Exhibit (c)(2)
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TENDER, VOTING AND OPTION AGREEMENT
by and among
OMNICOM GROUP INC.
▇▇▇▇▇▇▇▇▇ ACQUISITION CORP.
M/A/R/C INC.
CERTAIN SHAREHOLDERS OF M/A/R/C INC.
and
SPOUSES OF THE SHAREHOLDERS
dated as of
September 30, 1999
TABLE OF CONTENTS
Page
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I. TENDER OF SUBJECT SHARES
1.1 Agreement to Tender Shares..........................................1
II. VOTING OF SUBJECT SHARES
2.1 Agreement to Vote Subject Shares....................................2
2.2 Irrevocable Proxy...................................................2
(a) Grant of Proxy.................................................2
(b) Other Proxies Revoked.........................................3
III. PURCHASE OPTION
3.1 Grant of Option.....................................................3
3.2 Exercise of Option..................................................3
3.3 Termination of Option...............................................4
3.4 Payment and Delivery of Certificates................................4
3.5 Adjustment upon Changes in Capitalization, Etc......................5
3.6 Registration Rights.................................................5
3.7 Unexercised Options.................................................7
IV. REPRESENTATIONS AND WARRANTIES
4.1 Certain Representations and Warranties of the Shareholders..........8
(a) Ownership.....................................................8
(b) Power and Authority; Execution and Delivery...................8
(c) No Conflicts..................................................8
(d) Brokers.......................................................9
4.2 Affiliate Transactions..............................................9
4.3 Representations and Warranties of the Company.......................9
(a) Organization; Authority.......................................9
(b) Execution and Delivery........................................9
(c) No Conflicts..................................................9
(d) Antitakeover Statutes........................................10
4.4 Representations and Warranties of Parent...........................10
(a) Organization; Authority......................................10
(b) Execution and Delivery.......................................10
(c) No Conflicts.................................................10
(d) Securities Law Compliance....................................10
V. CERTAIN COVENANTS OF SHAREHOLDERS
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5.1 Restriction on Transfer of Subject Shares, Proxies and
Noninterference ...................................................11
5.2 Adjustments........................................................11
5.3 No Solicitation....................................................11
5.4 Waiver of Appraisal Rights.........................................11
5.5 Nonexercise of Rights of First Refusal.............................12
5.6 Cooperation........................................................12
VI. MISCELLANEOUS
6.1 Fees and Expenses..................................................12
6.2 Amendment; Termination.............................................12
6.3 Spousal Consent....................................................12
6.4 Extension; Waiver..................................................12
6.5 Entire Agreement; No Third-Party Beneficiaries.....................12
6.6 Governing Law......................................................13
6.7 Notices............................................................13
6.8 Assignment.........................................................14
6.9 Further Assurances.................................................14
6.10 Publicity.........................................................14
6.11 Enforcement.......................................................15
6.12 Severability......................................................15
6.13 Counterparts......................................................15
6.14 Headings..........................................................15
6.15 Remedies Not Exclusive............................................15
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TABLE OF DEFINED TERMS
Page
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Adverse Proposal...............................................................2
Agreement......................................................................1
Business Combination...........................................................7
Company........................................................................1
Company Option Price...........................................................6
Exercise Notice................................................................4
Fair Market Value..............................................................6
Manager........................................................................5
Merger.........................................................................1
Merger Agreement...............................................................1
Option Closing.................................................................4
Option Closing Date............................................................4
Option Period..................................................................4
Option Price...................................................................6
Options........................................................................3
Parent.........................................................................1
Parent Owned Shares............................................................5
Permitted Offering.............................................................5
Purchase Price.................................................................3
Purchaser......................................................................1
Registrable Securities.........................................................5
Registration Notice............................................................5
Selling Stockholder............................................................4
Shareholders...................................................................1
Stockholder Option Price.......................................................5
Subject Shares.................................................................1
Subsequent Price...............................................................7
Subsequent Transaction.........................................................7
Trigger Event..................................................................3
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TENDER, VOTING AND OPTION AGREEMENT
This TENDER, VOTING AND OPTION AGREEMENT, dated as of September 30, 1999
(this "Agreement"), is made and entered into among Omnicom Group Inc., a New
York corporation ("Parent"), ▇▇▇▇▇▇▇▇▇ Acquisition Corp., a Texas corporation
and wholly owned subsidiary of Omnicom Group Inc. ("Purchaser"), M/A/R/C Inc., a
Texas corporation (the "Company"), each of the shareholders and their spouses
set forth on Schedule A hereto (each, a "Shareholder" and, collectively, the
"Shareholders").
RECITALS:
A. Parent, Purchaser and the Company propose to enter into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"),
pursuant to which Purchaser will merge with and into the Company (the "Merger")
on the terms and subject to the conditions set forth in the Merger Agreement.
