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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4) OF
THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 2
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MARKET FACTS, INC.
(NAME OF SUBJECT COMPANY)
MARKET FACTS, INC.
(NAME OF PERSON FILING STATEMENT)
Common Stock, par value $1.00 per share
(Title of Class of Securities)
570559 10 4
(CUSIP Number of Class of Securities)
THOMAS H. PAYNE
Chief Executive Officer
MARKET FACTS, INC.
3040 West Salt Creek Lane
Arlington Heights, Illinois 60005
(847) 590-7000
(Name, address and telephone number of person
authorized to receive notices and communications
on behalf of the person filing statement)
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COPY TO:
JANET O. LOVE, Esq.
Lord, Bissell & Brook
115 S. LaSalle Street
Chicago, Illinois 60603
(312) 443-0700
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This Amendment No. 2 amends and supplements the Solicitation\Recommendation
Statement on Schedule 14D-9 dated April 6, 1999 filed by Market Facts, Inc., a
Delaware corporation (the "Company"), relating to the offer by Aegis Acquisition
Corp., a Delaware corporation and an indirect wholly owned subsidiary of Aegis
Group plc, to purchase all of the outstanding shares of common stock, par value
$1.00 per share of the Company at a price of $31.00 per Share, net to the seller
in cash.
ITEM 3. IDENTITY AND BACKGROUND
The description of the "Conditions to the Offer" included in the
description of the "Merger Agreement" under Item 3(b) is hereby amended and
restated in its entirety to read as follows:
"CONDITIONS TO THE OFFER
The Merger Agreement provides that, notwithstanding any other
provision of the Offer, Parent or Purchaser shall not be required to accept
for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) under the Exchange Act (relating to
Purchaser's obligation to pay for or return tendered Shares promptly after
expiration or termination of the Offer), to pay for any Shares tendered,
and may postpone the acceptance for payment or, subject to the restriction
referred to above, payment for any Shares tendered, and may amend or
terminate the Offer if, prior to the time the Offer shall otherwise
expire, (i) the Minimum Condition shall not have been satisfied; (ii) all
material regulatory and related approvals have not been obtained or made on
terms reasonably satisfactory to Purchaser; (iii) any applicable waiting
periods under the HSR Act shall not have expired or been terminated; or
(iv) at any time on or after the date of the Merger Agreement and prior to
the time the Offer shall otherwise expire, any of the following events
shall occur:
(A) any governmental entity or federal, state or foreign court
of competent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, executive order,
decree, injunction or other order which is in effect (or pending) and
which (1) restricts, prevents or prohibits the making or consummation
of the Offer, the Merger or any transaction contemplated by the Merger
Agreement, (2) prohibits or limits materially the ownership or
operation by the Company, Parent or any of their subsidiaries of all
or any material portion of the business or assets of the Company and
its subsidiaries taken as a whole, or compels the Company, Parent, or
any of their subsidiaries to dispose of or hold separate all or any
material portion of the business or assets of the Company and its
subsidiaries taken as a whole, (3) imposes limitations on the ability
of Parent, Purchaser or any other subsidiary of Parent to exercise
effectively full rights of ownership of any Shares, including, without
limitation, the right to vote any Shares acquired by Purchaser
pursuant to the Offer or otherwise on all matters properly presented
to the Company's stockholders, including, without limitation, the
approval and adoption of the Merger Agreement and the transactions
contemplated thereby, or (4) requires divestitures by Parent,
Purchaser or any other affiliate of Parent of any Shares; provided
that Parent shall have used all commercially reasonable efforts to
cause any such decree, judgment, injunction or other order to be
vacated or lifted; or
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(B) the representations and warranties of the Company contained
in the Merger Agreement (without giving effect to any materiality or
similar qualifications contained therein) shall not be true and
correct as of the date the Offer shall otherwise expire as though made
on and as of such date except (1) for changes specifically permitted
by the Merger Agreement, (2) that those representations and warranties
which address matters only as of a particular date shall remain true
and correct as of such date, (3) in any case where such failure to be
true and correct would not, in the aggregate, have a Material Adverse
Effect, and (4) notwithstanding anything in the Merger Agreement to
the contrary, in the event that any of the representations and
warranties of the Company with respect to any subsidiaries are
determined to be inaccurate, and all such inaccuracies capable of
measurement in dollar amounts, in the aggregate, exceed $3 million,
then only the amounts in excess of $3 million will be taken into
account in determining whether such inaccuracies, taken together with
all other breaches of representations and warranties generally, result
