<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 17, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
ACXIOM CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7374 71-0581897
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer
incorporation or organization) classification code number) Identification No.)
</TABLE>
P.O. BOX 2000
301 INDUSTRIAL BOULEVARD
CONWAY, ARKANSAS 72033-2000
(501) 336-1000
__________________
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CHARLES D. MORGAN
PRESIDENT
ACXIOM CORPORATION
P.O. BOX 2000
301 INDUSTRIAL BOULEVARD
CONWAY, ARKANSAS 72033-2000
(501) 336-1000
(Name, address, including zip code, and telephone number including area code, of
agent for service)
__________________
Copies of all communications to:
J. MICHAEL SCHELL, ESQ. BRUCE A. TOTH, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP WINSTON & STRAWN
919 THIRD AVENUE 35 WEST WACKER DRIVE
NEW YORK, NY 10022 CHICAGO, IL 60601-9703
(212) 735-3000 (312) 558-5800
__________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective and all other
conditions to the merger (the "Merger") of May & Speh, Inc. ("May & Speh") with
and into a subsidiary of the Registrant pursuant to the Merger Agreement
described in the enclosed Joint Proxy Statement/Prospectus have been satisfied
or waived.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
__________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
<S> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
OFFERING PRICE AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO PER OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED(1) BE REGISTERED (2) UNIT (3) PRICE(4) REGISTRATION FEE(5)
- ---------------------------------------------------------------------------------------------------------------------
COMMON STOCK, PAR VALUE $.10 PER 31,084,248 SHARES $22.56 $701,260,634.90 $206,871.89
SHARE
=====================================================================================================================
(see footnotes on following page)
</TABLE>
__________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
<PAGE>
(1) This Registration Statement relates to the common stock, par value $.10 per
share, of the Registrant (the "Acxiom Common Stock") issuable to holders of
the common stock, par value $.01 per share, of May & Speh (the "May & Speh
Common Stock") in connection with the Merger.
(2) The number of shares to be registered pursuant to this Registration
Statement is the maximum number of shares of Acxiom Common Stock issuable to
stockholders of May & Speh, Inc. in connection with the Merger, calculated
by aggregating the product of an exchange ratio of .8 shares of Acxiom
Common Stock for each share of May & Speh, Inc. Common Stock (as provided
for in the Agreement and Plan of Merger, dated as of May 26, 1998 by and
among the Registrant, ACX Acquisition Co., Inc. and May & Speh, Inc.) and
each of (i) 26,073,654 shares of May & Speh Common Stock outstanding and not
held by the Registrant or its subsidiaries; (ii) 7,228,153 shares of May &
Speh Common Stock issuable upon the conversion of the 5 1/4% Convertible
Subordinated Notes due 2003; (iii) options to receive or acquire 5,027,503
shares of May & Speh Common Stock granted (or to be granted) pursuant to
employee incentive or benefit plans, programs and arrangements of May &
Speh, Inc.; and (iv) warrants to purchase a total of 526,000 shares of May &
Speh Common Stock.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(f) and 457(c) of the Securities Act of 1933, as amended (the
"Securities Act"), based on the average of high and low prices of Acxiom
Common Stock on August 11, 1998, as reported on the Nasdaq National
Market, at an exchange ratio of .8 of a share of Acxiom Common Stock per
share of May & Speh Common Stock.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f) of the Securities Act, based on the product of the
estimated maximum number of shares of May & Speh Common Stock to be acquired
in the Merger multiplied by the proposed maximum offering price per share
calculated as described in (3) above.
(5) The registration fee for the securities registered hereby, $206,871.89, has
been calculated pursuant to Section 6(b) of the Securities Act and Rule
457(f) promulgated thereunder as follows: $295 per $1,000,000 of the
proposed maximum aggregate offering price. $85,717.14 of such amount is
offset pursuant to Rule 457 by fees previously paid.
<PAGE>
ACXIOM(R)
August 17, 1998
Dear Stockholder:
You are cordially invited to attend the Annual Meeting of Stockholders of
Acxiom Corporation at 10:00 A.M., local time, on September 17, 1998 at
Acxiom's headquarters at 301 Industrial Boulevard, Conway, Arkansas.
The Notice of Annual Meeting and Proxy Statement/Prospectus accompanying
this letter describe the business to be acted upon at the meeting. At the
meeting, in addition to the election of directors, you will be asked to
consider and vote upon the issuance of up to 31,100,000 shares of Acxiom
Common Stock (the "Merger Proposal") in connection with the proposed
acquisition of May & Speh, Inc. ("May & Speh"), pursuant to a merger (the
"Merger") of ACX Acquisition Co., Inc., a wholly owned subsidiary of Acxiom,
with and into May & Speh. If the Merger is consummated, May & Speh will become
a wholly owned subsidiary of Acxiom, and the stockholders of May & Speh will
receive 0.8 of a share of Acxiom Common Stock (the "Exchange Ratio") for each
share of their May & Speh Common Stock.
The proposed Merger is contingent upon, among other things, the approval of
the stockholders of Acxiom and May & Speh and will be consummated shortly
after such approvals are obtained and the other conditions to the Merger are
satisfied or waived.
Stockholders of Acxiom holding an aggregate of 8,037,425 shares of Acxiom
Common Stock (representing approximately 15% of the Acxiom Common Stock
outstanding on the record date) have agreed with May & Speh to vote such
shares of Acxiom Common Stock in favor of the Merger Proposal.
The attached Proxy Statement/Prospectus describes the proposed transactions
more fully and includes other information about Acxiom and May & Speh. Please
give this information your thoughtful attention.
Your Board of Directors has carefully reviewed and considered the terms and
conditions of the proposed Merger. In addition, the Board of Directors has
received the opinion of its financial advisor, Stephens Inc., that the
Exchange Ratio is fair from a financial point of view to Acxiom and to the
holders of Acxiom Common Stock.
ACCORDINGLY, AFTER CAREFUL CONSIDERATION, YOUR BOARD OF DIRECTORS BY
UNANIMOUS VOTE OF THOSE PRESENT AT THE MEETING OF THE BOARD OF DIRECTORS
CONCLUDED THAT THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF ACXIOM AND
ITS STOCKHOLDERS AND RECOMMENDS THAT YOU VOTE FOR THE MERGER PROPOSAL.
Whether or not you plan to attend the meeting, please promptly mark, sign,
date, and return your proxy in the envelope provided. If you plan to attend
the meeting, you may vote in person at that time if you so desire, even though
you have previously turned in your proxy.
Sincerely,
/s/ Charles D. Morgan
Charles D. Morgan
Chairman of the Board
and Company Leader
<PAGE>
ACXIOM CORPORATION
301 INDUSTRIAL BOULEVARD
CONWAY, AR 72033
----------------
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
SEPTEMBER 17, 1998
----------------
NOTICE IS HEREBY GIVEN that the annual meeting of stockholders of ACXIOM
CORPORATION, a Delaware corporation ("Acxiom"), will be held at Acxiom's
headquarters at 301 Industrial Boulevard, Conway, Arkansas on September 17,
1998, at 10:00 A.M., local time, for the following purposes:
(1) To consider and vote upon a proposal to issue up to 31,100,000 shares
of Acxiom Common Stock in connection with the merger of ACX Acquisition
Co., Inc., a wholly owned subsidiary of Acxiom ("Sub"), with and into May &
Speh, Inc. ("May & Speh"), pursuant to the terms of the Amended and
Restated Agreement and Plan of Merger by and among Acxiom, Sub and May &
Speh, dated as of May 26, 1998 (the "Merger Agreement"). A copy of the
Merger Agreement is attached to the accompanying Proxy Statement/Prospectus
as Annex A.
(2) To elect three directors as members of the Board of Directors to
serve until the 2001 annual meeting of stockholders or until their
respective successors are duly elected and qualified.
(3) To consider and act upon any other matters which may properly come
before the meeting or any adjournment thereof.
Only stockholders of record at the close of business on July 31, 1998 are
entitled to notice of and to vote at the meeting or any adjournment thereof.
By Order of the Board of Directors,
/s/ Catherine L. Hughes
Catherine L. Hughes
Secretary
Conway, Arkansas
August 17, 1998
----------------
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE SIGN AND DATE THE
ENCLOSED PROXY, WHICH IS SOLICITED BY THE BOARD OF DIRECTORS OF ACXIOM, AND
RETURN IT TO ACXIOM IN THE PREADDRESSED ENVELOPE PROVIDED FOR THAT PURPOSE.
ANY STOCKHOLDER MAY REVOKE HIS OR HER PROXY AT ANY TIME BEFORE THE MEETING BY
WRITTEN NOTICE TO SUCH EFFECT, BY SUBMITTING A SUBSEQUENTLY DATED PROXY OR BY
ATTENDING THE MEETING AND VOTING IN PERSON.
<PAGE>
[LOGO]
MAY & SPEH
August 17, 1998
Dear Stockholder:
You are cordially invited to attend a special meeting of stockholders of May
& Speh, Inc. to be held on September 17, 1998 at The Standard Club, 320 South
Plymouth Court, Chicago, Illinois, at 9:00 A.M., local time.
The Notice of the Special Meeting and Proxy Statement/Prospectus
accompanying this letter describe the business to be acted upon at this
meeting. At this meeting, you will be asked to consider and to vote upon a
proposal to approve and adopt the Amended and Restated Agreement and Plan of
Merger, dated as of May 26, 1998 (the "Merger Agreement"), among Acxiom
Corporation ("Acxiom"), ACX Acquisition Co., Inc., a wholly owned subsidiary
of Acxiom ("Sub"), and May & Speh, pursuant to which (i) Sub will be merged
with and into May & Speh (the "Merger") and (ii) each outstanding share of May
& Speh Common Stock will be converted into the right to receive 0.8 of a share
of common stock of Acxiom ("Exchange Ratio").
Stockholders of May & Speh holding an aggregate of 2,892,895 shares of May &
Speh Common Stock (representing approximately 11% of the May & Speh Common
Stock outstanding on the record date) have agreed with Acxiom to vote such
shares of May & Speh Common Stock in favor of approval and adoption of the
Merger Agreement.
The attached Proxy Statement/Prospectus describes the proposed transactions
more fully and includes other information about Acxiom and May & Speh. Please
give this information your thoughtful attention.
Your Board of Directors has carefully reviewed and considered the terms and
conditions of the proposed Merger. In addition, the Board of Directors has
received the opinion of its financial advisor, Donaldson, Lufkin & Jenrette
Securities Corporation, that as of the date of such opinion and based upon and
subject to the assumptions, limitations and qualifications set forth in such
opinion, the Exchange Ratio was fair from a financial point of view to the
holders of May & Speh Common Stock.
YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE MERGER AND RECOMMENDS
THAT YOU VOTE FOR APPROVAL AND ADOPTION OF THE MERGER AGREEMENT.
Whether or not you plan to attend the Special Meeting, please promptly mark,
sign, date and return your proxy in the envelope provided. If you plan to
attend the Special Meeting, you may vote in person at that time even though
you have previously turned in your proxy card.
Sincerely,
/s/ Peter I. Mason
Peter I. Mason
Chairman, President & CEO
<PAGE>
MAY & SPEH, INC.
1501 OPUS PLACE
DOWNERS GROVE, IL 60615
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
SEPTEMBER 17, 1998
----------------
NOTICE IS HEREBY GIVEN that a special meeting of stockholders of MAY & SPEH,
INC., a Delaware corporation ("May & Speh"), will be held at The Standard
Club, 320 South Plymouth Court, Chicago, Illinois, on September 17, 1998 at
9:00 A.M. (local time), for the following purposes:
(1) To consider and vote upon a proposal to approve and adopt an Amended
and Restated Agreement and Plan of Merger dated as of May 26, 1998 (the
"Merger Agreement") among Acxiom Corporation ("Acxiom"), ACX Acquisition
Co., Inc., a wholly owned subsidiary of Acxiom ("Sub"), and May & Speh,
pursuant to which (i) Sub will be merged with and into May & Speh and (ii)
each outstanding share of common stock, par value $.01 per share (other
than shares held by Acxiom or any subsidiary of Acxiom), of May & Speh will
be converted into the right to receive 0.8 of a share of common stock, par
value $.10 per share, of Acxiom.
(2) To transact such other and further business as may properly come
before the meeting or any postponement or adjournment thereof.
Only stockholders of record of May & Speh Common Stock at the close of
business on July 31, 1998 are entitled to notice of and to vote at the meeting
or any adjournment thereof.
By Order of the Board of Directors,
/s/ Andy V. Jonusaitis
Andy V. Jonusaitis
Vice President, General Counsel and
Secretary
Downers Grove, Illinois
August 17, 1998
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE SIGN AND DATE THE
ENCLOSED PROXY, WHICH IS SOLICITED BY THE BOARD OF DIRECTORS OF MAY & SPEH,
AND RETURN IT TO MAY & SPEH IN THE PREADDRESSED ENVELOPE PROVIDED FOR THAT
PURPOSE. ANY STOCKHOLDER MAY REVOKE HIS OR HER PROXY AT ANY TIME BEFORE THE
MEETING BY WRITTEN NOTICE TO SUCH EFFECT, BY SUBMITTING A SUBSEQUENTLY DATED
PROXY OR BY ATTENDING THE MEETING AND VOTING IN PERSON.
<PAGE>
ACXIOM CORPORATION MAY & SPEH, INC.
301 INDUSTRIAL BOULEVARD 1501 OPUS PLACE
CONWAY, AR 72033 DOWNERS GROVE, IL 60515
----------------
ACXIOM CORPORATION
AND
MAY & SPEH, INC.
JOINT PROXY STATEMENT/PROSPECTUS
----------------
ANNUAL MEETING OF STOCKHOLDERS OF
ACXIOM CORPORATION
TO BE HELD ON SEPTEMBER 17, 1998
----------------
SPECIAL MEETING OF STOCKHOLDERS OF
MAY & SPEH, INC.
TO BE HELD ON SEPTEMBER 17, 1998
----------------
ACXIOM CORPORATION PROSPECTUS
----------------
This Joint Proxy Statement/Prospectus (the "Proxy Statement/Prospectus")
constitutes the Proxy Statement of Acxiom Corporation ("Acxiom") and the Proxy
Statement of May & Speh, Inc. ("May & Speh") to be used in connection with the
solicitation of proxies from their respective stockholders in connection with
the proposed merger of ACX Acquisition Co., a wholly owned subsidiary of
Acxiom, with and into May & Speh (the "Merger"). Pursuant to the Merger, each
outstanding share of common stock, par value $.01 per share (other than shares
held by Acxiom or any subsidiary of Acxiom), of May & Speh (the "May & Speh
Common Stock") will be converted into the right to receive 0.8 of a share of
common stock, par value $.10 per share, of Acxiom (the "Acxiom Common Stock").
On August 14, 1998 the high sale prices of Acxiom Common Stock and May & Speh
Common Stock on the NASDAQ National Market System were $24.00 per share and
$18.625 per share, respectively, and the low sale prices were $23.375 per
share and $18.25 per share, respectively. This Proxy Statement/Prospectus also
constitutes the Prospectus of Acxiom with respect to the Acxiom Common Stock
to be issued in connection with the Merger. Acxiom has filed a Registration
Statement on Form S-4 (the "Registration Statement") under the Securities Act
of 1933, as amended, with the Securities and Exchange Commission (the
"Commission") covering a maximum of 31,100,000 shares of Acxiom Common Stock
to be issued in connection with the Merger.
This Proxy Statement/Prospectus is first being mailed to the stockholders of
Acxiom and May & Speh on or about August 19, 1998.
SEE "RISK FACTORS" BEGINNING ON PAGE 17 FOR A DISCUSSION OF CERTAIN MATTERS
WHICH SHOULD BE CONSIDERED BY THE STOCKHOLDERS OF ACXIOM AND MAY & SPEH WITH
RESPECT TO THE MERGER.
----------------
THE SHARES OF ACXIOM COMMON STOCK TO BE ISSUED IN CONNECTION WITH THE MERGER
HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROXY STATEMENT/PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Proxy Statement/Prospectus is August 17, 1998.
<PAGE>
AVAILABLE INFORMATION
Acxiom has filed a Registration Statement on Form S-4 (the "Registration
Statement") with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). This Proxy Statement/Prospectus does not contain all
the information set forth in the Registration Statement, certain portions of
which are omitted in accordance with the Rules and Regulations of the
Commission. For further information pertaining to Acxiom and the Acxiom Common
Stock offered hereby, reference is made to the Registration Statement and the
exhibits thereto, which may be inspected without charge at the offices of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of
which may be obtained from the Commission at prescribed rates.
In addition, each of Acxiom and May & Speh is subject to the information
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and, in accordance therewith, file reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copies made at the public reference
facilities of the Commission, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; and at its regional offices located at 7 World Trade Center, New
York, New York 10048 and 500 W. Madison, Suite 1400, Chicago, Illinois 60661.
Copies of such materials can be obtained from the public reference section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, material filed by Acxiom and May & Speh can be inspected
at the offices of the National Association of Securities Dealers, Inc. at 1735
K Street, Washington, D.C. 20006. The filings with the Commission of each of
Acxiom and May & Speh are also available to the public from commercial
document retrieval services and at the web site maintained by the Commission
at "http://www.sec.gov."
INCORPORATION OF DOCUMENTS BY REFERENCE
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. COPIES OF THESE DOCUMENTS
(EXCLUDING EXHIBITS UNLESS EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO THE INFORMATION INCORPORATED HEREIN) WILL BE PROVIDED WITHOUT CHARGE, ON
ORAL OR WRITTEN REQUEST BY ANY PERSON TO WHOM THIS PROXY STATEMENT/PROSPECTUS
IS DELIVERED, FROM (I) ACXIOM, 301 INDUSTRIAL BOULEVARD, CONWAY, AR 72033,
TELEPHONE NUMBER (501) 336-1000, ATTENTION: CATHERINE L. HUGHES, IN THE CASE
OF DOCUMENTS RELATING TO ACXIOM OR (II) MAY & SPEH, 1501 OPUS PLACE, DOWNERS
GROVE, IL 60515, TELEPHONE NUMBER (630) 964-1501, ATTENTION: ANDY V.
JONUSAITIS, IN THE CASE OF DOCUMENTS RELATING TO MAY & SPEH. IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY
SEPTEMBER 9, 1998.
The following documents filed with the Commission by Acxiom (File No. 0-
13163) pursuant to the Exchange Act are incorporated by reference herein:
1. Annual Report on Form 10-K for the fiscal year ended March 31, 1998
(the "Acxiom 10-K"), as amended by the Annual Report on Form 10-K/A dated
July 29, 1998 and the Annual Report on Form 10-K/A dated August 4, 1998.
2. Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1998.
3. Current Report on Form 8-K dated June 4, 1998.
4. The description of Acxiom capital stock contained in the Registration
Statement on Form 8-A of CCX Network, Inc. (now known as Acxiom) dated
February 4, 1985, and any amendments or updates filed thereto.
5. The description of Acxiom Preferred Stock Purchase Rights contained in
the Registration Statement on Form 8-A dated January 28, 1998, as amended
by Form 8-A/A dated June 4, 1998.
The following documents filed with the Commission by May & Speh (File No. 0-
27872) pursuant to the Exchange Act are incorporated by reference herein:
1. Annual Report on Form 10-K for the fiscal year ended September 30,
1997 (the "May & Speh 10-K").
ii
<PAGE>
2. Quarterly Reports on Form 10-Q for the fiscal quarters ended December
31, 1997, March 31, 1998 and June 30, 1998.
3. Current Report on Form 8-K dated June 4, 1998.
4. Definitive Proxy Statement on Schedule 14A dated as of January 28,
1998 and amended as of February 6, 1998.
5. The description of May & Speh capital stock and preferred share
purchase rights contained in the Registration Statement on Form 8-A dated
March 1, 1996.
The following document filed with the Commission by May & Speh (Registration
No. 333-46547) pursuant to the Securities Act is incorporated by reference
herein:
1. The financial statements of May & Speh contained in pages F-1 through
F-17 of May & Speh's Prospectus, dated March 20, 1998, filed with the
Commission pursuant to Rule 424(b) of the Securities Act.
All documents and reports subsequently filed by Acxiom or May & Speh
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the date of the 1998 Acxiom annual meeting and the
May & Speh special meeting shall be deemed to be incorporated by reference
herein, and shall be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein, or contained in this Proxy
Statement/Prospectus, shall be deemed to be modified or superseded for
purposes of this Proxy Statement/Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part of this Proxy
Statement/Prospectus, except as so modified or superseded.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS AND, IF SO
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THOSE TO WHICH IT RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM, IT
IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROXY STATEMENT/PROSPECTUS NOR THE SALE OF ANY SECURITIES HEREUNDER SHALL
IMPLY THAT THE INFORMATION CONTAINED HEREIN OR IN THE DOCUMENTS INCORPORATED
BY REFERENCE HEREIN IS CORRECT AT ANY TIME SUBSEQUENT TO THE DATE HEREOF OR
THEREOF.
CAUTIONARY STATEMENT
When used in this Proxy Statement/Prospectus with respect to Acxiom and May
& Speh, the words "estimate," "project," "intend," "expect" and similar
expressions are intended to identify forward-looking statements. Readers are
cautioned not to place undue reliance on these forward-looking statements,
which speak only as of the date of this Proxy Statement/Prospectus. Such
statements are subject to risks and uncertainties that could cause actual
results to differ materially from those contemplated in such forward-looking
statements. Acxiom and May & Speh do not undertake any obligation to publicly
release any revisions to these forward-looking statements to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
iii
<PAGE>
ACXIOM CORPORATION
MAY & SPEH, INC.
PROXY STATEMENT/PROSPECTUS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AVAILABLE INFORMATION..................................................... ii
INCORPORATION OF DOCUMENTS BY REFERENCE................................... ii
CAUTIONARY STATEMENT...................................................... iii
TABLE OF CONTENTS......................................................... iv
SUMMARY................................................................... 1
General................................................................... 1
The Companies............................................................. 1
Acxiom.................................................................. 1
May & Speh.............................................................. 2
The Meetings.............................................................. 2
The Acxiom Meeting...................................................... 2
The May & Speh Meeting.................................................. 2
The Merger................................................................ 3
General................................................................. 3
Effective Time of the Merger............................................ 3
Exchange of May & Speh Stock Certificates............................... 3
Conditions to the Merger................................................ 4
Antitrust Matters....................................................... 4
Interests of Certain Persons in the Merger.............................. 4
Termination............................................................. 4
Reciprocal Stock Option Agreements; Termination Fees.................... 4
Certain United States Federal Income Tax Consequences of the Merger..... 5
Accounting Treatment.................................................... 5
Appraisal Rights........................................................ 5
Recommendation of the Boards of Directors............................... 6
Opinions of Financial Advisors.......................................... 6
Comparative Stock Prices and Dividends.................................... 7
Risk Factors.............................................................. 8
Acxiom Corporation Selected Historical Financial Data..................... 9
May & Speh, Inc. Selected Historical Financial Data....................... 10
Acxiom Corporation and May & Speh, Inc. Selected Unaudited Pro Forma
Financial Information.................................................... 11
Comparative Per Share Data................................................ 12
INTRODUCTION.............................................................. 14
The Acxiom Meeting........................................................ 14
The May & Speh Meeting.................................................... 15
VOTING RIGHTS AND PROXIES................................................. 15
RISK FACTORS.............................................................. 17
Additional Information Regarding Forward-Looking Statements............... 17
Integration of the Business of Acxiom and May & Speh...................... 17
Fixed Exchange Ratio...................................................... 17
Competition............................................................... 18
Risk of Data Center Failure............................................... 18
Reliance on Significant Customers; Absence of Long-Term Contracts......... 18
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Rapid Technological Change................................................ 19
Government Regulation; Privacy Issues..................................... 19
Loss of Data and/or Customer Lists........................................ 19
Postal Rate Increases..................................................... 19
Risk of Acquisition Strategy.............................................. 20
Intellectual Property Rights.............................................. 20
The Year 2000 Issue....................................................... 21
THE MERGER................................................................ 22
Background of the Merger.................................................. 22
Recommendation of the Acxiom Board of Directors; Acxiom's Reasons for the
Merger................................................................... 24
Opinion of Acxiom's Financial Advisor..................................... 25
Opinion of Stephens..................................................... 25
Historical Stock Price Analysis......................................... 27
Selected Comparable Company Trading Analysis............................ 27
Selected Comparable Transaction Analysis................................ 28
Discounted Cash Flow Analysis........................................... 28
Relative Valuation Analysis............................................. 28
Merger Consequences Analysis............................................ 29
Recommendation of the May & Speh Board of Directors; May & Speh's Reasons
for the Merger........................................................... 29
Opinion of May & Speh's Financial Advisor................................. 31
Stock Price History..................................................... 32
Comparable Publicly Traded Company Analysis............................. 32
Comparable M&A Transaction Analysis..................................... 33
Comparable Premiums Paid Analysis....................................... 33
Contribution Analysis................................................... 34
Discounted Cash Flow Analysis........................................... 34
Terms of the Merger....................................................... 35
Structure; Effective Time; Stockholder Approvals........................ 35
Conversion of Shares.................................................... 36
Exchange of Certificates................................................ 36
No Fractional Securities................................................ 36
Conversion of Employee Stock Options.................................... 36
Certain Representations and Warranties.................................. 37
Irrevocable Proxies..................................................... 37
Conduct of Business Pending the Merger.................................. 38
Conditions to Consummation of the Merger................................ 39
Acquisition Proposals................................................... 39
Termination............................................................. 40
Expenses; Termination Fees.............................................. 41
General Provisions...................................................... 41
Amendment and Waiver.................................................... 41
By-Law Indemnification and Insurance.................................... 42
Regulatory Approval..................................................... 42
Reciprocal Stock Option Agreements...................................... 42
Interests of Certain Persons in the Merger................................ 42
Acxiom.................................................................. 42
May & Speh.............................................................. 43
May & Speh Options; Acceleration of Vesting........................... 43
Employment Agreements................................................. 44
Employee Benefits..................................................... 44
Indemnification; Insurance............................................ 45
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Certain United States Federal Income Tax Consequences of the Merger....... 45
Accounting Treatment of the Merger........................................ 46
Percentage Ownership Interest of May & Speh Stockholders after the Merger. 46
Appraisal Rights.......................................................... 46
Pro Forma Financial Information........................................... 47
Comparative Rights of Stockholders........................................ 55
Board of Directors...................................................... 55
Removal of Directors.................................................... 55
Vacancies............................................................... 55
Stockholder Action Without a Meeting.................................... 55
Special Meetings of Stockholders........................................ 56
Committees of Directors................................................. 56
Amendments to Charter................................................... 56
Amendments to By-Laws................................................... 57
Mergers and Other Fundamental Transactions.............................. 57
CERTAIN RELATED TRANSACTIONS BETWEEN ACXIOM AND MAY & SPEH................ 58
Reciprocal Option Agreements.............................................. 58
ELECTION OF ACXIOM DIRECTORS.............................................. 61
MANAGEMENT................................................................ 62
Directors and Director Nominees........................................... 62
Acxiom Board of Directors' Meetings and Committees........................ 64
Executive Compensation.................................................... 65
Cash and Other Compensation............................................. 65
Stock Option Exercises and Holdings..................................... 65
Compensation of Directors............................................... 66
Compensation Committee Interlocks and Insider Participation............. 66
Report of Compensation Committee........................................ 66
Compensation Policies................................................. 66
Components of Compensation............................................ 67
Mr. Morgan's Compensation............................................. 68
Omnibus Budget Reconciliation Act of 1993............................. 68
ACXIOM'S PERFORMANCE...................................................... 69
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE................... 69
CERTAIN TRANSACTIONS...................................................... 70
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF ACXIOM.. 72
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF MAY &
SPEH..................................................................... 74
LEGAL MATTERS............................................................. 75
EXPERTS................................................................... 75
RELATIONSHIP WITH INDEPENDENT PUBLIC ACCOUNTANTS.......................... 75
STOCKHOLDER PROPOSALS FOR THE 1999 ANNUAL STOCKHOLDERS' MEETINGS.......... 76
Acxiom.................................................................... 76
May & Speh................................................................ 76
</TABLE>
<TABLE>
<C> <C> <S> <C>
Annex A -- Amended and Restated Agreement and Plan of Merger, dated as
of May 26, 1998, by and among Acxiom Corporation, ACX
Acquisition Co., Inc., and May & Speh, Inc.................. A-1
Annex B -- Stock Option Agreement, dated as of May 26, 1998, between
May & Speh, Inc., as Issuer and Acxiom Corporation, as
Grantee..................................................... B-1
Annex C -- Stock Option Agreement, dated as of May 26, 1998, between
Acxiom Corporation, as Issuer and May & Speh, Inc., as
Grantee..................................................... C-1
Annex D -- Opinion of Stephens Inc..................................... D-1
Annex E -- Opinion of Donaldson, Lufkin & Jenrette Securities
Corporation................................................. E-1
</TABLE>
vi
<PAGE>
SUMMARY
The following is a brief summary of certain information contained, or
incorporated by reference, elsewhere in this Proxy Statement/Prospectus. This
summary is not intended to be complete and is qualified by reference to the
more detailed information appearing, or incorporated by reference, elsewhere
herein. Stockholders are urged to review the entire Proxy Statement/Prospectus,
the Annexes hereto and the documents incorporated herein by reference.