Except as otherwise defined herein, terms used herein with initial capital
letters have the respective meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, each Shareholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of Shares set forth opposite such Shareholder's
name on Schedule A hereto (such Shares, together with any other Shares the
beneficial ownership of which is acquired by such Shareholder during the period
from and including the date hereof through and including the date on which this
Agreement is terminated pursuant to Section 6.2 hereof, are collectively
referred to herein as such Shareholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Purchaser have requested that each Shareholder
agree, and each Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
I. TENDER OF SUBJECT SHARES
1.1 Agreement to Tender Shares. Each Shareholder will cause to be validly
tendered (and not withdrawn) pursuant to and in accordance with the terms of the
Offer, not later than the tenth business day after commencement of the Offer,
all of such Shareholder's Subject Shares. Each Shareholder hereby acknowledges
that Purchaser's obligation to accept for payment and pay for Shares (including
such Shareholder's Subject Shares) pursuant to the Offer is subject to the terms
and conditions of the Offer set forth in the Merger Agreement. Upon the purchase
of all the Subject Shares by Purchaser pursuant to the Offer in accordance with
this Section 1.1, this Agreement will terminate. In the event, notwithstanding
the provisions of the first sentence of this Section 1.1, any Subject Shares are
for any reason withdrawn from the Offer or are not purchased pursuant to the
Offer, such Subject Shares will remain subject to the terms of this Agreement.
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II. VOTING OF SUBJECT SHARES
2.1 Agreement to Vote Subject Shares. At any meeting of the shareholders
of the Company called to consider and vote upon the adoption of the Merger
Agreement (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of the adoption of the Merger
Agreement by written consent of shareholders of the Company, each Shareholder
will vote or cause to be voted (including by written consent, if applicable) all
of such Shareholder's Subject Shares in favor of the adoption of the Merger
Agreement and in favor of any other matter necessary or appropriate for the
consummation of the transactions contemplated by the Merger Agreement that is
considered and voted upon at any such meeting or made the subject of any such
written consent, as applicable. At any meeting of the shareholders of the
Company called to consider and vote upon any Adverse Proposal (and at any and
all postponements and adjournments thereof), and in connection with any action
to be taken in respect of any Adverse Proposal by written consent of
shareholders of the Company, each Shareholder will vote or cause to be voted
(including by written consent, if applicable) all of such Shareholder's Subject
Shares against the adoption of such Adverse Proposal. For purposes of this
Agreement, the term "Adverse Proposal" means any (x) Acquisition Transaction,
(y) proposal or action that would reasonably be expected to result in a breach
of any covenant, representation or warranty of the Company set forth in the
Merger Agreement, or (z) the following actions (other than the Offer, the Merger
and the other transactions contemplated by the Merger Agreement): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its Subsidiaries; (ii) a sale,
lease or transfer of a material amount of assets of the Company or one of its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its Subsidiaries; (iii) (A) any change in a majority of
the persons who constitute the board of directors of the Company as of the date
hereof; (B) any change in the present capitalization of the Company or any
amendment of the Company's articles of incorporation or bylaws, as amended to
date; (C) any other material change in the Company's corporate structure or
business; or (D) any other action that, in the case of each of the matters
referred to in clauses (iii)(A), (B) and (C) is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Merger and the other transactions contemplated by this Agreement and the Merger
Agreement.
2.2 Irrevocable Proxy. (a) Grant of Proxy. Each Shareholder hereby
appoints Parent and any designee of Parent, each of them individually, such
Shareholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent with respect to all of such
Shareholder's Subject Shares in accordance with Section 2.1 hereof. This proxy
is given to secure the performance of the duties of such Shareholder under this
Agreement. Each Shareholder affirms that this proxy is coupled with an interest
and is irrevocable. Each Shareholder will take such further action or execute
such other instruments as may be necessary to effectuate the intent of this
proxy. For Subject Shares as to which the Shareholder is the beneficial but not
the record owner, the Shareholder will use his best efforts to cause any record
owner of such Subject Shares to grant to Parent a proxy to the same effect as
that contained herein.
(b) Other Proxies Revoked. Each Shareholder represents that any
proxies heretofore given in respect of such Shareholder's Subject Shares are not
irrevocable, and hereby revokes all such proxies.
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III. PURCHASE OPTION
3.1 Grant of Option. Each Shareholder hereby grants to Parent an
irrevocable option (each, an "Option" and, collectively, the "Options") to
purchase such Shareholder's Subject Shares on the terms and subject to the
conditions set forth herein at a purchase price per share equal to the Per Share
Amount (the "Purchase Price").
