EXECUTION COPY
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of
October 26, 1994, between ACXIOM CORPORATION, a Delaware
corporation (the "Issuer"), and XXXXXX INDUSTRIAL
CORPORATION, a Delaware corporation (the "Purchaser").
Capitalized terms which are used but not otherwise defined
herein are defined in Section 5.1.
RECITALS
WHEREAS, pursuant to that certain letter agreement
dated August 31, 1994, between the Issuer and Trans Union,
Trans Union has notified the Issuer of the decision by the
Board of Directors of Trans Union approving the purchase of
500,000 shares (the "Shares") of the Issuer's common stock,
par value $0.10 per share (the "Common Stock");
WHEREAS, Purchaser is the owner of all of the
outstanding capital stock of Trans Union and, for internal
reporting and structuring purposes, Trans Union has
designated Purchaser to purchase the Shares; and
WHEREAS, the Issuer and the Purchaser desire to effect
the purchase and sale of the Shares upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
ISSUANCE OF THE COMMON STOCK
1.1 Sale of the Common Stock. Subject to the terms
and conditions set forth herein, on November 30, 1994 or
such earlier date as all of the conditions set forth in
Section 1.2 hereof are satisfied (the "Closing Date") (or
such other date as is established pursuant to Section 1.3),
the Issuer will sell to the Purchaser and the Purchaser will
purchase from the Issuer the Shares for a purchase price of
$23.92 per share or an aggregate of $11,960,000.00 (the
"Purchase Price"). Pursuant to such purchase and sale, on
the Closing Date the Purchaser will pay, by wire transfer of
immediately available funds to an account designated in
writing by the Issuer, the aggregate of the Purchase Price
for all of the Shares and the Issuer will deliver to the
Purchaser certificates for the Shares duly registered in the
name of the Purchaser or its designee.
1.2 Conditions to Closing.
(a) The Purchaser's obligation to
purchase the Shares and to pay the Purchase Price therefor
pursuant to Section 1.1 shall be subject to satisfaction or
waiver of each of the following conditions precedent:
(i) the Issuer shall have taken all
actions necessary to authorize and issue the Shares;
(ii) the Purchaser shall have
received or be satisfied that the Issuer will receive all
consents and approvals from and made all filings with any
Governmental Authority or other third parties necessary to
be obtained, made or filed by the Issuer in connection with
the consummation of the transactions contemplated by this
Agreement and all waiting periods applicable under the HSR
Act to the transactions contemplated hereby shall have
expired or been terminated;
(iii) the representations and
warranties of the Issuer set forth in Article II hereof
shall be true and correct in all respects on and as of the
Closing Date as if such representations and warranties were
made on such date and the Issuer shall have delivered to the
Purchaser an Officer's Certificate, dated as of the Closing
Date and in form and substance reasonably satisfactory to
the Purchaser to the foregoing effect, together with such
other evidence as to the accuracy of such Officer's
Certificate as the Purchaser may reasonably request;
(iv) the Issuer shall have performed
all covenants and obligations and satisfied all conditions
on its part to be performed or satisfied pursuant to this
Agreement; and
(v) there shall not have occurred
any Material Adverse Change with respect to the Shares or
the Issuer and its Material Subsidiaries taken as a whole.
(b) The Issuer's obligation to issue and
sell the Shares to the Purchaser pursuant to Section 1.1
shall be subject to satisfaction or waiver of each of the
following conditions precedent:
(i) the Issuer shall have received
or be satisfied that the Purchaser will receive all consents
and approvals from and made all filings with any
Governmental Authority or other third parties necessary to
be obtained, made or filed by the Purchaser in connection
with the consummation of the transactions contemplated by
this Agreement and all waiting periods applicable under the
HSR Act to the transactions contemplated hereby shall have
expired or been terminated;
(ii) the representations and
warranties of the Purchaser set forth in Article III hereof
shall be true and correct in all respects on and as of the
Closing Date as if such representations and warranties were
made on such date and the Purchaser shall have delivered to
the Issuer an Officer's Certificate, dated as of the Closing
Date and in form and substance reasonably satisfactory to
the Issuer to the foregoing effect, together with such other
evidence as to the accuracy of such Officer's Certificate as
the Issuer may reasonably request; and
(iii) the Purchaser shall have
performed all covenants and obligations and satisfied all
conditions on its part to be performed or satisfied pursuant
to this Agreement.
