EXHIBIT (c)(2)
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STOCK PURCHASE AGREEMENT
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Stock Purchase Agreement (this "Agreement"), dated as of March 12, 1998,
between The Great Universal Stores P.L.C., a corporation incorporated under the
laws of England ("Parent"), and ▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company ("Stockholder").
WHEREAS, Stockholder owns (both beneficially and of record) 8,600,000
shares (the "Shares") of common stock, par value $.01 per share ("Common
Stock"), of Metromail Corporation, a Delaware corporation (the "Company");
WHEREAS, concurrently herewith, Parent and an indirect wholly owned
subsidiary of Parent ("Purchaser") are entering into an agreement and plan of
merger with the Company, dated as of March 12, 1998 (the "Merger Agreement"),
pursuant to which Purchaser has agreed to make a cash tender offer (the "Offer")
for, among other things, all outstanding shares of Common Stock at $31.50 per
share (or any higher price paid in the Offer, the "Offer Price"), net to the
seller in cash, to be followed by a merger of Purchaser with and into the
Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that Stockholder agree, and in order to
induce Parent to enter into the Merger Agreement, Stockholder has agreed, among
other things, (i) to sell the Shares (as defined herein) to Parent, (ii) to
appoint Parent as Stockholder's proxy to vote the Shares, and (iii) with respect
to certain questions put to stockholders of the Company for a vote, to vote the
Shares, in each case, in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Purchase and Sale of Shares.
1.1. Purchase of Shares. On the terms and subject to the conditions
set forth in this Agreement, on (and assuming the occurrence of) the
Closing Date (as defined herein), Parent will purchase from the
Stockholder, and the Stockholder will sell and transfer to the Parent, all
of the Shares at a purchase price per share equal to the Offer Price, free
and clear of all mortgages, pledges, security interests, encumbrances,
liens, options, debts, charges, claims and restrictions of any kind.
1.2. Conditions to Closing. The obligations of the parties to
consummate the transactions contemplated by Section 1.1 hereof are subject
to the following conditions: (a) any waiting period under the ▇▇▇▇-▇▇▇▇▇-
▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act")
applicable to the delivery of the Shares shall have expired or been
terminated; and (b) there shall be no preliminary or permanent injunction
or other order by any court of competent
jurisdiction restricting, preventing or prohibiting the delivery of the
Shares. Parent and the Stockholder shall each promptly after the date
hereof make such filings and provide such information as may be required
under the HSR Act with respect to the sale of the Shares.
1.3. Closing. Subject to the conditions contained in this Agreement,
the closing of the transactions contemplated by Section 1.1 hereof (the
"Closing") shall occur at a site designated by Parent in Chicago, Illinois
simultaneously with the acceptance by Purchaser of the shares of Common
Stock validly tendered and not withdrawn pursuant to the terms of the Offer
in accordance with the terms and conditions of the Offer and the Merger
Agreement (the "Closing Date"). Subject to the conditions contained in
this Agreement, Parent may direct Stockholder to deliver to Purchaser at
the Closing a certificate or certificates evidencing the Shares, each such
certificate being duly endorsed in blank and accompanied by such stock
powers and such other documents as may reasonably be necessary in
Purchaser's judgment to transfer record ownership of the Shares into
Purchaser's name on the stock transfer books of the Company, and Parent
will purchase the Shares at a purchase price equal to the Offer Price. All
payments made by Parent to Stockholder pursuant to this Section 1.3 shall
be made by wire transfer of immediately available funds to an account
designated by Stockholder, in an amount equal to the sum of the product of
(i) the Offer Price and (ii) the total number of Shares delivered at the
Closing.
1.4. Adjustments Upon Changes in Capitalization. In the event of any
change in the number of issued and outstanding shares of Common Stock by
reason of any stock dividend, subdivision, merger, recapitalization,
combination, conversion or exchange of shares, or any other change in the
corporate or capital structure of the Company (including, without
limitation, the declaration or payment of an extraordinary dividend of cash
or securities) which would have the effect of diluting or otherwise
adversely affecting Parent's rights and privileges under this Agreement,
the number and kind of the Shares and the consideration payable in respect
of the Shares shall be appropriately and equitably adjusted to restore to
Parent its rights and privileges under this Agreement.