3.2 Exercise of Option. (a) If (i) the Offer is consummated but (whether
due to improper tender or withdrawal of tender) Purchaser has not accepted for
payment and paid for all of the Subject Shares, (ii) the Merger Agreement
becomes terminable pursuant to Section 8.1(d), Section 8.1(e) or Section 8.1(f)
thereof (regardless of whether the Merger Agreement is actually terminated),
(iii) a tender or exchange offer for some or all of the Company's Shares shall
have been publicly proposed to be made or shall have been made by another
person, or (iv) it shall have been publicly disclosed or Parent or Purchaser
shall have otherwise learned that (A) any person or "group" (as defined in
Section 13(d)(3) of the Exchange Act) (other than Parent or Purchaser) shall
have acquired or proposed to acquire beneficial ownership of more than 10% of
any class or series of capital stock of the Company (including the Shares),
through the acquisition of stock, the formation of a group or otherwise, or
shall have been granted any option, right or warrant, conditional or otherwise,
to acquire beneficial ownership of more than 10% of any class or series of
capital stock of the Company other than acquisitions for bona fide arbitrage
purposes only and other than as disclosed in a Schedule 13D or 13G on file with
the SEC on September 15, 1999, (B) any such person or group which, prior to
September 15, 1999, had filed such a Schedule with the SEC shall have acquired
or proposed to acquire beneficial ownership of additional shares of any class or
series of capital stock of the Company, through the acquisition of stock, the
formation of a group or otherwise, constituting 5% or more of any such class or
series, or shall have been granted any option, right or warrant, conditional or
otherwise, to acquire beneficial ownership of additional shares of any class or
series of capital stock of the Company (including the Shares) constituting 5% or
more of any such class or series, (C) any person (other than Parent or
Purchaser) shall have filed a Notification and Report Form under the HSR Act, or
made a public announcement reflecting an intent to acquire the Company or any
assets or securities of the Company; or (D) any person or group (other than
Parent and Purchaser) shall have entered into or offered to enter into a
definitive agreement or an agreement in principle with respect to a merger,
consolidation or other business combination with the Company (any of the events
described in clauses (i) through (iv) above, a "Trigger Event"), the Options
will, in any such case, become exercisable (in whole or in part) upon the first
to occur of any such Trigger Event and remain exercisable (in whole or in part)
thereafter until the Options are terminated as set forth in Section 3.3 (the
applicable period of exercisability being the "Option Period"). The Company or
any Shareholder shall notify Parent promptly in writing of the occurrence of any
Trigger Event, it being understood that the giving of such notice by the Company
or any Shareholder is not a condition to the right of Parent to exercise the
Option. Parent may exercise all of the Options, in whole or in part, at any time
or from time to time during the Option Period. Notwithstanding anything in this
Agreement to the contrary, Parent will be entitled to purchase all Subject
Shares in respect of which it shall have exercised an Option in accordance with
the terms hereof prior to the expiration of the Option Period, and the
expiration of the Option Period will not affect any rights hereunder which by
their terms do not terminate or expire prior to or as of such expiration.
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(b) If Parent wishes to exercise an Option, it will deliver to the
applicable Shareholder (each a "Selling Shareholder") a written notice (an
"Exercise Notice") to that effect which specifies (a) the total number of
Subject Shares it wishes to purchase and (b) a date (an "Option Closing Date"),
not earlier than three business days after the date such Exercise Notice is
delivered, for the consummation of the purchase and sale of such Subject Shares
(an "Option Closing"); provided, however, that Parent will exercise the Option
in accordance with the federal securities laws. If the Option Closing cannot be
effected on the Option Closing Date specified in the Exercise Notice by reason
of any applicable judgment, decree, order, law or regulation, or because any
applicable waiting period under the HSR Act shall not have expired or been
terminated, (i) the Shareholders will promptly take all such actions as may be
requested by Parent, and will otherwise fully cooperate with Parent, to cause
the elimination of all such impediments to the Option Closing and (ii) the
Option Closing Date specified in the Exercise Notice will be extended to the
third business day following the elimination of all such impediments. The place
of the Option Closing will be at the offices of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and the time of the
Option Closing will be 10:00 a.m. (Eastern Time) on the Option Closing Date.
Upon the giving by Parent to the Selling Shareholder of the Exercise Notice and
the tender of the aggregate Purchase Price, Parent will be deemed to be the
holder of record of the Subject Shares transferrable upon such exercise,
notwithstanding that the stock transfer books of the Company are then closed or
that certificates representing such Subject Shares have not been actually
delivered to Parent.
3.3 Termination of Option. The Options will terminate (a) if this
Agreement terminates pursuant to Section 1.1 or (b) upon the earliest of: (i)
the Effective Time; (ii) termination of the Merger Agreement other than upon or
during the continuance of a Trigger Event; or (iii) 180 days following any
termination of the Merger Agreement upon or during the continuance of a Trigger
Event (or if, at the expiration of such 180 day period any Option cannot be
exercised by reason of any applicable judgment, decree, order, law or
regulation, 10 business days after such impediment to exercise has been removed
or has become final and not subject to appeal).