1.3 Timing of Closing.
(a) Either of the Issuer or the Purchaser
shall have the right to terminate this Agreement, effective
immediately prior to the Closing Date, by written notice
delivered to the other party prior to such time that
indicates such notifying party's belief (with reasonably
detailed substantiation of the basis therefor) that one or
more identified conditions to such party's obligations to
consummate the transactions contemplated herein shall not
have been satisfied by the time of the Closing Date. If such
a notice is so delivered, such termination will occur as
indicated above and in accordance with Section 6.10 hereof,
unless the unsatisfied conditions identified relate solely
to the failure to obtain on or prior to such Closing Date
any approval or clearance of a Governmental Authority
contemplated by Sections 1.2(a)(ii) or 1.2(b)(i) necessary
for consummation of the transactions contemplated herein.
(b) If this Agreement is not terminated
pursuant to Section 1.3(a), then (i) each of the Issuer and
the Purchaser shall be irrevocably obligated, subject to
Section 6.10, to consummate the purchase and sale of Shares
as soon as practicable after the last such Governmental
Authority approval or clearance contemplated by the Sections
referenced above has been obtained, and there shall be no
further or other conditions to either party's obligations to
consummate such transactions and (ii) the party who is
responsible for obtaining such Governmental Authority
approval(s) or clearance(s) that have not been obtained by
the Closing Date shall use its best efforts in good faith to
obtain the same as promptly as is practicable, and shall
notify the other party as soon as the same is or are
obtained.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
In order to induce the Purchaser to purchase the Shares
hereunder, the Issuer represents and warrants to the
Purchaser that the following representations and warranties
are true and correct in all respects as of the date hereof,
and will be so, as of the Closing Date and that, except as
set forth herein:
2.1 Corporate Status.
(a) The Issuer is duly incorporated and
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(b) The Issuer and each of its Material
Subsidiaries has the corporate power and authority to own,
lease and operate its properties and to conduct its business
as currently owned, leased, operated and conducted, except
in any instance where the failure to have such power and
authority does not have a Material Adverse Effect on the
Issuer and its Subsidiaries taken as a whole.
(c) The Issuer, and each of its Material
Subsidiaries, is qualified to do business in all
jurisdictions where its ownership, lease or operation of
property or the conduct of its business requires such
qualification, except where the failure to so qualify would
not have a Material Adverse Effect on the Issuer and its
Subsidiaries taken as a whole.
(d) The Issuer has corporate power and
authority to enter into and perform its obligations under
this Agreement.
2.2 Authorization/Enforceability. This Agreement has
been duly authorized, executed and delivered by the Issuer
and constitutes a valid and legally binding obligation of
the Issuer, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles.
2.3 Non-Contravention. The issuance and sale of the
Shares by the Issuer and the compliance by the Issuer with
all of the provisions of this Agreement and the consummation
of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result
in the creation or imposition of any Lien upon any share of
the Common Stock, properties or assets of the Issuer
pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Issuer or any of its Subsidiaries is a party or by
which the Issuer or any of its Subsidiaries is bound or to
which any share of the Common Stock, properties or assets of
the Issuer or any of its Subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Restated Certificate of Incorporation or the Amended and
Restated Bylaws, in each case as amended to date, of the
Issuer or any statute or any order, rule or regulation of
any Governmental Authority having jurisdiction over the
Issuer or any of its Subsidiaries or any of their properties
or assets.
2.4 Consents/Approvals. Except for filings and
approvals required by the HSR Act and except for compliance
with the securities laws of the States set forth on Part A
of Schedule 1 attached hereto, no consent, approval,
authorization, order, registration or qualification of or
with any Governmental Authority is required for the issuance
and sale of the Shares or the consummation by the Issuer of
the transactions contemplated by this Agreement.
2.5 Capitalization. As of September 30, 1994, the
authorized and outstanding shares of the capital stock of
the Issuer was as shown on Part B of Schedule 1 attached
hereto. All outstanding shares of the Common Stock have been
duly authorized and validly issued and are fully paid.