GENERAL
This Proxy Statement/Prospectus relates to the solicitation of proxies in
connection with the proposed merger (the "Merger") of ACX Acquisition Co., Inc.
("Sub"), a newly formed, wholly owned subsidiary of Acxiom Corporation, a
Delaware corporation ("Acxiom"), with and into May & Speh, Inc., a Delaware
corporation ("May & Speh"). In addition, this Proxy Statement/Prospectus is
furnished in connection with the solicitation by the Board of Directors of
Acxiom of proxies to be voted at the annual meeting of stockholders of Acxiom
(the "Acxiom Meeting"). Upon effectiveness of the Merger, each outstanding
share of common stock, $0.01 par value per share, of May & Speh (the "May &
Speh Common Stock") will be converted into the right to receive 0.8 of a share
of common stock, $0.10 par value per share, of Acxiom (the "Acxiom Common
Stock"). The shares of Acxiom Common Stock to be issued in the Merger will be
issued with attached rights issued pursuant to the Rights Agreement, between
Acxiom and First Chicago Trust Company of New York, dated as of January 28,
1998, as amended by Amendment No. 1 thereto dated as of May 26, 1998 (the
"Rights Agreement"). As a result of the Merger, May & Speh will become a wholly
owned subsidiary of Acxiom.
The Merger will be effected pursuant to the Amended and Restated Agreement
and Plan of Merger, dated as of May 26, 1998 (the "Merger Agreement"), by and
among Acxiom, Sub and May & Speh, a copy of which is attached hereto as Annex
A. See "THE MERGER."
THE COMPANIES
Acxiom. Acxiom is in the business of data delivery and information
integration and management for customers in the United States and the United
Kingdom, and, to a smaller extent, Europe, Canada and Malaysia. While in the
past Acxiom's business was focused upon the provision of data processing and
related computer-based services, mainly to direct marketing organizations,
Acxiom's business has expanded in recent years beyond the direct marketing
industry. For some of its major customers Acxiom provides assistance in the
form of information/database management, data center management and/or the
provision of data, the primary purpose of which may be for activities other
than direct marketing. For example, Acxiom's largest customer, Allstate
Insurance Company, uses Acxiom's information management services and data for
the purpose of underwriting insurance. Acxiom's second largest customer, Trans
Union Corporation, one of the three major credit bureaus in the U.S., has,
among other things, outsourced the operation of its data center to Acxiom.
In the direct marketing area Acxiom is one of the leading providers of
computer-based marketing information services and marketing data. Acxiom offers
a broad range of services and data to direct marketers and to other businesses
which utilize direct marketing techniques such as direct mail advertising,
database marketing and the mining of data warehouses. Acxiom assists its
customers with the marketing process, including project design, list brokering
and management, list cleaning, list enhancement, list production, database
creation and management, and fulfillment and consumer response analysis.
Acxiom was originally incorporated in 1969 as Demographics, Inc., an Arkansas
corporation which later became known as Conway Communication Exchange, Inc. In
connection with its initial public offering in 1983, Acxiom was reincorporated
in Delaware as CCX Network, Inc. In 1988, the name Acxiom Corporation was
adopted. Acxiom is headquartered in Conway, Arkansas, and has additional
operations in twenty-four states, the District of Columbia, Canada, the United
Kingdom, the Netherlands, France and Malaysia. Acxiom employs approximately
3,600 employees worldwide.
<PAGE>
Acxiom's principal executive offices are located at 301 Industrial Boulevard,
Conway, Arkansas, 72033, and its telephone number is (501) 336-1000. Acxiom's
internet address is http://www.acxiom.com.
May & Speh. May & Speh provides computer-based information management
services with a focus on direct marketing and information technology
outsourcing services. May & Speh's direct marketing services help companies
execute more profitable direct marketing and customer management programs. May
& Speh's services include strategic analysis and strategy management; systems
consulting, custom data warehouse and datamart design, build, implementation
and management; statistical (predictive) modeling and analysis; and list
processing. May & Speh's information technology outsourcing services support
multi-platform processing and network management for clients seeking to
outsource their information technology operations. May & Speh's direct
marketing and information technology outsourcing services are synergistic and
allow May & Speh to leverage its investment in technical personnel and its
state-of-the-art data processing facilities as well as its core competencies in
customized software systems development, large database management, high speed
data processing and data center management. May & Speh's open architecture and
multiple platform data facilities provide its clients with superior processing
flexibility and speed.
May & Speh's principal executive offices are located at 1501 Opus Place,
Downers Grove, Illinois, 60515, and its telephone number is (630) 964-1501.
THE MEETINGS
The Acxiom Meeting. The Acxiom Meeting will be held on September 17, 1998, at
10:00 A.M. (local time) at Acxiom's headquarters at 301 Industrial Boulevard,
Conway, Arkansas. At the Acxiom Meeting, holders of Acxiom Common Stock will be
asked to consider and vote upon (i) the issuance of up to 31,100,000 shares of
Acxiom Common Stock pursuant to the Merger Agreement (the "Merger Proposal");
and (ii) the election of three directors (the "Directors") as members of the
Board of Directors to serve until the 2001 annual meeting of stockholders or
until their respective successors are duly elected and qualified.
Only holders of record of Acxiom Common Stock at the close of business on
July 31, 1998 (the "Acxiom Record Date") are entitled to notice of and to vote
at the Acxiom Meeting. Holders of record of Acxiom Common Stock are entitled to
one vote per share on any matter that may properly come before the Acxiom
Meeting. The presence, in person or by proxy, of the holders of at least a
majority of the voting power entitled to vote at the Acxiom Meeting is
necessary to constitute a quorum. The affirmative vote of a majority of the
voting power of the shares of Acxiom Common Stock present in person or by proxy
at the Acxiom Meeting is required to approve the Merger Proposal. See
"INTRODUCTION--The Acxiom Meeting" and "VOTING RIGHTS AND PROXIES."
Stockholders of Acxiom holding an aggregate of 8,037,425 shares of Acxiom
Common Stock (representing approximately 15% of the Acxiom Common Stock
outstanding as of the Acxiom Record Date) have granted irrevocable proxies to
May & Speh pursuant to which such stockholders have agreed to vote in favor of
the Merger Proposal. See "THE MERGER--Terms of the Merger--Irrevocable
Proxies."
As of the Acxiom Record Date, directors and executive officers of Acxiom and
their affiliates owned an aggregate of 8,465,107 shares of Acxiom Common Stock
(approximately 16% of the shares of Acxiom Common Stock then outstanding). Such
individuals have advised Acxiom that they intend to vote such shares in favor
of the Merger Proposal and the election of the Directors.
The May & Speh Meeting. A special meeting of stockholders of May & Speh (the
"May & Speh Meeting," together with the Acxiom Meeting, the "Stockholders'
Meetings"), will be held on September 17, 1998, at 9:00 A.M. (local time), at
The Standard Club, 320 South Plymouth Court, Chicago, Illinois. At the May &
Speh Meeting, holders of May & Speh Common Stock will be asked to consider and
vote upon a proposal to approve and adopt the Merger Agreement.
2
<PAGE>
Only holders of record of May & Speh Common Stock at the close of business on
July 31, 1998 (the "May & Speh Record Date") are entitled to notice of and to
vote at the May & Speh Meeting. Holders of record on the May & Speh Record Date
are entitled to one vote per share on any matter that may properly come before
the May & Speh Meeting. The presence, in person or by proxy, of the holders of
a majority of the May & Speh Common Stock entitled to vote at the May & Speh
Meeting is necessary to constitute a quorum. The affirmative vote of the
holders of a majority of the outstanding shares of May & Speh Common Stock is
necessary to approve and adopt the Merger Agreement. See "INTRODUCTION--The May
& Speh Meeting."
Lawrence J. Speh, Albert J. Speh, Jr., and certain trusts of which Messrs.
Speh and Speh are trustees, that hold in the aggregate 2,892,895 shares of May
& Speh Common Stock, representing approximately 11% of the May & Speh Common
Stock outstanding as of the May & Speh Record Date, have granted irrevocable
proxies to Acxiom pursuant to which such stockholders have agreed to vote in
favor of the approval and adoption of the Merger Agreement. See "THE MERGER--
Terms of the Merger--Irrevocable Proxies."
In addition, as of the May & Speh Record Date, directors (other than Lawrence
T. Speh and Albert J. Speh, Jr.) and executive officers of May & Speh
collectively, owned an aggregate of 617,084 shares of May & Speh Common Stock
(representing approximately 2.4% of the shares of May & Speh Common Stock then
outstanding). Each of such directors and executive officers of May & Speh has
advised May & Speh that he or she intends to vote such shares in favor of the
approval and adoption of the Merger Agreement.
THE MERGER
General. Pursuant to the Merger Agreement, Sub will be merged with and into
May & Speh. As a result of the Merger, May & Speh will become a wholly owned
subsidiary of Acxiom and each outstanding share of May & Speh Common Stock will
be converted into the right to receive 0.8 of a share of Acxiom Common Stock
(the "Exchange Ratio"). The Exchange Ratio is fixed in the Merger Agreement and
will not be adjusted as a result of any fluctuation in the price of either
Acxiom Common Stock or May & Speh Common Stock. The price of Acxiom Common
Stock may be different at the Effective Time from its price at the date of this
Proxy Statement/Prospectus and at the date of the May & Speh Meeting. There can
be no assurance that the price of Acxiom Common Stock on the date of the May &
Speh Meeting will be indicative of its price at the Effective Time. Cash will
be paid in lieu of any fractional share of Acxiom Common Stock in an amount
determined by multiplying any such fraction by the closing sale price of Acxiom
Common Stock on the NASDAQ National Market on the day of the Effective Time.
See "THE MERGER--Terms of the Merger--No Fractional Securities." The terms of
the Merger Agreement are more fully described in "THE MERGER--Terms of the
Merger."
Effective Time of the Merger. The Merger will be consummated at the time and
on the date that a certificate of merger (the "Certificate of Merger") is filed
with the Delaware Secretary of State or such later time as is specified in the
Certificate of Merger (the "Effective Time"). It is presently contemplated that
the Effective Time will occur as soon as practicable after the requisite
approvals of the stockholders of Acxiom and May & Speh have been obtained and
other conditions specified in the Merger Agreement are satisfied. See "THE
MERGER--Terms of the Merger--Structure; Effective Time; Stockholder Approvals."
Exchange of May & Speh Stock Certificates. As soon as practicable after the
Effective Time, instructions with regard to the surrender of stock
certificates, together with a letter of transmittal to be used for this
purpose, will be furnished to all May & Speh stockholders for use in exchanging
their stock certificates for the Acxiom Common Stock they will be entitled to
receive as a result of the Merger. STOCKHOLDERS OF MAY & SPEH SHOULD NOT SUBMIT
THEIR STOCK CERTIFICATES FOR EXCHANGE UNTIL SUCH INSTRUCTIONS AND LETTER OF
TRANSMITTAL ARE RECEIVED. See "THE MERGER--Terms of the Merger--Conversion of
Shares" and "--Exchange of Certificates."
3
<PAGE>
Conditions to the Merger. In addition to the approval by the stockholders of
May & Speh and Acxiom, the obligations of the parties to consummate the Merger
are subject to the satisfaction of certain conditions, including, among other
things, the Registration Statement having become effective under the Securities
Act; the applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvement Act of 1976, as amended, and the rules and regulations thereunder
(the "HSR Act"), having expired or been terminated; the receipt by each of May
& Speh and Acxiom of certain required consents from third parties and
governmental instrumentalities in addition to pursuant to the HSR Act; the
receipt by each of May & Speh and Acxiom of legal opinions to the effect that
the Merger will qualify as a tax-free reorganization; the receipt by each of
Acxiom, Sub and May & Speh of a letter from KPMG Peat Marwick LLP stating that
the Merger will qualify as a pooling of interests transaction; and the
requirement that no injunction or other order has been issued and is in effect
that prohibits the consummation of the Merger. See "THE MERGER--Terms of the
Merger--Conditions to Consummation of the Merger."
Antitrust Matters. The Merger is subject to the requirements of the HSR Act,
which provides that certain acquisition transactions (including the Merger) may
not be consummated until certain information has been furnished to the
Antitrust Division of the Department of Justice (the "Antitrust Division") and
the Federal Trade Commission (the "FTC") and unless certain waiting period
requirements are met. On June 30, 1998, the Notification and Report Forms for
the Merger required pursuant to the HSR Act were filed by both Acxiom and May &
Speh. The HSR Act waiting period expired with respect to the Merger on July 30,
1998 without Acxiom or May & Speh receiving a request for additional
information or documentary material from the Antitrust Division or the FTC
prior to such expiration. See "THE MERGER--Terms of the Merger--Regulatory
Approval" and "THE MERGER--Terms of the Merger--Conditions to Consummation of
the Merger."
Interests of Certain Persons in the Merger. In considering the recommendation
of the May & Speh Board of Directors with respect to the Merger Agreement and
the transactions contemplated thereby, stockholders of May & Speh should be
aware that certain members of the management of May & Speh and the Board of
Directors of May & Speh have certain interests in the Merger that are in
addition to the interests of stockholders of May & Speh generally. See "THE
MERGER--Interests of Certain Persons in the Merger."
Termination. The Merger Agreement may be terminated at any time prior to the
Effective Time by the mutual consent of Acxiom and May & Speh and by either of
them individually under certain specified circumstances, including if the
Merger has not been consummated on or before December 31, 1998. See "THE
MERGER--Terms of the Merger--Termination."
Reciprocal Stock Option Agreements; Termination Fees. As an inducement to
Acxiom to enter into the Merger Agreement, pursuant to the stock option
agreement, dated as of May 26, 1998, between May & Speh and Acxiom (the "Acxiom
Option Agreement"), May & Speh granted Acxiom an option (the "Acxiom Option")
to purchase from May & Speh at any one time up to 19.9% of the total number of
shares of May & Speh Common Stock issued and outstanding immediately prior to
the grant of the Acxiom Option, subject to certain adjustments, at an exercise
price of $14.96 per share, subject to the terms and conditions set forth
therein (the "Acxiom Option Purchase Price"). The closing sale price of May &
Speh Common Stock on the last trading day preceding the announcement of the
execution of the Merger Agreement was $17.00 per share. Acxiom may exercise the
Acxiom Option only upon the occurrence of certain events (none of which has
occurred) generally relating to an attempt by a third party to acquire all of
or a significant interest in May & Speh. The Acxiom Option Agreement gives
Acxiom a right to receive cash upon exercise of the Acxiom Option in an amount
equal to the difference between (i) the average closing price of the shares
subject to the Acxiom Option during a ten day period prior to the closing of
the exercise and (ii) the Acxiom Option Purchase Price, except that May &
Speh's obligation to pay such cash amount is limited to a maximum of $2.00 per
share for each share exercised subject to the Acxiom Option. The Acxiom Option
Agreement also provides May & Speh with an option to repurchase any shares
acquired by Acxiom pursuant to an exercise of the Acxiom Option at a purchase
per share equal to the Acxiom Option Purchase Price plus $2.00.
4
<PAGE>
As an inducement to May & Speh to enter into the Merger Agreement, pursuant
to the stock option agreement, dated as of May 26, 1998, between May & Speh and
Acxiom (the "May & Speh Option Agreement" and together with the Acxiom Option
Agreement, the "Option Agreements"), Acxiom granted May & Speh an option (the
"May & Speh Option") to purchase from Acxiom at any one time up to 19.9% of the
total number of shares of Acxiom Common Stock issued and outstanding
immediately prior to the grant of the May & Speh Option, subject to certain
adjustments, at an exercise price of $23.55 per share, subject to the terms and
conditions set forth therein (the "May & Speh Option Purchase Price"). The
closing sale price of Acxiom Common Stock on the last trading day preceding the
announcement of the execution of the Merger Agreement was $21.8125 per share.
May & Speh may exercise the May & Speh Option only upon the occurrence of
certain events (none of which has occurred) generally relating to an attempt by
a third party to acquire all of or a significant interest in Acxiom. The May &
Speh Option Agreement gives May & Speh a right to receive cash upon exercise of
the May & Speh Option in an amount equal to the difference between (i) the
average closing price of the shares subject to the May & Speh Option during a
ten day period prior to the closing of the exercise and (ii) the May & Speh
Option Purchase Price, except that Acxiom's obligation to pay such cash amount
is limited to a maximum of $1.00 per share for each share exercised subject to
the May & Speh Option. The May & Speh Option Agreement also provides Acxiom
with an option to repurchase any shares acquired by May & Speh pursuant to an
exercise of the May & Speh Option at a purchase per share equal to the May &
Speh Option Purchase Price plus $1.00. See "CERTAIN RELATED TRANSACTIONS--
Reciprocal Option Agreements."
The Acxiom Option Agreement and the May & Speh Option Agreement are attached
as Annex B and Annex C, respectively, to this Proxy Statement/Prospectus and
are incorporated herein by reference.
The Merger Agreement provides for the payment of fees (the "Termination
Fees") in the amount of $20 million and reimbursement of expenses up to $2.5
million following a termination of the Merger Agreement under certain
circumstances. See "THE MERGER--Terms of the Merger--Expenses; Termination
Fees."
Certain United States Federal Income Tax Consequences of the Merger. It is a
condition to the consummation of the Merger that May & Speh receive an opinion
from its tax counsel, Winston & Strawn, and that Acxiom receive an opinion from
its tax counsel, Skadden, Arps, Slate, Meagher & Flom LLP, to the effect that,
based upon certain facts, representations and assumptions, the Merger will
constitute a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"). The issuance of such
opinions is conditioned on, among other things, such tax counsel's receipt of
representation letters from each of May & Speh, Acxiom and Sub, in each case,
in form and substance reasonably satisfactory to each such tax counsel. No
ruling has been (or will be) sought from the Internal Revenue Service (the
"IRS") with respect to the Merger. Assuming the Merger constitutes a
reorganization within the meaning of Section 368(a) of the Code, no gain or
loss will be recognized for United States federal income tax purposes by
holders of May & Speh Common Stock who exchange their common stock for Acxiom
Common Stock pursuant to the Merger (except with respect to cash received by
holders of May & Speh Common Stock in lieu of fractional shares of Acxiom
Common Stock). See "THE MERGER--Certain United States Federal Income Tax
Consequences of the Merger." Holders of May & Speh Common Stock are urged to
consult their tax advisors as to the specific tax consequences to them of the
Merger.
Accounting Treatment. Both Acxiom and May & Speh believe that the Merger will
qualify as a pooling of interests for accounting and financial reporting
purposes and have been so advised by their respective independent public
accountants. Consummation of the Merger is conditioned upon the receipt by each
of Acxiom, Sub and May & Speh of a letter from KPMG Peat Marwick LLP, Acxiom's
independent public accountants, stating that the Merger will qualify for
pooling of interests accounting treatment. See "THE MERGER--Accounting
Treatment of the Merger" and "THE MERGER--Terms of the Merger--Conditions to
Consummation of the Merger."
Appraisal Rights. Under the Delaware General Corporation law (the "DGCL"),
the holders of May & Speh Common Stock are not entitled to appraisal or
dissenter's rights in connection with the approval of
5
<PAGE>
the Merger Agreement and the transactions contemplated thereby. The
transactions contemplated by the Merger Agreement and the issuance of the
Acxiom Common Stock contemplated thereby do not give rise to any appraisal or
dissenters' rights to holders of Acxiom Common Stock.
Recommendation of the Boards of Directors. The Board of Directors of Acxiom
by unanimous vote of those present at the meeting of the Board of Directors
approved the Merger Agreement and recommends that Acxiom stockholders vote FOR
the Merger Proposal. The Board of Directors of May & Speh has unanimously
approved the Merger Agreement and unanimously recommends a vote FOR approval
and adoption of the Merger Agreement by the stockholders of May & Speh.
For a discussion of the factors considered by the respective Boards of
Directors in reaching their decisions, see "THE MERGER--Recommendation of the
Acxiom Board of Directors; Reasons for the Merger" and "THE MERGER--
Recommendation of May & Speh Board of Directors; Reasons for the Merger."
Opinions of Financial Advisors. Stephens Inc. ("Stephens") delivered its oral
and written opinion to the Acxiom Board of Directors on May 26, 1998, to the
effect that as of such date and subject to the assumptions made and limits in
review specified therein, the Exchange Ratio was fair from a financial point of
view to Acxiom. Stephens subsequently confirmed such opinion by delivering to
the Acxiom Board of Directors a written opinion dated the date of this Proxy
Statement/Prospectus to the effect that, subject to the assumptions made and
limits in review specified therein, the Exchange Ratio is fair from a financial
point of view to Acxiom and to the holders of Acxiom Common Stock. Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJ") has rendered a written opinion
to the May & Speh Board of Directors dated May 26, 1998 (the "DLJ Opinion"), to
the effect that, as of such date and based upon and subject to the assumptions,
limitations and qualifications set forth therein, the Exchange Ratio was fair
from a financial point of view to the holders of May & Speh Common Stock.
Copies of the full texts of the written opinions of Stephens and DLJ which
set forth the assumptions made, procedures followed, matters considered and
limits of their respective reviews are attached to this Proxy
Statement/Prospectus as Annex D and Annex E, respectively and should be read in
their entirety. See "THE MERGER--Opinion of Acxiom's Financial Advisor" and
"THE MERGER--Opinion of May & Speh's Financial Advisor."
6
<PAGE>
COMPARATIVE STOCK PRICES AND DIVIDENDS
Acxiom Common Stock is traded on the NASDAQ National Market System under the
symbol "ACXM." May & Speh Common Stock is traded on the NASDAQ National Market
System under the symbol "SPEH."
The following table sets forth, for the calendar quarters indicated, the high
and low sale prices per share of Acxiom Common Stock and May & Speh Common
Stock as reported by the NASDAQ National Market System. Acxiom data are
restated to reflect 2 for 1 stock splits in fiscal 1995 and 1997. May & Speh
data are presented for periods following its initial public offering in March
1996.
<TABLE>
<CAPTION>
ACXIOM MAY & SPEH
COMMON STOCK ($) COMMON STOCK ($)
----------------- ----------------
HIGH LOW HIGH LOW
-------- -------- ------- --------
<S> <C> <C> <C> <C>
1995
First Quarter........................... 9 6 13/16 -- --
Second Quarter.......................... 12 5/8 8 1/8 -- --
Third Quarter........................... 14 1/8 11 3/8 -- --
Fourth Quarter.......................... 15 7/8 13 -- --
1996
First Quarter........................... 14 11 1/4 12 10 15/16
Second Quarter.......................... 17 5/8 11 15/16 16 1/2 13 3/4
Third Quarter........................... 20 5/8 15 7/8 21 1/2 13 3/4
Fourth Quarter.......................... 25 18 5/8 20 1/2 11 1/4
1997
First Quarter........................... 24 14 3/8 14 1/4 7 1/2
Second Quarter.......................... 20 5/8 11 1/8 13 5/8 7 3/8
Third Quarter........................... 21 1/8 17 1/8 15 1/8 11 3/4
Fourth Quarter.......................... 19 1/4 14 1/8 16 11 1/4
1998
First Quarter........................... 25 15/16 16 7/8 15 1/8 10 3/4
Second Quarter.......................... 25 15/16 19 5/8 19 7/8 13 1/2
Third Quarter
(through August 14, 1998)............... 28 1/4 22 22 7/16 17 7/16
</TABLE>
Acxiom has never paid dividends on Acxiom Common Stock. Acxiom's Board of
Directors currently intends to retain earnings for the further development of
Acxiom's business and, therefore, does not intend to pay cash dividends on
Acxiom Common Stock in the foreseeable future. May & Speh has not paid cash
dividends on May & Speh Common Stock since its initial public offering in March
1996.
Pursuant to the Merger Agreement, each of Acxiom and May & Speh and their
respective subsidiaries have agreed not to declare, set aside or pay any
dividend or other distribution in cash, stock or other property prior to the
Effective Time.
On May 26, 1998 the high sale prices of Acxiom Common Stock and May & Speh
Common Stock on the NASDAQ National Market System were $22.50 per share and
$17.375 per share, respectively, and the low sale prices were $21.625 per share
and $15.125 per share, respectively. The reported closing sale price of Acxiom
Common Stock on the NASDAQ National Market System on May 26, 1998, the last
full day of trading for Acxiom Common Stock prior to the announcement of the
execution of the Merger Agreement, was $21.8125 per share. The reported closing
sale price of May & Speh Common Stock on the NASDAQ National Market
7
<PAGE>
System on such date was $17.00 per share. On an equivalent per share basis
calculated by multiplying the closing sale price in Acxiom Common Stock on that
day by 0.8, the exchange ratio set forth in the Merger Agreement, the value of
Acxiom Common Stock to be received by holders of May & Speh Common Stock was
$17.45 per share of May & Speh Common Stock.
On August 14, 1998, the last full day of trading prior to the printing of
this Joint Proxy Statement/Prospectus, the reported closing sale prices of
Acxiom Common Stock and May & Speh Common Stock in the NASDAQ National Market
System were $23.375 per share and $18.50 per share respectively. On an
equivalent per share basis calculated by multiplying the closing sale price of
Acxiom Common Stock on that day by 0.8, the Exchange Ratio, the value of Acxiom
Common Stock to be received by holders of May & Speh Common Stock was $18.70
per share of May & Speh Common Stock.
No assurance can be given as to the market price of Acxiom Common Stock at
the Effective Time. Because the Exchange Ratio is fixed, and because the market
price of Acxiom Common Stock is subject to fluctuation, the market value of the
shares of Acxiom Common Stock that holders of May & Speh Common Stock will
receive at the Effective Time may vary significantly from the market value of
the shares of Acxiom Common Stock that holders of May & Speh Common Stock would
have received if the Merger were consummated on the date of the Merger
Agreement or the date of this Proxy Statement/Prospectus. STOCKHOLDERS ARE
URGED TO OBTAIN CURRENT MARKET QUOTATIONS.
Holders of May & Speh Common Stock may obtain information regarding the
current trading price per share of the Acxiom Common Stock by calling D.F. King
& Co., Inc., the proxy solicitor, at the following toll-free number: 1-800-549-
6697.
RISK FACTORS
Certain factors should be considered in evaluating the Merger and the
ownership of the Acxiom Common Stock to be issued in the Merger. See "RISK
FACTORS."
8
<PAGE>
ACXIOM CORPORATION
SELECTED HISTORICAL FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The following table sets forth selected historical financial data of Acxiom.
The selected historical financial data for the five years ended March 31, 1998
are derived from the audited consolidated financial statements of Acxiom. The
historical financial data for the three months ended June 30, 1998 and 1997 are
derived from unaudited condensed consolidated financial statements of Acxiom
and have been prepared on the same basis as the historical information derived
from audited consolidated financial statements and, in the opinion of
management, contain all adjustments consisting only of normal recurring
accruals, necessary for the fair presentation of the results of operations for
such periods. The data should be read in conjunction with the consolidated
financial statements and related notes of Acxiom incorporated by reference in
this Proxy Statement/Prospectus.
<TABLE>
<CAPTION>
THREE MONTHS
FOR THE FISCAL YEARS ENDED MARCH 31, ENDED JUNE 30,
-------------------------------------------- -----------------
1994 1995 1996 1997 1998 1997 1998
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS
DATA (1)
Revenue................. $151,669 $202,448 $269,902 $402,016 $465,065 $100,327 $128,608
Net earnings............ 8,397 12,405 18,223 27,512 35,597 5,313 7,291
Basic earnings per share
(2).................... .20 .29 .39 .54 .68 .10 .14
Diluted earnings per
share (2)(3)........... .19 .27 .35 .47 .60 .09 .12
Shares used in computing
earnings per share (4):
Basic................... 41,914 43,337 47,057 51,172 52,044 51,709 52,430
Diluted................. 43,680 45,886 52,078 59,143 59,687 59,193 60,548
</TABLE>
<TABLE>
<CAPTION>
MARCH 31,
-------------------------------------------- JUNE 30,
1994 1995 1996 1997 1998 1998
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (1)
Total assets............. $123,378 $148,170 $194,049 $299,668 $394,310 $433,755
Long-term debt, excluding
current installments.... 34,992 18,219 26,885 87,120 99,917 137,161
Redeemable common stock.. 7,692 -- -- -- -- --
Stockholders' equity..... 61,896 97,177 122,741 156,097 200,128 209,314
</TABLE>
- --------
(1) On April 1, 1996, Acxiom acquired all of the assets of Direct Media/DMI,
Inc. ("DMI") for $25 million and the assumption of certain liabilities of
DMI. The results of operations of DMI are included in the consolidated
results of operations from the date of its acquisition.
(2) Per share data are restated to reflect 2 for 1 stock splits in fiscal 1995
and 1997.
(3) Includes the impact of the addition of $445 to net earnings relating to
interest expense, net of tax, and the related share effect, relating to
Acxiom's convertible debt in fiscal 1997 and 1998 ($111 for the three months
ended June 30, 1997 and 1998).
(4) Acxiom adopted Statement of Financial Accounting Standards No. 128 ("FAS
128"), Earnings Per Share during the quarter ended December 31, 1997. All
prior period earnings per share data have been restated to conform with the
provisions of this statement.