3.4 Payment and Delivery of Certificates. At any Option Closing, Parent
will deliver to each Selling Shareholder, by wire transfer of immediately
available funds to the account designated by such Selling Shareholder to Parent
prior to the Option Closing, the Purchase Price payable in respect of the
Subject Shares to be purchased from such Selling Shareholder at the Option
Closing, and each Selling Shareholder will deliver to Parent such Subject
Shares, free and clear of all Liens, with the certificate or certificates
evidencing such Subject Shares being duly endorsed for transfer by such Selling
Shareholder and accompanied by all powers of attorney and/or other instruments
necessary to convey valid and unencumbered title thereto to Parent. The Selling
Shareholder will pay all expenses, and any and all United States federal, state
and local taxes and other charges that may be payable in connection with the
preparation, issue and delivery of stock certificates under this Section 3.4 in
the name of Parent or its designee.
3.5 Adjustment upon Changes in Capitalization, Etc. In the event of any
change in the capital stock of the Company by reason of a stock dividend,
subdivision, reclassification, recapitalization, split, combination, exchange of
shares, extraordinary distribution or similar transaction, the type and number
or amount of shares, securities or other property subject to each of the
Options, and the Purchase Price payable therefor, will be adjusted
appropriately, and
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proper provision will be made in the agreements governing such transaction, so
that (a) Parent will receive upon exercise of any Option the type and number or
amount of shares, securities or property that Parent would have retained and/or
been entitled to receive in respect of the applicable Selling Shareholder's
Subject Shares if the Option had been exercised immediately prior to such event
relating to the Company or the record date therefor, as applicable, and (b) the
applicable Selling Shareholder will receive upon exercise of any Option granted
by such Selling Shareholder the amount of cash that such Selling Shareholder
would have received as a result of the exercise of the Option if the Option had
been exercised immediately prior to such event relating to Parent or the record
date therefor, as applicable. The provisions of this Section 3.5 will apply in a
like manner to successive stock dividends, subdivisions, reclassifications,
recapitalizations, splits, combinations, exchanges of shares, extraordinary
distributions or similar transactions.
3.6 Registration Rights. (a) (i) Following termination of the Merger
Agreement, Parent may by written notice (the "Registration Notice") to the
Company, which Registration Notice the Parent shall concurrently send to the
Selling Shareholder, request the Company to register under the Securities Act
all or any part of the Shares acquired under the Option (the "Parent Owned
Shares" and such Parent Owned Shares requested to be registered for sale, the
"Registrable Securities") pursuant to a bona fide firm commitment underwritten
public offering in which Parent and the underwriters will effect as wide a
distribution of such Registrable Securities as is reasonably practicable and
will use their best efforts to prevent any person (including any group (as used
in Rule l3d-5 under the Exchange Act)) and its affiliates from purchasing
through such offering Shares representing more than 1% of the outstanding Shares
on a fully diluted basis (a "Permitted Offering"). The Registration Notice will
include a certificate executed by Parent and its proposed managing underwriter,
which underwriter will be an investment banking firm of nationally recognized
standing (the "Manager"), stating that (A) they have a good faith intention to
commence promptly a Permitted Offering and (B) the Manager in good faith
believes that, based on the then prevailing market conditions, it will be able
to sell the Registrable Securities at a per share price equal to at least 80% of
the then Fair Market Value of such Shares.
(ii) Upon receipt of the Registration Notice, the Selling
Shareholder will have the option exercisable by written notice delivered to
Parent and the Company within nine business days after receipt of the
Registration Notice, irrevocably to agree to purchase all or any part of the
Registrable Securities proposed to be so sold for cash at a price (the
"Shareholder Option Price") equal to the product of (i) the number of
Registrable Securities to be so purchased by the Selling Shareholder and (ii)
the then Fair Market Value of such Shares.
(iii) Upon receipt of the Registration Notice, the Company
(and/or any person designated by the Company) will have the option exercisable
by written notice delivered to Parent within ten business days after the receipt
of the Registration Notice, irrevocably to agree to purchase all or any part of
the Registrable Securities proposed to be so sold and not purchased by the
Selling Shareholder pursuant to clause (ii) above for cash at a price (the
"Company Option Price" and, together with the Shareholder Option Price, the
"Option Price") equal to the product of (i) the number of Registrable Securities
to be so purchased by the Company and (ii) the then Fair Market Value of such
Shares.
(iv) Any such purchase of Registrable Securities by the
Selling Shareholder or the Company (or its designee) hereunder will take place
at a closing to be held at
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the principal executive offices of the Company or at the offices of its counsel
at any reasonable date and time designated by the Selling Shareholder, the
Company and/or its designee in the notice within 20 business days after delivery
of such notice. Any payment for the Shares to be purchased will be made by
delivery at the time of such closing of the Option Price in immediately
available funds. As used herein, "Fair Market Value" means the average of the
daily closing sales price for the Shares during the ten trading days prior to
the fifth trading day preceding the date of such closing.