Except as set forth on Part B of Schedule 1 attached hereto,
there are as of the date hereof, and there will be as of the
Closing Date, no outstanding (i) shares of the Common Stock
or other voting securities of the Issuer, (ii) securities of
the Issuer convertible into or exchangeable for shares of
the Common Stock or other voting securities of the Issuer or
(iii) options or other rights to acquire from the Issuer, or
obligation of the Issuer to issue, shares of the Common
Stock, voting securities or securities convertible into or
exchangeable for shares of the Common Stock or other voting
securities of the Issuer (the securities and the rights to
acquire securities described in clauses (i), (ii) and (iii)
being referred to collectively as the "Issuer Securities").
There are as of the date hereof, and there will be as of the
Closing Date, no outstanding obligations of the Issuer or
any of its Subsidiaries to issue or deliver or to
repurchase, redeem or otherwise acquire any Issuer
Securities other than those listed on Part B of Schedule 1
attached hereto. Neither the issuance and sale of the Shares
nor the consummation of the transactions contemplated by
this Agreement grant any Person the right to acquire from
the Issuer any Issuer Securities (other than the Shares).
2.6 No Material Adverse Change.
(a) Since June 30, 1994, there has not been
any Material Adverse Change with respect to the Issuer and
its Subsidiaries taken as a whole.
(b) Since June 30, 1994, each of the Issuer
and its Subsidiaries has conducted its respective business,
operations and activities only in the ordinary course
consistent with past practice.
2.7 Share Authorization. The Shares have been duly
authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued
and fully paid and nonassessable. Good and valid title to
the Shares, free and clear of all Liens, will be transferred
by the Issuer to the Purchaser.
2.8 Issuer SEC Reports and Financial Statements.
(a) The Issuer has delivered to the
Purchaser true and complete copies of its Annual Report on
Form 10-K for the fiscal year ended March 31, 1994, Current
Report on Form 8-K dated May 20, 1994, Proxy Statement dated
June 15, 1994 for the Annual Meeting of Shareholders to be
held July 27, 1994, Annual Report to Shareholders For Fiscal
Year 1994 and Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1994, each in the form (including
exhibits and any amendments thereto) required to be filed
with the SEC (collectively, the "Issuer SEC Reports"). As of
their respective dates, each of the Issuer SEC Reports (i)
complied in all material respects with all applicable
requirements of the Securities Act and the Exchange Act, and
the rules and regulations promulgated thereunder,
respectively, and (ii) did not contain any untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading.
(b) Each of the audited consolidated
financial statements and unaudited consolidated interim
financial statements of the Issuer (including any related
notes and schedules thereto) included (or incorporated by
reference) in its Annual Report on Form 10-K for the fiscal
year ended March 31, 1994 or Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1994, is materially
accurate and complete and fairly presents, in conformity
with GAAP applied on a consistent basis (except as may be
noted therein), the consolidated financial position of the
Issuer and its Subsidiaries as of its date and the
consolidated results of operations and changes in financial
position for the period then ended (subject, where
applicable, to normal year-end audit adjustments none of
which, alone or in the aggregate, would have a Material
Adverse Effect on the Issuer and its Subsidiaries taken as a
whole).
(c) Except as and to the extent set forth
(or incorporated by reference) in the Issuer's Annual Report
on Form 10-K for the fiscal year ended March 31, 1994 and
its Quarterly Report on Form 10-Q for the interim period
ended June 30, 1994, neither the Issuer nor any of its
Subsidiaries has any liability or obligation of any nature
whatsoever (whether due or to become due, accrued, fixed,
contingent, liquidated, unliquidated or otherwise) that
would be required by GAAP to be reflected on, or reserved
against in, a consolidated balance sheet (or in the
applicable notes thereto) of the Issuer or any of its
Subsidiaries prepared in accordance with GAAP consistently
applied, other than liabilities or obligations which arose
in the ordinary course of business and consistent with past
practices since such date and which do not or would not
individually or in the aggregate have a Material Adverse
Effect. Since June 30, 1994, neither the Issuer nor any of
its Subsidiaries has incurred any material liability not
incurred in the ordinary course of business, whether
absolute or accrued, and, since June 30, 1994, neither the
Issuer nor any of its Subsidiaries has, to the Issuer's
knowledge, incurred any material contingent liability not
incurred in the ordinary course of business.