9
<PAGE>
MAY & SPEH, INC.
SELECTED HISTORICAL FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The following table sets forth selected historical financial data of May &
Speh. The selected historical financial data for the five years ended September
30, 1997 are derived from the audited consolidated financial statements of May
& Speh. The historical financial data for the nine months ended June 30, 1998
and 1997 are derived from unaudited financial statements of May & Speh and have
been prepared on the same basis as the historical information derived from
audited financial statements and, in the opinion of management, contain all
adjustments, consisting only of normal recurring accruals, necessary for the
fair presentation of the results of operations for such periods. The data
should be read in conjunction with the consolidated financial statements and
related notes of May & Speh incorporated by reference in this Proxy
Statement/Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FOR THE FISCAL YEARS ENDED SEPTEMBER 30, JUNE 30,
------------------------------------------------- -------------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- -------- --------- --------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS
DATA
Revenue................. $ 41,792 $ 51,667 $ 61,641 $ 77,223 $ 92,457 $ 66,547 $ 84,620
Net earnings............ 3,406 5,838 7,861 10,224 11,716 7,873 8,314(2)
Basic earnings per share
(1).................... .15 .26 .38 .45 .47 .31 .33
Diluted earnings per
share (1).............. .15 .26 .38 .43 .45 .30 .31
Shares used in computing
earnings per share (3):
Basic................... 22,917 22,110 20,426 22,634 25,029 25,001 25,568
Diluted................. 22,917 22,110 20,611 23,653 26,179 26,042 26,801
<CAPTION>
SEPTEMBER 30,
------------------------------------------------- JUNE 30,
1993 1994 1995 1996 1997 1998
-------- -------- -------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Total assets............ $ 29,971 $ 33,978 $ 46,804 $ 115,218 $ 148,796 $ 283,132
Long-term debt,
excluding current
installments........... 17,697 15,051 16,860 22,251 31,546 144,304(4)
Stockholders' equity.... 3,989 8,701 17,644 75,731(6) 91,135 107,063(5)
</TABLE>
- --------
(1) Per share data are restated to reflect a 12-for-one stock split in 1996.
(2) Net earnings for the nine months ended June 30, 1998 include a one-time
charge of approximately $4.7 million ($2.9 million after-tax) which
represents the present value of payments under existing contracts with
prior members of management.
(3) May & Speh adopted FAS 128, during the quarter ended December 31, 1997. All
prior period earnings per share data have been restated to conform with the
provisions of this statement.
(4) In March 1998, May & Speh completed an offering of $115 million, 5.25%
convertible subordinated notes due 2003. The total net proceeds to May &
Speh were approximately $110.8 million after deducting underwriting
discounts and commissions and offering expenses.
(5) In March 1998, May & Speh completed an offering of 325,000 shares of its
common stock. The total net proceeds to May & Speh after deducting
underwriting discounts and commissions were approximately $3.5 million.
(6) In March 1996, May & Speh sold 4,355,000 shares of May & Speh Common Stock
with aggregate offering proceeds of $47.9 million, and certain selling
stockholders sold an additional 3,350,000 shares with aggregate offering
proceeds of $36.9 million in an initial public offering of May & Speh
Common Stock. The net proceeds to May & Speh from the offering were
approximately $43.5 million, after deducting underwriting discounts,
commissions and offering expenses.
10
<PAGE>
ACXIOM CORPORATION AND MAY & SPEH, INC.
SELECTED UNAUDITED PRO FORMA FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The following table sets forth certain selected unaudited pro forma financial
data for Acxiom after giving effect to the Merger for the periods indicated
applying the pooling of interests method of financial accounting. The following
table should be read together with the consolidated financial statements and
accompanying notes of Acxiom and of May & Speh included in the documents
described under "INCORPORATION OF DOCUMENTS BY REFERENCE" and the unaudited pro
forma condensed combined financial statements and accompanying discussion and
notes set forth under "THE MERGER--Pro Forma Financial Information" included
herein. The selected pro forma statement of earnings data includes Acxiom's
results of operations for the three months ended June 30, 1998 and the three
fiscal years ended March 31, 1996, 1997 and 1998, respectively, and May &
Speh's historical results of operations for the three months ended June 30,
1998 and the twelve months ended March 31, 1996, 1997 and 1998, respectively.
The unaudited pro forma combined condensed balance sheet data presents the
historical balance sheet of Acxiom as of March 31, 1998 and the historical
balance sheet of May & Speh as of June 30, 1998. The fiscal year end of Acxiom
is March 31; the unaudited statement of earnings of Acxiom for the three months
ended June 30, 1998 and the balance sheet of Acxiom as of June 30, 1998 used in
the selected unaudited pro forma financial information have been prepared on
the same basis as the historical information derived from audited financial
statements and, in the opinion of management, contain all adjustments,
consisting only of normal recurring accruals, necessary for the fair
presentation of the results of operations for such periods. The fiscal year end
of May & Speh is September 30; the unaudited statements of earnings of May &
Speh for the three months ended June 30, 1998 and the twelve months ended March
31, 1996, 1997 and 1998 and the balance sheet of May & Speh as of June 30, 1998
used in the selected unaudited pro forma financial information have been
prepared on the same basis as the historical information derived from audited
financial statements and, in the opinion of management, contain all
adjustments, consisting only of normal recurring accruals, necessary for the
fair presentation of the results of operations for such periods. The pro forma
financial data in the table below are presented for information and do not
indicate what the financial position or the results of operations of Acxiom
would have been had the Merger occurred as of the dates or for the periods
presented or what the financial position or future results of operations of
Acxiom will be. No adjustment has been included in the pro forma financial data
for cost savings, if any, which may be realized by Acxiom following the Merger.
See "THE MERGER--Pro Forma Financial Information."
<TABLE>
<CAPTION>
FISCAL YEAR ENDED MARCH
31, THREE MONTHS
-------------------------- ENDED JUNE 30,
1996 1997 1998 1998
-------- -------- -------- --------------
<S> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA
Revenue............................... $337,139 $486,984 $569,020 $158,809
Net earnings.......................... 26,278 38,491 46,774 11,358
Basic earnings per share.............. .41 .54 .65 .15
Diluted earnings per share............ .38 .48 .58 .13
</TABLE>
<TABLE>
<CAPTION>
JUNE 30,
1998
--------
<S> <C> <C> <C>
BALANCE SHEET DATA
Total assets............................................... $716,887
Long-term debt, excluding current installments............. 281,465
Stockholders' equity....................................... 302,577(1)
</TABLE>
- --------
(1) Acxiom expects to incur certain non-recurring expenses related to the
Merger, presently estimated to be $15.1 million ($13.8 million after tax).
These expenses would include, but would not be limited to, professional
fees, fees of financial advisors, certain compensation-related expenses and
similar expenses. Although Acxiom believes this estimate of non-recurring
expenses is accurate, certain material additional costs may be incurred in
connection with the Merger. Merger-related expenses will be charged to
operations in the quarter in which the Merger is concluded, which is
currently estimated to occur in the second quarter of fiscal 1999. These
non-recurring merger-related expenses have been charged to stockholders'
equity for purposes of the unaudited pro forma balance sheet. In addition,
Acxiom is developing a plan to integrate the operations of May & Speh after
the Merger. In connection with that plan, Acxiom will determine to what
extent Acxiom and May & Speh facilities, software, equipment and vendor
contracts are duplicative and anticipates that certain non-recurring
charges will be incurred in connection with such integration. Pending
completion of the plan, which will include discussions with customers and
vendors, Acxiom cannot identify the timing, nature and amount of such
charges as of the date of this Proxy Statement/Prospectus. However, it is
expected that such charges could be as much as $50-100 million. Any such
charges could affect Axciom's results of operations in the period in which
such charges are recorded. Because the foregoing charges are non-recurring
in nature, they have not been reflected in the accompanying unaudited pro
forma combined statements of earnings.
11
<PAGE>
COMPARATIVE PER SHARE DATA
(UNAUDITED)
The following table sets forth actual ("historical") earnings and book value
per common share information for Acxiom and May & Speh and unaudited
information on a pro forma combined basis and per share equivalent pro forma
basis for May & Speh. No cash dividends have ever been paid on the Acxiom or
May & Speh Common Stock. Pro forma combined information is derived from the pro
forma combined information presented elsewhere herein, which gives effect to
the Merger under the pooling-of-interests accounting method as if the Merger
had occurred at June 30, 1998. The historical data are based on the historical
consolidated financial statements and related notes of each of Acxiom and May &
Speh incorporated by reference in this Proxy Statement/Prospectus. This table
should be read together with the historical audited and unaudited consolidated
financial statements of Acxiom and May & Speh and related notes thereto. The
data presented do not indicate Acxiom's future results of operations or actual
results that would have occurred if the Merger had occurred at the beginning of
the periods indicated. No adjustments have been included for cost savings, if
any, which may be realized by Acxiom following the Merger.
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED AND
AS OF MARCH 31, THREE MONTHS
------------------------------ ENDED JUNE 30,
1996 1997 1998 1998
---------- ---------- ---------- --------------
<S> <C> <C> <C> <C>
ACXIOM HISTORICAL
Basic earnings per share..... $ .39 $ .54 $ .68 $.14
Diluted earnings per share... .35 .47 .60 .12
Book value per share (1)..... 2.59 3.02 3.82 3.99
<CAPTION>
FOR THE FISCAL YEARS ENDED AND
AS OF SEPTEMBER 30, THREE MONTHS
-------------------------------- ENDED JUNE 30,
1995 1996 1997 1998
---------- ---------- ---------- ---------------
<S> <C> <C> <C> <C>
MAY & SPEH HISTORICAL
Basic earnings per share..... $ .38 $ .45 $ .47 $.16
Diluted earnings per share... .38 .43 .45 .15
Book value per share (1)..... 0.87 3.04 3.62 4.11
<CAPTION>
FOR THE FISCAL YEARS ENDED AND
AS OF MARCH 31, THREE MONTHS
-------------------------------- ENDED JUNE 30,
1996 1997 1998 1998
---------- ---------- ---------- ---------------
<S> <C> <C> <C> <C>
PRO FORMA COMBINED (2)(3)
Basic earnings per share..... $ .41 $ .54 $ .65 $.15
Diluted earnings per share... .38 .48 .58 .13
Book value per share (4)..... 4.13
MAY & SPEH PRO FORMA PER
SHARE EQUIVALENTS (5)
Basic earnings per share..... $ .33 $ .43 $ .52 $.12
Diluted earnings per share... .30 .38 .46 .10
Book value per share......... 3.30
</TABLE>
- --------
(1) The historical book value per share is computed by dividing stockholders'
equity by the number of shares of common stock outstanding at the end of each
period.
(2) Acxiom expects to incur certain non-recurring expenses related to the
Merger, presently estimated to be $15.1 million ($13.8 million after tax).
These expenses would include, but would not be limited to, professional fees,
fees of financial advisors, certain compensation-related expenses and similar
expenses. Although Acxiom believes this estimate of non-recurring expenses is
accurate, certain material additional costs may be incurred in connection
with the Merger. Merger-related expenses will be charged to operations in the
quarter in which the Merger is concluded, which is currently estimated to
occur in the second quarter of fiscal 1999. These non-recurring merger-
related expenses have been charged to stockholders' equity for purposes of
the unaudited pro forma balance sheet. In addition, Acxiom
12
<PAGE>
is developing a plan to integrate the operations of May & Speh after the
Merger. In connection with that plan, Acxiom will determine to what extent
Acxiom and May & Speh facilities, software, equipment and vendor contracts
are duplicative and anticipates that certain non-recurring charges will be
incurred in connection with such integration. Pending completion of the
plan, which will include discussions with customers and vendors, Acxiom
cannot identify the timing, nature and amount of such charges as of the date
of this Proxy Statement/Prospectus. However, it is expected that such
charges could be as much as $50-100 million. Any such charges could affect
Axciom's results of operations in the period in which such charges are
recorded. Because the foregoing charges are non-recurring in nature, they
have not been reflected in the accompanying unaudited pro forma combined
statements of earnings.
(3) The pro forma combined basic and diluted earnings per share are based on
the combined weighted average number of common and dilutive shares of Acxiom
Common Stock and May & Speh Common Stock for each period based on the
exchange ratio of 0.8 shares of Acxiom Common Stock for each share of May &
Speh Common Stock.
(4) Book value per share for the pro forma combined presentation is based upon
outstanding Acxiom common shares, adjusted to include the shares of Acxiom
Common Stock to be issued in the Merger.
(5) The May & Speh pro forma per share equivalent data is based upon the
exchange ratio of 0.8 shares of Acxiom Common Stock for each share of May &
Speh Common Stock pursuant to the Merger Agreement.
13
<PAGE>
INTRODUCTION
This Proxy Statement/Prospectus is being furnished to the stockholders of
Acxiom Corporation ("Acxiom") and May & Speh, Inc. ("May & Speh") in
connection with the proposed merger (the "Merger") of ACX Acquisition Co.,
Inc., a newly formed, wholly owned subsidiary ("Sub") of Acxiom, with and into
May & Speh, and for the purposes set forth below. The Merger will be effected
on the terms and conditions described elsewhere in this Proxy
Statement/Prospectus pursuant to the Amended and Restated Agreement and Plan
of Merger, dated as of May 26, 1998 (the "Merger Agreement"), by and among
Acxiom, Sub and May & Speh, a copy of which is attached hereto as Annex A and
incorporated herein by reference. See "THE MERGER."
The information herein concerning Acxiom has been supplied by Acxiom. The
information herein concerning May & Speh has been supplied by May & Speh.
This Proxy Statement/Prospectus and the enclosed form of proxy will first be
mailed to stockholders of Acxiom and May & Speh on or about August 19, 1998.
THE ACXIOM MEETING
This Proxy Statement/Prospectus is being furnished to the stockholders of
Acxiom in connection with the solicitation of proxies by the Board of
Directors of Acxiom from the holders of common stock, par value $0.10 per
share, of Acxiom (the "Acxiom Common Stock"), for use at the annual meeting of
stockholders of Acxiom (the "Acxiom Meeting"), to be held on September 17,
1998, at 10:00 A.M. (local time), at Acxiom's headquarters at 301 Industrial
Boulevard, Conway, Arkansas and at any meeting held upon adjournment or
postponement thereof.
At the Acxiom Meeting, the stockholders of Acxiom will be asked to consider
and vote upon (i) the issuance of up to 31,100,000 shares of Acxiom Common
Stock pursuant to the Merger Agreement (the "Merger Proposal"); and (ii) the
election of three directors (the "Directors") as members of the Board of
Directors to serve until the 2001 annual meeting of stockholders or until
their respective successors are duly elected and qualified.
Representatives of KPMG Peat Marwick LLP, Acxiom's independent public
accountants, are expected to be present at the Acxiom Meeting and will have
the opportunity to make a statement if they so desire and will be available to
respond to questions. A representative of PricewaterhouseCoopers LLP, May &
Speh's independent public accountants, is expected to be present at the Acxiom
Meeting and will be available to respond to questions.
Holders of record of Acxiom Common Stock at the close of business on July
31, 1998 (the "Acxiom Record Date") will be entitled to notice of and to vote
at the Acxiom Meeting. As of the Acxiom Record Date, there were outstanding
52,521,326 shares of Acxiom Common Stock held of record by approximately 1,605
holders. Each share of Acxiom Common Stock is entitled to one vote at the
Acxiom Meeting.
The presence, in person or by proxy, of holders of record of a majority of
the shares of Acxiom Common Stock entitled to vote constitutes a quorum for
action at the Acxiom Meeting.
Approval of the Merger Proposal will require the affirmative vote of a
majority of the voting power of the shares of Acxiom Common Stock present in
person or by proxy at the Acxiom Meeting. The Directors will be elected at the
Acxiom Meeting by a majority of the votes cast in the election of directors.
THE BOARD OF DIRECTORS OF ACXIOM BELIEVES THAT THE MERGER IS FAIR TO AND IN
THE BEST INTERESTS OF ACXIOM AND ITS STOCKHOLDERS, HAS APPROVED THE MERGER AND
RECOMMENDS THAT THE STOCKHOLDERS OF ACXIOM VOTE IN FAVOR OF THE MERGER
PROPOSAL.
14
<PAGE>
THE MAY & SPEH MEETING
This Proxy Statement/Prospectus is being furnished to stockholders of May &
Speh in connection with the solicitation of proxies by the Board of Directors
of May & Speh from the holders of common stock, par value $.01 per share, of
May & Speh (the "May & Speh Common Stock"), for use at the May & Speh Meeting
to be held on September 17, 1998, at 9:00 A.M. (local time), at The Standard
Club, 320 South Plymouth Court, Chicago, Illinois, and at any meeting held
upon adjournment or postponement thereof.
At the May & Speh Meeting, the stockholders of May & Speh will be asked to
approve and adopt the Merger Agreement. In the Merger, each outstanding share
of May & Speh Common Stock will be converted into the right to receive 0.8 of
a share of Acxiom Common Stock (the "Exchange Ratio"). As a result of the
Merger, May & Speh will become a wholly owned subsidiary of Acxiom.
Representatives of PricewaterhouseCoopers LLP, May & Speh's independent
public accountants, are expected to be present at the May & Speh Meeting and
will have the opportunity to make a statement if they so desire and will be
available to respond to questions. A representative of KPMG Peat Marwick LLP,
Acxiom's independent public accountants, is expected to be present at the May
& Speh Meeting and will be available to respond to questions.
Holders of record of May & Speh Common Stock at the close of business on
July 31, 1998 (the "May & Speh Record Date") will be entitled to notice of,
and to vote at, the May & Speh Meeting. As of the May & Speh Record Date,
there were outstanding 26,073,654 shares of May & Speh Common Stock held of
record by approximately 93 holders. Each share of May & Speh Common Stock is
entitled to one vote at the May & Speh Meeting.
The presence, in person or by proxy, of holders of record of a majority of
the May & Speh Common Stock entitled to vote constitutes a quorum for action
at the May & Speh Meeting.
Approval of the Merger at the May & Speh Meeting will require the
affirmative vote of the holders of a majority of the shares of May & Speh
Common Stock outstanding on the May & Speh Record Date.
THE BOARD OF DIRECTORS OF MAY & SPEH BELIEVES THAT THE MERGER IS FAIR TO AND
IN THE BEST INTERESTS OF MAY & SPEH AND ITS STOCKHOLDERS, HAS UNANIMOUSLY
APPROVED THE MERGER AND UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS OF MAY &
SPEH VOTE IN FAVOR OF APPROVAL AND ADOPTION OF THE MERGER AGREEMENT.
VOTING RIGHTS AND PROXIES
Holders of record of Acxiom Common Stock at the close of business on the
Acxiom Record Date will be entitled to notice of and to vote at the Acxiom
Meeting. As of the Acxiom Record Date, there were outstanding 52,521,326
shares of Acxiom Common Stock held of record by approximately 1,605 holders.
Each share of Acxiom Common Stock is entitled to one vote at the Acxiom
Meeting. The stock transfer books of Acxiom will not be closed. As of the
Acxiom Record Date, the directors and officers of Acxiom collectively owned
8,465,107 shares of Acxiom Common Stock. Each of the directors and executive
officers of Acxiom has advised Acxiom that he or she intends to vote all of
such shares in favor of the Merger Proposal and election of the Directors.
Charles D. Morgan, the Chairman of the Board and Company Leader of Acxiom,
Robert A. Pritzker, a director of Acxiom, The Pritzker Foundation, a not-for-
profit foundation of which Mr. Pritzker is a trustee, and Trans Union
Corporation, have granted irrevocable proxies to May & Speh with respect to an
aggregate of 8,037,425 shares of Acxiom Common Stock (representing
approximately 15% of the Acxiom Common Stock outstanding as of the Acxiom
Record Date), pursuant to which May & Speh has the power to vote such shares
in favor of the Merger Proposal. See "THE MERGER--Terms of the Merger--
Irrevocable Proxies."
15
<PAGE>
Holders of record of May & Speh Common Stock at the close of business on the
May & Speh Record Date will be entitled to notice of, and to vote at, the May
& Speh Meeting. As of the May & Speh Record Date, there were outstanding
26,073,654 shares of May & Speh Common Stock held of record by approximately
93 holders. Each share of May & Speh Common Stock is entitled to one vote at
the May & Speh Meeting. As of the May & Speh Record Date, directors (other
than Lawrence J. Speh and Albert J. Speh, Jr.) and executive officers of May &
Speh collectively owned 617,084 shares of May & Speh Common Stock
(representing approximately 2.4% of the May & Speh Common Stock outstanding as
of the May & Speh Record Date). Each of such directors and executive officers
of May & Speh has advised May & Speh that he or she intends to vote all of
such shares in favor of the approval and adoption of the Merger Agreement.
In addition, Lawrence J. Speh, Albert J. Speh, Jr., and certain trusts of
which Messrs. Speh and Speh are the trustees, have granted irrevocable proxies
to Acxiom pursuant to which Acxiom has the power to vote an aggregate of
2,892,895 shares of May & Speh Common Stock (representing approximately 11% of
the May & Speh Common Stock outstanding as of the May & Speh Record Date), in
favor of approval and adoption of the Merger Agreement. See "THE MERGER--Terms
of the Merger--Irrevocable Proxies."
All proxies in the enclosed form that are properly executed and returned to
Acxiom or May & Speh, as the case may be, will be voted at the applicable
Stockholders' Meeting or any adjournments or postponements thereof, in
accordance with any specifications thereon, or, if no specifications are made,
will be voted FOR approval of the Merger Proposal and the election of three
directors as members of the Board of Directors in the case of Acxiom, and FOR
approval and adoption of the Merger Agreement in the case of May & Speh. Any
proxy may be revoked by any stockholder who attends his or her respective
Stockholders' Meeting and gives oral notice of his or her intention to vote in
person without compliance with any other formalities. In addition, any Acxiom
or May & Speh stockholder may revoke a proxy at any time before it is voted by
executing a subsequent proxy or by delivering a written notice to the
Secretary of Acxiom or the Secretary of May & Speh, as applicable, stating
that the proxy is revoked.
The Boards of Directors of each of Acxiom and May & Speh do not know of any
matters other than those set forth herein which may come before the respective
Stockholders' Meetings. If any other matters are properly presented to either
Stockholders' Meeting for action, it is intended that the persons named in the
applicable form of proxy and acting thereunder will vote in accordance with
their best judgment on such matters.
The cost of solicitation of the stockholders of Acxiom and May & Speh will
be paid by the party incurring such cost. In addition to the use of the mails,
proxies may be solicited by directors and officers and regular employees of
Acxiom and May & Speh and such companies may also request brokerage firms,
nominees, custodians and fiduciaries to forward proxy materials to beneficial
owners of shares of Acxiom Common Stock or May & Speh Common Stock held of
record and will provide reimbursement for their reasonable expenses in so
doing. Acxiom and May & Speh have retained D.F. King & Co., Inc. to assist in
the solicitation of proxies from stockholders of Acxiom and May & Speh for a
fee estimated not to exceed $10,000, plus expenses.
The Directors will be elected at the Acxiom Meeting by a majority of the
votes cast in the election of directors. Under applicable Delaware law, in
tabulating the vote for the election of directors, abstentions will be counted
and have the same effect as a vote against a particular director; and broker
non-votes will be disregarded and will have no effect on the outcome of the
vote.
Approval of the Merger Proposal at the Acxiom Meeting requires the
affirmative vote of a majority of stockholders of Acxiom Common Stock present,
in person or by proxy, at the Acxiom Meeting at which there is a quorum. Under
applicable Delaware law, in determining whether the Merger Proposal has
received the requisite number of affirmative votes, abstentions and broker
non-votes will have the same effect as a vote against the Merger Proposal.
Approval of the Merger Agreement at the May & Speh Meeting requires the
affirmative vote of a majority of the outstanding shares of May & Speh Common
Stock entitled to vote thereon. Under applicable Delaware law, in determining
whether the Merger Agreement has received the requisite number of affirmative
votes, abstentions and broker non-votes will have the same effect as a vote
against the Merger Agreement.
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RISK FACTORS
The following are certain factors which should be considered by the
stockholders of Acxiom and May & Speh in evaluating the Merger as well as an
investment in Acxiom Common Stock after the Merger.
ADDITIONAL INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This Proxy Statement/Prospectus includes, and future filings by Acxiom with
the Commission and future oral and written statements by Acxiom and its
management, may include certain forward-looking statements. Such statements
may include, among other things, statements regarding Acxiom's financial
position, results of operations, market position, product development,
software replacement and/or remediation efforts, regulatory matters, growth
opportunities and growth rates, acquisition and divestiture opportunities, and
other similar forecasts and statements of expectation. Words such as
"expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates"
and "should," and variations of these words and similar expressions, are
intended to identify these forward-looking statements. Such statements are not
statements of historical fact. Rather, they are based on Acxiom's estimates,
assumptions, projections and current expectations, and are not guarantees of
future performance. Acxiom disclaims any obligation to update or revise any
forward-looking statement based upon the occurrence of future events, the
receipt of new information, or otherwise. Some of the more significant factors
that could cause Acxiom's actual results and other matters to differ
materially from the results, projections and expectations expressed in the
forward-looking statements are set forth below. There may be additional
factors which could also affect actual results.
INTEGRATION OF THE BUSINESS OF ACXIOM AND MAY & SPEH
The Merger involves the integration of two companies that have previously
operated independently. As soon as practicable following the Merger, Acxiom
intends to integrate the operations of May & Speh into its operations.
However, there can be no assurance that Acxiom will successfully integrate the
operations of May & Speh with those of Acxiom or that all of the benefits
expected from such integration will be realized. Acxiom believes that the
potential obstacles to successful integration will be: the consolidation of
the data center operations; the integration and combination of the business
units supporting the various industry segments; and the necessary support
staffing required to meet the combined entity's business growth opportunities.
It is not possible at the present time to determine the costs associated with
these integration efforts until certain strategic decisions have been reached
through significant analysis and planning. Acxiom believes that the costs
associated with the integration and restructuring of the combined enterprise
will be material. Furthermore, any delays or unexpected costs incurred in
connection with such integration could have an adverse effect on Acxiom's
business, operating results or financial position. Additionally, there can be
no assurance that the operations, management and personnel of the two
companies will be compatible or that Acxiom or May & Speh will not experience
the loss of key personnel.
FIXED EXCHANGE RATIO
The ratio at which Acxiom Common Stock will be exchanged for shares of May &
Speh Common Stock pursuant to the Merger Agreement was determined in arms-
length negotiations between Acxiom and May & Speh. On May 26, 1998, the last
full trading day prior to the announcement of the execution of the Merger
Agreement, the last reported sale price per share for Acxiom Common Stock was
$21.8125, and the last reported sale price per share for May & Speh Common
Stock was $17.00. On August 14, 1998, the last trading day prior to the date
of the filing of the Registration Statement of which this Proxy
Statement/Prospectus forms a part, the last reported sale price per share of
the Acxiom Common Stock was $23.375 and the last reported sale price for May &
Speh Common Stock was $18.50. The market price of shares of Acxiom Common
Stock is subject to fluctuation. The Merger Agreement does not contain any
provisions for adjustment of the Exchange Ratio based upon fluctuations in the
price of Acxiom Common Stock or May & Speh Common Stock. Accordingly, the
value of the stock consideration to be received by the holders of May & Speh
Common Stock upon the consummation of the Merger is not presently
ascertainable and will depend upon the market price of Acxiom Common Stock at
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the Effective Time. HOLDERS OF ACXIOM COMMON STOCK AND MAY & SPEH COMMON STOCK
ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS PRIOR TO MAKING ANY DECISIONS
WITH RESPECT TO THE MERGER. The Merger Agreement does not provide Acxiom or
May & Speh the right to terminate the agreement based upon fluctuations in the
price of Acxiom Common Stock or May & Speh Common Stock.
COMPETITION
The information management services industry is extremely competitive, and
Acxiom faces intense competition in all of its customer markets. Acxiom may
also encounter new entrants, including well-capitalized information services
companies and other companies, as the markets for Acxiom's services develop.
Certain of Acxiom's competitors may have more extensive financial, technical,
marketing and other resources than Acxiom and may have a greater ability to
obtain client contracts where sizable up-front asset purchases or investments
are required and to respond more quickly than Acxiom to new or emerging
technologies and other competitive pressures. There can be no assurances that
Acxiom will be able to compete successfully against its present or future
competitors or that competitive pressures will not have a material adverse
effect on Acxiom's business, operating results or financial condition.
RISK OF DATA CENTER FAILURE
Acxiom's operations are dependent upon its ability to protect its various
data centers against damage from fire, power loss, telecommunications failure,
natural disaster or a similar event. The on-line services provided by Acxiom
are dependent on links to telecommunications servers. Management has taken
reasonable precautions to protect its data centers and telecommunications
links from events that could interrupt Acxiom's operations. Any damage to
Acxiom's data centers or any failure of Acxiom's telecommunications links that
causes interruptions in Acxiom's operations could have a material adverse
effect on Acxiom's business. Acxiom has "Blanket Business Interruption"
insurance coverage which includes "Blanket Business Income" written as part of
its "all risk" form. However, there can be no assurance that such insurance
will continue to be available at a reasonable cost or, if available, will be
adequate to cover potential losses.