in a Material Adverse Effect;
(C) the Company shall not have performed or complied with any of
its obligations, covenants and agreements under the Merger Agreement
to be performed or complied with by it unless all such failures
together in their entirety would not have a Material Adverse Effect;
(D) the Merger Agreement shall have been terminated in
accordance with its terms;
(E) the Company shall have received any other offer for the
purchase of Shares, the purchase of substantially all of the Company's
assets, the merger of the Company or any other transaction which would
require the withdrawal or material modification of the Offer, the
Merger Agreement or the Merger and the Board shall have withdrawn or
materially modified or changed (including by amendment of the Schedule
14D-9) in a manner adverse to Purchaser its recommendation of the
Offer, the Merger Agreement or the Merger;
(F) (1) any person or group shall have entered into a definitive
agreement or agreement in principle with the Company with respect to a
merger, consolidation, sale of a material portion of the assets of the
Company, or other business combination with the Company; or (2) (A)
the Board of Directors of the Company or any committee thereof shall
have withdrawn, modified or changed in a manner adverse to Parent or
Purchaser its approval or recommendation of the Offer, the Merger or
the Merger Agreement, or approved or recommended any Competing
Transaction, or (B) the Board of Directors of the Company or any
committee thereof shall have resolved to do any of the foregoing;
(G) there shall have occurred any change, condition, event or
development that has a Material Adverse Effect (excluding any change,
condition, event or development arising out of or attributable to
general economic conditions);
(H) there shall have occurred (1) any general suspension of, or
limitation on prices for, trading in securities on the New York Stock
Exchange, the NASDAQ\NMS or the London Stock Exchange for a period in
excess of 24 hours
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(excluding any coordinated trading halt triggered solely as a
result of a specified decrease in a market index and suspensions or
limitations resulting solely from physical damage or interference
with such exchange or association not related to market
conditions), (2) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States or
the United Kingdom or (3) any material limitation (whether or not
mandatory) by any government or governmental authority of the
United States or the United Kingdom on the extension of credit by
banks or other lending institutions; or
(I) the Selling Stockholders shall have failed to comply in
any material respect with their obligations pursuant to the Option
Agreement,
which, in the reasonable judgment of Purchaser in any such case, and
regardless of the circumstances giving rise to any such condition, makes it
inadvisable to proceed with such acceptance for payment or payments."
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 99(c)(4) First Amendment to Agreement and Plan of Merger, dated as of
May 26, 1999 by and among Parent, Purchaser and the Company.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
MARKET FACTS, INC.
By: /s/ Timothy J. Sullivan
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Timothy J. Sullivan
Chief Financial Officer
Dated: May 26, 1999
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EXHIBIT INDEX
Exhibit 99(c)(4) First Amendment to Agreement and Plan of Merger, dated as of
May 26, 1999 by and among Parent, Purchaser and the Company.
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Exhibit 99(c)(4)
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment"),
dated as of May 26, 1999, is by and among Aegis Group plc, a company
incorporated under the laws of England and Wales ("Parent"), Aegis Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), and Market Facts, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, Parent, Purchaser and the Company entered into an Agreement and
Plan of Merger dated as of April 29, 1999 (the "Merger Agreement"), pursuant to
which Parent proposed to acquire the Company and the Company proposed to be
acquired by Parent pursuant to the terms and conditions of the Merger Agreement;
and
WHEREAS, the parties now desire to amend and restate Annex I to the Merger
Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, Parent, the Purchaser and the Company
hereby agree as follows:
AGREEMENT
1. AMENDMENT. Annex I to the Merger Agreement shall be amended and
restated in its entirety as set forth on Annex I attached hereto.
2. EFFECTIVENESS OF MERGER AGREEMENT. Except as modified by this
Amendment, all of the terms and provisions of the Merger Agreement shall remain
in full force and effect.
3. COUNTERPARTS. This Amendment may be executed in one or more
counterparts which together shall constitute a single agreement.
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IN WITNESS WHEREOF, Parent, the Purchaser and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
AEGIS GROUP PLC
By: /s/ Eleonore Sauerwein
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Eleonore Sauerwein, Group Legal Director
AEGIS ACQUISITION CORP.
By: /s/ Eleonore Sauerwein
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Eleonore Sauerwein, Vice President
MARKET FACTS, INC.