2.9 No Finder. Neither the Issuer nor any party
acting on its behalf has paid or become obligated to pay any
fee or commission to any broker, finder or intermediary for
or on account of the transactions contemplated by this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
In order to induce the Issuer to issue and sell the
Shares hereunder, the Purchaser represents and warrants to
the Issuer that the following representations and warranties
are true and correct in all respects as of the date hereof,
and will be so, as of the Closing Date and that, except as
set forth herein:
3.1 Investment Intent. The Purchaser qualifies as an
"accredited investor" (as defined in Rule 501(a) of
Regulation D under the Securities Act) and is acquiring the
Shares hereunder for its own account and with no intention
of distributing or selling the Shares. The Purchaser agrees
that it will not sell or otherwise dispose of any of the
Shares unless such sale or other disposition has been
registered or is exempt from registration under the
Securities Act and has been registered or qualified or is
exempt from registration or qualification under applicable
securities laws of any State. The Purchaser understands that
the Shares being acquired by it hereunder have not been (and
are not being) registered under the Securities Act by reason
of their contemplated issuance in transaction(s) exempt from
the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, and that
the reliance of the Issuer on such exemption from
registration is predicated in part on the representations
and warranties of the Purchaser hereunder. A restrictive
legend consistent with the foregoing has been or will be
placed on the certificates for the Shares, and related stop
transfer instructions will be noted in the transfer records
of the Issuer and/or its transfer agent for the Shares.
3.2 Corporate Status.
(a) The Purchaser is duly incorporated and
validly existing as a corporation in good standing under the
laws of the State of Delaware. Purchaser is the owner of all
of the outstanding capital stock of Trans Union.
(b) The Purchaser has corporate power and
authority to own, lease and operate its properties and to
conduct its business as currently owned, leased, operated
and conducted and to enter into and perform its obligations
under this Agreement.
3.3 Authorization/Enforceability. This Agreement has
been duly authorized, executed and delivered by the
Purchaser and constitutes a valid and legally binding
obligation of the Purchaser, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles.
3.4 Non-Contravention. The purchase of the Shares by
the Purchaser and the compliance by the Purchaser with all
of the provisions of this Agreement and the consummation of
the transactions herein contemplated will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any Lien upon any of the
properties or assets of the Purchaser pursuant to the terms
of, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Purchaser or
any of its Subsidiaries is a party or by which the Purchaser
or any of its Subsidiaries is bound or to which any of the
properties or assets of the Purchaser or any of its
Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or Bylaws of the Purchaser or any statute or
any order, rule or regulation of any Governmental Authority
having jurisdiction over the Purchaser or any of its
Subsidiaries or any of their properties.
3.5 Consents/Approvals. Except for filings and
approvals required by the HSR Act, no consent, approval,
authorization, order, registration or qualification of or
with any Governmental Authority is required for the purchase
of the Shares or the consummation by the Purchaser of the
transactions contemplated by this Agreement.
3.6 No Finder. Neither the Purchaser nor any party
acting on its behalf has paid or become obligated to pay any
fee or commission to any broker, finder or intermediary for
or on account of the transactions contemplated by this
Agreement.
ARTICLE IV
COVENANTS
4.1 Covenants of the Issuer.
(a) The Issuer will (i) make on a prompt and
timely basis all governmental or regulatory notifications,
filings or submissions, including, without limitation, any
notifications, filings or submissions required by the HSR
Act or the securities laws of any State set forth on Part A
of Schedule 1 attached hereto, as necessary for the
consummation of the transactions contemplated hereby, (ii)
use all reasonable efforts to cooperate with the Purchaser
and its representatives in (A) determining which
notifications, filings and submissions are required to be
made prior to the Closing Date with, and which consents,
approvals, permits or authorizations are required to be
obtained prior to the Closing Date from, any Governmental
Authority in connection with the execution, delivery and
performance of this Agreement and the transactions
contemplated hereby and (B) timely making of all such
notifications, filings or submissions and timely seeking all
such consents, approvals, permits or authorizations, and
(iii) use all reasonable efforts to take, or cause to be
taken, all other action and do, or cause to be done, all
other things necessary or appropriate to consummate the
transactions contemplated by this Agreement.