RELIANCE ON SIGNIFICANT CUSTOMERS; ABSENCE OF LONG-TERM CONTRACTS
A significant portion of Acxiom's revenue is derived from relatively few
customers. In fiscal 1997, Allstate Insurance Company and Trans Union
Corporation accounted for 16.8% and 14.1%, respectively, of Acxiom's total
revenue; in fiscal 1998, Allstate Insurance Company and Trans Union
Corporation accounted for 16.1% and 11.8%, respectively, of Acxiom's total
revenue. In fiscal 1997, Allstate Insurance Company and Trans Union
Corporation accounted for $67.7 million and $56.6 million (16.8% and 14.1%),
respectively, of Acxiom's total revenue; in fiscal 1998, Allstate Insurance
Company and Trans Union Corporation accounted for $74.7 million and $54.9
million (16.1% and 11.8%) respectively of Acxiom's total revenue.
Collectively, Acxiom's 20 largest customers accounted for 54.6% and 55.8%,of
such revenues in fiscal 1997 and fiscal 1998, respectively.
Acxiom's revenue from many of its direct marketing customers is not derived
from long-term (over three-year) contracts. While approximately 54% of
Acxiom's total revenue is currently derived from long-term customer contracts,
the remainder is not. With respect to that portion of the business which is
not under long-term contract, revenues are less predictable, and Acxiom
consequently must engage in continual sales efforts to maintain its revenue
stability and future growth, and there is no assurance that Acxiom will
continue to be successful in generating future sales. In addition, certain of
Acxiom's long term contracts include provisions for early termination by the
customer. In most cases, there are clauses that specify certain customer
payments to Acxiom upon early termination. However, there can be no assurance
that Acxiom will successfully collect such payments even when it is
contractually entitled to receive them. Further, in a competitive situation,
Acxiom may, as it has in the past, renegotiate prices and terms for an
existing contract. Such situations can occur at any time and such re-
negotiations generally result in an erosion of Acxiom's profitability.
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RAPID TECHNOLOGICAL CHANGE
Acxiom believes that its future success will be dependent on, among other
things, maintaining technological competitiveness in its data products,
processing functionality, and software systems and services. Acxiom must
continually improve its current processes and develop and introduce new
products and services in order to match its competitors' technological
developments and the increasingly sophisticated requirements of its customers.
There can be no assurance that Acxiom can successfully identify, develop and
bring new and enhanced services and products to market in a timely manner,
that such services or products will be commercially successful or that
services, products or technologies developed by others will not render
Acxiom's services and products noncompetitive or obsolete.
GOVERNMENT REGULATION; PRIVACY ISSUES
The direct marketing industry has recently been subject to increased
legislative attention. In addition consumers are growing increasingly aware of
privacy issues related to direct marketing. In 1996, the Fair Credit Reporting
Act ("FCRA") was amended to provide consumers with easier access to their
credit reports and to facilitate the correction of errors in such reports. New
regulations interpreting the amendments were issued by the Federal Trade
Commission ("FTC") in 1997. The amendment and regulations addressed, among
other things, the issue of "prescreening," a procedure utilized by many
bankcard issuers and insurance companies in their direct marketing programs.
This legislation regulates the use of credit reports in the preparation and
generation of lists used by companies in offering credit and provides for
significant fines for the misuse of credit reports. Although Acxiom believes
its list processing activities for credit grantors are in compliance with the
recent amendments to the FCRA, there is uncertainty as to the interpretation
and application of the recent amendments to such legislation. Therefore, there
can be no assurances that significant fines will not be levied against Acxiom
or that this portion of its list processing services will not be adversely
affected. In addition to the FCRA, bills intended to give consumers more
control over how personal information is utilized in the marketplace are
pending in various state legislatures. There can be no assurance that this
legislation or additional federal or state consumer-oriented legislation will
not significantly limit, or increase the costs of, the collection or
dissemination of certain types of data, which could adversely affect Acxiom=s
direct marketing activities.
Recently, the U.S. House of Representatives passed the Collections of
Information Antipiracy Act ("CIAA"), which is now pending before the U.S.
Senate. The intent of this proposed legislation is to protect collections of
information from unauthorized copying and use in the marketplace. However, as
currently proposed, a portion of this bill may have a material adverse effect
on Acxiom as it will prevent Acxiom, as well as some of Acxiom's competitors,
from compiling marketing databases from certain sources (e.g., telephone
directories). Consistent with the U.S. Supreme Court's decision in Feist
Publications v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991),
publishers of telephone directories have traditionally been deemed not to be
entitled to copyright protection. In its current form, the CIAA would confer a
new intellectual property right upon such publishers and, as a result,
prohibit Acxiom from its traditional compilation endeavors. Acxiom's
management will continue to actively monitor this proposed legislation and
lobby against passage of the CIAA in its current form.
LOSS OF DATA AND/OR CUSTOMER LISTS
Acxiom could suffer a material adverse effect if owners of the data used by
Acxiom were to withdraw the data from Acxiom's use. The owners of the
marketing lists maintained by Acxiom could decide to remove their lists from
Acxiom's possession, and if a substantial number of lists were removed, a
material adverse impact upon Acxiom's operations could result.
POSTAL RATE INCREASES
The direct marketing industry has been negatively impacted from time to time
during past years by postal rate increases. The most recent postal rate
increase, which became effective in January 1995, and any future
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increases (including the increase proposed by the Postal Rate Commission on
May 11, 1998) may force direct mailers to mail fewer pieces and to target
their prospects more carefully. Acxiom experienced no significant negative
financial impact as a result of the most recent postal rate increase, but
there is no assurance that future postal increases will not have an adverse
impact upon Acxiom.
RISK OF ACQUISITION STRATEGY
Acxiom intends to pursue growth through the opportunistic acquisition of
companies, or other assets that Acxiom believes are best suited to the purpose
of assisting its customers in marketing their products and services. Acxiom
routinely reviews potential acquisitions. It is likely that Acxiom will
continue to experience significant expansion in the future. Acxiom's
acquisition strategy involves certain risks, including difficulties in the
integration of operations and systems, the diversion of management's attention
from other business concerns and the potential loss of key employees of
acquired companies. While management believes that Acxiom has been reasonably
successful implementing its acquisition strategy during the past three years,
there can be no assurance that Acxiom will be able to successfully integrate
any acquired businesses into Acxiom=s operations.
On June 3, 1998, Acxiom acquired a twenty-five percent interest in Ceres
Integrated Solutions, LLC ("Ceres"), a manufacturer of retail marketing and
merchandising software, for $3,125,000. The purpose of this transaction was to
leverage Ceres' proprietary targeted marketing database software applications
and its capacity for providing analytical services within Acxiom's industry-
specific solutions. The initial industry which will be solicited for business
is the retail industry. The primary risks involved in this venture relate to
the possibility that the first customer installations will not be successful,
thereby creating a negative reputation in the marketplace as well as devaluing
Acxiom's investment in Ceres. Generally, however, Acxiom does not believe that
the acquisition is material to Acxiom's consolidated financial statements and
as such, does not believe that the performance of this investment presents any
material risks to Acxiom's business, operating results or financial condition.
INTELLECTUAL PROPERTY RIGHTS
Both Acxiom's and May & Speh's success depends in part upon their
technological expertise and proprietary technologies. Both Acxiom and May &
Speh generally rely upon their trade secret protection and non-disclosure
safeguards to protect their proprietary information and technologies. May &
Speh holds no patents or registered copyrights. Acxiom and its subsidiaries
have 35 federally registered trademarks and service marks and 11 pending
applications for trademarks and service marks. Acxiom also has one patent
application pending with the Patent Trademark Office for certain components of
the Acxiom Data Network SM and is in the process of filing an extensive
international patent application for the same. In addition, Acxiom is in the
process of preparing an application for additional patents on data models and
data integrators which are components of its proprietary marketing system
known as "Solvitur(TM)". Prior to 1998, most of Acxiom's proprietary systems
were operated within the confines of Acxiom's facilities in a computer
mainframe environment. Customers typically did not have access to these
systems. Recently, however, customers have begun to request marketing systems
which are either installed or capable of being installed at the customers'
facilities. In addition, in 1998 Acxiom introduced the Acxiom Data Network, a
new service whereby certain of Acxiom's products will be delivered to its
customers via the Internet. In both of the circumstances mentioned above,
certain of Acxiom's proprietary systems are subject to being copied or
otherwise misappropriated, and therefore efforts have been undertaken to
protect such systems.
While both Acxiom and May & Speh (i) enter into license or other agreements
with their customers in the ordinary course of business which contain terms
and conditions prohibiting unauthorized reproduction or use of their and,
where applicable, their vendors', products and/or services, (ii) enter into
confidentiality agreements with their associates, contractors, customers,
potential customers, suppliers and vendors who have access to sensitive
information, and (iii) limit access to, and distribution of, their proprietary
information, there can be no assurance that these steps will be adequate to
deter misappropriation or infringement of their proprietary technologies or
independent third party development of substantially similar products and
technology. Both
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Acxiom and May & Speh believe that legal protection of their proprietary
information is less significant than the knowledge and experience of their
management and personnel, and their ability to develop, enhance and market
existing and new products and services.
Further, given the rapid evolution of technology and the associated
uncertainties in intellectual property law, there can be no assurance that
Acxiom's current or future products will not at some point be found to
infringe the proprietary rights of others. If such an infringement occurs
Acxiom may not be able to obtain the requisite license or rights to use such
technology upon reasonable terms.
THE YEAR 2000 ISSUE
The "Year 2000 Issue" is the result of computer programs being written using
two digits, rather than four, to define an applicable year. Any of Acxiom's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900, rather than the year 2000. This could result in a
system failure or miscalculations causing disruptions of operations,
including, among other things, a temporary inability to process or transmit
data, or engage in normal business activities. Acxiom, like most owners of
computer software, has assessed and is in the process of modifying, where
needed, its computer applications to ensure they will function properly in the
year 2000 and beyond. Acxiom has been replacing or renovating the systems and
applications where necessary, using both internal staff and external
consultants. In addition, Acxiom has initiated formal communications with all
of its significant suppliers and large customers to determine the extent to
which Acxiom is vulnerable to a failure by such a third party to adequately
address its own Year 2000 Issue.
Acxiom is currently operating under an internal deadline to ensure all of
its computer applications are "year 2000 ready" by December 31, 1998. Acxiom
currently believes that with modifications to existing software and
conversions to new software, the Year 2000 Issue can be mitigated. However,
the systems of vendors on which Acxiom's systems rely may not be converted in
a timely fashion, or a vendor may fail to convert its software or may
implement a conversion that is incompatible with Acxiom's systems, which
failures could have a material adverse impact on Acxiom.
The cost of the Year 2000 project is estimated to be between $3 million and
$5.5 million. These costs are based on Acxiom's management's best estimates,
which are derived utilizing numerous assumptions of future events. There can
be no guarantee that these estimates will be achieved and the actual results
could differ materially from the above outlined plans.
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THE MERGER
BACKGROUND OF THE MERGER
The terms of the Merger Agreement are the result of arm's length
negotiations between representatives of Acxiom and May & Speh. The following
is a brief discussion of the background of these negotiations, the Merger and
related transactions.
Having reviewed over the course of several years the ongoing prospects for
Acxiom's businesses, Acxiom management and the Acxiom Board of Directors
concluded that its growth strategy would include the following components: the
updating of its core technology, the enhanced utilization of Acxiom's
proprietary data, the expansion of current customer relationships and the
extension of its existing customer base, the offering of new services and
products, and selective acquisitions and strategic alliances.
In April 1998, senior management of May & Speh and senior management of
Acxiom were engaged in on-going discussions regarding a potential business
relationship relating to the sale of Acxiom data to May & Speh customers and a
separate initiative relating to potential joint ventures between the companies
focusing on specifically targeted industries. On April 20, 1998, the Company
Leader of Acxiom called the Chief Executive Officer of May & Speh to discuss a
potential strategic combination with Acxiom and agreed to proceed with
preliminary exploratory discussions at the senior management level of both
companies. During the week of April 20, 1998, the Chief Executive Officer of
May & Speh contacted a majority of the May & Speh directors to inform them
that Acxiom had indicated an interest in pursuing discussions with May & Speh
regarding a potential business combination and to discuss with such directors
the possibility of a strategic combination with Acxiom.
On May 1, 1998, members of May & Speh senior management met with members of
Acxiom senior management in Conway, Arkansas to discuss each other's
businesses and to review the potential business impact of a strategic
combination and the integration issues such a combination would present. There
was, however, no discussion as to the terms or conditions upon which a
transaction might take place. These discussions continued at the senior
management level into the month of May. On May 6, 1998, the May & Speh Board
of Directors held a regularly scheduled meeting during which the Chief
Executive Officer of May & Speh advised the May & Speh Board of Directors as
to recent business developments and strategic opportunities, including the
status of the exploratory conversations with Acxiom. Following inquiries by
the directors and discussion regarding a possible combination, the May & Speh
Board of Directors directed May & Speh's management to proceed with
discussions concerning a possible combination with Acxiom. On May 11, 1998,
members of senior management of both Acxiom and May & Speh met to further
discuss various strategic and integration issues raised by a potential merger
and to prepare an outline of the various points of discussion.
On or about May 11, 1998, May & Speh retained Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ") to act as its financial advisor for a twelve
month period (effective as of May 1, 1998) to advise May & Speh with respect
to any potential merger or business combination.
On May 18, 1998, the Company Leader and other members of senior management
of Acxiom and the Chief Executive Officer and other members of senior
management of May & Speh met to discuss the timing and structure of a
potential transaction. On May 19, 1998 Acxiom engaged Stephens Inc.
("Stephens") as its financial advisor to advise Acxiom with respect to a
potential transaction involving Acxiom and May & Speh. On May 20, 1998, the
Board of Directors of Acxiom met at length and discussed a possible
transaction with May & Speh and its benefits for Acxiom stockholders. At this
meeting, Stephens provided the Acxiom Board of Directors with certain
information pertaining to May & Speh, including its trading history, its
various businesses, the type of consideration proposed by Acxiom and the
potential financial issues that might arise if Acxiom were to proceed with a
transaction. The Acxiom Board of Directors authorized members of Acxiom senior
management to proceed with discussions and to report back to the Acxiom Board
of Directors.
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Between May 20, 1998 and May 25, 1998, the Company Leader of Acxiom and the
Chief Executive Officer of May & Speh continued their discussions regarding
the various terms of a possible transaction, including the tax and accounting
treatment of a potential transaction and other fundamental aspects of a
possible combination. Over this same period, the parties, together with their
legal and financial advisors, finalized their due diligence reviews and
negotiated the terms and conditions of the proposed merger. Also, over the
same period, certain members of May & Speh management visited Acxiom's
headquarters to continue each company's due diligence review of the other and
to discuss the basis for the integration of the two businesses. The parties
exchanged certain operational, financial and personnel information relating to
their respective businesses. The two companies and their advisors also engaged
in a business review including preliminary analysis of cost and revenue
benefits that could be achieved by a merger. During this period, the Company
Leader of Acxiom continued to be in contact with members of the Acxiom Board
of Directors, briefing them on the negotiations with May & Speh, the status of
the transaction and the major outstanding issues. The Chief Executive Officer
and other May & Speh representatives involved in the negotiations were, over
this period, in contact with the members of the May & Speh Board of Directors,
briefing them on the negotiations with Acxiom, the status of the transaction
and the major remaining issues.
On May 22, 1998, the May & Speh Board of Directors met to review the
proposed combination with Acxiom. At the meeting, management of May & Speh
reported on the status of the merger negotiations, DLJ made a preliminary
presentation on the financial elements of the proposed transaction, and May &
Speh's legal counsel advised the directors of their fiduciary duties in
connection with the proposed combination with Acxiom. At the meeting, senior
management of May & Speh made a report to the May & Speh Board of Directors
regarding the status and scope of the on- and off-site due diligence
investigations of Acxiom.
On May 25, 1998, representatives of Acxiom and May & Speh, and their
respective advisors, met in Chicago to continue negotiating the terms of a
proposed Merger Agreement. Drafts of the Merger Agreement were delivered to
the Acxiom and May & Speh Boards of Directors on May 26, 1998.
The Exchange Ratio was determined through arm's length negotiations between
Charles D. Morgan, the Chairman and Company Leader of Acxiom and Peter Mason,
the Chairman, Chief Executive Officer and President of May & Speh over the
course of the time that the Merger was being negotiated. Messrs. Morgan and
Mason discussed a range of exchange ratios based on a variety of factors,
including the following: (i) the relative contribution of each of Acxiom and
May & Speh to the combined entity's revenues, EBITDA (earnings before
interest, taxes, depreciation and amortization), pre-tax earnings, net
earnings and profit margins, (ii) each company's internal estimates of
projected financial performance (with and without anticipated cost savings),
and (iii) the trading price of each company's stock on both a current and
historical basis.
The Acxiom Board of Directors held a special meeting on May 26, 1998 to
discuss the terms of the proposed merger and Merger Agreement. At the meeting,
the Company Leader of Acxiom presented the terms of the Merger, the proposed
corporate structure and organization, identified potential synergies from the
combination, and the need for regulatory approvals. Representatives of
Stephens presented an analysis of the financial terms of the proposed
transaction and provided its opinion to the effect that as of such date the
Exchange Ratio to be paid to the holders of May & Speh Common Stock was fair
to Acxiom and its stockholders from a financial point of view. See "THE
MERGER--Opinion of Acxiom's Financial Advisor." The Acxiom Board discussed the
proposed transaction along with potential synergies, strategic fit, the
results of due diligence, financial results and projections, accounting
issues, personnel issues, timing and pricing considerations related to the
proposed Merger and other terms of the Merger and the Merger Agreement as well
as the reasons for the proposed Merger. See "THE MERGER--Recommendation of the
Acxiom Board of Directors; Reasons for the Merger." Following these
presentations, the Acxiom Board of Directors, by unanimous vote of those
members present, approved the Merger, the Merger Agreement and the related
stock option agreement and thereby recommended that the Merger Proposal be
presented to and approved by the holders of Acxiom Common Stock.
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The May & Speh Board of Directors held a special meeting on May 26, 1998 to
discuss the terms of the proposed Merger and the Merger Agreement. At the
meeting, the Chief Executive Officer of May & Speh presented the terms of the
Merger, the results of due diligence, potential synergies, strategic fit,
financial results and projections, accounting issues, personnel issues, timing
and pricing considerations related to the proposed Merger and other terms of
the Merger and the Merger Agreement as well as the reasons for the proposed
Merger. See "THE MERGER--Recommendation of the May & Speh Board of Directors;
Reasons for the Merger." DLJ presented its updated analysis of the financial
elements of the proposed transaction and delivered its opinion to the effect
that as of such date the Exchange Ratio was fair from a financial point of
view to the holders of May & Speh Common Stock. See "THE MERGER--Opinion of
May & Speh's Financial Advisor." Following these presentations, the May & Speh
Board, by unanimous vote of those members present, approved the Merger, the
Merger Agreement and the related stock option agreement and thereby
recommended that the Merger Agreement be presented to and approved by the
holders of May & Speh Common Stock.
Following the meetings of their respective Boards of Directors, May & Speh
and Acxiom executed the Merger Agreement on May 26, 1998 and issued a press
release announcing the Merger on May 27, 1998.
On July 29, 1998, Acxiom and May & Speh executed an Amended and Restated
Merger Agreement which provided for certain technical clarifications of the
Merger Agreement.
RECOMMENDATION OF THE ACXIOM BOARD OF DIRECTORS; ACXIOM'S REASONS FOR THE
MERGER
THE BOARD OF DIRECTORS OF ACXIOM HAS APPROVED THE MERGER AND RECOMMENDS THAT
STOCKHOLDERS OF ACXIOM VOTE FOR APPROVAL OF THE MERGER PROPOSAL. THE BOARD OF
DIRECTORS OF ACXIOM BELIEVES THAT THE MERGER WILL RESULT IN AN ORGANIZATION
WITH THE COMPETITIVE STRENGTH, FINANCIAL RESOURCES, AND TECHNOLOGY AND
CUSTOMER BASE REQUIRED BY THE INCREASING CONSOLIDATION AFFECTING THE GROWING
MARKETS FOR INFORMATION MANAGEMENT, DATA PRODUCTS AND SERVICES AND OUTSOURCING
SERVICES.
In reaching its determination, the Acxiom Board of Directors consulted with
Acxiom management as well as its financial and legal advisors, and considered
a number of factors, including, without limitation, the following:
(i) the combination with May & Speh would provide diversification of
Acxiom into different direct marketing and data processing markets and
increase its client base;
(ii) based on the relative earnings of both companies and the Exchange
Ratio, the Merger should be accretive to earnings to Acxiom's current
stockholders;
(iii) the market capitalization of the combined company will provide
enhanced liquidity for Acxiom's stockholders;
(iv) the increased market presence, economies of scale, cost savings
opportunities and enhanced opportunities for growth made possible by the
Merger, including the opportunity for the combined entity to, among other
things:
. combine the strength and breadth of May & Speh's direct marketing
customers, including Fortune 500 companies and other medium-sized
companies that have significant direct marketing requirements,
particularly in the financial services, consumer products, insurance
and retail industries, with the range of products and services Acxiom
offers to direct marketers.
. cross-market opportunities through the sale of May & Speh's
products, including Quiddity and its modeling and analysis products, to
Acxiom's customers.
. access May & Speh's customer base to provide opportunities for the
sale of Acxiom data products, including the Acxiom Data Network SM,
into new channels.
. integrate the data processing and direct marketing products and
services of the two companies and thereby enhance and strengthen such
products and services and enable the combined company to
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position itself to potential customers as a fully-integrated, large-
capability data processing and direct marketing services company;
(v) the information with respect to the business, operations, financial
condition, earnings and prospects of May & Speh, on both a historical and a
prospective basis, including certain information reflecting the two
companies on a pro forma combined basis;
(vi) the belief that the combined company would be better able to respond
to the needs of consumers and customers, the increased competitiveness of
the data processing and direct marketing industries, and the opportunities
that changes in the data processing and direct marketing industries might
bring;
(vii) the treatment of the Merger as a pooling of interests transaction
for accounting purposes;
(viii) the likelihood that the Merger will be consummated, including the
fact that the obligations of Acxiom and May & Speh to consummate the Merger
are not conditioned upon obtaining any financing;
(ix) the terms of the Merger Agreement and the Stock Option Agreements
(See "THE MERGER--Terms of the Merger"); and
(x) the opinion by Stephens to the effect that the Exchange Ratio was
fair, from a financial point of view, to Acxiom and to the holders of
Acxiom Common Stock. The full text of the written opinion of Stephens,
which sets forth the procedures followed, the factors considered and the
assumptions made, is attached as Annex D to this Proxy Statement/Prospectus
and is incorporated herein by reference. Stockholders of Acxiom are urged
to read the opinion of Stephens carefully and in its entirety. See "THE
MERGER--Opinion of Acxiom's Financial Advisor."
In view of the wide variety of factors considered by the Acxiom Board of
Directors in connection with its evaluation of the Merger Agreement, the
Acxiom Board of Directors did not find it practicable to, and did not quantify
or otherwise attempt to, assign relative weights to the above factors or
determine that any factor was of particular importance. Rather, in connection
with its evaluation of the Merger and Merger Agreement, the Acxiom Board of
Directors based its decision to approve the Merger and the Merger Agreement
and to recommend that the Acxiom stockholders vote for the Merger Proposal on
the totality of the information presented to, and considered by, it.
OPINION OF ACXIOM'S FINANCIAL ADVISOR
Opinion of Stephens. Stephens delivered its oral and written opinion on May
26, 1998 to the Acxiom Board of Directors that, on the basis of and subject to
the matters set forth therein, as of the date thereof, the Exchange Ratio was
fair from a financial point of view to Acxiom and to the holders of Acxiom
Common Stock. Stephens subsequently confirmed its opinion by delivering to the
Acxiom Board of Directors a written opinion, dated as of the date of the Proxy
Statement/Prospectus, that, on the basis of and subject to the matters set
forth therein, as of the date thereof, the Exchange Ratio is fair from a
financial point of view to Acxiom and to the holders of Acxiom Common Stock.
Although subsequent developments may affect the opinions delivered by
Stephens, Stephens does not have any obligation to update, revise or reaffirm
its opinion after the date of this Proxy Statement/Prospectus and Acxiom's
obligation to consummate the Merger is not conditioned upon such an update.
Acxiom presently does not intend to obtain an update of the opinion of
Stephens prior to the Acxiom meeting.
THE FULL TEXT OF THE OPINION OF STEPHENS, DATED AS OF THE DATE OF THIS PROXY
STATEMENT/PROSPECTUS, WHICH SETS FORTH THE ASSUMPTIONS MADE, MATTERS
CONSIDERED AND LIMITS ON THE REVIEW UNDERTAKEN, IS ATTACHED TO THIS PROXY
STATEMENT/PROSPECTUS AS ANNEX D AND IS INCORPORATED HEREIN BY REFERENCE.
STEPHENS' OPINION IS NECESSARILY BASED ON ECONOMIC, MARKET AND OTHER
CONDITIONS IN EFFECT ON, AND THE INFORMATION MADE AVAILABLE TO IT AS OF, THE
DATE THEREOF. SUBSEQUENT DEVELOPMENTS MAY AFFECT SUCH OPINION.
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HOLDERS OF ACXIOM COMMON STOCK SHOULD READ THE STEPHENS OPINION IN ITS
ENTIRETY. THE FOLLOWING SUMMARY IS QUALIFIED BY REFERENCE TO THE FULL TEXT OF
SUCH OPINION. THE OPINION OF STEPHENS WAS PROVIDED TO THE ACXIOM BOARD OF
DIRECTORS FOR ITS INFORMATION AND IS DIRECTED ONLY TO THE FAIRNESS FROM A
FINANCIAL POINT OF VIEW OF THE EXCHANGE RATIO TO ACXIOM AND TO THE HOLDERS OF
ACXIOM COMMON STOCK. THE OPINION OF STEPHENS DOES NOT ADDRESS THE MERITS OF
THE UNDERLYING DECISION BY ACXIOM TO ENGAGE IN THE MERGER AND DOES NOT
CONSTITUTE A RECOMMENDATION TO ANY STOCKHOLDER OF ACXIOM AS TO HOW SUCH
STOCKHOLDER SHOULD VOTE ON THE MERGER PROPOSAL OR ANY MATTER RELATED THERETO.
In connection with rendering its opinion dated as of May 26, 1998, Stephens:
(1) analyzed certain publicly available financial statements and reports
regarding Acxiom and May & Speh; (2) analyzed certain internal financial
statements and other financial and operating data (including financial
projections) concerning Acxiom and May & Speh prepared and provided by their
respective managements; (3) analyzed, on a pro forma basis, the financial
effect of the Merger; (4) reviewed the reported prices and trading activity
for Acxiom Common Stock and May & Speh Common Stock; (5) compared the
financial performance of Acxiom and May & Speh and the prices and trading
activity of Acxiom Common Stock and May & Speh Common Stock with that of
certain other comparable publicly-traded companies and their securities; (6)
reviewed the financial terms, to the extent publicly available, of certain
transactions in the direct marketing database industry; (7) reviewed the
Merger Agreement and related documents; (8) discussed with the management of
each of Acxiom and May & Speh the operations of and future business prospects
for Acxiom and May & Speh and the anticipated financial consequences of the
Merger; and (9) performed such other analyses and provided such other services
as Stephens deemed appropriate.
Stephens relied on the accuracy and completeness of the information and
financial data prepared and provided by Acxiom and May & Speh, and Stephens'
opinion is based upon such information. Stephens inquired into the reliability
of such information and financial data only to the limited extent necessary to
provide a reasonable basis for its opinion, recognizing that Stephens rendered
only an informed opinion and not an appraisal or certification of value. With
respect to the financial projections prepared by the managements of Acxiom and
May & Speh, Stephens assumed that the financial projections were reasonably
prepared on bases reflecting the best currently available estimates and
judgments of the managements of Acxiom and May & Speh as to the expected
future financial performance of Acxiom and May & Speh. Stephens also relied on
assurances from Acxiom and May & Speh that neither Acxiom nor May & Speh is
aware of any information or facts regarding their respective companies that
would cause the information supplied to Stephens to be incomplete or
misleading in any material respect. Stephens further assumed that the Merger
will be accounted for as a pooling of interests under generally accepted
accounting principles and that it will qualify as a tax-free reorganization
for United States federal income tax purposes. Stephens did not express any
opinion as to the prices at which the Acxiom Common Stock will trade following
the consummation of the Merger.
In arriving at its opinion, Stephens performed a variety of financial
analyses, the material portions of which are summarized below. The summary set
forth below does not purport to be a complete description of the analyses
performed by Stephens. In addition, Stephens believes that its analyses must
be considered as a whole and that selecting portions of its analyses and of
the factors considered by it, without considering all such factors and
analyses, could create a misleading view of the process underlying its
analyses. Although Stephens did not draw any specific conclusions from or with
regard to any one method of analysis, all of the analyses performed by
Stephens supported the fairness of the Exchange Ratio from a financial point
of view to Acxiom and its stockholders, with the exception of the analysis of
the ratio of the Merger Total Transaction Value (as defined below) to the
latest twelve months EBITDA which Stephens found to be neutral. Stephens
concluded that as a whole the analyses performed indicated that the Exchange
Ratio was fair from a financial point of view to Acxiom and its stockholders.