2. Representations and Warranties of Stockholder. Stockholder hereby
represents and warrants to Parent as follows:
2.1. Title to the Shares. Stockholder is the owner (both
beneficially and of record) of the Shares. Except for the Shares,
Stockholder is not the record or beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of, and does not
have any other rights of any nature to acquire any additional shares of,
any shares of capital stock of the Company. Stockholder owns all of the
Shares free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on Stockholder's
voting rights, charges and other encumbrances of any nature whatsoever,
and, except as provided in
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this Agreement, Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to any of the Shares.
The Stockholder has sole power of disposition with respect to all of the
Shares and sole voting power with respect to the matters set forth in
Section 5 hereof. Upon the delivery to Parent by Stockholder of a
certificate or certificates evidencing the Shares, Parent will receive
valid and marketable title to the Shares, free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on Parent's voting rights, charges and other
encumbrances of any nature whatsoever.
2.2. Authority Relative to This Agreement. Stockholder has all
necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Stockholder and, assuming the due authorization, execution and
delivery by Parent, constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
except that such enforceability (i) may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity.
2.3. No Conflict. The execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder
will not, (a) except for any filings required under the HSR Act and for
requirements of U.S. federal and state securities laws, require any
consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority of the United
States or any political subdivision thereof, (b) conflict with or violate
the certificate of incorporation or bylaws of the Stockholder, or (c)
conflict with, violate or result in any breach of or constitute a default
under (or an event which with notice or lapse of time or both would become
a default under) any agreement, judgment, injunction, order, law, rule,
regulation, decree or arrangement to which Stockholder is a party or is
bound, other than, in the case of clause (c), any such conflicts,
violations, breaches or defaults that, individually or in the aggregate,
would not materially impair the ability of Stockholder to perform its
obligations hereunder.
2.4. Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on
behalf of Stockholder.
3. Representations and Warranties of Parent. Parent hereby represents
and warrants to Stockholder as follows:
3.1. Authority Relative to This Agreement. Parent has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution
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and delivery of this Agreement by Parent and the consummation by Parent of
the transactions contemplated hereby have been duly and validly authorized
by all necessary corporate action on the part of Parent. This Agreement
has been duly and validly executed and delivered by Parent and, assuming
the due authorization, execution and delivery by Stockholder, constitutes a
legal, valid and binding obligation of Parent, enforceable against Parent
in accordance with its terms, except that such enforceability (i) may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors' rights generally and
(ii) is subject to general principles of equity.
3.2. No Conflict. The execution and delivery of this Agreement by
Parent does not, and the performance of this Agreement by Parent will not,
(a) except for any filings required under the HSR Act and for requirements
of federal and state securities laws, require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, (b) conflict
with or violate the certificate of incorporation or bylaws of Parent, (c)
conflict with, violate or result in any breach of or constitute a default
under (or an event which with notice or lapse of time or both would become
a default under) any agreement, judgment, injunction, order, law, rule,
regulation, decree or arrangement applicable to Parent or by which any
property or asset of Parent is bound or affected, other than, in the case
of clause (c), any such conflicts, violations, breaches or defaults that,
individually or in the aggregate, would not materially impair the ability
of Parent to perform its obligations hereunder.
3.3. Brokers. Except for Bear ▇▇▇▇▇▇▇ & Co. Inc., whose fees will be
paid by Parent, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on
behalf of Parent.
3.4. Investment Intent. Parent hereby represents that any securities
it purchases pursuant to this Agreement are being purchased for its own
account for purposes of investment and not with a view to, or for sale in
connection with, any public distribution thereof. In addition, Purchaser
acknowledges that the Shares being purchased pursuant to this Agreement
have not been and will not be registered under the Securities Act of 1933,
as amended, and may not be resold without registration under such Act or
unless an exception therefrom is available.
3.5. Financing. Parent or Purchaser will have available to it at the
time required the funds necessary to consummate the purchase of the Shares
pursuant to the terms hereof.
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4. Covenants of Stockholder.