(b) Except for the instruments and plans set
forth on Part B of Schedule 1 attached hereto, during the
period from the date of this Agreement to the Closing Date,
inclusive, the Issuer will not enter into any agreement or
legally binding commitment to give to any Person any right
to invest in or acquire shares of the Common Stock or any
security convertible into or exercisable for the Common
Stock of the Issuer.
(c) The Issuer acknowledges that upon
exercise of the Warrant, the Purchaser may become an
"Interested Stockholder" with respect to the Issuer for
purposes of Section 203 of the DGCL. Accordingly, prior to
the Closing Date (or as soon as possible thereafter if
otherwise impractical), the Issuer shall use its best
efforts to cause the Issuer's Board of Directors to approve
of the Purchaser's exercise of the Warrant, and purchase of
shares of the Common Stock pursuant thereto, for purposes of
Section 203(a)(1) of the DGCL.
(d) As soon as practical following the
execution of this Agreement, the Issuer shall prepare and
file with the NASD, and obtain the NASD's approval of, an
amendment to the Issuer's NASDAQ National Market Listing
Application reflecting the consummation of the transactions
completed hereby, together with all documents, instruments
and other materials which are or will be required to be
filed or delivered under the Issuer's NASDAQ listing
agreement and the NASD By-Laws.
4.2 Covenants of the Purchaser. The Purchaser will
(a) make on a prompt and timely basis all governmental or
regulatory notifications, filings or submissions, including,
without limitation, any notifications, filings or
submissions required by the HSR Act, as necessary for the
consummation of the transactions contemplated hereby, (b)
use all reasonable efforts to cooperate with the Issuer and
its representatives in (i) determining which notifications,
filings and submissions are required to be made prior to the
Closing Date with, and which consents, approvals, permits or
authorizations are required to be obtained prior to the
Closing Date from, any Governmental Authority in connection
with the execution, delivery and performance of this
Agreement and the transactions contemplated hereby and (ii)
timely making of all such notifications, filings or
submissions and timely seeking all such consents, approvals,
permits or authorizations, and (c) use all reasonable
efforts to take, or cause to be taken, all other action and
do, or cause to be done, all other things necessary or
appropriate to consummate the transactions contemplated by
this Agreement.
ARTICLE V
DEFINITIONS
5.1 Defined Terms. As used herein the following
terms shall have the following meanings:
"Closing Date" has the meaning specified in Section 1.1
hereof.
"DGCL" means the General Corporation Law of the State
of Delaware, as amended.
"DCM Agreement" has the meaning specified in Section
6.1
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"GAAP" means generally accepted accounting principles
in effect in the United States of America from time to time.
"Governmental Authority" means any federal, state or
other political subdivision, and any agency, court,
department, entity or official exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"Issuer SEC Reports" has the meaning specified on
Section 2.8 hereof.
"Issuer Securities" has the meaning specified in
Section 2.5 hereof.
"Lien" means any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability),
encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional
sale or other title retention agreement having substantially
the same economic effect as any of the foregoing).
"Material Adverse Change {or Effect)" means a change in
(or effect on) the condition (financial or otherwise),
results of operations, assets, earnings or business of a
Person, which change or development, individually or in the
aggregate, is materially adverse to such condition, results
of operations, assets, earnings or business.
"Material Subsidiaries" means those subsidiaries of the
Issuer listed on Schedule 2 attached to this Agreement.
"NASD" means the National Association of Securities
Dealers, Inc.
"NASDAQ" means the National Association of Securities
Dealers, Inc.'s Automated Quotation System.
"Officers' Certificate" shall mean a certificate
executed on behalf of the Issuer or the Purchaser, as
applicable, by its President and by one of its Vice
Presidents, Treasurer, Secretary or Assistant Secretary.
"Person" means any individual, partnership,
corporation, trust, joint venture, unincorporated
organization or Governmental Authority.
"Purchase Price" has the meaning specified in Section
1.1 hereof.
"Register", "registered" and "registration" refer to a
registration of shares of the Common Stock effected by
preparing and filing a registration statement with the SEC
in compliance with the Securities Act and the declaration or
ordering of the effectiveness of such registration
statement.
"Registration Rights Agreement" has the meaning
specified in Section 6.1 hereof.
"SEC" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the
Securities Act or the Exchange Act.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shares" has the meaning specified in Section 1.1 hereof.