The matters considered by Stephens in arriving at its opinion are based on
numerous macroeconomic, operating and financial assumptions with respect to
industry performance, general
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business and economic conditions and other matters, many of which are beyond
Acxiom's and May & Speh's control. Any estimates incorporated in the analyses
performed by Stephens are not necessarily indicative of future results or
values, which may be significantly more or less favorable than such estimates.
Estimated values do not purport to be appraisals and do not necessarily
reflect the prices at which businesses or companies may be sold in the future,
and such estimates are inherently subject to uncertainty. Arriving at a
fairness opinion is a complex process not necessarily susceptible to partial
or summary description. No public company or transaction involving public
companies utilized as a comparison is identical to Acxiom and May & Speh.
Accordingly, an analysis of publicly traded comparable companies and
comparable business combinations is not mathematical; rather it involves
complex considerations and judgments concerning differences in financial and
operating characteristics of the comparable companies analyzed and other
factors that could affect the public trading value of the comparable companies
or company utilized in Stephens' analysis.
The Stephens opinion is necessarily based upon market, economic and other
conditions as they existed and could be evaluated on, and on the information
made available to Stephens as of, the date of such opinion. Stephens assumed
that in the course of obtaining the necessary regulatory or other consents or
approvals (contractual or otherwise) for the Merger, no restrictions,
including any divestiture requirements or amendments or modifications, would
be imposed that would have a material adverse effect on the contemplated
benefits of the Merger. The advisory services and the opinion provided by
Stephens were for the information and assistance of the Acxiom Board of
Directors and do not constitute a recommendation as to how any Acxiom
stockholder should vote with respect to the Merger.
The following is a summary of the material financial analyses used by
Stephens in connection with its presentation to the Acxiom Board of Directors
on May 26, 1998, and the preparation of its opinion delivered to the Acxiom
Board of Directors. The following summary does not purport to be a complete
description of the analyses performed by Stephens. The preparation of a
fairness opinion is a complex process and is not necessarily susceptible to
partial analysis or a summary description.
Historical Stock Price Analysis. Stephens reviewed the performance of the
per share market prices of May & Speh Common Stock over the period from March
26, 1996 through May 22, 1998, and the performance of Acxiom Common Stock over
the period from March 26, 1996 through May 22, 1998. Stephens then compared
the movement of such closing prices for Acxiom Common Stock and for May & Speh
Common Stock with the movements of composite indices of certain direct
marketing database companies.
Stephens also reviewed the historical ratios of the market prices of May &
Speh Common Stock to Acxiom Common Stock over the period from March 26, 1996
through May 22, 1998 and compared such ratios with the Exchange Ratio of
0.800x. Stephens noted that the ratio of the market prices of May & Speh
Common Stock to Acxiom Common Stock over that period ranged from a high of
1.086x on September 24, 1996, to a low of 0.438x on February 7, 1997. Stephens
also noted that the current ratio of the market prices of May & Speh Common
Stock to Acxiom Common Stock was 0.691x as of May 22, 1998 and that, as of
that date, the ratios one month, three months, six months and twelve months
prior were 0.593x, 0.617x, 0.755x, 0.717x, respectively.
Selected Comparable Company Trading Analysis. Stephens compared certain
publicly available financial and operating data and projected financial
performance (based on Wall Street consensus estimates) of five publicly traded
corporations that Stephens deemed to be reasonably similar. The companies were
Abacus Direct Corp., Acxiom Corporation, American Business Information, Inc.,
Harte-Hanks Communications, Inc. and May & Speh, Inc. (collectively, "Selected
Comparable Companies"). Stephens calculated the trading multiples of the
Selected Comparable Companies with corresponding financial and operating data
and projected financial performance of May & Speh. Such analysis indicated,
among other things, (a) the ratio of the closing stock price as of May 22,
1998 to the 1998 estimated earnings per share was 25.6x for May & Speh
compared to maximum, mean and minimum values for the Selected Comparable
Companies of 46.3x, 29.2x and 19.3x, respectively, (b) the ratio of closing
stock price as of May 22, 1998 to the 1999 estimated earnings per share was
21.1x for May & Speh compared to maximum, mean and minimum values for the
Selected Comparable Companies of 33.6x, 23.1x and 15.7x, respectively, (c) the
ratio of the total market capitalization as of May 22, 1998 (i.e., market
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value of common equity plus total debt less cash and cash equivalents or the
"Total Market Capitalization") to the March year-end 1999 estimated earnings
before interest, taxes, depreciation and amortization ("EBITDA") was 10.8x for
May & Speh compared to maximum, mean and minimum values for the Selected
Comparable Companies of 26.7x, 13.7x and 9.7x, respectively.
Selected Comparable Transaction Analysis. Stephens analyzed the financial
terms, to the extent publicly available, of seven transactions deemed to be
relevant involving direct marketing database companies which were announced
between September 11, 1995 and March 12, 1998 (the "Selected Comparable
Transactions"). The Selected Comparable Transactions included The Great
Universal Stores P.L.C./Metromail Corporation, The News Corp. Ltd./Heritage
Media Corporation, Snyder Communications, Inc./American List Corporation, The
Great Universal Stores P.L.C./Experian Corporation, Bain Capital Inc. and
Thomas H. Lee Co./TRW Information Systems and Services (Experian), Harte-Hanks
Communications, Inc./DiMark, Inc., and Heritage Media Corp./DIMAC Marketing
Company. Stephens compared the price paid for direct marketing database
companies in such transactions (the "Total Transaction Value"), as a multiple
of the latest twelve months' EBITDA and earnings before interest and taxes
("EBIT"). Total Transaction Value is defined as shares outstanding for the
target company multiplied by the offer price per share plus net debt. Such
analysis indicated, among other things, (a) the ratio of the total transaction
value of the Merger, based on the market price of Acxiom Common Stock as of
May 22, 1998 (the "Merger Total Transaction Value") to the latest twelve
months' EBIT is 20.5x, compared to maximum, mean and minimum values of the
ratio of the Total Transaction Value to the last twelve months' EBIT for the
Selected Comparable Transactions of 39.6x, 19.0x and 11.4x, respectively and
(b) the ratio of the Merger Total Transaction Value to the latest twelve
months' EBITDA is 16.4x, compared to maximum, mean and minimum values of the
ratio of the Total Transaction Value to the last twelve months' EBITDA for the
Selected Comparable Transactions of 14.4x, 11.0x and 7.0x, respectively.
Stephens also determined the percentage premium of the offer price over the
trading prices one day, one week and four weeks prior to the announcement date
of five Selected Comparable Transactions involving public companies. The mean
for the Selected Comparable Transactions over the trading prices one day, one
week and four weeks prior to the announcement date were 39.2%, 40.6% and
36.5%, respectively. Stephens derived premiums based on the implied purchase
price of May & Speh's stock price one day, one week and four weeks prior to
May 22, 1998. The implied premiums for the proposed transaction over the
trading prices one day, one week and four weeks prior to May 22, 1998 were
15.8%, 21.7% and 23.8%, respectively.
Discounted Cash Flow Analysis. Stephens performed a discounted cash flow
analysis on May & Speh based upon estimates of projected financial performance
prepared by the management of May & Speh. Utilizing these projections,
Stephens calculated a range of implied per share equity values based upon the
discounted net present value of the sum of the projected stream of unlevered
free cash flows from 1999 to the year 2002 and the projected terminal value at
2002 based upon a range of multiples of projected EBITDA less net debt at
March 31, 1998 for May & Speh divided by the number of shares outstanding
including the shares from the conversion of the convertible subordinated
notes. Stephens applied several discount rates (ranging from 12.0% to 14.0%)
and multiples of EBITDA (ranging from 9.5x to 11.5x). Utilizing this
methodology, the implied present value per share of May & Speh Common Stock
ranged from $16.79 to $20.83.
Relative Valuation Analysis. Stephens reviewed the relative valuations of
May & Speh and Acxiom using relative comparable public companies analysis,
relative contribution analysis and relative discounted cash flow analysis,
with and without expected cost savings (assumed to be $10 million in year 2000
and thereafter), and compared such ratios with the Exchange Ratio of 0.800x.
Such analysis indicated, among other things, (a) the range of implied exchange
ratios based on the relative comparable public companies analysis (i.e. the
ratios of the equity values per shares outstanding including the shares from
the conversion of the convertible subordinated notes of May & Speh Common
Stock, implied by the estimated 1999 and 2000 EBITDA, divided by the share
price of Acxiom Common Stock as of May 22, 1998) was 0.640x to 0.826x without
expected cost savings and 0.733x to 0.942x with expected cost savings, and (b)
the range of implied exchange ratios based on the relative contribution
analysis (i.e. the ratio of the estimated 1999, 2000 and 2001 net income of
May & Speh per May & Speh shares outstanding including the shares from the
conversion of the convertible subordinated notes divided
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by the estimated 1999, 2000 and 2001 net income of Acxiom per Acxiom shares
outstanding) was 0.835x to 0.853x without expected cost savings and 0.853x to
1.034x with expected cost savings. Stephens also observed that the 0.800x
Exchange Ratio was within the range implied by the relative discounted cash
flow analysis without and with expected cost savings of 0.554x to 0.901x and
0.623x to 1.014x, respectively. Stephens did not play a role in establishing
the Exchange Ratio.
Merger Consequences Analysis. Stephens examined the pro forma impact, for
fiscal years 1999 and 2000, of the Merger on estimates of May & Speh's
earnings per share derived from estimates of May & Speh financial performance
prepared by the management of May & Speh and estimates of Acxiom's projected
financial performance prepared by the management of Acxiom. The projected
impact arrived at through Stephens' analysis was compared to management's
earnings estimate for Acxiom which did not take into account the impact of the
Merger. Compared to this earnings estimate, excluding certain non-recurring
expenses related to the Merger, Stephens concluded that the Merger would be
neutral in fiscal year 1999 and accretive to the earnings of Acxiom in fiscal
year 2000 due to merger integration and expected cost savings. Additionally,
Stephens compared these estimates to the average earnings per share of $0.75
projected by analysts covering Acxiom for fiscal year 1999, and found these
average projections to be in line with the above described analysis.
The Acxiom Board of Directors retained Stephens as an independent contractor
to act as financial advisor for the purpose of providing a fairness opinion on
the Merger. Stephens is a nationally recognized investment banking and
advisory firm. Stephens, as part of its investment banking business, is
continually engaged in the valuation of companies and their securities in
connection with business reorganizations, private placements, negotiated
underwritings, mergers and acquisitions and valuations for estate, corporate
and other purposes. Stephens is familiar with Acxiom and regularly provides
investment banking services to Acxiom and through its research department
regularly follows Acxiom's business activities and prospects. In the ordinary
course of business, Stephens and its affiliates may at any time hold long or
short positions, and may trade or otherwise effect transactions as principal
or for the accounts of customers, in debt or equity securities or options on
securities of Acxiom and/or May & Speh.
In consideration for Stephens' services as financial advisor to Acxiom,
Acxiom has agreed to pay to Stephens a fee equal to $1,925,000, a significant
portion of which is payable upon consummation of the Merger. Acxiom has also
agreed to reimburse Stephens for its reasonable out-of-pocket expenses,
including fees and disbursements of its legal counsel, plus any sales or use
taxes incurred in connection with its activities as financial advisor in
providing a fairness opinion to Acxiom, and to indemnify Stephens and certain
related persons against certain liabilities in connection with its engagement,
including certain liabilities under the federal securities laws. Acxiom has
paid Stephens approximately $1,001,000 in compensation for investment banking
and other services over the past two years, $775,000 of which related to the
opinion delivered by Stephens in connection with the Merger.
RECOMMENDATION OF THE MAY & SPEH BOARD OF DIRECTORS; MAY & SPEH'S REASONS FOR
THE MERGER
FOR THE REASONS DISCUSSED BELOW, THE BOARD OF DIRECTORS OF MAY & SPEH HAS
UNANIMOUSLY DETERMINED THAT THE TERMS OF THE MERGER AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY ARE FAIR TO, AND IN THE BEST INTERESTS OF,
MAY & SPEH AND THE MAY & SPEH STOCKHOLDERS. ACCORDINGLY, THE MAY & SPEH BOARD
OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT MAY & SPEH STOCKHOLDERS VOTE FOR THE
APPROVAL AND ADOPTION OF THE MERGER AGREEMENT.
The May & Speh Board of Directors, in the course of reaching its decision to
approve the Merger Agreement and the transactions contemplated thereby,
consulted with May & Speh's financial advisor and special counsel as well as
with May & Speh's management, and directors either participated in or were
kept informed of the progress of due diligence and negotiating sessions with
Acxiom. The May & Speh Board of Directors considered a number of factors,
including the following material factors (the order does not necessarily
reflect the relative significance):
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(i) the opportunity of May & Speh stockholders to continue as
stockholders of a combined organization with greater strength and enhanced
competitive position than May & Speh would enjoy on a stand-alone basis;
(ii) current industry, economic and market conditions which have
encouraged consolidation in the direct marketing services industry,
together with Acxiom's growth strategy;
(iii) the enhanced opportunities for growth made possible by the
integration and combination of the complementary strengths of Acxiom and
May & Speh, including the opportunity to integrate, improve and enhance the
direct marketing products and services, as well as the technologies
capabilities, of the two companies to provide a broader and more fully-
integrated range of services;
(iv) the potential enhancement in earnings that could be achieved through
the cross-selling of existing products and services to each other's
clients;
(v) the potential cost saving that could be achieved from combining the
operations of May & Speh and Acxiom;
(vi) the DLJ Opinion to the effect that, as of the date of the DLJ
Opinion and based upon and subject to the assumptions, limitations and
qualifications set forth therein, the Exchange Ratio was fair from a
financial point of view to the holders of May & Speh Common Stock. See "THE
MERGER--Opinion of May & Speh's Financial Advisor." (The DLJ Opinion is
included as Annex E to this Joint Proxy Statement/Prospectus and should be
read in its entirety);
(vii) the assessment of May & Speh's strategic alternatives to the
Merger, including remaining an independent public company, continuing its
pursuit of acquisitions or merging or consolidating with a party or parties
other than Acxiom (such acquisitions or mergers and consolidations with
parties other than Acxiom were considered on a hypothetical basis only and
the May & Speh Board did not consider any specific transaction with any
party other than Acxiom during its consideration of the Merger);
(viii) the terms and conditions of the Merger Agreement, including the
"no-solicitation" and fiduciary responsibility provisions of the Merger
Agreement which permit May & Speh to provide information and enter into
discussions with third parties under certain circumstances and to terminate
the Merger Agreement to enter into a transaction with a third party under
certain specified circumstances, the fees and expenses payable, in certain
circumstances, to May & Speh, and in other circumstances, by May & Speh,
the termination sections of the Merger Agreement, the provisions relating
to May & Speh's ability to continue to operate its business in the ordinary
course during the period between the execution of the Merger Agreement and
the Effective Time (see "THE MERGER--Terms of the Merger--Termination;" "--
Expenses; Termination Fees;" and "--Amendment and Waiver"), the conditions
to closing and the representations and warranties of each of the parties in
the Merger Agreement; and
(ix) the fact that the Merger is expected to be a tax-free transaction
for U.S. federal income tax purposes to May & Speh stockholders and that it
is expected to qualify as a pooling of interests transaction for accounting
and financial reporting purposes.
The May & Speh Board of Directors also considered a number of potential
risks and disadvantages relating to the Merger, including the following
material risks and disadvantages (the order does not necessarily reflect the
relative significance): (i) the difficulty and management distraction inherent
in integrating two large and geographically dispersed operations and the risk
that the synergies and benefits sought in the Merger might not be fully
achieved; (ii) the risk that the Merger would not be consummated and the
potential effects that the failure to consummate might have on the business,
employees and customers of May & Speh; (iii) the expenses expected to be
incurred by May & Speh in connection with the Merger; and (iv) the substantial
acquisition history of Acxiom and the inherent uncertainty this creates with
respect to analyzing the historical and projecting the future performance of
Acxiom. The May & Speh Board of Directors believed that these potential risks
and disadvantages were outweighed by the potential benefits anticipated to be
realized from the Merger.
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The foregoing discussion of the material factors and potential material
risks and disadvantages considered by the May & Speh Board is not intended to
be exhaustive. In view of the wide variety of factors, risks and disadvantages
considered in connection with its evaluation of the Merger, the May & Speh
Board did not find it practicable to, and did not, quantify or assign any
relative or specific weights to the foregoing matters, and individual
directors may have deemed different matters more significant than others.
OPINION OF MAY & SPEH'S FINANCIAL ADVISOR
May & Speh asked DLJ, in its role as financial advisor to May & Speh, to
render an opinion to the May & Speh Board of Directors as to the fairness of
the Exchange Ratio from a financial point of view to the holders of May & Speh
Common Stock. On May 26, 1998, DLJ delivered its written opinion to the May &
Speh Board of Directors that, as of such date and based upon and subject to
the assumptions, limitations and qualifications set forth in such opinion, the
Exchange Ratio was fair from a financial point of view to the holders of May &
Speh Common Stock.
THE FULL TEXT OF THE DLJ OPINION IS ATTACHED HERETO AS ANNEX E. THE SUMMARY
OF THE DLJ OPINION SET FORTH IN THIS PROXY STATEMENT/PROSPECTUS IS QUALIFIED
BY REFERENCE TO THE FULL TEXT OF THE DLJ OPINION. MAY & SPEH STOCKHOLDERS ARE
URGED TO READ THE DLJ OPINION CAREFULLY AND IN ITS ENTIRETY FOR THE PROCEDURES
FOLLOWED, ASSUMPTIONS MADE, OTHER MATTERS CONSIDERED AND LIMITS OF THE REVIEW
BY DLJ IN CONNECTION WITH SUCH OPINION.
The DLJ Opinion was prepared for the May & Speh Board of Directors and was
directed only to the fairness from a financial point of view, as of the date
thereof, of the Exchange Ratio to the holders of May & Speh Common Stock. DLJ
expressed no opinion in the DLJ Opinion as to the prices at which the Acxiom
Common Stock would actually trade at any time. The type and amount of
consideration was determined in arm's length negotiations between Acxiom and
May & Speh, in which negotiations DLJ advised May & Speh. The DLJ Opinion does
not address the relative merits of the Merger and the other business
strategies considered by the May & Speh Board of Directors nor does it address
the May & Speh Board's decision to proceed with the Merger. The DLJ Opinion
does not constitute a recommendation to any stockholder as to how such
stockholder should vote on the Merger.
May & Speh selected DLJ as its financial advisor because it is an
internationally recognized investment banking firm that has substantial
experience in the businesses in which May & Speh competes and is familiar with
May & Speh and its businesses. As part of its investment banking business, DLJ
is regularly engaged in the valuation of businesses and securities in
connection with mergers, acquisitions, underwritings, sales and distributions
of listed and unlisted securities, private placements and valuations for
corporate and other purposes.
In arriving at the DLJ Opinion, DLJ reviewed the Merger Agreement and the
exhibits thereto, the May & Speh Option Agreement and the Acxiom Option
Agreement. DLJ also reviewed financial and other information that was publicly
available or furnished to DLJ by May & Speh and Acxiom, including information
provided during discussions with their respective managements. Included in the
information provided during such discussions were certain financial
projections of May & Speh prepared by the management of May & Speh and certain
financial projections of Acxiom prepared by the management of Acxiom. In
addition, DLJ compared certain financial and securities data of May & Speh and
Acxiom with publicly available information concerning various other companies
whose securities are traded in public markets, reviewed the historical stock
prices and trading volumes of the May & Speh Common Stock and the Acxiom
Common Stock, reviewed prices and premiums paid in certain other business
combinations and conducted such other financial studies, analyses and
investigations as DLJ deemed appropriate for purposes of rendering the DLJ
Opinion.
In rendering the DLJ Opinion, DLJ relied upon and assumed the accuracy and
completeness of all of the financial and other information that was available
to it from public sources, that was provided to it by May & Speh and Acxiom or
their respective representatives, or that was otherwise reviewed by DLJ. DLJ
relied upon the estimates of the management of May & Speh as to the amount and
timing of certain operating cost savings
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synergies estimated by such management to be potentially achievable as a
result of the Merger and upon DLJ's discussions of such synergies and the
timing thereof with the management of Acxiom. With respect to the financial
projections supplied to DLJ, DLJ assumed that they were reasonably prepared on
a basis reflecting the best currently available estimates and judgments of the
managements of May & Speh and Acxiom as to the future operating and financial
performance of May & Speh and Acxiom, respectively. DLJ did not assume
responsibility for making any independent evaluation of the assets or
liabilities of May & Speh or Acxiom, or for making any independent
verification of the information reviewed by DLJ. DLJ further assumed that the
Merger will be accounted for as a pooling of interests under U.S. generally
accepted accounting principles and that it will qualify as a tax-free
reorganization for U.S. federal income tax purposes. DLJ also relied as to
certain legal matters on advice of counsel to May & Speh.
The DLJ Opinion was necessarily based on economic, market, financial and
other conditions as they existed on, and on the information made available to
DLJ as of, the date of the DLJ Opinion. Although subsequent developments may
affect the DLJ Opinion, DLJ does not have any obligation to update, revise or
reaffirm its opinion, and May & Speh's obligation to consummate the Merger is
not conditioned upon an update of the DLJ Opinion. May & Speh presently does
not intend to obtain an update of the DLJ Opinion prior to the May & Speh
Meeting.
The following is a summary of the presentation made by DLJ to the May & Speh
Board of Directors at its May 22, 1998 meeting, as updated by DLJ's
presentation to the May & Speh Board at its May 26, 1998 meeting, in
connection with rendering the DLJ Opinion. For purposes of the following
analyses, the Exchange Ratio was calculated based upon the closing stock price
of Acxiom Common Stock on May 22, 1998.
Stock Price History. To provide contextual data and comparative market data,
DLJ examined the history of the trading prices and their relative
relationships for both May & Speh Common Stock and Acxiom Common Stock for the
twelve-month period ended May 20, 1998. DLJ also reviewed the daily closing
prices of May & Speh Common Stock and Acxiom Common Stock and compared such
closing stock prices with the closing stock prices of the Direct Marketing
Companies, the Outsourcing Companies (each as defined herein) and the S&P 400
Index. This information was presented solely to provide the May & Speh Board
with background information regarding the stock prices of May & Speh Common
Stock and Acxiom Common Stock over the periods indicated.
Comparable Publicly Traded Company Analysis. DLJ analyzed selected
historical and projected operating information, stock market data and
financial ratios for certain publicly traded direct marketing and database
service companies (the "Direct Marketing Companies") and certain publicly
traded outsourcing and other business service companies (the "Outsourcing
Companies", and collectively with the Direct Marketing Companies, the
"Comparable Companies"). The Direct Marketing Companies consisted of Acxiom,
American Business Information, Inc., Equifax Inc., Fair, Isaac and Company,
Inc. and Harte-Hanks Communications, Inc. The Outsourcing Companies consisted
of Affiliated Computer Services, Inc., Automatic Data Processing, Inc., BISYS
Group, Inc., Electronic Data Systems Corporation, First Data Corporation and
Fiserv, Inc.
DLJ compared the enterprise value (defined as common equity value plus long-
term debt plus the liquidation value of the preferred stock, if any, plus the
value of minority interests, if any, minus cash and short-term investments)
and the common equity value (as of May 22, 1998) of each of the Comparable
Companies to certain selected financial data. In examining these Comparable
Companies, DLJ analyzed the enterprise value of the companies as a multiple of
each company's respective latest twelve-month ("LTM") revenue, LTM earnings
before interest, taxes, depreciation and amortization ("EBITDA") and LTM
earnings before interest and taxes ("EBIT"), and the common equity value of
the companies as a multiple of each company's respective LTM earnings per
share ("EPS"), projected calendar 1998 EPS ("1998 EPS") and projected calendar
1999 EPS ("1999 EPS"). DLJ's analysis of the Direct Marketing Companies
yielded the following: LTM revenue multiples ranged from 2.1x to 4.1x with a
median of 3.1x, LTM EBITDA multiples ranged from 10.7x to 14.4x with a median
of 13.4x, LTM EBIT multiples ranged from 14.7x to 27.4x with a median of
17.3x, LTM EPS multiples ranged from 22.9x to 37.1x with a median of 27.8x,
1998 EPS multiples ranged from 19.3x to 31.3x
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with a median of 24.4x, and 1999 EPS multiples ranged from 15.7x to 25.6x with
a median of 20.4x. DLJ's analysis of the Outsourcing Companies yielded the
following: LTM revenue multiples ranged from 1.3x to 4.1x with a median of
2.9x, LTM EBITDA multiples ranged from 7.2x to 17.0x with a median of 11.6x,
LTM EBIT multiples ranged from 13.0x to 21.5x with a median of 16.0x, LTM EPS
multiples ranged from 19.7x to 33.7x with a median of 25.0x, 1998 EPS
multiples ranged from 19.1x to 30.3x with a median of 21.9x, and 1999 EPS
multiples ranged from 16.8x to 26.7x with a median of 18.7x.
DLJ then calculated implied values per share of May & Speh Common Stock by
applying May & Speh's actual and certain forecasted financial results to the
weighted average of the high and low multiples derived from its analysis of
the public company comparables described above (assigning a 60% weight to the
Direct Marketing Companies and a 40% weight to the Outsourcing Companies). DLJ
calculated ranges of per share implied values of May & Speh Common Stock as
follows: $7.67 to $14.47 (based on enterprise value as a multiple of LTM
revenues); $10.51 to $15.82 (based on enterprise value as a multiple of LTM
EBITDA); $12.13 to $19.79 (based on enterprise value as a multiple of LTM
EBIT); $11.46 to $18.94 (based on common equity value as a multiple of LTM
EPS); $12.30 to $19.79 (based on common equity value as a multiple of 1998
EPS); and $12.27 to $19.76 (based on common equity value as a multiple of 1999
EPS), in each case, as compared to the $17.80 implied value per share of May &
Speh Common Stock (based on the Exchange Ratio multiplied by the $22.25 per
share closing stock price of Acxiom Common Stock on May 22, 1998).
Comparable M&A Transaction Analysis. DLJ reviewed ten selected acquisitions
involving companies which DLJ deemed to be comparable to May & Speh (the "M&A
Transactions"): (i) Metromail Corporation / The Great Universal Stores P.L.C.;
(ii) Neodata Services, Inc. / Electronic Data Systems Corporation; (iii)
Direct Marketing Technology, Inc. / Experian Corporation (The Great Universal
Stores P.L.C.); (iv) Database America Companies/ American Business
Information, Inc.; (v) Experian Corporation / The Great Universal Stores
P.L.C.; (vi) Donnelley Marketing Inc. / First Data Corporation; (vii) TRW
Information Systems & Services (Experian) / The Thomas H. Lee Co. and Bain
Capital Inc.; (viii) DiMark, Inc. / Harte-Hanks Communications, Inc.; (ix)
DIMAC Marketing Company/ Heritage Media Corporation; and (x) SHL Systemhouse
Inc. / MCI Communications Corporation. In examining these acquisitions, DLJ
compared the enterprise value of the acquired company implied by each of these
transactions as a multiple of LTM revenue and LTM EBITDA to certain selected
financial data. DLJ's analysis of enterprise value as a multiple of (i) LTM
revenue yielded a range of multiples of 0.9x to 3.8x with a median of 2.1x, as
compared to 5.3x for May & Speh in the Merger, and (ii) LTM EBITDA yielded a
range of multiples of 7.4x to 14.2x with a median of 10.6x, as compared to
17.7x for May & Speh in the Merger. DLJ also compared the common equity value
of the acquired company implied by each of these transactions as a multiple of
LTM EPS to certain selected financial data. DLJ's analysis of such common
equity values yielded a median multiple of 23.9x, as compared to 33.6x for May
& Speh in the Merger. Although DLJ also examined the high and low ranges of
multiples of such common equity value, DLJ did not rely on such multiples in
its analysis due to the absence of any meaningful data for certain of the M&A
Transactions.
DLJ then calculated implied values per share of May & Speh Common Stock by
applying May & Speh's actual financial results to the high and low multiples
derived from its analysis of the acquisition comparables described above. DLJ
calculated ranges of per share implied values of May & Speh Common Stock as
follows: $5.06 to $13.52 (based on enterprise value as a multiple of LTM
revenues); and $8.85 to $14.74 (based on enterprise value as a multiple of LTM
EBITDA) , in each case, as compared to the $17.80 implied value per share of
May & Speh Common Stock (based on the Exchange Ratio multiplied by the $22.25
per share closing stock price of Acxiom Common Stock on May 22, 1998). DLJ
also calculated a per share implied value of May & Speh Common Stock of
$12.67, based on common equity value as a multiple of median LTM EPS, as
compared to the per share implied value of $17.80.