(b) If the Selling Shareholder and the Company, collectively, do not
elect to exercise their respective options pursuant to Section 3.6(a) with
respect to all Registrable Securities, the Company will use commercially
reasonable efforts to effect, as promptly as practicable, the registration under
the Securities Act of the unpurchased Registrable Securities proposed to be so
sold; provided, however, that (i) Parent will be entitled to no more than an
aggregate of two effective registration statements hereunder and (ii) the
Company will not be required to file any such registration statement during any
period of time (not to exceed 40 days after such request in the case of clause
(A) below or 90 days in the case of clauses (B) and (C) below) when (A) the
Company is in possession of material non-public information that it reasonably
believes would be detrimental to be disclosed at such time and, in the opinion
of outside counsel to the Company, such information would have to be disclosed
if a registration statement were filed at that time; (B) the Company is required
under the Securities Act to include audited financial statements for any period
in such registration statement and such financial statements are not yet
available for inclusion in such registration statement; or (C) the Company
determines, in its reasonable judgment, that such registration would interfere
with any proposed financing, acquisition or other material transaction involving
the Company or any of its affiliates. The Company will use its reasonable best
efforts to cause any Registrable Securities registered pursuant to this Section
3.6 to be qualified for sale under the securities or Blue-Sky laws of such
jurisdictions as Parent may reasonably request and will continue the
registration or qualification in effect in such jurisdiction; provided, however,
that the Company will not be required to qualify to do business in, or to
consent to general service of process in, any jurisdiction by reason of this
provision.
(c) The registration rights set forth in this Section 3.6 are
subject to the condition that Parent provide the Company with such information
with respect to Parent's Registrable Securities, the plans for the distribution
thereof, and such other information as, in the reasonable judgment of counsel
for the Company, is necessary to enable the Company to include in a registration
statement all material facts required to be disclosed with respect to a
registration thereunder.
(d) A registration effected under this Section 3.6 will be effected
at the Company's expense, except for underwriting discounts and commissions and
the fees and the expenses of counsel to Parent (which will be paid by Parent),
and the Company will provide to the underwriters such documentation (including
certificates, opinions of counsel and "comfort" letters from auditors) as are
customary in connection with underwritten public offerings as the underwriters
may reasonably require. In connection with any such registration, the parties
agree (i) to indemnify each other and the underwriters in the customary manner,
(ii) to enter into an underwriting agreement in form and substance customary for
transactions of like type with the Manager and the other underwriters
participating in the offering and (iii) to take all further
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actions that may be reasonably necessary to effect a registration and sale
(including, if the Manager deems it necessary, participating in road-show
presentations).
(e) The Company will be entitled to include (at its expense)
additional Shares in a registration effected pursuant to this Section 3.6 only
if and to the extent the Manager determines that such inclusion will not
adversely affect the prospects for success of the offering.
3.7 Unexercised Options. If (a) the Options become exercisable pursuant to
Section 3.2 hereof, (b) Parent has not exercised the Options for all the Subject
Shares, and (c) not later than two years from the date of termination of the
Merger Agreement, (i) the Company consummates a merger, acquisition,
consolidation, recapitalization, liquidation, dissolution or similar transaction
involving, or any sale of all or a substantial portion of the assets or equity
securities of, the Company (a "Business Combination"), (ii) a Shareholder
disposes of any or all of his Subject Shares to any person not an affiliate or
an associate of Parent or Purchaser or to the Company or any affiliate thereof
in connection with a Business Combination or (iii) a Shareholder realizes cash
proceeds in respect of his Subject Shares as a result of a distribution to such
Shareholder by the Company following the sale of a material amount of the
Company's assets in connection with a Business Combination (each, a "Subsequent
Transaction"), in each case at a per share price or with equivalent per share
proceeds (including, in the case of clause (iii), the remaining value of the
Shares), as the case may be (the "Subsequent Price"), with a value in excess of
the Per Share Amount, then the Shareholder will promptly pay to Parent an amount
equal to one-half of the product of (x) the excess of the Subsequent Price over
the Per Share Amount multiplied by (y) the greatest number of Subject Shares
beneficially owned by such Shareholder between the date hereof and the time a
Business Combination is consummated (assuming for this purpose that the Option
has not been exercised for any Shares) less the number of Subject Shares, if
any, acquired by Parent upon exercise of the Option. In the event of any stock
dividends, stock splits, recapitalizations, combinations, exchanges of shares or
the like or any other action that would have the effect of changing the
Shareholder's ownership of the Company's capital stock or other securities, the
Per Share Amount will be appropriately adjusted for the purpose of this Section
3.7.