"Subsidiary" means as to any Person, (i) a corporation
of which more than 50% of the outstanding capital stock
having full voting power is at the time directly or
indirectly owned by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or
more Subsidiaries thereof or (ii) any other Person (other
than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or
more other Subsidiaries thereof, directly or indirectly, has
at least a majority ownership and power to direct the
policies, management and affairs thereof.
"Trans Union" shall mean Trans Union Corporation, a
Delaware corporation.
"Warrant" refers to the warrant described in Section
6.1(b) hereof.
5.2 Other Definitional Provisions.
(a) All terms defined in this Agreement
shall have the defined meanings when used in any
certificate, report or other document made or delivered
pursuant hereto or thereto, unless the context otherwise
requires.
(b) Terms defined in the singular shall have
a comparable meaning when used in the plural, and vice
versa.
(c) All matters of an accounting nature in
connection with this Agreement and the transactions
contemplated hereby shall be determined in accordance with
GAAP as are generally accepted as consistently applied by
the Issuer at the date of such computation.
(d) As used herein, the neuter gender shall
also denote the masculine and feminine, and the masculine
gender shall also denote the neuter and feminine, where the
context so permits.
(e) The words "hereof", "herein" and
"hereunder", and words of similar import, when used in this
Agreement shall this Agreement as a whole and not to any
particular provision of this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Understandings relating to the DCM Agreement
and the Registration Rights Agreement.
(a) The Purchaser shall be entitled to the
same registration and other rights with respect to the
Shares as are granted to Trans Union pursuant to (i) Section
5.1.3.3 ("Registration Rights"), Section 5.1.3.4 ("Demand
Registration Rights") and Section 5.1.3.7.3 ("Dilution
Effect") of that certain Data Center Management Agreement
between Trans Union and the Issuer, dated as of July 27,
1992, as amended by the amendment thereto dated August 31,
1994 (as such agreement has heretofore been and may
hereafter be amended, the "DCM Agreement") and (ii) that
certain Registration Rights Agreement between Trans Union
and the Issuer, dated as of July 27, 1992, as amended by the
amendment thereto dated August 31, 1994 (as such agreement
has heretofore been and may hereafter be amended, the
"Registration Rights Agreement"); provided, however, that
the Purchaser and Trans Union shall be entitled,
collectively, to exercise their rights under Section 3.0 of
the Registration Rights Agreement no more than an aggregate
of twice and any such exercise shall be for all but not less
than all of the Eligible Securities (as defined in Section
1.0 of the Registration Rights Agreement) held by Trans
Union, all but not less than all of the Eligible Securities
held by the Purchaser or all but not less than all of the
Eligible Securities held by both Trans Union and the
Purchaser, as Trans Union and the Purchaser may, in their
sole discretion, decide.
(b) Capitalized terms used in each of the
DCM Agreement and the Registration Rights Agreement shall
have the meanings as set forth therein, respectively;
provided, however, that all references to "Acxiom Stock" (as
defined in Section 5.1.3.1.1(a) of the DCM Agreement) and
all references to "Eligible Securities" in each of the DCM
Agreement, the Registration Rights Agreement and Section
6.1(a) hereof shall be deemed to refer to and include the
Shares; provided, further, however, that the term "Acxiom
Stock" shall not be deemed to refer to or include the Shares
(i) for the purposes of the warrant to purchase shares of
the Common Stock issued pursuant to Section 5.1.3.1(f) of
the DCM Agreement (the "Warrant"), or (ii) for any other
purpose, right or obligation contained in or pursuant to the
DCM Agreement, except as may be necessary or appropriate in
respect of the rights and obligations of each of the Issuer
and the Purchaser pursuant to Section 6.1(a) hereof.
6.2 Communications. All communication hereunder
shall be in writing (including telegraphic communication)
and shall be sent by telegraph, facsimile or overnight
courier or delivered in person to the Purchaser at 000 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, facsimile number
(000) 000-0000, Attention: President (with a copy to Xxxx
Xxxxxx & Xxxxxxxxx at Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, facsimile number (000) 000-0000,
Attention: Xxxx X. Xxxxxxxx, Esq.), and to the Issuer at 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, facsimile
number (000) 000-0000, Attention: President (with a copy to
Xxxxxx, Xxxxxxx & Xxxxxxxx at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx Xxxx, Xxxxxxxx 00000, facsimile number (501)
376-9442, Attention: N.M. Norton, Jr., Esq.), or to such
other addresses or Persons as the Purchaser or the Issuer
may designate by notice in writing. Notices shall be deemed
to have been given when received.