Comparable Premiums Paid Analysis. DLJ determined the implied premium over
the common stock trading prices for one day, one week and four weeks prior to
the announcement date of 38 selected domestic merger or acquisition
transactions involving companies not necessarily comparable to May & Speh,
ranging from $500 million to $700 million in transaction value and completed
from May 23, 1996 through May 4, 1998. The
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high, low and median premiums for the selected transactions over the common
stock trading prices for: (i) one day prior to the announcement date were
173.7%, (5.5%) and 24.6%, respectively, as compared to the implied premium in
the Merger for the May & Speh Common Stock one day prior to May 22, 1998 of
15.8%, (ii) one week prior to the announcement date were 106.9%, (6.1%) and
28.7%, respectively, as compared to the implied premium in the Merger for the
May & Speh Common Stock one week prior to May 22, 1998 of 21.7% and (iii) four
weeks prior to the announcement date were 163.7%, (5.5%) and 36.1%,
respectively, as compared to the implied premium in the Merger for the May &
Speh Common Stock four weeks prior to May 22, 1998 of 23.8%. Applying the
above median comparable premiums to the closing price of the May & Speh Common
Stock on one day, one week and four weeks prior to May 22, 1998 implies a
valuation per share of May & Speh Common Stock of $19.16, $18.82 and $19.56,
respectively, as compared to the $17.80 implied value per share of the May &
Speh Common Stock (based on the Exchange Ratio multiplied by the $22.25 per
share closing stock price of Acxiom Common Stock on May 22, 1998) and the
closing prices of the May & Speh Common Stock one day, one week and four weeks
prior to May 22, 1998 of $15.38, $14.63 and $14.38, respectively.
Contribution Analysis. DLJ analyzed the relative contributions of May & Speh
and Acxiom to the pro forma combined entity based on selected financial data,
assuming no Synergies. In this analysis, DLJ compared the 31.7% ownership
interest that holders of May & Speh Common Stock will have in the pro forma
combined entity with the relative contribution of May & Speh to certain
financial data for the pro forma combined entity, including sales, EBITDA and
EBIT for Acxiom's fiscal year ending March 31, 1998 ("Fiscal Year 1998") and
Acxiom's projected fiscal year ending March 31, 1999 ("Fiscal Year 1999"). In
each case, the financial data for the pro forma combined entity was determined
by adding the financial data for May & Speh and Acxiom. This analysis
indicated that May & Speh would contribute (i) 18.3% and 19.5% of the pro
forma combined entity's sales for Fiscal Year 1998 and Fiscal Year 1999,
respectively; (ii) 23.6% and 24.6% of the pro forma combined entity's EBITDA
for Fiscal Year 1998 and Fiscal Year 1999, respectively; and (iii) 29.4% and
29.5% of the pro forma combined entity's EBIT for Fiscal Year 1998 and Fiscal
Year 1999, respectively.
DLJ also compared the 31.7% ownership interest that holders of May & Speh
Common Stock will have in the pro forma combined entity with the relative
contribution of May & Speh to the estimated net income of the pro forma
combined entity (determined by adding the net income of May & Speh and Acxiom
for Fiscal Year 1998 and Fiscal Year 1999). This analysis indicated that May &
Speh would contribute 28.4% and 28.8% of the net income of the pro forma
combined entity for Fiscal Year 1998 and Fiscal Year 1999, respectively.
DLJ then calculated the implied values per share of May & Speh Common Stock
by applying the financial data percentage contributions described above to the
pro forma equity value of the combined entity and dividing such data by May &
Speh's diluted shares. DLJ calculated per-share implied values of May & Speh
Common Stock as follows: $10.27 and $10.95 for Fiscal Year 1998 and Fiscal
Year 1999, respectively (based on contribution to the pro forma combined
entity's sales); $13.25 and $13.86 for Fiscal Year 1998 and Fiscal Year 1999,
respectively (based on contribution to the pro forma combined entity's
EBITDA); $16.51 and $16.59 for Fiscal Year 1998 and Fiscal Year 1999,
respectively (based on contribution to the pro forma combined entity's EBIT);
and $15.95 and $16.17 for Fiscal Year 1998 and Fiscal Year 1999, respectively
(based on contribution to the pro forma combined entity's net income), in each
case, as compared to the $17.80 implied value per share of May & Speh Common
Stock (based on the Exchange Ratio multiplied by the $22.25 per share closing
stock price of Acxiom Common Stock on May 22, 1998).
Discounted Cash Flow Analysis. DLJ performed a discounted cash flow ("DCF")
analysis (i.e., an analysis of the present value of projected cash flows using
the discount rates and terminal year EBITDA multiples indicated below) of May
& Speh using projections and assumptions provided by the management of May &
Speh. The DCF for May & Speh was estimated using discount rates ranging from
11% to 14% and terminal multiples of estimated EBITDA for May & Speh's fiscal
year ending September 30, 2003 ranging from 10.0x to 14.0x. This analysis
yielded an implied common equity value range of $17.22 to $25.26 per fully
diluted share of May & Speh Common Stock, as compared to the $17.80 implied
value per share of May & Speh Common Stock (based on the Exchange Ratio
multiplied by the $22.25 per share closing stock price of Acxiom Common Stock
on May 22, 1998).
The summary set forth above does not purport to be a complete description of
the analyses performed by DLJ but describes, in summary form, the principal
elements of the presentations made by DLJ to the May &
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Speh Board of Directors on May 22 and May 26, 1998. The preparation of a
fairness opinion involves various determinations as to the most appropriate
and relevant methods of financial analysis and the application of these
methods to the particular circumstances and, therefore, such an opinion is not
readily susceptible to summary description. Each of the analyses conducted by
DLJ was carried out in order to provide a different perspective on the
transaction and to add to the total mix of information available. DLJ did not
form a conclusion as to whether any individual analysis, considered in
isolation, supported or failed to support an opinion as to fairness from a
financial point of view. Rather, in reaching its conclusion, DLJ considered
the results of the analyses in light of each other and ultimately reached its
opinion based on the results of all analyses taken as a whole. Accordingly,
notwithstanding the separate factors summarized above, DLJ has indicated to
May & Speh that it believes that its analyses must be considered as a whole
and that selecting portions of its analyses and the factors considered by it,
without considering all analyses and factors, could create an incomplete view
of the evaluation process underlying its opinion. The analyses performed by
DLJ are not necessarily indicative of actual values or future results, which
may be significantly more or less favorable than suggested by such analyses.
Pursuant to the terms of an engagement agreement dated May 1, 1998, May &
Speh has agreed to pay DLJ (i) a fee of $750,000 upon delivery of the DLJ
Opinion, (ii) an additional fee of $50,000 for each additional or updated
opinion delivered by DLJ and (iii) an additional fee upon consummation of the
Merger. Upon consummation of the Merger, DLJ will receive a fee equal to (a)
one half of one percent (0.5%) of the aggregate amount of consideration
received by May & Speh stockholders (based on the fair market value of Acxiom
Common Stock as determined by the last sales price for such securities on the
last trading day thereof prior to the consummation of the Merger, and treating
any shares issuable upon exercise of options, warrants or other rights of
conversion as outstanding) (the "Consideration") up to and including $400
million; plus one and one half percent (1.5%) of the Consideration in excess
of $400 million up to and including $665 million; plus two and one half
percent (2.5%) of the Consideration in excess of $665 million; provided,
however, that the maximum fees to be received by DLJ under the engagement
agreement will in no event exceed in the aggregate one percent (1%) of the
Consideration. Any fees previously paid to DLJ pursuant to clauses (i) or (ii)
of the first sentence of this paragraph will be deducted from any fee to which
DLJ is entitled pursuant to the preceding sentence. In addition, May & Speh
has agreed to reimburse DLJ, upon request by DLJ from time to time, for
reasonable out-of-pocket expenses (including the reasonable fees and expenses
of counsel) incurred by DLJ in connection with its engagement thereunder, and
to indemnify DLJ and certain related persons against certain liabilities in
connection with its engagement, including liabilities under U.S. federal
securities laws. DLJ and May & Speh negotiated the terms of the fee
arrangement at arm's length, and the May & Speh Board of Directors was aware
of such arrangement, including the fact that a significant portion of the
aggregate fee payable to DLJ is contingent upon consummation of the Merger.
In the ordinary course of business, DLJ and its affiliates may own or
actively trade the securities of May & Speh and Acxiom for their own accounts
and for the accounts of their customers and, accordingly, may at any time hold
a long or short position in May & Speh or Acxiom securities. DLJ has performed
investment banking and other services for May & Speh in the past, including
serving as the lead managing underwriter in the March 1996 initial public
offering of May & Speh Common Stock and as the lead managing underwriter in
the March 1998 concurrent offering of May & Speh's 53% convertible
subordinated notes and common stock. In the past two years, May & Speh and its
affiliates have paid an aggregate of approximately $4.0 million to DLJ in
connection with investment banking services provided by DLJ.
TERMS OF THE MERGER
Set forth below is a brief description of certain terms of the Merger
Agreement. This description does not purport to be complete and is qualified
by reference to the Merger Agreement, a copy of which is attached hereto as
Annex A and is incorporated herein by reference.
Structure; Effective Time; Stockholder Approvals. Upon the satisfaction or
waiver of certain conditions set forth in the Merger Agreement, Sub shall be
merged with and into May & Speh, and the separate existence of Sub will
thereupon cease and May & Speh will survive the Merger (the "Surviving
Corporation") as a wholly
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owned subsidiary of Acxiom. The Merger will become effective when a properly
executed certificate of Merger (the "Certificate of Merger") is duly filed
with the Secretary of State of the State of Delaware or at such subsequent
time as Acxiom and May & Speh agree and is specified in the Certificate of
Merger (the "Effective Time"). The filing of the Certificate of Merger will
occur as soon as practicable after the date on which the transactions
contemplated by the Merger Agreement will have occurred.
The Merger Agreement provides that (i) the Certificate of Incorporation and
By-Laws of Sub will be the Certificate of Incorporation and By-Laws of the
Surviving Corporation, (ii) the directors of Sub at the Effective Time will be
the initial directors of the Surviving Corporation, and (iii) the officers of
May & Speh will be the initial officers of the Surviving Corporation.
Conversion of Shares. At the Effective Time, without any action on the part
of the holders of any of the capital stock of Sub or May & Speh, pursuant to
the Merger Agreement: (i) each share of May & Speh Common Stock issued and
outstanding immediately prior to the Effective Time (other than shares held by
Acxiom or any subsidiary of Acxiom) will be converted into the right to
receive 0.8 of a share of Acxiom Common Stock; (ii) each share held in the
treasury of May & Speh and each share held by Acxiom or any subsidiary of
Acxiom immediately prior to the Effective Time will be cancelled and retired
and cease to exist; and (iii) each share of Common Stock, par value $.01 per
share, of Sub issued and outstanding immediately prior to the Effective Time
will be converted into and exchangeable for one share of common stock of the
Surviving Corporation.
Exchange of Certificates. As soon as practicable after the Effective Time,
The First National Bank of Chicago, or such other bank or trust company which
may be designated in accordance with the Merger Agreement (the "Exchange
Agent"), will send transmittal forms to the former May & Speh stockholders, to
be used in forwarding their certificates representing May & Speh Common Stock
for surrender and exchange for (i) certificates representing the number of
shares of Acxiom Common Stock into which their May & Speh Common Stock was
converted in the Merger and (ii) cash for any fractional share interests in
such Acxiom Common Stock to which such holders otherwise would be entitled.
Until such surrender, certificates representing shares of May & Speh Common
Stock will be deemed to represent the number of shares of Acxiom Common Stock
into which such Common Stock was converted in the Merger, except that holders
of May & Speh certificates will not be entitled to receive dividends or any
other distribution from Acxiom until such certificates are so surrendered.
When such certificates are surrendered, the holders of the Acxiom certificates
issued in exchange therefor will be paid, without interest, any dividends or
other distributions which may have become payable with respect to such Acxiom
Common Stock since the Effective Time.
No Fractional Securities. No certificates or scrip representing fractional
shares of Acxiom Common Stock will be issued, and no dividend, stock split or
other change in the capital structure of Acxiom will relate to any fractional
share interest. A fractional share interest shall not entitle the owner
thereof to vote or to any rights of a Acxiom stockholder. In lieu of any such
fractional share interest, each holder of May & Speh Common Stock who
otherwise would be entitled to receive a fraction of a share of Acxiom Common
Stock in the Merger will be paid cash upon surrender of stock certificates for
exchange in an amount equal to the product of such fraction multiplied by the
closing sale price of Acxiom Common Stock on the NASDAQ National Market on the
day of the Effective Time, or if shares of Acxiom Common Stock are not so
traded on such day, the closing sale price on the next preceding day on which
such stock was traded on the NASDAQ National Market.
Conversion of Employee Stock Options. At the Effective Time, each
outstanding Employee Stock Option (as defined in the Merger Agreement) granted
under any employee stock option plan or program of May & Speh, whether or not
exercisable, shall be converted into an option to purchase the number of
shares of Acxiom Common Stock equal to the number of shares of May & Speh
Common Stock subject to such Employee Stock Option immediately prior to the
Effective Time multiplied by the Exchange Ratio (rounded to the nearest whole
number of shares of Acxiom Common Stock), at an exercise price per share equal
to the exercise price for each such share of May & Speh Common Stock subject
to such option divided by the Exchange Ratio (rounded down to the nearest
whole cent), and all references in each such Employee Stock Option to May &
Speh shall be deemed to refer to Acxiom, where appropriate.
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Certain Representations and Warranties. The Merger Agreement contains
various customary representations and warranties relating to, among other
things: (i) each of May & Speh's and Acxiom's and certain of their respective
subsidiaries', organization, existence, good standing and authority and
qualification to do business; (ii) each of May & Speh's and Acxiom's capital
structure and the ownership of Sub by Acxiom; (iii) each of May & Speh's and
Acxiom's subsidiaries; (iv) authorization, execution, delivery, performance
and enforceability of the Merger Agreement and related matters; (v) compliance
with applicable law; (vi) the absence of conflicts, violations or defaults
under each of May & Speh's and Acxiom's certificates of incorporation and by-
laws and certain other agreements and documents; (vii) government approvals
and required consents; (viii) the documents and reports filed with the
Commission and the accuracy of the information contained therein; (ix) subject
to certain exceptions, absence of certain specified material changes or events
and undisclosed liabilities; (x) litigation; (xi) employee plans; (xii)
patents, trademarks and other proprietary rights and information; (xiii)
certain tax matters; (xiv) material contracts and title to properties; (xv)
the inapplicability of May & Speh's Rights Agreement or Delaware's anti-
takeover statute to the Merger; (xvi) labor matters; (xvii) the lack of
ownership of Acxiom Common Stock by May & Speh or its subsidiaries and the
lack of ownership of May & Speh Common Stock by Acxiom; (xviii) the vote
required for approval of the Merger by the stockholders of May & Speh and
Acxiom; (xix) the receipt of opinions of DLJ in the case of May & Speh, and
Stephens, in the case of Acxiom regarding the fairness of the transaction from
a financial point of view; (xx) the absence of actions adversely affecting
pooling of interests accounting treatment; and (xxi) the accuracy of certain
information supplied by each of May & Speh and Acxiom in connection with the
Registration Statement and this Proxy Statement/Prospectus.
Irrevocable Proxies. As an inducement and a condition to entering into the
Merger Agreement, each of Lawrence J. Speh, Albert J. Speh, Jr. and certain
trusts of which Messrs. Speh and Speh are the trustees (the "May & Speh Proxy
Stockholders") granted irrevocable proxies (the "May & Speh Proxies") to
Acxiom.
Pursuant to the May & Speh Proxies, each of the May & Speh Proxy
Stockholders granted to Acxiom an irrevocable proxy to vote an aggregate of
2,892,895 shares of May & Speh Common Stock (representing approximately 11% of
the May & Speh Common Stock entitled to vote at the May & Speh Meeting as of
the May & Speh Record Date) owned of record by such stockholders in favor of
any proposal to approve and adopt the Merger Agreement and the transactions
contemplated thereby. If the power granted under the May & Speh Proxies is
unexercisable for any reason, each of the May & Speh Proxy Stockholders has
agreed to vote the shares of May & Speh Common Stock subject to the May & Speh
Proxies in favor of any proposal to approve and adopt the Merger Agreement and
the transactions contemplated thereby. Each of the May & Speh Proxies provides
that any shares of May & Speh Common Stock granted upon the exercise of any
Employee Stock Options by the May & Speh Proxy Stockholders during the term of
the May & Speh Proxies shall be subject to the proxy granted thereunder.
As an inducement and a condition to entering into the Merger Agreement,
Charles D. Morgan, the Chairman of the Board and Company Leader of Acxiom,
Robert A. Pritzker, a director of Acxiom, The Pritzker Foundation, a not-for-
profit foundation, one of the trustees of which is Mr. Pritzker, and Trans
Union Corporation ("Trans Union" and together with Messrs. Morgan and Pritzker
and The Pritzker Foundation, the "Acxiom Proxy Stockholders"), granted to May
& Speh irrevocable proxies (the "Acxiom Proxies") with respect to an aggregate
of 8,037,425 shares of Acxiom Common Stock (representing approximately 15% of
the Acxiom Common Stock entitled to vote at the Acxiom Meeting as of the
Acxiom Record Date) pursuant to which May & Speh has the power to vote such
shares in favor of any proposal to approve the issuance of the shares of
Acxiom Common Stock pursuant to the Merger Agreement and the transactions
contemplated thereby. If the power granted under the Acxiom Proxies is
unexercisable for any reason, each of the Acxiom Proxy Stockholders has agreed
to vote the shares of Acxiom Common Stock subject to the Acxiom Proxies in
favor of the Merger Proposal and the transactions contemplated thereby.
The May & Speh Proxy Stockholders and the Acxiom Proxy Stockholders have
agreed not to, directly or indirectly, sell, transfer, further pledge or
otherwise dispose of their shares, grant any subsequent proxies or enter into
any voting agreement or arrangement or voting trust with respect to their
shares. In addition, the May &
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Speh Proxy Stockholders have agreed not to initiate or solicit any inquiries
or proposals with respect to, or, subject to fiduciary duties, engage in
negotiations concerning or provide any confidential information 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 their shares),
May & Speh or any of their subsidiaries.
Each of the May & Speh Proxies and the proxy granted by Mr. Morgan will
terminate upon the earlier of (i) the effectiveness of the Merger, (ii) the
termination of the Merger Agreement, or (iii) notice of termination by Acxiom.
The proxies granted by The Pritzker Foundation, Trans Union and Mr. Pritzker
will terminate upon the earlier of (i) the effectiveness of the Merger, (ii)
the termination of the Merger Agreement, or (iii) October 31, 1998.
Copies of the Acxiom Proxies and the May & Speh Proxies are filed as
exhibits to the Merger Agreement which is attached hereto as Annex A.
Conduct of Business Pending the Merger. May & Speh has agreed that, among
other things, prior to consummation of the Merger, unless Acxiom shall
otherwise agree in writing or unless otherwise contemplated by the Merger
Agreement, (i) it will conduct its business and the businesses of its
subsidiaries only in the ordinary and usual course of business and consistent
with past practices, (ii) there will be no material changes in the conduct of
its operations, (iii) it will not: sell, pledge or agree to sell or pledge any
stock owned by it in any of its subsidiaries; amend its certificate of
incorporation or by-laws; or split, combine or reclassify any shares of its
outstanding capital stock or declare, set aside or pay any dividends or other
distributions payable in cash, stock or property, or redeem or otherwise
acquire any shares of its capital stock or shares of the capital stock of any
of its subsidiaries, (iv) neither it nor any of its subsidiaries will (a)
subject to certain exceptions authorize for issuance, issue or sell or agree
to issue or sell any additional shares of, or rights of any kind to acquire
any shares of, its capital stock of any class (whether through the issuance or
granting of options, warrants, commitments, subscriptions, rights to purchase
or otherwise; (b) acquire, dispose of or encumber any fixed assets or any
other substantial assets other than in the ordinary course of business and
consistent with past practices; (c) except for certain indebtedness not in
excess of $15,000,000, incur, assume, or prepay any indebtedness or any other
material liabilities other than in the ordinary course of business and
consistent with past practices; (d) assume or otherwise become directly,
contingently or otherwise liable or responsible for the obligations of any
person other than a May & Speh subsidiary in the ordinary course of business
and consistent with past practices; (e) make any loans, advances or capital
contributions to, or investments in, any other person, other than to its
subsidiaries; (f) authorize capital expenditures in excess of $1,000,000; (g)
make any tax (as hereinafter defined) election or settle or compromise any tax
liability; (h) change its fiscal year; (i) except as disclosed in Commission
reports filed prior to May 26, 1998, or as required by a governmental body or
agency; change its methods of accounting in effect at September 30, 1997,
except as required by changes in GAAP as concurred by May & Speh's independent
auditors; or (j) enter into any contract, agreement, commitment or arrangement
with respect to any of the foregoing, (v) neither it nor its Subsidiaries will
enter into any new employment agreements with any of their respective officers
or employees or grant any increases in the compensation of their respective
officers and employees other than increases in the ordinary course of the
business and consistent with past practice, or enter into, adopt or amend any
employee benefit plan, (vi) it will use its reasonable best efforts to
preserve the business organization of May & Speh and its subsidiaries, keep
available the services of its and their present officers and key employees,
and preserve the goodwill of those having business relationships with it and
its subsidiaries, and (vii) will not take, or allow to be taken by any of its
subsidiaries, any action which would jeopardize the treatment of Acxiom's
acquisition of May & Speh as a pooling of interests for accounting purposes or
jeopardize qualification of the Merger as a reorganization within the meaning
of Section 368(a) of the Code.
Acxiom has agreed that prior to the Effective Time, unless May & Speh shall
otherwise agree in writing, (i) it will conduct its businesses and the
businesses of its subsidiaries only in the ordinary and usual course of
business and consistent with past practices, (ii) there will be no material
changes in the conduct of Acxiom's operations, (iii) it will not: sell or
pledge or agree to sell or pledge any stock owned by it in any of its
subsidiaries, amend its certificate of incorporation or by-laws; split,
combine or reclassify any shares of its
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outstanding capital stock; declare, set aside or pay any dividend or other
distribution payable in cash, stock or property; redeem or otherwise acquire
any shares of its capital stock or shares of the capital stock of any of its
subsidiaries; or consolidate or merge with or into another company unless at
least 50% of the Board of Directors of the surviving entity are members of the
Board of Directors of Acxiom immediately prior to such merger or consolidation
or are otherwise designated by Acxiom, (iv) neither it nor any of it
subsidiaries will, authorize for issuance, issue or sell or agree to issue or
sell any additional shares of, or rights of any kind to acquire any shares of,
its capital stock of any class (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or
otherwise), or enter into any contract agreement, commitment or arrangement
with respect to the matters in this clause (iv); (v) it will use its
reasonable best efforts to preserve the business organization of Acxiom and
its subsidiaries, keep available the services of its and its subsidiaries'
present officers and key employees, and preserve the goodwill of those having
business relationships with it and its subsidiaries; and (vi) it will not
take, or allow any of its subsidiaries to take, any action which would
jeopardize the treatment of Acxiom's acquisition of May & Speh as a pooling of
interests for accounting purposes or jeopardize qualification of the Merger as
a reorganization within the meaning of Section 368(a) of the Code.
Pursuant to the Merger Agreement, from the date of the Merger Agreement to
the Effective Time, Sub will not engage in any activities of any nature except
as provided in or contemplated by the Merger Agreement.
Conditions to Consummation of the Merger. The respective obligations of
Acxiom and May & Speh to effect the Merger are subject to the following
conditions: (a) the approval and adoption of the Merger Agreement by May &
Speh and the Merger Proposal by Acxiom at each of their respective
Stockholders' Meetings, (b) the effectiveness of the Registration Statement,
(c) the receipt by Acxiom and May & Speh of the requisite consents from
governmental entities, including the expiration or termination of any
applicable waiting period under the HSR Act, (d) the absence of a preliminary
or permanent injunction or other order by any federal or state court in the
United States prohibiting consummation of the Merger, and (e) the receipt by
each of Acxiom and May & Speh of a letter from KPMG Peat Marwick LLP stating
that the May & Speh Merger will qualify as a pooling of interests transaction.
In addition, the obligation of May & Speh to effect the Merger is subject to
the satisfaction at or prior to the Effective Time of the conditions that: (a)
each of Acxiom and Sub has performed in all material respects its obligations
under the Merger Agreement required to be performed by it at or prior to the
Effective Time and the representations and warranties of Acxiom and Sub
contained in the Merger Agreement are true and correct in all material
respects at and as of the Effective Time as if made at and as of such time,
except as contemplated by the Merger Agreement, and (b) May & Speh receives an
opinion of Winston & Strawn regarding tax matters.
In addition, the obligation of Acxiom and Sub to effect the Merger is
subject to the satisfaction at or prior to the Effective Time of the
conditions that: (a) May & Speh has performed in all material respects its
obligations under the Merger Agreement required to be performed by it at or
prior to the Effective Time and the representations and warranties of May &
Speh contained in the Merger Agreement are true and correct in all material
respects at and as of the Effective Time as if made at and as of such time,
except as contemplated by the Merger Agreement, and (b) Acxiom receives an
opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax matters.
Acquisition Proposals. The Merger Agreement provides that, from and after
the date thereof, May & Speh will not and May & Speh and the May & Speh
Subsidiaries (as defined in the Merger Agreement) will use their best efforts
to cause their respective directors, officers, employees, financial advisors,
legal counsel, accountants and other agents and representatives not to
initiate or solicit, directly or indirectly, any inquiries or the making of
any proposal or offer with respect to, engage in negotiations concerning,
provide any information or data to, any person relating to any acquisition,
business combination or purchase (including by way of a tender or exchange
offer) of (i) all or any significant portion of the assets of May & Speh and
the May & Speh Subsidiaries, (ii) 15% or more of the outstanding shares of May
& Speh Common Stock, or (iii) 15% or more of the outstanding shares of capital
stock of any May & Speh Subsidiary (a "Takeover Proposal"), other than the
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Merger; provided, however, that nothing contained in Section 7.2 of the Merger
Agreement will prohibit the May & Speh Board of Directors from (i) furnishing
information to (but only pursuant to a confidentiality agreement in customary
form) or entering into discussions or negotiations with any person or group
that makes a Superior Proposal (as defined below) that was not solicited by
May & Speh or which did not otherwise result from a breach of Section 7.2 of
the Merger Agreement if, and only to the extent that, (x) the May & Speh Board
of Directors, based upon the advice of outside legal counsel, determines in
good faith that such action is reasonably necessary for the May & Speh Board
of Directors to comply with its fiduciary duties to stockholders imposed by
law, (y) concurrently with furnishing such information to, or entering into
discussions or negotiations with, such person or group making this Superior
Proposal, May & Speh provides written notice to Acxiom to the effect that it
is furnishing information to, or entering into discussions or negotiations
with, such person or group, and (z) May & Speh keeps Acxiom informed of the
status and all material information including the identity of such person or
group with respect to any such discussions or negotiations to the extent such
disclosure would not constitute a violation of any applicable law. A "Superior
Proposal" means any Takeover Proposal which the May & Speh Board of Directors
concludes in its good faith judgment (based on the advice of outside legal
counsel and a financial advisor of a nationally recognized reputation) to be
more favorable to May & Speh's stockholders than the Merger and for which
financing, to the extent required, is fully committed, subject to customary
conditions; provided, however, that the reference to "15%" in clauses (ii) and
(iii) of the definition of Takeover Proposal above will be deemed to be
references to "51%."
In addition, the Merger Agreement provides that May & Speh will, on the date
thereof, immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any person conducted theretofore with respect
to any of the foregoing and will notify Acxiom immediately in writing if any
such inquiries or proposals (including the material terms and conditions
thereof) are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with, May
& Speh. Nothing contained in the Merger Agreement will prohibit May & Speh
from taking and disclosing to its stockholders a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act or from making any disclosure to
its stockholders if, in the good faith judgment of the May & Speh Board of
Directors, after consultation with outside legal counsel, failure so to
disclose may be inconsistent with its obligations under applicable law.