IV. REPRESENTATIONS AND WARRANTIES
4.1 Certain Representations and Warranties of the Shareholders. Each
Shareholder, severally and not jointly, represents and warrants to Parent and
Purchaser, as of the date hereof and as of the Closing Date, as follows:
(a) Ownership. Such Shareholder is the sole record and beneficial
owner of the number of Shares set forth opposite such Shareholder's name on
Schedule A hereto and has full and unrestricted power to dispose of and to vote
such Shares. Such Shares are now, and at all times during the term hereof will
be, held by such Shareholder, or by a nominee or custodian for the benefit of
such Shareholder, free and clear of all Liens and proxies, except for any Liens
or proxies arising hereunder. The transfer by such Shareholder of its Subject
Shares to Purchaser or Parent pursuant to the Offer or the applicable Option,
respectively, will pass to and unconditionally vest in Purchaser or Parent good
and valid title to those Subject Shares, free and clear of all Liens other than
restrictions set forth under applicable securities laws. Except as set forth
opposite the Shareholder's name on Schedule A hereto, such Shareholder (i) does
not
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beneficially own any securities of the Company on the date hereof; (ii) does
not, directly or indirectly, beneficially own or have any option, warrant or
other right to acquire any securities of the Company that are or may by their
terms become entitled to vote or any securities that are convertible or
exchangeable into or exercisable for any securities of the Company that are or
may by their terms become entitled to vote, nor is the Shareholder subject to
any contract, commitment, arrangement, understanding or relationship (whether or
not legally enforceable), other than this Agreement, that allows or obligates
him to vote, dispose of or acquire any securities of the Company; and (iii)
holds exclusive power to vote the Shares and has not granted a proxy to any
other Person to vote the Shares, subject to the limitations set forth in this
Agreement.
(b) Power and Authority; Execution and Delivery. Such Shareholder
has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. In the case of each Shareholder
that is not a natural person, the execution and delivery of this Agreement by
such Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby have been duly authorized by all necessary action, if any,
on the part of such Shareholder. This Agreement has been duly executed and
delivered by the Shareholder and, assuming that this Agreement constitutes a
valid and binding obligation of the other parties hereto, constitutes a valid
and binding obligation of the Shareholder, enforceable against the Shareholder
in accordance with its terms.
(c) No Conflicts. The execution and delivery of this Agreement do
not, and, subject to compliance with the HSR Act and appropriate filings under
securities laws (which each Shareholder agrees to make promptly), to the extent
applicable, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, result in a
breach or violation of or default (with or without notice or lapse of time or
both) under, or give rise to a material obligation, a right of termination,
cancellation, or acceleration of any obligation or a loss of a material benefit
under, or require notice to or the consent of any person under any agreement,
instrument, undertaking, law, rule, regulation, judgment, order, injunction,
decree, determination or award binding on the Shareholder, other than such
conflicts, breaches, violations, defaults, obligations, rights or losses that
individually or in the aggregate would not (i) impair the ability of the
Shareholder to perform such Shareholder's obligations under this Agreement or
(ii) prevent or delay the consummation of any of the transactions contemplated
hereby.
(d) Brokers. Except with respect to the contract between the Company
and ING Barings LLC dated April 28, 1998, with respect to the engagement of ING
Barings LLC by the Company, no broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement or the Merger Agreement based upon
arrangements made by or on behalf of the Shareholder that is or will be payable
by the Company or any of its Subsidiaries.
4.2 Affiliate Transactions. All agreements, contracts, transfers of assets
or liabilities or other commitments or transactions, whether or not entered into
in the ordinary course of business, to or by which the Company or any of its
Subsidiaries, on the one hand, and the Shareholder or any of its affiliates
(other than the Company or any of its Subsidiaries), on the other hand, are or
have been a party or otherwise bound or affected, that (i) are currently pending
or in effect or (ii) involve continuing liabilities and obligations that,
individually or in the
8
aggregate, have been, are or will be material to the Company or any of its
Subsidiaries taken as a whole, have either been disclosed in the Company SEC
Reports or are set forth in Section 4.22 of the Disclosure Schedule referred to
in the Merger Agreement.
4.3 Representations and Warranties of the Company. The Company represents
and warrants to Parent and Purchaser, as of the date hereof and as of the
Closing Date, as follows:
(a) Organization; Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas, has the requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby, and has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement.
(b) Execution and Delivery. This Agreement has been duly executed
and delivered by the Company and, assuming that this Agreement constitutes a
valid and binding obligation of the other parties hereto, constitutes a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(c) No Conflicts. Neither the execution and delivery of this
Agreement nor the performance by the Company of its obligations hereunder will
conflict with, result in a violation or breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would result in a default)
or give rise to any right of termination, amendment, cancellation, or
acceleration under, (i) the Company's articles of incorporation or bylaws, (ii)
any contract, commitment, agreement, understanding, arrangement or restriction
of any kind to which the Company is a party or by which the Company is bound or
(iii) any judgment, writ, decree, order or ruling applicable to the Company;
except in the case of clauses (ii) and (iii) for conflicts, violations, breaches
or defaults that would not (i) impair the ability of the Company to perform its
obligations under this Agreement or (ii) prevent or delay the consummation of
any of the transactions contemplated hereby.
