IRREVOCABLE PROXY
IRREVOCABLE PROXY, dated as of May 26, 1998, by and between May &
Xxxx, Inc., a Delaware corporation (the "Company "), and Xxxxxxx X. Xxxxxx
(the "Stockholder").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Acxiom Corporation, a Delaware Corporation ("Parent"), ACX
Acquisition Co., Inc. a Delaware corporation and a wholly owned subsidiary
of Parent ("Sub"), and 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 beneficially and of record
of an aggregate of 4,112,425 shares (the "Parent Shares") of the Parent
Common Stock, of which 297,654 shares are in respect of options exercisable
within 60 days of the date hereof; and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, the Company has requested that the Stockholder agree, and
the Stockholder has agreed, to grant the Company an irrevocable proxy (the
"Proxy") with respect to the Parent Shares, upon the terms and subject to
the conditions hereof;
NOW, THEREFORE, to induce the Company 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 the Company,
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 Parent 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 Parent, 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 the issuance of the shares of Common Stock
pursuant to 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 the Company is unable to exercise such power
and authority for any reason, the Stockholder agrees that he will vote all
the Parent Shares in favor of approval of the issuance of the shares of
Common Stock pursuant to 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 Parent Shares or grant any proxy or interest in or
with respect to such Parent Shares or deposit such Shares into a voting
trust or enter into a voting agreement or arrangement with respect to such
Parent Shares other than in respect of transactions not prohibited by the
terms of the Merger Agreement.
3. The Stockholder represents and warrants to the Company, that
the Parent Shares consist of 3,814,771 shares of Parent Common Stock owned
beneficially and of record by the Stockholder on the date hereof; such
Parent Shares are all of the securities of the Parent owned of record or
beneficially by the Stockholder on the date hereof, except for 297,654
shares of Parent Common Stock as to which the Stockholder holds stock
options exercisable within 60 days of the date hereof; the Stockholder owns
the Parent 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 Parent Shares, deposited such Parent Shares into a voting trust or
entered into any voting agreement or other arrangement with respect to such
Parent Shares.
4. Any shares of Parent 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 Parent
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 the Company, except that the Company 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 the Company to the Stockholder.
8. This Proxy is granted in consideration of the execution and
delivery of the Merger Agreement by the Company. 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 the Company 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
Parent Shares.
10. The Stockholder will, upon request, execute and deliver any
additional documents and take such actions as may reasonably be deemed by
the Company 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, the Company and the Stockholder have caused
this Proxy to be duly executed on the date first above written.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
MAY & XXXX, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chairman, President and CEO