4.1. No Disposition or Encumbrance of Shares. Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and
except pursuant to the Offer, Stockholder shall not, and shall not offer or
agree to, sell, transfer, tender, assign, hypothecate or otherwise dispose
of, or create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on
Stockholder's voting rights, charge or other encumbrance of any nature
whatsoever with respect to the Shares now owned or that may hereafter be
acquired by Stockholder.
4.2. No Solicitation of Transactions. Stockholder (and its
subsidiaries and affiliates) shall not, and Stockholder (and its
subsidiaries and affiliates) shall use their reasonable best efforts to
ensure that their respective officers, directors, employees,
representatives and agents (including, but not limited to, investment
bankers, attorneys and accountants) do not, directly or indirectly,
encourage, solicit, participate in or initiate discussions or negotiations
with, or provide any information to, any corporation, partnership, person
or other entity or group (other than Parent, any of its affiliates or
representatives) concerning any proposal or offer to acquire all or a
substantial part of the business or properties of the Company or any of its
subsidiaries or any capital stock of the Company or any of its
subsidiaries, whether by merger, tender offer, exchange offer, sale of
assets or similar transaction involving the Company or any subsidiary,
division or operating or principal business unit of the Company (an
"Acquisition Proposal"), unless the Company is permitted to do so in
accordance with the terms of the Merger Agreement; provided, that the
foregoing shall not apply to any directors of the Company in their capacity
as such who are also directors, officers, employees, representatives or
agents of Stockholder (the "Donnelley Directors"), it being acknowledged
and agreed that the Donnelley Directors are subject to the terms and
conditions set forth in the Merger Agreement in their capacity as such.
Notwithstanding the foregoing, prior to the later of (i) 11:59 p.m.,
Chicago time, on March 30, 1998 and (ii) the expiration of the applicable
waiting periods under the HSR Act (as defined in the Merger Agreement),
Stockholder may furnish information concerning the Company and its
subsidiaries to any corporation, partnership, person or other entity or
group pursuant to appropriate confidential agreements with terms
substantially similar to those contained in the Confidentiality Agreement
(as defined in the Merger Agreement), and may negotiate and participate in
discussions and negotiations with such entity or group concerning an
Acquisition Proposal that constitutes a Superior Proposal (as defined in
the Merger Agreement). Stockholder shall, and shall cause each of its
affiliates to, immediately cease and cause to be terminated any existing
activities, discussions or negotiations by Stockholder, any of its
affiliates or any officer, director, employee or affiliate of, or
investment banker, attorney, accountant or other advisor or representative
of, Stockholder or any of its affiliates with parties conducted heretofore
with respect to
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any of the foregoing. The parties acknowledge and agree that the Company
shall not be deemed an affiliate of Stockholder for purposes of this
Section 4.2
4.3. Compliance of Stockholder with This Agreement. Stockholder
shall take all actions and forbear from all actions, in each case,
necessary in order that (a) all of Stockholder's representations and
warranties hereunder are true and correct and (b) Stockholder fulfills all
of its obligations hereunder.
5. Voting Agreement; Proxy of Stockholder.
5.1. Voting Agreement. Stockholder hereby agrees that, during the
time this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, and in any action by written consent of the
stockholders of the Company, Stockholder shall, to the extent applicable,
(a) vote (or execute a consent in respect of) all of the Shares and any
shares of Common Stock or other securities acquired of record or
beneficially by the Stockholder after the date hereof (the "Stockholder
Shares") in favor of the Merger, the Merger Agreement (as amended from time
to time) and any of the transactions contemplated by the Merger Agreement;
and (b) vote (or execute a consent in respect of) the Shares and the
Stockholder Shares against any action or agreement that would reasonably be
expected to impede, interfere with, delay or attempt to discourage the
Offer or the Merger, including, but not limited to: (i) any extraordinary
corporate transaction (other than the Merger), such as a merger,
reorganization, recapitalization or liquidation involving the Company or
any of its Subsidiaries (as defined in the Merger Agreement) or any
proposal made in opposition to or in competition with the Merger; (ii) a
sale or transfer of a material amount of assets of the Company or any of
its Subsidiaries; (iii) any change in the management or board of directors
of the Company, except as otherwise agreed to in writing by Parent; (iv)
any material change in the present capitalization or dividend policy of the
Company; or (v) any other material change in the corporate structure or
business of the Company or any of its Subsidiaries.