(d) Antitakeover Statutes. The Company's Board of Directors has
approved the Offer, the Merger, the Merger Agreement, this Agreement and the
transactions contemplated thereby and hereby and such approval is sufficient to
render the provisions of Article 13 of the Texas Business Corporation Act
inapplicable to the Offer, the Merger, the Merger Agreement, this Agreement and
the transactions contemplated thereby and hereby. No other "fair price," "merger
moratorium," "control share acquisition" or other anti-takeover statute or
similar statute or regulation applies or purports to apply to the Offer, the
Merger, the Merger Agreement, this Agreement or any of the transactions
contemplated thereby or hereby.
4.4 Representations and Warranties of Parent. Each of Parent and Purchaser
hereby represents and warrants, jointly and severally, to each Shareholder, as
of the date hereof and as of the Closing Date, that:
(a) Organization; Authority. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
9
(b) Execution and Delivery. This Agreement has been duly executed
and delivered by Parent and Purchaser and, assuming that this Agreement
constitutes a valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of Parent and Purchaser, enforceable
against Parent and Purchaser in accordance with its terms.
(c) No Conflicts. Neither the execution and delivery of this
Agreement nor the performance by Parent or Purchaser of its respective
obligations hereunder will conflict with, result in a violation or breach of, or
constitute a default (or an event that, with notice or lapse of time or both,
would result in a default) or give rise to any right of termination, amendment,
cancellation, or acceleration under, (i) Parent's certificate of incorporation
or bylaws or Purchaser's articles of incorporation or bylaws, (ii) any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Parent or Purchaser is a party or by which Parent or Purchaser is bound or
(iii) any judgment, writ, decree, order or ruling applicable to Parent or
Purchaser; except in the case of clauses (ii) and (iii) for conflicts,
violations, breaches or defaults that would not (i) impair the ability of Parent
or Purchaser to perform its respective obligations under this Agreement or (ii)
prevent or delay the consummation of any of the transactions contemplated
hereby.
(d) Securities Law Compliance. The Options and the Subject Shares to
be acquired upon exercise of the Options are being and will be acquired by
Parent without a view to public distribution thereof otherwise than in
compliance with the Securities Act and applicable state securities laws and will
not be transferred or otherwise disposed of except in a transaction registered
or exempt from registration under the Securities Act and in compliance with
applicable state securities laws. Neither Parent nor Purchaser will effect any
offer or sale of Subject Shares which would cause any Shareholder to violate the
registration requirements of the Securities Act or the registration or
qualification requirements of the securities laws of any jurisdiction.
V. CERTAIN COVENANTS OF SHAREHOLDERS
5.1 Restriction on Transfer of Subject Shares, Proxies and
Noninterference. No Shareholder will, directly or indirectly: (A) except
pursuant to the terms of this Agreement and for the conversion of Subject Shares
at the Effective Time pursuant to the terms of the Merger Agreement, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Shareholder's Subject Shares; (B) acquire any Shares or other securities of the
Company; (C) except pursuant to the terms of this Agreement, grant any proxies
or powers of attorney, deposit any Subject Shares into a voting trust or enter
into a voting agreement with respect to any Subject Shares; or (D) take any
action that would reasonably be expected to make any representation or warranty
contained herein untrue or incorrect or have the effect of impairing the ability
of such Shareholder to perform such Shareholder's obligations under this
Agreement or preventing or delaying the consummation of any of the transactions
contemplated hereby.
5.2 Adjustments. (a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Shares or the
like or any other action that would have the effect
10
of changing a Shareholder's ownership of the Company's capital stock or other
securities or (ii) a Shareholder becomes the beneficial owner of any additional
Shares or other securities of the Company, then the terms of this Agreement will
apply to the shares of capital stock held by the Shareholder immediately
following the effectiveness of the events described in clause (i) or the
Shareholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Shares hereunder.
(b) Each Shareholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any new Shares acquired by
the Shareholder, if any, after the date hereof.
5.3 No Solicitation. No Shareholder will take, or authorize or permit any
of its officers, directors, employees, agents or representatives (including any
investment banker, financial advisor, attorney or accountant) to take, any
action that the Company would be prohibited from taking under the first sentence
of Section 5.2(a) of the Merger Agreement (disregarding for purposes of this
Section 5.3 the proviso to such sentence). Each Shareholder will immediately
advise Parent in writing of the receipt of a request for information or any
inquiries or proposals relating to an Acquisition Transaction.
5.4 Waiver of Appraisal Rights. Each Shareholder hereby waives any rights
of appraisal or rights to dissent from the Merger that such Shareholder may
have.
5.5 Nonexercise of Rights of First Refusal. No Shareholder will exercise
any purchase right or right of first refusal that it may have with respect to
any Shares of any other Person in connection with any tender by such other
Person of such Shares pursuant to the Offer.
5.6 Cooperation. Each Shareholder will cooperate fully with Parent and the
Company in connection with their respective reasonable best efforts to fulfill
the conditions to (a) the Offer set forth in Annex I to the Merger Agreement and
(b) the Merger set forth in Article VI of the Merger Agreement, except, if
applicable, to the extent that a Shareholder determines in his or her good faith
judgment that an action required by this provision would conflict with his or
her fiduciary duties as a director of the Company.