6.3 Non-Waiver of Remedies and Actions. No course of
dealing between the Issuer and the Purchaser with respect to
any shares of the Common Stock, or any delay on the part of
either such party in exercising any rights available to such
party, shall operate as a waiver of any right of such party,
except to the extent expressly waived in writing by such
party.
6.4 Headings. The headings in this Agreement are for
purposes of reference only and shall not be considered in
construing this Agreement.
6.5 Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed
and delivered shall constitute an original and all together
shall constitute one agreement, with such counterparts being
deliverable by facsimile with the original being transmitted
by overnight courier.
6.6 Successors and Assigns. Except as otherwise
specifically provided herein, this Agreement shall bind and
inure to the benefit of the Issuer's and the Purchaser's
respective successors and permitted assigns; provided,
however, that neither the Issuer nor the Purchaser shall
have any right to assign any of its rights hereunder or any
interest herein without obtaining the written consent of the
other to such assignment, and any purported assignment made
without obtaining such written consent shall be null and
void. Notwithstanding the foregoing, any Person who is a
holder of any share(s) of the Common Stock shall have all
rights and benefits afforded to such holder, in its capacity
as such, pursuant and subject to the terms of the Restated
Certificate of Incorporation and the Amended and Restated
Bylaws of the Issuer, in each case as amended to date,
receipt of copies of which is acknowledged by the Purchaser.
6.7 Survival. Notwithstanding any investigation made
by either party, all covenants, agreements, representations
and warranties made herein and in certificates delivered
pursuant hereto shall survive the Closing Date and the
delivery to the Purchaser of the Shares.
6.8 Enforceability. If any term or provision of this
Agreement, or the application thereof to any Person or
circumstance, shall, to any extent, be invalid or
unenforceable, the remaining terms and provisions of this
Agreement or application to other Persons and circumstances
shall not be invalidated thereby, and each term and
provision hereof shall be construed with all other remaining
terms and provisions hereof to effect the intent of the
parties hereto to the fullest extent permitted by law.
6.9 Law Governing. This Agreement shall be construed
and enforced in accordance with and shall be governed by the
laws of the State of Delaware, without giving effect to its
conflict of laws provisions.
6.10 Termination.
(a) Subject to the provisions of Section
1.3(b) hereof, this Agreement shall terminate without any
liability of the parties hereto if the purchase and sale of
the Shares contemplated by Section 1.1 shall not have
occurred by November 30, 1994; provided, however, that prior
to any such termination the parties shall discuss in good
faith extension of the term of this Agreement beyond such
date with any such revisions to the terms hereof as may be
appropriate under the circumstances.
(b) In addition, in the event that on the
Closing Date, any condition to the obligation of either
party to consummate the transaction has not been satisfied
and either of the parties shall have exercised its right to
terminate this Agreement based thereon as provided in
Section 1.3(a), then this Agreement shall be terminated as
provided in Section 1.3(a), which termination shall be
without liability to either party hereunder.
6.11 Public Announcements. The Issuer and the
Purchaser each hereby agrees it will not issue any press
release or otherwise make any public statement or respond to
any press inquiry with respect to this Agreement, the
transactions contemplated hereby or Agreements or
transactions referred to herein without the prior approval
of the other party except as may be required by applicable
law.
6.12 Expenses. Except as otherwise provided herein,
all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expense.
6.13 Amendments. This Agreement may not be amended,
waived or modified, in whole or in part, except by a writing
signed on behalf of the parties hereto.
6.14 Third Party Beneficiaries. Nothing herein
expressed or implied is intended or shall be construed to
confer upon or give to any Person (other than the parties
hereto) any rights or remedies under or by reason of this
Agreement.
6.15 Further Assurances. From time to time after the
date hereof, the parties will, at their expense, and without
further consideration, execute and deliver such other
documents and instruments and take such other actions as are
reasonably requested to effect the purposes and intent of
this Agreement.
6.16 Integration. This Agreement contains the entire
understanding of the parties with respect to the subject
matter hereof, and cancels and supersedes any and all prior
agreements, understandings or arrangements, whether written
or oral.
