (i) retirement on or after his sixty-fifth
(65th) birthday; (ii) retirement on or after his fifty-fifth (55th) birthday
with consent of the Company; (iii) retirement at any age on account of total
and permanent disability as determined by the Company; (iv) death; or (v) a
change in control of the Company (as determined by the Committee), the
Committee may, in its discretion, accelerate vesting. Unless the Committee
otherwise provides in the Award agreement, if a Participant's employment with
or service to the Company is terminated for any other reason, any Awards that
are not yet vested are forfeited. A transfer from the Company to a
Subsidiary or affiliate, or vice versa, is not a termination of employment
for purposes of this Plan.
12. ADJUSTMENTS TO REFLECT CHANGES IN CAPITAL STRUCTURE.
If there is any change in the corporate structure or shares of the
Company, the Committee may make any adjustments necessary to prevent
accretion, or to protect against dilution, in the number and kind of shares
authorized by the Plan and, with respect to outstanding Awards, in the number
and kind of shares covered thereby and in the applicable Option Price. For
the purpose of this Section 12, a change in the corporate structure or shares
of the Company includes, without limitation, any change resulting from a
recapitalization, stock split, stock dividend, consolidation, rights
offering, separation, reorganization, or liquidation and any transaction in
which shares of Common Stock are changed into or exchanged for a different
number or kind of shares of stock or other securities of the Company or
another corporation.
13. NONTRANSFERABILITY OF AWARDS.
<PAGE>
ISOs are not transferable, voluntarily or involuntarily, other than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code. During a Participant's
lifetime, his ISOs may be exercised only by him. All other Awards granted
pursuant to this Plan are transferable by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined
by the Code, or in the Committee's discretion after vesting.
14. RIGHTS AS STOCKHOLDER.
No Common Stock may be delivered upon the exercise of any Option until
full payment has been made. A Participant has no rights whatsoever as a
stockholder with respect to any shares covered by an Option until the date of
the issuance of a stock certificate for the shares.
15. WITHHOLDING TAX.
The Committee may, in its discretion and subject to such rules as it may
adopt, permit or require a Participant to pay all or a portion of the
federal, state and local taxes, including FICA and Medicare withholding tax,
arising in connection with any Awards by (i) having the Company withhold
shares of Common Stock, (ii) tendering back shares of Common Stock received
in connection with such Award or (iii) delivering other previously acquired
shares of Common Stock having a Fair Market Value approximately equal to the
amount to be withheld.
16. NO RIGHT TO EMPLOYMENT.
Participation in the Plan will not give any Participant a right to be
retained as an employee or director of the Company or its parent or
Subsidiaries, or any right or claim to any benefit under the Plan, unless the
right or claim has specifically accrued under the Plan.
17. AMENDMENT OF THE PLAN.
The Board of Directors may from time to time amend or revise the terms
of this Plan in whole or in part and may, without limitation, adopt any
amendment deemed necessary; provided, however, that no change in any Award
previously granted to a Participant may be made that would impair the rights
of the Participant without the Participant's consent.
18. STOCKHOLDER APPROVAL.
Operation of the Plan shall be subject to approval by the stockholders
of the Company within twelve months before or after the date the Plan is
adopted by the Board of Directors. If such stockholder approval is obtained
at a duly held stockholders' meeting, it may be obtained by the affirmative
vote of the holders of a majority of the shares of the Company present at the
meeting or represented and entitled to vote thereon. The approval of such
stockholders of the Company shall be solicited substantially in accordance
with Section 14(a) of the Exchange Act and the rules and regulations
promulgated thereunder.
19. CONDITIONS UPON ISSUANCE OF SHARES.
<PAGE>
An Option shall not be exercisable and a share of Common Stock shall not
be issued pursuant to the exercise of an Option, and Restricted Stock shall
not be awarded until such time as the Plan has been approved by the
stockholders of the Company and unless the award of Restricted Stock,
exercise of such Option and the issuance and delivery of such share pursuant
thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the
rules and regulations promulgated thereunder, and the requirements of any
stock exchange or national securities association upon which the shares of
Common Stock may then be listed or quoted, and shall be further subject to
the approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any
such exercise that the shares of Common Stock are being purchased only for
investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation
is required by any of the aforementioned relevant provisions of law.
20. EFFECTIVE DATE AND TERMINATION OF PLAN.
20.01 EFFECTIVE DATE. This Plan is effective as of the date of
its adoption by the Board of Directors; provided, however, that the Plan and
any Awards granted hereunder shall be null and void if shareholder approval
is not obtained within twelve months of the date of such adoption.
20.02 TERMINATION OF THE PLAN. The Plan will terminate ten
(10) years after the date it is approved by the Board of Directors; provided,
however, that the Board of Directors may terminate the Plan at any time prior
thereto with respect to any shares that are not then subject to Awards.
Termination of the Plan will not affect the rights and obligations of any
Participant with respect to Awards granted before termination.
<PAGE>
EXHIBIT 5
[LORD, BISSELL & BROOK LETTERHEAD]
August 5, 1998
Market Facts, Inc.
3040 West Salt Creek Lane
Arlington Heights, IL 60005
Ladies and Gentlemen:
We are acting as counsel to Market Facts, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") being filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
covering 800,000 shares of Common Stock of the Company, $1.00 par value per
share (the "Shares") to be issued pursuant to the Market Facts, Inc. 1996
Stock Plan (the "Plan").
In connection with the offering of the Shares, we have examined:
(i) the Registration Statement including the exhibits
thereto;
(ii) the Plan;
(iii) certain resolutions adopted by the Board of
Directors of the Company relating to the
authorization, issuance and sale of the Shares
pursuant to the Plan; and
(iv) such other documents as we deem necessary to form
the opinions hereinafter expressed.
As to various questions of fact material to such opinions, where
relevant facts were not independently established, we have relied upon
statements of officers of the Company. Our opinion assumes that the
pertinent provisions of such blue sky and state securities laws as may be
applicable have been complied with and that the Shares are issued in
accordance with the terms of the Plan.
<PAGE>
Based and relying solely upon the foregoing, we advise you that, in
our opinion, the Shares, or any portion thereof, to the extent such Shares
represent original issuances by the Company when issued pursuant to the Plan
after the Registration Statement has become effective under the Act, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not thereby admit that
we come within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
Lord, Bissell & Brook
/s/ Wesley S. Walton
----------------------
By: Wesley S. Walton
<PAGE>
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the inclusion of our report dated May 5, 1998, with respect to
the balance sheet of Tandem Research Associates, Inc. as of December 31,
1997, and the related statements of operations, retained earnings, and cash
flows for the year then ended, which report appears in the Form 8-K of Market
Facts, Inc. dated March 31, 1998, as amended, incorporated herein by reference
KPMG Peat Marwick LLP
New York, New York
July 31, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the use of our report dated February 25, 1998, with respect to
the consolidated balance sheets of Market Facts, Inc. as of December 31, 1997
and 1996, and the related consolidated statements of earnings, stockholders'
equity, and cash flows for each of the years in the three year period then
ended, which report appears in the Market Facts, Inc. 1997 Annual Report on
Form 10-K, incorporated herein by reference
KPMG Peat Marwick LLP
Chicago, Illinois
July 31, 1998