VI. MISCELLANEOUS
6.1 Fees and Expenses. Each party hereto will pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
6.2 Amendment; Termination. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto. This
Agreement will terminate (a) upon the purchase of all the Subject Shares
pursuant to the Offer in accordance with Section 1.1, (b) except for Article III
hereof, which will only terminate as and when provided therein, on the earlier
to occur of (x) the Effective Time or (y) the date the Merger Agreement is
terminated in accordance with its terms, or (c) by the mutual consent of the
Board of Directors of the Company, the Board of Directors of Parent and the
Shareholders representing a majority of the Subject Shares subject to this
Agreement. In the event of termination of this Agreement pursuant to this
Section 6.2, this Agreement will become null and void and of no effect with no
11
liability on the part of any party hereto and all proxies granted hereby will be
automatically revoked; provided, however, that no such termination will relieve
any party hereto from any liability for any breach of this Agreement occurring
prior to such termination, and provided further that the representations and
warranties set forth in Article IV and covenants set forth in Section 6.1 will
survive the termination of this Agreement.
6.3 Spousal Consent. By executing this Agreement, the spouses set forth on
Schedule A hereto hereby consent to the sale of the applicable Shareholder's
Subject Shares and consent to, and agree to be bound by, all provisions of this
Agreement.
6.4 Extension; Waiver. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights.
6.5 Entire Agreement; No Third-Party Beneficiaries. This Agreement and the
Merger Agreement constitute the entire agreement among the parties hereto with
respect to the subject matter hereof, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to such
matters. Neither the Merger Agreement nor this Agreement is intended to confer
upon any Person other than the parties hereto any rights or remedies.
6.6 Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Texas, regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof.
6.7 Notices. Any notice required to be given hereunder will be sufficient
if in writing, and sent by facsimile transmission and by courier service (with
proof of service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
If to Parent or Purchaser:
Omnicom Group Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
12
If to the Company, any Shareholder or any Spouse:
M/A/R/C Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Bradley, Luce, ▇▇▇▇▇▇▇ LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party specifies by written notice, such notice
being deemed to have been delivered as of the date so telecommunicated,
personally delivered or mailed.
6.8 Assignment. Neither this Agreement nor any of the rights, interests,
or obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise, by any Shareholder without the prior
written consent of Parent, and any such assignment or delegation that is not
consented to will be null and void. This Agreement, together with any rights,
interests, or obligations of Parent hereunder, may be assigned or delegated, in
whole or in part, by Parent without the consent of or any action by any
Shareholder upon notice by Parent to each Shareholder affected thereby as herein
provided. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns (including, without limitation, any Person to
whom any Subject Shares are sold, transferred or assigned).
6.9 Further Assurances. Each Shareholder will execute and deliver such
other documents and instruments and take such further actions as may be
necessary or appropriate or as may be reasonably requested by Parent in order to
ensure that Parent and Purchaser receive the full benefit of this Agreement.
6.10 Publicity. Parent, Purchaser, the Company and each Shareholder will
consult with each other party before issuing any press release or otherwise
making any public statements with respect to this Agreement or the Merger
Agreement or the other transactions contemplated hereby or thereby and will not
issue any such press release or make any such public statement before such
consultation, except as may be required by law or applicable stock exchange
rules.
6.11 Enforcement. Irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
13
6.12 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such a manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
6.13 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
6.14 Headings. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
6.15 Remedies Not Exclusive. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any thereof
by either party will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
14
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed as of the day and year first written above.
OMNICOM GROUP INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Counsel and Secretary
▇▇▇▇▇▇▇▇▇ ACQUSITION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
M/A/R/C INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Chief Financial Officer
SHAREHOLDERS:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Individually and as
Beneficiary of the Self-Directed ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ Limited Partnership
By: ▇▇▇ ▇▇▇▇ Management Company L.C.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Sole Member
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Individually and as
Beneficiary of the Self-Directed
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SPOUSES:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
15
SCHEDULE A
Total
-----
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ 11,900
RonKris Limited Partnership 176,721
(controlled by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ 175,413
(former wife of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 4,284
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 466,190(1)
▇▇▇▇ ▇. ▇▇▇▇ 292,140(2)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 49,754(3)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ 27,168
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 9,405
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 55,351(4)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 102,175(5)
---------
Total 1,370,501
------------
(1) Includes 168,000 restricted Shares, 49,000 Shares subject to a Warrant and
28,799 Shares allocated to her account with the Employee Stock Ownership
Trust (the "ESOT").
(2) Includes 84,000 restricted Shares, 50,000 Shares subject to a Warrant and
25,742 Shares allocated to his account with the ESOT.
(3) Includes Options for 5,000 Shares and 7,754 Shares allocated to his
account with the ESOT.
(4) Includes 12,813 Shares allocated to her account with the ESOT.
(5) Includes Options for 90,000 Shares and 175 Shares allocated to his account
with the ESOT.
A-1