Termination. The Merger Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of the Merger Agreement by
the stockholders of Acxiom or May & Speh, (i) by mutual consent of Acxiom, May
& Speh and Sub; (ii) by either Acxiom and Sub or May & Speh if the Merger has
not been consummated on or before December 31, 1998; (iii) by either Acxiom
and Sub or May & Speh if any one of the conditions to their respective
obligations to effect the Merger has not been met or waived prior to or at
such time as such condition can no longer be satisfied; (iv) by Acxiom and Sub
if a tender offer or exchange offer for 50% or more of the outstanding shares
of capital stock of May & Speh is commenced prior to the May & Speh Meeting
and the May & Speh Board of Directors fails to recommend against acceptance of
such tender offer or exchange offer by the May & Speh stockholders (including
by taking no position with respect to the acceptance of such tender offer or
exchange offer by its stockholders) within the time period specified by Rule
14e-2 of the Exchange Act; (v) by either Acxiom and Sub or May & Speh if the
approvals of the stockholders of either Acxiom or May & Speh contemplated by
the Merger Agreement have not been obtained by reason of the failure to obtain
the required vote at either of the Stockholders' Meetings or any adjournment
thereof; (vi) by Acxiom and Sub if the Board of Directors of May & Speh has
withdrawn or modified in a manner adverse to Acxiom its approval or
recommendation of the Merger Agreement and the transactions contemplated
thereby; (vii) by either May & Speh or Acxiom and Sub if the Board of
Directors of May & Speh reasonably determines that a Takeover Proposal
constitutes a Superior Proposal, except that May & Speh may not terminate the
Merger Agreement pursuant to this clause (vii) unless and until (a) three
business days have elapsed following delivery to Acxiom of a written notice of
such determination by the Board of Directors of May & Speh and during such
three business day period May & Speh (x) informs Acxiom of the terms and
conditions of the Takeover Proposal and the identity of the person making the
Takeover Proposal, and (y) otherwise reasonably cooperates with Acxiom with
respect thereto (subject to the condition that the May & Speh Board of
Directors shall not be
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required to take any action that it believes, after consultation with outside
legal counsel, would present a reasonable possibility of violating its
obligations to May & Speh or May & Speh's stockholders under applicable law)
with the intent of providing Acxiom with the opportunity to offer to modify
the terms and conditions of the Merger Agreement so that the transactions
contemplated thereby may be effected, (b) at the end of such three business
day period the May & Speh Board of Directors continues reasonably to believe
that the Takeover Proposal constitutes a Superior Proposal, (c) simultaneously
with such termination May & Speh enters into a definitive acquisition, merger
or similar agreement to effect the Superior Proposal and (d) simultaneously
with such termination, May & Speh pays to Acxiom the Acxiom Termination Fee
and fees and expenses as set forth below, under "Expenses; Termination Fees;"
(viii) by May & Speh if the Board of Directors of Acxiom has withdrawn or
modified in a manner adverse to May & Speh its approval or recommendation of
the Merger Agreement and the transactions contemplated thereby; or (ix) by
either May & Speh or Acxiom and Sub if there has been a material breach by the
other of any of its representations, warranties, covenants or agreements
contained in the Merger Agreement or the Option Agreements, which if not cured
would cause the conditions to consummation of the Merger discussed in clauses
(a) of the second and third paragraphs under "THE MERGER--Terms of the
Merger--Conditions to Consummation of the Merger" not to be satisfied, and
such breach has not been cured within 30 days after notice thereof has been
received by the party alleged to be in breach.
Expenses; Termination Fees. Except as set forth below, whether or not the
Merger is consummated, all costs and expenses incurred in connection with the
Merger Agreement and the transactions contemplated thereby will be paid by the
party incurring such expenses, except that expenses incurred in connection
with printing the Registration Statement and the Proxy Statement/Prospectus as
well as the filing fee relating to the Registration Statement will be shared
equally by Acxiom and May & Speh. May & Speh must pay Acxiom a fee of $20
million in immediately available funds and reimburse Acxiom and Sub for up to
$2.5 million in out-of-pocket fees and expenses (i) if the Merger Agreement is
terminated by (x) Acxiom and Sub pursuant to clauses (iv) or (vi) under
"Termination" above or (y) Acxiom and Sub or by May & Speh pursuant to clause
(vii) under "Termination" above, or (ii) (x) prior to the termination of the
Merger Agreement, a Takeover Proposal is commenced, publicly proposed or
publicly disclosed and not withdrawn, (y) the Merger Agreement is terminated
by Acxiom and Sub or May & Speh pursuant to clause (v) under "Termination"
above (but only due to the failure by May & Speh's stockholders to approve the
Merger) and (z) concurrently with or within twelve months after such
termination a Takeover Proposal has been consummated. Acxiom must pay May &
Speh a fee of $20 million in immediately available funds and reimburse May &
Speh for up to $2.5 million in out-of-pocket fees and expenses if (i) the
Merger Agreement is terminated by May & Speh pursuant to clause (viii) under
"Termination" above or (ii) (x) prior to the termination the Merger Agreement,
a proposal or offer with respect to any acquisition or purchase of all or any
significant portion of the assets of, or 15% or more of the outstanding shares
of capital stock of Acxiom is commenced, publicly proposed or publicly
disclosed and not withdrawn, (y) the Merger Agreement is terminated by May &
Speh pursuant to clause (v) under "Termination" above (but only due to the
failure by Acxiom's stockholders to approve the issuance of Acxiom Common
Stock pursuant to the Merger) and (z) concurrently with or within twelve
months after such termination such takeover proposal has been consummated.
General Provisions. The Merger Agreement contains various customary general
provisions relating to, among other things, the survival of representations
and warranties and agreements, brokers, notices, governing law, and certain
definitions.
Amendment and Waiver. The Merger Agreement may be amended by action of
Acxiom, Sub and May & Speh at any time before or after the approval of the
Merger Agreement; provided however, that after any such approval, no amendment
will be made which alters the Exchange Ratio. The Merger Agreement may not be
amended except by an instrument in writing signed by each of the parties
thereto. Prior to the Effective Time, Acxiom, Sub and May & Speh may extend
the time for performance of any of the obligations of the other parties to the
Merger Agreement and may waive any inaccuracies in the representations and
warranties contained therein or compliance with any agreements or conditions
contained therein. Any agreement to any extension or waiver
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on the part of a party to the Merger Agreement will be valid only if set forth
in an instrument in writing signed on behalf of each party to the Merger
Agreement.
By-Law Indemnification and Insurance. The Merger Agreement provides that
Acxiom will cause the Surviving Corporation to keep in effect in its by-laws a
provision for a period of not less than six years from the Effective Time (or,
in the case of matters occurring prior to the Effective Time which have not
been resolved prior to the sixth anniversary of the Effective Time, until such
matters are finally resolved) providing for indemnification of the past and
present officers and directors (the "Indemnified Parties") of May & Speh to
the fullest extent permitted by the DGCL. For six years from the Effective
Time, Acxiom will indemnify the Indemnified Parties to the same extent as such
Indemnified Parties are entitled to indemnification as discussed in the
preceding sentence. In addition, for a period of six years from the Effective
Time, Acxiom will either cause to be maintained in effect the current policies
of directors' and officers' liability insurance maintained by May & Speh or
provide substitute policies of at least the same coverage and amounts
containing terms and conditions which are, in the aggregate, no less
advantageous to the insured with respect to claims arising from facts or
events that occurred on or before the Effective Time, except that in no event
will Acxiom be required to pay with respect to such insurance policies in any
one year more than $200,000.
Regulatory Approval. Under the HSR Act, and the rules promulgated thereunder
by the FTC, the Merger cannot be consummated until notification has been given
and certain information has been furnished to the FTC and the Antitrust
Division and specified waiting period requirements have been satisfied. Acxiom
and May & Speh each filed notification and report forms under the HSR Act with
the FTC and the Antitrust Division on June 30, 1998 with respect to the
Merger. The required waiting period expired on July 30, 1998 with respect to
the Merger without Acxiom or May & Speh receiving a request for additional
information or documentary material. At any time before or after consummation
of the Merger, the Antitrust Division or the FTC could take such action under
the antitrust laws as it deems necessary or desirable in the public interest,
including seeking to enjoin the consummation of the Merger, or seeking
divestiture of substantial assets of Acxiom or May & Speh. At any time before
or after the Effective Time, and notwithstanding that the HSR Act waiting
period has expired, any State could take such action under the antitrust laws
as it deems necessary or desirable. Such action could include seeking to
enjoin the consummation of the Merger, or seeking divestiture of substantial
assets of Acxiom or May & Speh. Private parties may also seek to take legal
action under the antitrust laws under certain circumstances.
Reciprocal Stock Option Agreements. As an inducement to enter into the
Merger Agreement, each of Acxiom and May & Speh granted a stock option to the
other party. Pursuant to the Option Agreements, each party granted the other
an option to purchase shares of the other party's common stock representing
approximately 19.9% of the shares of such common stock issued and outstanding
at such time. The options may only be exercised upon the occurrence of certain
Purchase Events (none of which has occurred as of the date hereof). Pursuant
to the Acxiom Option Agreement, May & Speh granted Acxiom the Acxiom Option to
purchase 5,188,657.146 shares of May & Speh Common Stock at the Acxiom Option
Purchase Price, subject to the terms and conditions set forth therein.
Pursuant to the May & Speh Option Agreement, Acxiom granted May & Speh the May
& Speh Option to purchase 10,436,929.72 shares of Acxiom Common Stock at the
May & Speh Option Purchase Price, subject to the terms and conditions set
forth therein.
The Acxiom Option Agreement and the May & Speh Option Agreement are attached
as Annex B and Annex C, respectively, to this Proxy Statement/Prospectus and
are incorporated herein by reference. See "CERTAIN RELATED TRANSACTIONS
BETWEEN ACXIOM AND MAY & SPEH--Reciprocal Option Agreements."
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Acxiom. Other than 500 shares of May & Speh Common Stock owned by Harry C.
Gambill, a director of Acxiom, no director or executive officer of Acxiom or
Sub owns any shares of May & Speh Common Stock.
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May & Speh. In considering the unanimous recommendation of the May & Speh
Board with respect to the Merger Agreement, May & Speh stockholders should be
aware that certain officers and directors of May & Speh (or their affiliates)
have interests in the Merger that are different from and in addition to the
interests of May & Speh stockholders and the Acxiom stockholders generally.
The May & Speh Board and the Acxiom Board were aware of these interests and
took these interests into account in approving the Merger Agreement and the
transactions contemplated thereby.
May & Speh Options; Acceleration of Vesting. At the Effective Time, each
outstanding May & Speh Employee Stock Option, whether or not exercisable, will
be converted into an option (an "Acxiom Exchange Option") to purchase the
number of shares of Acxiom Common Stock equal to the number of shares of May &
Speh Common Stock subject to such Employee Stock Option immediately prior to
the Effective Time multiplied by the Exchange Ratio, at an exercise price per
share equal to the exercise price for each such share of May & Speh Common
Stock subject to such Employee Stock Option divided by the Exchange Ratio, and
all references in each such Employee Stock Option to May & Speh shall be
deemed to refer to Acxiom, where appropriate. Substantially all of the
executive officers and directors of May & Speh currently hold May & Speh
Employee Stock Options which will become Acxiom Exchange Options.
Substantially all of the options granted under the May & Speh stock option
plans and programs (the "Option Plans") vest in equal annual installments over
a five-year period. As of the May & Speh Record Date, 4,977,503 shares of May
& Speh Common Stock were subject to outstanding options under the Option
Plans, of which options to purchase 3,976,900 shares were not yet exercisable.
The Option Plans provide that, subject to certain exceptions, all
unexercisable options will become immediately exercisable upon a "Change in
Control" of May & Speh, which such plans define to include, among other
things, the acquisition by any person of 51% or more of the May & Speh Common
Stock within a six-month period. Since Acxiom will acquire 100% of the voting
stock of May & Speh in the Merger, substantially all options held by May &
Speh employees to acquire May & Speh Common Stock will become exercisable upon
the consummation of the Merger. As of the May & Speh Record Date, Messrs.
Mason, Loeffler, Early, Loughmiller, Terrance C. Cieslak and Lawrence J. Speh
(former Chief Executive Officer of May & Speh and currently a director), and
all other May & Speh directors and other current and certain former executive
officers as a group, held options to purchase 916,600, 383,100, 460,803,
175,000, 200,600, 360,000 and 633,100 shares of May & Speh Common Stock,
respectively, of which options to purchase 723,200, 292,000, 340,000, 175,000,
132,800, 360,000 and 447,200 shares, with average exercise prices of $10.57,
$9.66, $4.32, $8.50, $8.34, $2.08 and $9.65, respectively, were unexercisable
as of that date. All of such options will become exercisable upon the
consummation of the Merger. Mr. Mason is also party to an agreement with May &
Speh as of October 1, 1997 which entitles him to receive up to an additional
$525,000 cash payment from May & Speh upon the exercise of certain options
granted to him on October 1, 1997, which options will become exercisable upon
consummation of the Merger.
Four of the current outside directors of May & Speh will enter into a three-
year consulting agreement with Acxiom pursuant to which each such director
will make himself or herself available for certain consulting services to
Acxiom for an annual fee of $100 plus an hourly consulting fee. All May & Speh
Employee Stock Options (which options will be converted into Acxiom Exchange
Options as described above) held by such directors will remain exercisable for
a period of three years following the Effective Time. Each employee of May &
Speh who has executed an affiliate agreement will enter into an agreement with
Acxiom pursuant to which Acxiom will agree that in the event that such
employee is terminated by Acxiom, Acxiom will enter into a consulting
agreement with such employee that will provide for such employee to make
himself or herself available for certain consulting services to Acxiom for a
period ending six months following the Effective Time of the Merger. All May &
Speh Employee Stock Options (which options will be converted into Acxiom
Exchange Options as described above) held by such employees who have been
terminated by Acxiom will remain exercisable for a period ending six months
following the Effective Time of the Merger. In the event that following the
Merger any employee of May & Speh who has executed an affiliate agreement
terminates his or her employment with Acxiom, such employee will have a period
of 30 days following such termination to exercise all exercisable May & Speh
Employee Stock Options (which options will be converted into Acxiom Exchange
Options as described above).
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Acxiom has agreed under the Merger Agreement to file with the Commission no
later than the Effective Time a registration statement on Form S-8 (or other
appropriate form under the Securities Act) to register the Acxiom Common Stock
issuable upon exercise of the Acxiom Exchange Options and to keep such
registration statement effective at least as long as the Acxiom Exchange
Options are outstanding.
Employment Agreements. Each of Messrs. Mason, Loeffler, Early and
Loughmiller are party to an employment agreement with May & Speh. Their
current employment agreements, which expire April 2002, October 2002, October
2002 and January 2002, respectively, provide for minimum annual base salaries
of $400,000, $300,000, $300,000 and $200,000, respectively. Each of these
employment agreements contemplates participation by the executive officer in
May & Speh's executive bonus plan and other fringe benefits. The agreements of
Messrs. Mason, Loeffler and Early also provide for severance compensation
payable as a lump sum if termination occurs, for among other reasons, by May &
Speh following a "Change in Control" of May & Speh, as defined in such
agreements, or voluntarily by the individual executive for "Good Reason," as
defined in such agreements. The change in control that will be deemed to
result from the consummation of the Merger is within such definition of
"Change in Control," and a voluntary termination following such a "Change in
Control" is within the definition of Good Reason, as defined in such
agreements. Mr. Mason's agreement entitles him to severance equal to three
times his base salary and certain benefits if he is terminated by May & Speh
or if he terminates his employment voluntarily following the Merger. Messrs.
Loeffler and Early are entitled to severance equal to three times their base
salary if either such executive is terminated by May & Speh following the
Merger. If either such executive terminates his employment voluntarily
following the Merger, Mr. Loeffler would be entitled to severance equal to two
times his base salary and Mr. Early would be entitled to severance equal to
one and one-half times his base salary. Additionally, Messrs. Mason, Loeffler
and Early are entitled under their employment agreements to tax gross-up
payments if any payments received by such executives pursuant to the
employment agreements or pursuant to any other company plans or arrangements
become subject to the excise tax imposed by Section 4999 of the Code.
Under Mr. Loughmiller's employment agreement, if such executive's employment
is terminated without "Cause" in contemplation of or following a "Change in
Control," such executive will be entitled to severance equal to his then-
existing salary through July 15, 1999 less any profits on vested but
unexercised stock options, but in no event less than three months severance
pay. The Merger will constitute a "Change in Control" as defined in such
agreement.
No firm commitments have been made to May & Speh's current executive
officers in respect of their positions with Acxiom following the Effective
Date of the Merger. In the event of the termination of employment of such
executive officers by Acxiom immediately following the Merger or, in the case
of Mr. Mason, if Mr. Mason terminates his employment voluntarily, the amount
of such severance compensation (in addition to the economic value received
from unexercisable options becoming exercisable upon consummation of the
Merger as discussed above) payable to Messrs. Mason, Loeffler, Early and
Loughmiller based upon the Acxiom Common Stock closing price per share of
$24.25 on July 27, 1998, would be approximately $3,412,438 (including
$2,112,438 in tax gross-up payments, which payments would increase with an
increase in the assumed price per share of Acxiom Common Stock), $900,000,
$900,000 and $52,500, respectively.
Employee Benefits. From and after the Effective Time, Acxiom has agreed to
give May & Speh employees as of the Effective Time full credit, for purposes
of eligibility, vesting and determination of the level of benefits (but not
for the purpose of benefit accrual under any defined benefit plan) under any
employee benefit plans or arrangements maintained by Acxiom, for such
employees' service with May & Speh to the same extent recognized by May & Speh
prior to the Effective Time. Acxiom has also agreed to (i) waive all
limitations as to preexisting conditions exclusions and waiting periods with
respect to participation and coverage requirements applicable to May & Speh
employees under Acxiom welfare benefit plans that such employees may be
eligible to participate in after the Effective Time (other than limitations or
waiting periods that are already in effect with respect to such employees that
have not been satisfied as of the Effective Time under any welfare plan
maintained for such employees immediately prior to the Effective Time), and
(ii) provide May & Speh employees with credit for any co-payments and
deductibles paid prior to the Effective Time in satisfying any applicable
deductible or
44
<PAGE>
out-of-pocket requirements under any Acxiom welfare plans that such employees
are eligible to participate in after the Effective Time.
Indemnification; Insurance. In the Merger Agreement, Acxiom has agreed, for
a period of six years following the Effective Time, to (i) cause May & Speh to
keep in effect a by-law provision providing for indemnification of past and
present officers and directors of May & Speh to the fullest extent permitted
by the DGCL, and (ii) indemnify such officers and directors to the same extent
as they are entitled to indemnification pursuant to such by-law provision.
Acxiom has also agreed to maintain in effect, for a period of six years after
the Effective Time, May & Speh's current policies of directors' and officers'
liability insurance, or to provide substitute policies of at least the same
coverage and amounts containing terms and conditions which, in the aggregate,
are no less advantageous to the insured with respect to claims arising from
facts or events that occurred on or prior to the Effective Time; provided,
however, that in no event will Acxiom be required to pay in any one year more
than $200,000 with respect to such insurance policies. See "VOTING RIGHTS AND
PROXIES" and "THE MERGER--Terms of the Merger--Irrevocable Proxies."
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
In the opinions of Winston & Strawn, tax counsel to May & Speh, and Skadden,
Arps, Slate, Meagher & Flom LLP, tax counsel to Acxiom, subject to the
qualifications set forth below and contained herein, the following is a
summary of the material United States federal income tax consequences of the
Merger to holders of May & Speh Common Stock who exchange such stock for
Acxiom Common Stock pursuant to the Merger Agreement. The following summary
addresses only such stockholders who hold their May & Speh Common Stock as a
capital asset and does not address all of the United States federal income tax
consequences that may be relevant to particular stockholders in light of their
individual circumstances or to stockholders who are subject to special rules
(including, without limitation, financial institutions, tax-exempt
organizations, insurance companies, dealers in securities or foreign
currencies, foreign holders, persons who hold such shares as a hedge against
currency risk, or a constructive sale or conversion transaction, or holders
who acquired their shares pursuant to the exercise of employee stock options
or otherwise as compensation). The following summary is not binding on the
IRS. It is based upon the Code, laws, regulations, rulings and decisions in
effect as of the date hereof, all of which are subject to change, possibly
with retroactive effect. Tax consequences under state, local, and other
foreign laws are not addressed herein. HOLDERS OF MAY & SPEH COMMON STOCK ARE
STRONGLY URGED TO CONSULT THEIR TAX ADVISORS AS TO THE SPECIFIC TAX
CONSEQUENCES TO THEM OF THE MERGER, INCLUDING THE APPLICABILITY AND EFFECT OF
FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS IN THEIR
PARTICULAR CIRCUMSTANCES.
No ruling has been (or will be) sought from the IRS as to the United States
federal income tax consequences of the Merger. It is a condition to the
consummation of the Merger that May & Speh receive an opinion from its tax
counsel, Winston & Strawn, and that Acxiom receive an opinion from its tax
counsel, Skadden, Arps, Slate, Meagher & Flom LLP, to the effect that, based
upon certain facts, representations and assumptions, the Merger will
constitute a reorganization within the meaning of Section 368(a) of the Code.
The issuance of such opinions is conditioned on, among other things, such tax
counsels' receipt of representation letters from each of Acxiom, Sub and May &
Speh, in each case, in form and substance reasonably satisfactory to each such
tax counsel. The following discussion assumes that the Merger constitutes a
reorganization within the meaning of Section 368(a) of the Code.
Based on the above assumptions and qualifications, holders of May & Speh
Common Stock who exchange their May & Speh Common Stock for Acxiom Common
Stock pursuant to the Merger Agreement will not recognize gain or loss for
United States federal income tax purposes, except with respect to cash, if
any, they receive in lieu of fractional shares of Acxiom Common Stock. Holders
of May & Speh Common Stock who receive cash in lieu of fractional shares of
Acxiom Common Stock in the Merger generally will be treated as if the
fractional shares of Acxiom Common Stock had been distributed to them as part
of the Merger and then redeemed by Acxiom in exchange for the cash actually
distributed in lieu of the fractional shares, with such
45
<PAGE>
redemption qualifying as an exchange under Section 302 of the Code.
Consequently, such holders generally will recognize capital gain or loss with
respect to cash payments they receive in lieu of fractional shares. In the
case of an individual stockholder, any such capital gain will be subject to a
maximum federal income tax rate of 20% if the individual held his or her May &
Speh Common Stock for more than 12 months at the Effective Time. The
deductibility of capital losses is subject to limitations for both individuals
and corporations.
Each holder's aggregate tax basis in the Acxiom Common Stock received in the
Merger will be the same as his or her aggregate tax basis in the May & Speh
Common Stock exchanged therefor, decreased by the amount of any tax basis
allocable to any fractional share interest for which cash is received. The
holding period of the Acxiom Common Stock received by a May & Speh stockholder
pursuant to the Merger Agreement will include the holding period of the May &
Speh Common Stock surrendered in exchange therefor.
ACCOUNTING TREATMENT OF THE MERGER
Consummation of the Merger is conditioned upon qualification of the Merger
under the pooling of interests method of accounting and the receipt by each of
Acxiom, Sub and May & Speh of an opinion from KPMG Peat Marwick LLP,
independent certified public accountants, to the effect that the Merger
qualifies for the pooling of interests method of accounting treatment if
consummated in accordance with the terms of the Merger Agreement. Under the
pooling of interests method of accounting, the historical cost basis of the
assets and liabilities of Acxiom and May & Speh will be combined and carried
forward at their previously recorded amounts, and the stockholders' equity
accounts of Acxiom and May & Speh will be combined on Acxiom's consolidated
balance sheet. Income and other financial statements of Acxiom issued after
consummation of the Merger will be restated retroactively to reflect the
consolidated operations of Acxiom and May & Speh as if the Merger had taken
place prior to the periods covered by such financial statements.
The unaudited pro forma combined information contained in this Proxy
Statement/Prospectus has been prepared using the pooling of interests
accounting method. See "THE MERGER--Pro Forma Financial Information."
PERCENTAGE OWNERSHIP INTEREST OF MAY & SPEH STOCKHOLDERS AFTER THE MERGER
Assuming that there will be 52,521,326 shares of Acxiom Common Stock and
26,073,654 shares of May & Speh Common Stock outstanding immediately prior to
the Effective Time, the number of shares of Acxiom Common Stock to be issued
in the Merger would be approximately 20,858,923 (not including any shares of
Acxiom Common Stock issued upon the exercise of May & Speh warrants or the
conversion of May & Speh's 5.25% convertible subordinated notes or shares of
Acxiom Common Stock issued after the Effective Time of the Merger under May &
Speh Option Plans assumed by Acxiom) which would represent approximately
28.43% of the outstanding Acxiom Common Stock immediately after the Effective
Time.
APPRAISAL RIGHTS
Under the DGCL, the transactions contemplated by the Merger Agreement and
the issuance of Acxiom Common Stock pursuant to the Merger Agreement do not
give rise to any appraisal or dissenters' rights to holders of Acxiom Common
Stock.
Under the DGCL, May & Speh stockholders are not entitled to any appraisal or
dissenters' rights in connection with the Merger because the May & Speh Common
Stock is listed on the NASDAQ National Market System and the consideration
which such stockholders will be entitled to receive in the Merger will consist
solely of Acxiom Common Stock, which will also be listed on the NASDAQ
National Market System, and cash in lieu of fractional shares.
46
<PAGE>
PRO FORMA FINANCIAL INFORMATION
ACXIOM CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following unaudited pro forma combined condensed balance sheet as of
June 30, 1998, and unaudited pro forma combined condensed statements of
earnings for the three months ended June 30, 1998 and the years ended March
31, 1998, 1997 and 1996 give effect to the Merger using the pooling of
interests method of accounting. For a description of pooling of interests
accounting with respect to the Merger and certain other accounting matters,
see "THE MERGER--Anticipated Accounting Treatment."
The unaudited pro forma combined condensed statements of earnings give
effect to the Merger as if it had been consummated at the beginning of the
periods presented by combining the results of operations of Acxiom for the
three months ended June 30, 1998 and the fiscal years ended March 31, and the
results of operations of May & Speh for the three months ended June 30, 1998
and the twelve months ended March 31. The unaudited pro forma combined balance
sheet gives effect to the Merger as if it had been consummated as of the date
presented by combining the balance sheet of Acxiom at June 30 and the balance
sheet of May & Speh at June 30. The unaudited pro forma combined condensed
financial information has been included for illustrative purposes only and is
not necessarily indicative of the results of operations or financial position
that would have occurred had the Merger been consummated at the dates
indicated, nor is it necessarily indicative of future results of operations or
financial position of the merged companies. The unaudited pro forma combined
condensed financial statements have been derived from, should be read in
conjunction with and are qualified in their entirety by reference to the
historical consolidated financial statements and notes thereto of Acxiom and
May & Speh, which are incorporated by reference in this Proxy
Statement/Prospectus. See "INCORPORATION OF DOCUMENTS BY REFERENCE."
Acxiom expects to incur certain non-recurring expenses related to the
Merger, presently estimated to be $15.1 million ($13.8 million after tax).
These expenses would include, but would not be limited to, professional fees,
fees of financial advisors, certain compensation-related expenses and similar
expenses. Although Acxiom believes this estimate of non-recurring expenses is
accurate, certain material additional costs may be incurred in connection with
the Merger. Merger-related expenses will be charged to operations in the
quarter in which the Merger is concluded, which is currently estimated to
occur in the second quarter of fiscal 1999. These non-recurring merger-related
expenses have been charged to stockholders' equity for purposes of the
unaudited pro forma balance sheet. In addition, Acxiom is developing a plan to
integrate the operations of May & Speh after the Merger. In connection with
that plan, Acxiom will determine to what extent Acxiom and May & Speh
facilities, software, equipment and vendor contracts are duplicative and
anticipates that certain non-recurring charges will be incurred in connection
with such integration. Pending completion of the plan, which will include
discussions with customers and vendors, Acxiom cannot identify the timing,
nature and amount of such charges as of the date of this Proxy
Statement/Prospectus. However, it is expected that such charges could be as
much as $50-100 million. Any such charges could affect Axciom's results of
operations in the period in which such charges are recorded. Because the
foregoing charges are non-recurring in nature, they have not been reflected in
the accompanying unaudited pro forma combined statements of earnings.
47
<PAGE>
ACXIOM CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEET
(IN THOUSANDS)
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA
-------------------- -----------------------
JUNE 30, 1998
-------------------- ADD (DEDUCT)
ACXIOM MAY & SPEH ADJUSTMENTS COMBINED
-------- ---------- ------------ --------
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS.................... $132,802 $146,939 -- $279,741
PROPERTY AND EQUIPMENT, NET....... 134,321 69,276 -- 203,597
SOFTWARE, NET..................... 27,597 4,837 -- 32,434
EXCESS OF COST OVER FAIR VALUE OF
NET ASSETS ACQUIRED, NET......... 56,677 40,220 -- 96,897
OTHER ASSETS ..................... 82,358 21,860 104,218
-------- -------- ------- --------
Total assets.................. $433,755 $283,132 -- $716,887
======== ======== ======= ========
LIABILITIES
AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES............... $ 61,315 $ 23,675 $15,100 (2) $100,090
LONG-TERM DEBT.................... 137,161 144,304 -- 281,465
DEFERRED INCOME TAXES............. 25,965 8,090 (1,300)(2) 32,755
STOCKHOLDERS' EQUITY..............
Common stock.................... 5,328 261 1,816 (3) 7,405
Additional paid-in capital...... 70,713 54,101 (1,816)(3) 122,998
Retained earnings............... 134,626 53,889 (13,800)(2) 174,715
Foreign currency translation ad-
justment....................... 750 -- -- 750
Unearned ESOP compensation...... -- (1,188) -- (1,188)
Treasury stock ................. (2,103) -- -- (2,103)
-------- -------- ------- --------
Total stockholders' equity ... 209,314 107,063 (13,800) 302,577
-------- -------- ------- --------
Total liabilities and
stockholders' equity......... $433,755 $283,132 -- $716,887
======== ======== ======= ========
</TABLE>
See accompanying notes to unaudited pro forma combined condensed financial
statements.