5.2. Irrevocable Proxy. Stockholder agrees that, in the event
Stockholder shall fail to comply with the provisions of Section 5.1 hereof
as determined by Parent in its sole discretion, such failure shall result,
without any further action by Stockholder, in the irrevocable appointment
of Parent as the attorney and proxy of Stockholder, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise)
with respect to all shares of Common Stock and other securities, including
the Shares and the Stockholder Shares, that Stockholder is entitled to vote
at any meeting of stockholders of the Company (whether annual or special
and whether or not an adjourned or postponed meeting) or consent in lieu of
any such meeting or otherwise, on the matters and in the manner specified
in Section 5.1. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND
COUPLED WITH AN INTEREST AND IS EXECUTED AND INTENDED
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TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 212(e) OF
THE DELAWARE GENERAL CORPORATION LAW ("DGCL"). Stockholder hereby revokes,
effective upon the execution and delivery of the Merger Agreement by the
parties thereto, all other proxies and powers of attorney with respect to
the Shares and the Stockholder Shares that Stockholder may have heretofore
appointed or granted, and no subsequent proxy or power of attorney (except
in furtherance of Stockholder's obligations under Section 5.1 hereof) shall
be given or written consent executed (and if given or executed, shall not
be effective) by Stockholder with respect thereto so long as this Agreement
remains in effect.
6. Termination. This Agreement (including any power of attorney and
proxy granted pursuant to Section 5.2 hereof or otherwise) shall terminate
automatically on the earlier of (i) the termination of the Merger Agreement in
accordance with the terms and conditions thereof and (ii) September 30, 1998.
7. Miscellaneous.
7.1. Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
7.2. Further Assurances. Stockholder and Parent shall execute and
deliver all such further documents and instruments and take all such
further action as may be reasonably necessary in order to consummate the
transactions contemplated hereby.
7.3. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
7.4. Entire Agreement. This Agreement constitutes the entire
agreement between Parent and Stockholder with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written
and oral, between Parent and Stockholder with respect to the subject matter
hereof.
7.5. Assignment. This Agreement shall not be assigned by operation
of law or otherwise, except that Parent may assign all or any of its rights
and obligations hereunder to any affiliate of Parent, provided that no such
assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
7.6. Parties in Interest. This Agreement shall be binding upon,
inure solely to the benefit of, and be enforceable by, the parties hereto
and their successors and permitted assigns. Nothing in this Agreement,
express or implied, is intended to or
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shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
7.7. Amendment; Waiver. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto. Any party hereto
may (a) extend the time for the performance of any obligation or other act
of any other party hereto, (b) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant
hereto and (c) waive compliance with any agreement or condition contained
herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
7.8. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party.
7.9. Notices. Except as otherwise provided herein, all notices,
requests, claims, demands and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by cable, facsimile transmission,
telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 7.9):
if to Parent:
The Great Universal Stores P.L.C.
c/o Experian Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President,
Secretary and General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to Stockholder:
▇.▇. ▇▇▇▇▇▇▇▇▇ & Sons Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
7.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed in Delaware without regard to
any principles of choice of law or conflicts of law of such State. All
actions and proceedings arising out of or relating to this Agreement shall
be heard and determined in any state or federal court sitting in Delaware.
Each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of Delaware
or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that
such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that
such party will not bring any action relating to this Agreement or the
transactions contemplated hereby in any court other than a Federal court
sitting in the state of Delaware or a Delaware state court and (iv) waives
any right to trial by jury with respect to any claim or proceeding related
to or arising out of this Agreement or any of the transactions contemplated
hereby.
7.11. Headings. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
7.12. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
so executed and delivered
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shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered as of the date first written above.
THE GREAT UNIVERSAL STORES P.L.C.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: ___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇.▇. ▇▇▇▇▇▇▇▇▇ & SONS COMPANY
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
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