IN WITNESS WHEREOF, the parties hereto have caused this
Stock Purchase Agreement to be duly executed and delivered
as of the day and year first above written.
THE ISSUER:
ACXIOM CORPORATION,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxxx, Xx.
By: --------------------------
Xxxxxxx X. Xxxxxx, Xx.
Chairman of the Board
THE PURCHASER:
XXXXXX INDUSTRIAL
CORPORATION, a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
Vice President and Secretary
SCHEDULE 1
A. STATES REQUIRING STATE SECURITIES LAW FILINGS
None.
B. CAPITALIZATION OF THE ISSUER
As of September 30, 1994,
Preferred stock, $1.00 par value, 1,000,000
authorized, all unissued.
Common stock $0.10 par value, 20,000,000
authorized, 10,651,163 shares outstanding.
Stock Option Plans:
The Issuer has two stock option plans -- for its
U.S. employees, a Key Employee Stock Option Plan
for which 2.8 million shares of the Issuer's
common stock have been reserved, and for its U.K.
employees, a U.K. Share Option Scheme for which
1.4 million shares of the Issuer's common stock
have been reserved. Pursuant to these plans,
options for 1,037,030 shares are currently
outstanding, 219,249 of which are currently
exercisable.
Stock Purchase Plan:
The Issuer maintains an employee stock purchase
plan which provides for the purchase of shares of
common stock by employees through payroll
deductions which may not exceed 10% of employee
compensation. The plan is registered with the
Securities and Exchange Commission, but the number
of shares registered for issuance is not fixed.
The price of stock purchased under the plan is 85%
of the market price as of the date the stock is
purchased for the employee by the Trustees of the
plan.
Retirement Savings Plan:
The Issuer has a retirement savings plan which
covers substantially all domestic employees. The
Issuer matches 50% of the employee's salary
deferred contributions up to 6% annually and may
contribute amounts to the plan from the Issuer's
earnings at the discretion of the Board of
Directors. Issuer contributions amounted to
approximately $417,000, 383,000 and 308,000 in
1994, 1993 and 1992, respectively. All Issuer
contributions are made in the Issuer's common
stock.
Trans Union Corporation Warrant:
In August 1992, Trans Union Corporation ("Trans
Union") acquired a warrant (the "Warrant") in
connection with the Issuer's purchase of certain
assets pursuant to the DCM Agreement. The
Warrant, which expires on August 31, 2000,
entitles Trans Union to acquire up to l,000,000
additional shares of the Issuer's newly issued
common stock ("Warrant Stock"). The exercise
price of the Warrant Stock is $11.25 per share in
years one through five of the agreement, $12.25 in
year six, $13.25 in year seven and $14.25 in year
eight. The first 250,000 shares became
exercisable as of the closing of the DCM Agreement
and the remaining 750,000 shares became
exercisable on August 31, 1994 when Trans Union
notified the Issuer of Trans Union's intent to go
forward with the second phase (7 1/2 years) of the
DCM Agreement. Trans Union is precluded from
exercising the Warrant to the extent that the
shares acquired thereunder would cause its
percentage ownership of the Issuer's common stock
acquired pursuant to the DCM Agreement to exceed
10% of the Issuer's then issued and outstanding
common stock. Based on shares outstanding at
September 30, 1994, and giving effect to the
shares issued pursuant to this Agreement, Trans
Union would currently be entitled to purchase
approximately 705,684 additional shares of the
Issuer's common stock.
SCHEDULE 2
MATERIAL SUBSIDIARIES OF THE ISSUER
Jurisdiction of
Name of Subsidiary Incorporation
------------------ ---------------
Acxiom Chicago Data Center, Inc. Arkansas
Acxiom Children's Center, Inc. Arkansas
Acxiom RM-Tools, Inc. Arkansas
Acxiom Transportation Services, Inc. Arkansas
BSA, Inc. New Jersey
Modern Mailers, Inc. Delaware
Acxiom U.K., Ltd. United
Kingdom
Marketlead Services, Ltd. United
(Agency company of Acxiom, U.K., Ltd.) Kingdom
Southwark Computer Services, Ltd. United
(Agency company of Acxiom, U.X., Ltd.) Kingdom