By: /s/ Timothy J. Sullivan
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Timothy J. Sullivan, Chief Financial Officer
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ANNEX I
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, Parent or Purchaser shall
not be required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to Purchaser's obligation to pay for or return tendered Shares promptly after
expiration or termination of the Offer), to pay for any Shares tendered, and may
postpone the acceptance for payment or, subject to the restriction referred to
above, payment for any Shares tendered, and may amend or terminate the Offer
if, prior to the time the Offer shall otherwise expire, (i) there have not been
validly tendered and not withdrawn a number of Shares which constitutes a
majority of the Shares outstanding on a fully-diluted basis on such date ("on a
fully-diluted basis" having the meaning, as of any date: the number of Shares
outstanding, together with Shares the Company is then required to issue pursuant
to obligations outstanding at the date under employee stock option or other
benefit plans), less the number of Shares subject to the Option Agreements (the
"Minimum Condition"); (ii) all material regulatory and related approvals have
not been obtained or made on terms reasonably satisfactory to Purchaser; (iii)
any applicable waiting periods under the HSR Act shall not have expired or been
terminated; or (iv) at any time on or after the date of the Agreement and prior
to the time the Offer shall otherwise expire, any of the following events shall
occur:
(A) any governmental entity or federal, state or foreign court of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive order, decree, injunction
or other order which is in effect (or pending) and which (1) restricts,
prevents or prohibits the making or consummation of the Offer, the Merger
or any transaction contemplated by the Merger Agreement, (2) prohibits or
limits materially the ownership or operation by the Company, Parent or any
of their subsidiaries of all or any material portion of the business or
assets of the Company and its subsidiaries taken as a whole, or compels the
Company, Parent, or any of their subsidiaries to dispose of or hold
separate all or any material portion of the business or assets of the
Company and its subsidiaries taken as a whole, (3) imposes limitations on
the ability of Parent, Purchaser or any other subsidiary of Parent to
exercise effectively full rights of ownership of any Shares, including,
without limitation, the right to vote any Shares acquired by Purchaser
pursuant to the Offer or otherwise on all matters properly presented to the
Company's stockholders, including, without limitation, the approval and
adoption of the Merger Agreement and the transactions contemplated thereby,
or (4) requires divestitures by Parent, Purchaser or any other affiliate of
Parent of any Shares; provided that Parent shall have used all commercially
reasonable efforts to cause any such decree, judgment, injunction or other
order to be vacated or lifted;
(B) the representations and warranties of the Company contained in
the Merger Agreement (without giving effect to any materiality or similar
qualifications contained therein) shall not be true and correct as of the
date the Offer shall otherwise expire as though made on and as of such date
except (1) for changes specifically permitted by the Merger Agreement, (2)
that those representations and warranties which address matters only as of
a particular date shall remain true and correct as of such date, (3) in any
case where such failure to be true and correct would not, in the aggregate,
have a Material Adverse Effect, and
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(4) notwithstanding anything in this Agreement or Annex I to the
contrary, in the event that any of the representations and warranties of
the Company with respect to any subsidiaries are determined to be
inaccurate, and all such inaccuracies capable of measurement in dollar
amounts, in the aggregate, exceed $3 million, then only the amounts in
excess of $3 million will be taken into account in determining whether
such inaccuracies, taken together with all other breaches of
representations and warranties generally, result in a Material Adverse
Effect;
(C) the Company shall not have performed or complied with any of its
obligations, covenants and agreements under the Merger Agreement to be
performed or complied with by it unless all such failures together in their
entirety would not have a Material Adverse Effect;
(D) the Merger Agreement shall have been terminated in accordance
with its terms;
(E) the Company shall have received any offer (other than pursuant to
this Agreement) for the purchase of Shares, the purchase of substantially
all of the Company's assets, the merger of the Company or any other
transaction which would require the withdrawal or material modification of
the Offer, the Merger Agreement or the Merger and the Board shall have
withdrawn or materially modified or changed (including by amendment of the
Schedule 14D-9) in a manner adverse to Purchaser its recommendation of the
Offer, the Merger Agreement or the Merger;
(F) (1) any person or group shall have entered into a definitive
agreement or agreement in principle with the Company with respect to a
merger, consolidation, sale of a material portion of the assets of the
Company, or other business combination with the Company; (2) (A) the Board
of Directors of the Company or any committee thereof shall have withdrawn,
modified or changed in a manner adverse to Parent or Purchaser its approval
or recommendation of the Offer, the Merger or the Agreement, or approved or
recommended any Competing Transaction, or (B) the Board of Directors of the
Company or any committee thereof shall have resolved to do any of the
foregoing;
(G) there shall have occurred any change, condition, event or
development that has a Material Adverse Effect (excluding any change,
condition, event or development arising out of or attributable to general
economic conditions);
(H) there shall have occurred (1) any general suspension of, or
limitation on prices for, trading in securities on the New York Stock
Exchange, the NASDAQ\NMS or the London Stock Exchange for a period in
excess of 24 hours (excluding any coordinated trading halt triggered solely
as a result of a specified decrease in a market index and suspensions or
limitations resulting solely from physical damage or interference with such
exchange or association not related to market conditions), (2) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or the United Kingdom or (3) any
material limitation (whether or not mandatory) by any government or
governmental authority of the United States or the United Kingdom on the
extension of credit by banks or other lending institutions; or
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(I) the Stockholders (as defined in the Option Agreements) shall have
failed to comply in any material respect with their obligations pursuant to
the Option Agreement,
which, in the reasonable judgment of Purchaser in any such case, and regardless
of the circumstances giving rise to any such condition, makes it inadvisable to
proceed with such acceptance for payment or payments.
The foregoing conditions are for the sole benefit of Purchaser and its
affiliates and may be asserted by Purchaser regardless of the circumstances
giving rise to any such condition or may be waived by Purchaser, in whole or in
part, from time to time in its sole discretion, except as otherwise provided in
the Agreement. The failure by Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right and may be asserted at any time and from
time to time. Any determination by Purchaser concerning any of the events
described herein shall be final and binding. Unless otherwise defined herein,
capital terms used herein shall have the meanings ascribed to them in the
Acquisition Agreement among the Parent, Purchaser and the Company to which this
Annex I is attached (the "Agreement").
