IRREVOCABLE PROXY
IRREVOCABLE PROXY, dated as of May 26, 1998, by and between
Acxiom Corporation, a Delaware corporation (the "Parent"), and Xxxxxx X.
Xxxx, Xx. (the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Parent, ACX Acquisition Co., Inc. a Delaware corporation and
a wholly owned subsidiary of Parent ("Sub"), and May & Xxxx, Inc. (the
"Company") are entering into an Agreement and Plan of Merger, dated as of
May 26, 1998 (the "Merger Agreement"), providing, among other things, for
the merger (the "Merger") of Sub with and into the Company, as a result of
which each of the outstanding shares of Common Stock, par value $.01 per
share, of the Company (the "Company Common Stock") will be converted into
the right to receive .80 of a share of the Common Stock, par value $.10 per
share, of Parent (the "Parent Common Stock"), and the Company will become a
wholly owned subsidiary of Parent; and
WHEREAS, the Stockholder is the owner of record of an aggregate
of 808,801 shares (the "Shares") of the Company Common Stock and the
Stockholder is the owner beneficially of an additional 262,994 shares of
Company Common Stock; and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has requested that the Stockholder agree, and the
Stockholder has agreed, to grant Parent an irrevocable proxy (the "Proxy")
with respect to the Shares, upon the terms and subject to the conditions
hereof;
NOW, THEREFORE, to induce Parent to enter into the Merger
Agreement and in consideration of the aforesaid and the mutual
representations, warranties, covenants and agreements set forth herein and
in the Merger Agreement, the parties hereto agree as follows:
1. The Stockholder hereby constitutes and appoints Parent,
during the term of this Agreement as the Stockholder's true and lawful
proxy and attorney-in-fact, with full power of substitution, to vote all of
the Shares (and any and all securities issued or issuable in respect
thereof) which Stockholder is entitled to vote, for and in the name, place
and stead of the Stockholder, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment or adjournments
thereof, or pursuant to any consent in lieu of a meeting or otherwise, in
favor of any proposal to approve and adopt the Merger Agreement and any
transactions contemplated thereby. All power and authority hereby
conferred is coupled with an interest and is irrevocable. In the event that
Parent is unable to exercise such power and authority for any reason, the
Stockholder agrees that he will vote all the Shares in favor of approval
and adoption of the Merger Agreement and the transactions contemplated
thereby, at any such meeting or adjournment thereof, or provide his written
consent thereto.
2. The Stockholder hereby covenants and agrees that the
Stockholder will not, and will not agree to, directly or indirectly, sell,
transfer, assign, pledge, hypothecate, cause to be redeemed or otherwise
dispose of any of the Shares or grant any proxy or interest in or with
respect to such Shares or deposit such Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares. The
Stockholder further covenants and agrees that the Stockholder will not
initiate or solicit, directly or indirectly, any inquiries or the making of
any proposal with respect to engage in negotiations concerning, provide any
confidential information or data to, or have any discussions with, any
person relating to, any acquisition, business combination or purchase of
all or any significant portion of the assets of, or any equity interest in
(other than the Shares), the Company or any subsidiary thereof; provided,
however, nothing contained herein shall be deemed to prohibit the
Stockholder from exercising his fiduciary duties as a director of the
Company pursuant to applicable law.
3. The Stockholder represents and warrants to Parent, that the
Shares consist of 808,801 shares of Company Common Stock owned beneficially
and of record by the Stockholder on the date hereof; such Shares together
with the additional 263,004 shares of Company Common Stock owned
beneficially by the Stockholder are all of the securities of the Company
owned of record or beneficially by the Stockholder on the date hereof, the
Stockholder owns the Shares free and clear of all liens, charges, claims,
encumbrances and security interests of any nature whatsoever; and except as
provided herein, the Stockholder has not granted any proxy with respect to
the Shares, deposited such Shares into a voting trust or entered into any
voting agreement or other arrangement with respect to such Shares.
4. Any shares of Company Common Stock issued to the Stockholder
upon the exercise of any stock options that are currently exercisable or
become exercisable during the term of this Agreement shall be deemed Shares
for purposes of this Agreement.
5. This Proxy shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the
provisions thereof relating to conflicts of law.
6. This Proxy shall be binding upon, inure to the benefit of,
and be enforceable by the successors and permitted assigns of the parties
hereto. This Proxy and the rights hereunder may not be assigned or
transferred by Parent, except that Parent may assign its rights hereunder
to any direct or indirect subsidiary.
7. This Proxy shall terminate at the earlier of (i) the
effectiveness of the Merger, or (ii) the termination of the Merger
Agreement in accordance with its terms, or (iii) upon notice of termination
given by Parent to the Stockholder.
8. This Proxy is granted in consideration of the execution and
delivery of the Merger Agreement by Parent. The Stockholder agrees that
such Proxy is coupled with an interest sufficient in law to support an
irrevocable power and shall not be terminated by any act of the
Stockholder, by lack of appropriate power or authority or by the occurrence
of any other event or events.
9. The parties acknowledge and agree that performance of their
respective obligations hereunder will confer a unique benefit on the other
and that a failure of performance will not be compensable by money damages.
The parties therefore agree that this Proxy shall be specifically
enforceable and that specific enforcement and injunctive relief shall be
available to Parent and the Stockholder for any breach of any agreement,
covenant or representation hereunder. This Proxy shall revoke all prior
proxies given by the Stockholder at any time with respect to the Shares.
10. The Stockholder will, upon request, execute and deliver any
additional documents and take such actions as may reasonably be deemed by
Parent to be necessary or desirable to complete the Proxy granted herein or
to carry out the provisions hereof.
11. If any term, provision, covenant, or restriction of this
Proxy is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Proxy shall remain in full force and effect and shall
not in any way be affected, impaired or invalidated.
12. This Proxy may be executed in two counterparts, each of
which shall be deemed to be an original but both of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Proxy to be duly executed on the date first above written.
/s/ Xxxxxx X. Xxxx, Xx.
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XXXXXX X. XXXX, XX.
ACXIOM CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