48
<PAGE>
ACXIOM CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED
JUNE 30, 1998
------------------------------
HISTORICAL
-------------------- PRO FORMA
ACXIOM MAY & SPEH COMBINED
-------- ---------- ---------
<S> <C> <C> <C>
REVENUE......................................... $128,608 $30,201 $158,809
-------- ------- --------
OPERATING COSTS AND EXPENSES
Salaries and benefits......................... 50,911 10,277 61,188
Computer, communication and other equipment... 17,355 7,261 24,616
Data costs.................................... 25,260 230 25,490
Other operating costs and expenses............ 22,245 5,560 27,805
-------- ------- --------
Total operating costs and expenses.......... 115,771 23,328 139,099
-------- ------- --------
Operating income................................ 12,837 6,873 19,710
Other income, net............................... 945 1,546 2,491
Interest expense................................ (2,210) (1,866) (4,076)
-------- ------- --------
Earnings before taxes........................... 11,572 6,553 18,125
Income taxes.................................... 4,281 2,486 6,767
-------- ------- --------
Net earnings.................................... $ 7,291 $ 4,067 $ 11,358
======== ======= ========
Earnings per share
Basic......................................... .14 .16 .15
Diluted....................................... .12 .15 .13
Average number of common shares outstanding.....
Basic......................................... 52,430 26,067 73,284
Diluted....................................... 60,548 34,566 88,201
</TABLE>
See accompanying notes to unaudited pro forma combined condensed financial
statements.
49
<PAGE>
ACXIOM CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR ENDED
MARCH 31, 1998
------------------------------
HISTORICAL
-------------------- PRO FORMA
ACXIOM MAY & SPEH COMBINED
-------- ---------- ---------
<S> <C> <C> <C>
REVENUE......................................... $465,065 $103,955 $569,020
-------- -------- --------
OPERATING COSTS AND EXPENSES
Salaries and benefits......................... 173,925 35,742 209,667
Computer, communication and other equipment... 60,858 26,014 86,872
Data costs.................................... 86,483 1,763 88,246
Other operating costs and expenses............ 84,354 15,919 100,273
Severance costs............................... -- 4,700 4,700
-------- -------- --------
Total operating costs and expenses.......... 405,620 84,138 489,758
-------- -------- --------
Operating income................................ 59,445 19,817 79,262
Other income, net............................... 3,014 1,281 4,295
Interest expense................................ (5,956) (3,073) (9,029)
-------- -------- --------
Earnings before taxes........................... 56,503 18,025 74,528
Income taxes.................................... 20,906 6,848 27,754
-------- -------- --------
Net earnings.................................... $35,597 $11,177 $46,774
======== ======== ========
Earnings per share
Basic......................................... .68 .44 .65
Diluted....................................... .60 .42 .58
Average number of common shares outstanding
Basic......................................... 52,043 25,194 72,199
Diluted....................................... 59,687 26,400 80,807
</TABLE>
See accompanying notes to unaudited pro forma combined condensed financial
statements.
50
<PAGE>
ACXIOM CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR ENDED
MARCH 31, 1997
------------------------------
HISTORICAL
-------------------- PRO FORMA
ACXIOM MAY & SPEH COMBINED
--------- ---------- ---------
<S> <C> <C> <C>
REVENUE.......................................... $ 402,016 $ 84,968 $ 486,984
--------- -------- ---------
OPERATING COSTS AND EXPENSES
Salaries and benefits.......................... 145,038 29,230 174,268
Computer, communication and other equipment.... 58,552 19,816 78,368
Data costs..................................... 76,282 1,612 77,894
Other operating costs and expenses............. 72,817 16,154 88,971
--------- -------- ---------
Total operating costs and expenses........... 352,689 66,812 419,501
--------- -------- ---------
Operating income................................. 49,327 18,156 67,483
Other income (expense), net...................... (1,386) 1,565 179
Interest expense................................. (3,903) (2,184) (6,087)
--------- -------- ---------
Earnings before taxes............................ 44,038 17,537 61,575
Income taxes..................................... 16,526 6,558 23,084
--------- -------- ---------
Net earnings..................................... $ 27,512 $ 10,979 $ 38,491
========= ======== =========
Earnings per share
Basic.......................................... .54 .44 .54
Diluted........................................ .47 .42 .48
Average number of common shares outstanding
Basic.......................................... 51,172 24,897 71,090
Diluted........................................ 59,143 26,093 80,017
</TABLE>
See accompanying notes to unaudited pro forma combined condensed financial
statements.
51
<PAGE>
ACXIOM CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR ENDED
MARCH 31, 1996
------------------------------
HISTORICAL
-------------------- PRO FORMA
ACXIOM MAY & SPEH COMBINED
--------- ---------- ---------
<S> <C> <C> <C>
REVENUE.......................................... $ 269,902 $ 67,237 $ 337,139
--------- -------- ---------
OPERATING COSTS AND EXPENSES
Salaries and benefits.......................... 98,075 24,716 122,791
Computer, communication and other equipment.... 40,972 15,013 55,985
Data costs..................................... 63,442 1,297 64,739
Other operating costs and expenses............. 36,696 11,999 48,695
--------- -------- ---------
Total operating costs and expenses........... 239,185 53,025 292,210
--------- -------- ---------
Operating income................................. 30,717 14,212 44,929
Other income, net................................ 542 401 943
Interest expense................................. (1,863) (1,528) (3,391)
--------- -------- ---------
Earnings before taxes............................ 29,396 13,085 42,481
Income taxes..................................... 11,173 5,030 16,203
--------- -------- ---------
Net earnings..................................... $ 18,223 $ 8,055 $ 26,278
========= ======== =========
Earnings per share
Basic.......................................... .39 .39 .41
Diluted........................................ .35 .39 .38
Average number of common shares outstanding
Basic.......................................... 47,057 20,421 63,394
Diluted........................................ 52,078 20,911 68,807
</TABLE>
See accompanying notes to unaudited pro forma combined condensed financial
statements.
52
<PAGE>
ACXIOM CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED PRO FORMA
COMBINED CONDENSED FINANCIAL STATEMENTS
1. PRO FORMA FINANCIAL STATEMENT PRESENTATION
The unaudited pro forma combined condensed statement of earnings includes
Acxiom's results of operations for the three months ended June 30, 1998 and
the three fiscal years ended March 31, 1996, 1997 and 1998, respectively, and
May & Speh's historical results of operations for the three months ended June
30, 1998 and the twelve months ended March 31, 1996, 1997 and 1998,
respectively. The unaudited pro forma combined condensed balance sheet
presents the historical balance sheet of Acxiom as of June 30, 1998 and the
historical balance sheet of May & Speh as of June 30, 1998. The fiscal year
end of Acxiom is March 31; the unaudited statement of earnings of Acxiom for
the three months ended June 30, 1998 and the balance sheet of Acxiom as of
June 30, 1998 used in the selected unaudited pro forma financial information
have been prepared on the same basis as the historical information derived
from audited financial statements and, in the opinion of management, contain
all adjustments, consisting only of normal recurring accruals, necessary for
the fair presentation of the results of operations for such periods. The
fiscal year end of May & Speh is September 30; the unaudited statements of
earnings of May & Speh for the three months ended June 30, 1998 and the twelve
months ended March 31, 1996, 1997 and 1998 and the balance sheet of May & Speh
as of June 30, 1998 used in the selected unaudited pro forma financial
information have been prepared on the same basis as the historical information
derived from audited financial statements and, in the opinion of management,
contain all adjustments, consisting only of normal recurring accruals,
necessary for the fair presentation of the results of operations for such
periods. Certain amounts in the historical balance sheet of May & Speh, as
reported in Form 10-Q for the quarter ended June 30, 1998, were reclassified
to conform such amounts to Acxiom's classifications. The pro forma financial
data are presented for information and do not indicate what the financial
position or the results of operations of Acxiom would have been had the Merger
occurred as of the dates or for the periods presented or what the financial
position or future results of operations of Acxiom will be. No adjustment has
been included in the pro forma financial data for cost savings, if any, which
may be realized by Acxiom following the Merger.
2. MERGER AND INTEGRATION EXPENSES
Acxiom expects to incur certain non-recurring expenses related to the
Merger, presently estimated to be $15.1 million ($13.8 million after tax).
These expenses would include, but would not be limited to, professional fees,
fees of financial advisors, certain compensation-related expenses and similar
expenses. Although Acxiom believes this estimate of non-recurring expenses is
accurate, certain material additional costs may be incurred in connection with
the Merger. Merger-related expenses will be charged to operations in the
quarter in which the Merger is concluded, which is currently estimated to
occur in the second quarter of fiscal 1999. These non-recurring merger-related
expenses have been charged to stockholders' equity for purposes of the
unaudited pro forma balance sheet. In addition, Acxiom is developing a plan to
integrate the operations of May & Speh after the Merger. In connection with
that plan, Acxiom will determine to what extent Acxiom and May & Speh
facilities, software, equipment and vendor contracts are duplicative and
anticipates that certain non-recurring charges will be incurred in connection
with such integration. Pending completion of the plan, which will include
discussions with customers and vendors, Acxiom cannot identify the timing,
nature and amount of such charges as of the date of this Proxy
Statement/Prospectus. However, it is expected that such charges could be as
much as $50-100 million. Any such charges could affect Axciom's results of
operations in the period in which such charges are recorded. Because the
foregoing charges are non-recurring in nature, they have not been reflected in
the accompanying unaudited pro forma combined statements of earnings.
3. OTHER PRO FORMA ADJUSTMENTS
The excess of par value of the Acxiom Common Stock issued in this
transaction over the par value of the May & Speh's Common Stock outstanding on
the Effective Date will be transferred from Additional Paid-in Capital. There
have been no adjustments required to conform the accounting policies of the
combined company.
53
<PAGE>
Certain amounts for May & Speh have been reclassified to conform with Acxiom's
financial statement presentation. There have been no significant intercompany
transactions.
4. EARNINGS PER SHARE
Pro forma combined earnings per share amounts as presented in the
accompanying Unaudited Pro Forma Combined Condensed Statements of Earnings are
based upon the combined average number of shares outstanding of Acxiom Common
Stock and May & Speh's Common Stock for each period, adjusted, in the case of
May & Speh's Common Stock, to reflect the conversion of each share of May &
Speh's Common Stock into .80 of a share of Acxiom Common Stock.
54
<PAGE>
COMPARATIVE RIGHTS OF STOCKHOLDERS
Acxiom and May & Speh both are incorporated under the laws of the State of
Delaware. If the Merger is consummated in accordance with the terms of the
Merger Agreement, the holders of May & Speh Common Stock will become
stockholders of Acxiom and their rights following the Merger will be governed
by the amended and restated certificate of incorporation of Acxiom (the
"Acxiom Charter"), the by-laws of Acxiom (the "Acxiom By-Laws"), each as in
effect at the Effective Time and the DGCL, rather than the certificate of
incorporation of May & Speh (the "May & Speh Charter") and the by-laws of May
& Speh (the "May & Speh By-Laws").
The following is a comparison of certain of the material rights of holders
of May & Speh Common Stock and Acxiom Common Stock. The following summary does
not purport to be complete and is qualified by reference to the May & Speh
Charter, the May & Speh By-Laws, the Acxiom Charter, the Acxiom By-Laws and
the DGCL, respectively. Copies of the Acxiom Charter, the Acxiom By-Laws, the
May & Speh Charter and the May & Speh By-Laws may be obtained as described
under "AVAILABLE INFORMATION."
Board of Directors. The Acxiom Charter and the Acxiom By-Laws provide that
the Acxiom Board of Directors shall consist of not less than three (3) and not
more than fifteen (15) directors, with the exact number to be determined from
time to time by resolution of the Acxiom Board of Directors. The Acxiom
Charter and the Acxiom By-Laws provide for the classification of the Acxiom
Board of Directors into three classes of directors as nearly equal in number
as possible, with each director elected for a three-year term.
The May & Speh By-Laws provide that the number of directors which shall
constitute the whole May & Speh Board of Directors shall be no fewer than five
(5) nor more than fifteen (15) with the exact number to be fixed from time to
time by the amendment of the relevant section of the May & Speh By-Laws. The
May & Speh Charter and the May & Speh By-Laws also provide for the
classification of the May & Speh Board of Directors into three classes of
directors with each class to be as nearly equal in number of directors as
reasonably possible, with each director elected for a three-year term.
Removal of Directors. Under the DGCL, a director of a corporation with a
classified board may be removed only for cause, unless the certificate of
incorporation provides otherwise. The Acxiom Charter provides that no director
shall be removed from the Acxiom Board of Directors by the action of the
stockholders of the corporation during his or her appointed term other than
for cause. The Acxiom Charter defines "cause" as final conviction of a felony,
unsound mind, adjudication of bankruptcy, the nonacceptance of office or
conduct prejudicial to the interests of Acxiom.
The May & Speh By-Laws provide that any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause, by the
affirmative vote of the holders of record of outstanding shares representing
eighty (80)% of the voting power of all the shares of capital stock of May &
Speh then entitled to vote generally in the election of directors, voting
together as a single class. Any director may also be removed from office at
any time, but only for cause, by the affirmative vote of a majority of the
entire May & Speh Board of Directors. The term "entire May & Speh Board of
Directors" means the total authorized number of directors that the corporation
would have if there were no vacancies.
Vacancies. The Acxiom Charter, the Acxiom By-Laws and the May & Speh By-Laws
provide that vacancies and newly created directorships may be filled by the
affirmative vote of a majority of the directors then in office, even if less
than a quorum. Additionally, the May & Speh By-Laws provide that if, at the
time of filling any vacancy or newly created directorship, the directors then
in office constitute less than a majority of the whole May & Speh Board of
Directors, the Court of Chancery may, upon application of any stockholder or
stockholders holding at least 10% of the total number of shares at the time
outstanding entitled to vote for directors, order an election of directors to
be held.
Stockholder Action Without a Meeting. The Acxiom Charter and the Acxiom By-
Laws provide that any action that may be taken at any annual or special
meeting may be taken without a meeting, if one or more written
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<PAGE>
consents, setting forth the action to be taken, are signed by all of the
holders of Acxiom Common Stock entitled to vote with respect to the subject
matter thereof.
The May & Speh Charter provides that no action required or permitted to be
taken at any meeting of May & Speh stockholders may be taken without such
meeting, the giving of prior notice and the taking of a vote, and the power of
the May & Speh stockholders to consent in writing or otherwise, without such
meeting, notice and vote, to the taking of any action is specifically denied.
Special Meetings of Stockholders. The Acxiom By-Laws provide that special
meetings of the stockholders may be called, for any purpose, by the President,
the Chief Executive Officer, the Acxiom Board of Directors, or by a committee
of the Acxiom Board of Directors that has been duly designated by the Acxiom
Board of Directors and whose power and authority include the power to call
such meetings. A special meeting shall be called by the President at the
request of the holders of a majority of all the votes entitled to be cast on
any issue proposed to be considered at a special meeting if such holders have
signed, dated and delivered to the Secretary of Acxiom one or more written
demands for the meeting describing the purpose for which it is to be held.
The May & Speh By-Laws provide that a special meeting of the stockholders
may be called by the Chairman of the May & Speh Board of Directors or the
President, and shall be called by the President or Secretary at the request in
writing of a majority of the May & Speh Board of Directors.
Committees of Directors. The Acxiom By-Laws provide, that to the extent
provided by resolution of the Acxiom Board of Directors and to the extent not
otherwise prohibited by applicable law, committees of directors shall have and
may exercise all the powers of authority of the Acxiom Board of Directors in
the management of the business and affairs of Acxiom.
The May & Speh By-Laws provide that to the extent provided by resolution of
the May & Speh Board of Directors and to the extent not otherwise prohibited
by applicable law, committees of directors shall have and may exercise all the
powers of authority of the May & Speh Board of Directors in the management of
the business and affairs of May & Speh; provided that, no committee shall have
the power or authority to amend the May & Speh Charter, adopt an agreement of
merger or consolidation, recommend to the stockholders the sale of
substantially all of May & Speh's assets, recommend a dissolution, amend the
May & Speh By-Laws, or, unless such a Charter provision is created, declare a
dividend or authorize the issuance of stock.
Amendments to Charter. The Acxiom Charter provides that the Acxiom Charter
may be altered, amended, or repealed and other provisions may be added by the
affirmative vote of a majority of the votes entitled to be cast; provided,
however, that the affirmative vote of the holders of at least eighty percent
(80%) of the votes entitled to be cast is required to amend or adopt any
provision inconsistent with the articles of the Acxiom Charter concerning:
Directors; Meetings of Holders of Common Stock and Action By Holders of Common
Stock without a Meeting; By-Laws; Fair Price Provision; and Amendments.
The May & Speh Charter provides that the affirmative vote of eighty percent
(80%) of the voting power of the shares of capital stock of May & Speh then
entitled to vote in the election of directors, voting as a single class, shall
be required to amend (i) the provisions of the May & Speh Charter concerning
the May & Speh Board of Directors, stockholder meetings and amendments, or
(ii) those provisions of the May & Speh By-Laws concerning special meetings of
stockholders, the structure and composition of the May & Speh Board of
Directors, vacancies on the May & Speh Board of Directors, removal of
directors and nomination of directors. In addition, the May & Speh Charter
states that the aforementioned provision applies unless such amendment,
alteration, repeal or adoption of any inconsistent provision(s) is declared
advisable by the Board of Directors by the affirmative vote of at least
seventy-five percent (75%) of the entire May & Speh Board of Directors,
notwithstanding the fact that a lesser percentage may be specified by the
DGCL. The May & Speh Charter also provides that no amendment to or repeal of
the May & Speh Charter provisions relating to director liability and
indemnification shall have any effect on the rights of any individual referred
to thereunder.
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<PAGE>
Amendments to By-Laws. The Acxiom By-Laws provide the Acxiom By-Laws may be
amended, altered, or repealed, at any regular meeting of stockholders, or at
any special meeting duly called for that purpose, by a vote of stockholders
provided that in the notice of such meeting notice of such purpose is given.
The Acxiom Board of Directors may, by a majority vote of the entire Board of
Directors, amend the Acxiom By-Laws, waive any provisions thereof or enact new
By-Laws as in their judgment may be advisable to conduct the affairs of
Acxiom.
The May & Speh By-Laws provide that the power to adopt, alter and repeal the
By-Laws is vested in the stockholders or the May & Speh Board of Directors, at
any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or the Board of Directors if notice of
such amendment is contained in the notice of such special meeting. In
addition, the May & Speh Charter provides that the May & Speh By-Laws may be
amended as described under "Amendments to Charter" above.
Mergers and Other Fundamental Transactions. The Acxiom Charter requires the
affirmative vote of the holders of not less than eighty percent (80%) of the
votes entitled to be cast for the approval of certain business combinations
(including any merger, consolidation, interested stockholder transactions,
plan of liquidation or dissolution or recapitalization) with interested
stockholders or affiliates thereof. However, such "interested stockholder"
business combinations require only such vote as is required by law and other
Acxiom Charter provisions, if there is approval by a majority of the
disinterested directors on the Acxiom Board of Directors or certain price and
procedural requirements are met.
The Acxiom Charter also provides that any merger or consolidation of Acxiom
with any other person, any sale, lease, mortgage, pledge, or other disposition
by Acxiom of its property or assets, any dissolution or liquidation of Acxiom
or revocation thereof that the DGCL requires be approved by holders of Acxiom
Common Stock, must be approved by the holders of at least sixty-six and two-
thirds percent (66 2/3%) of the votes entitled to be cast by the holders of
Acxiom Common Stock.
The May & Speh Charter and By-Laws do not address the question of the
required stockholder vote for mergers and other business combinations. In such
cases, the DGCL requires that transactions such as the Merger be approved by a
majority of the outstanding stock of the corporation entitled to vote thereon.
57
<PAGE>
CERTAIN RELATED TRANSACTIONS BETWEEN ACXIOM AND MAY & SPEH
RECIPROCAL OPTION AGREEMENTS
Set forth below are brief descriptions of certain terms of the Option
Agreements. These descriptions do not purport to be complete and are qualified
by reference to the Acxiom Option Agreement and the May & Speh Option
Agreement, which are attached hereto as Annex B and Annex C, respectively.
As a condition and inducement to Acxiom's willingness to enter into the
Merger Agreement, May & Speh (as issuer) and Acxiom (as grantee) entered into
an Option Agreement (the "Acxiom Option Agreement"), pursuant to which May &
Speh granted Acxiom an irrevocable option (the "Acxiom Option") to purchase
from May & Speh at any one time up to 19.9% of the total number of shares of
May & Speh Common Stock issued and outstanding immediately prior to the grant
of the Option, at an exercise price of $14.96 per share of May & Speh Common
Stock, subject to certain adjustments (the "Acxiom Purchase Price"). The
closing sale price of May & Speh Common Stock on the last trading day
preceding the announcement by Acxiom and May & Speh of the execution of the
Merger Agreement was $17.00 per share. Acxiom may exercise the Acxiom Option
only upon the occurrence of an event (an "Acxiom Purchase Event") as a result
of which Acxiom becomes entitled under the Merger Agreement to a Termination
Fee (none of which has occurred as of the date hereof).
The Acxiom Option will terminate and be of no further force and effect upon
the earliest to occur of (a) the Effective Time, (b) six months after the date
on which an Acxiom Purchase Event occurs, and (c) termination of the Merger
Agreement in accordance with its terms prior to the occurrence of an Acxiom
Purchase Event; provided that, in the case of clause (c), if Acxiom has the
right to receive a Termination Fee following such termination upon the
occurrence of certain events, the Acxiom Option does not terminate until the
later of (x) six months following the time such Termination Fee becomes
payable, and (y) the expiration of the period in which Acxiom has such right
to receive a Termination Fee. Notwithstanding the termination of the Acxiom
Option, Acxiom will remain entitled to purchase May & Speh Common Stock if it
has properly exercised the Acxiom Option prior to the termination of the
Acxiom Option.
The Acxiom Option Agreement provides Acxiom with a cash-out-right (the
"Acxiom Cash-Out-Right") which would allow Acxiom to receive cash upon
exercise of the Acxiom Option in an amount equal to the number of shares of
May & Speh Common Stock specified in Acxiom's exercise notice of the Acxiom
Cash-Out-Right, multiplied by the difference between (i) the average closing
price per share of May & Speh Common Stock as reported on the NASDAQ National
Market for the ten trading days commencing on the 12th NASDAQ National Market
trading day immediately preceding the date of Acxiom's election to exercise
the Acxiom Option (the "Acxiom Notice Date") and (ii) the Acxiom Purchase
Price. May & Speh's obligation, however, to pay cash to Acxiom under the
Acxiom Cash-Out-Right is limited to an amount equal to the product of (a)
$2.00 and (b) the number of shares of May & Speh Common Stock subject to such
exercise.
The Acxiom Option Agreement also provides May & Speh with a repurchase
option that would allow May & Speh to purchase from Acxiom any May & Speh
Common Stock acquired by Acxiom pursuant to an exercise of the Acxiom Option
at a purchase price per share equal to the Acxiom Purchase Price plus $1.00.
May & Speh must exercise this repurchase option by delivering written notice
to Acxiom during the period beginning on the Acxiom Notice Date and ending two
days prior to the closing of an exercise of the Acxiom Option, and the
repurchase must take place immediately following the consummation of the sale
of May & Speh Common Stock to Acxiom pursuant to an exercise of the Acxiom
Option.
As a condition and inducement to May & Speh's willingness to enter into the
Merger Agreement, Acxiom (as issuer) and May & Speh (as grantee) entered into
that certain Option Agreement (the "May & Speh Option Agreement and together
with the Acxiom Option Agreement, the "Option Agreements") pursuant to which
Acxiom granted May & Speh an irrevocable option (the "May & Speh Option") to
purchase from Acxiom at any one time up to 19.9% of the total number of shares
of Acxiom Common Stock issued and outstanding immediately prior to the grant
of the Option, at an exercise price of $23.55 per share of Acxiom Common
Stock,
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subject to certain adjustments (the "May & Speh Purchase Price"). The closing
sale price of Acxiom Common Stock on the last trading day preceding the
announcement of the execution of the Merger Agreement was $21.8125 per share.
May & Speh may exercise the May & Speh Option only upon the occurrence of an
event (a "May & Speh Purchase Event") as a result of which May & Speh becomes
entitled under the Merger Agreement to a Termination Fee (none of which has
occurred as of the date hereof).
The May & Speh Option will terminate and be of no further force and effect
upon the earliest to occur of (a) the Effective Time, (b) six months after the
date on which a May & Speh Purchase Event occurs, and (c) termination of the
Merger Agreement in accordance with its terms prior to the occurrence of a May
& Speh Purchase Event; provided that, in the case of clause (c), if May & Speh
has the right to receive a Termination Fee following such termination upon the
occurrence of certain events, the May & Speh Option does not terminate until
the later of (x) six months following the time such Termination Fee becomes
payable and (y) the expiration of the period in which May & Speh has such
right to receive a Termination Fee. Notwithstanding the termination of the May
& Speh Option, May & Speh will remain entitled to purchase Acxiom Common Stock
if it has properly exercised the May & Speh Option prior to the termination of
the May & Speh Option.
The May & Speh Option Agreement provides May & Speh with a cash-out-right
(the "May & Speh Cash-Out-Right") which would allow May & Speh to receive cash
upon exercise of the Option in an amount equal to the number of shares of
Acxiom Common Stock specified in May & Speh's exercise notice of the May &
Speh Cash-Out-Right, multiplied by the difference between (i) the average
closing price per share of Acxiom Common Stock as reported on the NASDAQ
National Market for the ten trading days commencing on the 12th NASDAQ trading
day immediately preceding the date of May & Speh's election to exercise the
May & Speh Option (the "May & Speh Notice Date") and (ii) the May & Speh
Purchase Price. Acxiom's obligation, however, to pay cash to May & Speh under
the May & Speh Cash-Out-Right is limited to an amount equal to the product of
(a) $1.00 and (b) the number of shares of Acxiom Common Stock subject to such
exercise.
The May & Speh Option Agreement also provides Acxiom with a repurchase
option that would allow Acxiom to purchase from May & Speh any Acxiom Common
Stock acquired by May & Speh pursuant to an exercise of the May & Speh Option
at a purchase price per share equal to the May & Speh Purchase Price plus
$1.00. Acxiom must exercise this repurchase option by delivering written
notice to May & Speh during the period beginning on the May & Speh Notice Date
and ending two days prior to the closing of an exercise of the May & Speh
Option, and the repurchase must take place immediately following the
consummation of the sale of Acxiom Common Stock to May & Speh pursuant to an
exercise of the May & Speh Option.
The Option Agreements contain provisions governing the procedure for
exercise of the Acxiom Option and payment for the May & Speh Common Stock or
the May & Speh Option and payment for the Acxiom Common Stock, as the case may
be, purchased upon such exercise, and other provisions that adjust the number
of shares of May & Speh Common Stock and the Acxiom Purchase Price therefor,
or the number of shares of Acxiom Common Stock and the May & Speh Purchase
Price, as the case may be, upon the occurrence of (i) certain changes in the
Common Stock of the issuers of the option by reason of a stock dividend,
reverse stock split, merger, recapitalization, combination, exchange of Common
Stock of the issuers of the option or similar transaction, or (ii) certain
consolidations or mergers that do not involve Acxiom or May & Speh or its
respective subsidiaries, as the case may be, or the sale or transfer of
substantially all of the assets of May & Speh or Acxiom, as the case may be to
any person or entity other than Acxiom or its subsidiaries or May & Speh and
its subsidiaries.
Finally, the Option Agreements contain provisions obligating the issuer of
the option, if requested by the grantee of the option and subject to certain
limitations and conditions, to prepare, file and cause to be made effective up
to two registration statements ("Demand Registration Statements") for the
purpose of registering under the Securities Act the sale or other disposition
pursuant to a bona fide, firm commitment underwritten public offering of the
Common Stock acquired by the grantee upon exercise of the Option. In addition,
if the issuer of the respective option effects a registration statement under
the Securities Act of its Common Stock for
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<PAGE>
its own account or for any other stockholders (other than on Form S-4, S-8 or
successor forms), the Option Agreements provide the grantee of the option with
the right to participate in such registration subject to certain limitations
that may be imposed by the managing underwriter with respect to such offering,
and such participation will not affect the obligation of the issuer of the
respective option to effect any Demand Registration Statement. A registration
effected under the foregoing provisions would be at the issuer's expense,
except for any underwriting discounts and commissions and expenses of the
grantee's counsel.
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ELECTION OF ACXIOM DIRECTORS
Three persons have been nominated for election as Directors at the Acxiom
Meeting. Rodger S. Kline, Robert A. Pritzker and James T. Womble currently are
members of the Acxiom Board of Directors with terms that expire at the Acxiom
Meeting. Messrs. Kline, Pritzker and Womble are nominated to serve for terms
expiring at the 2001 Acxiom annual meeting. If elected, Messrs. Kline,
Pritzker and Womble will serve with the other five members of the Acxiom Board
of Directors: William T. Dillard II, Harry C. Gambill, and Walter V. Smiley,
whose terms expire at the 1999 Acxiom annual meeting, and Dr. Ann H. Die and
Charles D. Morgan, whose terms will expire at the 2000 Acxiom annual meeting.
Directors will be elected by a majority of the votes cast at the Acxiom
Meeting. Stockholders of Acxiom do not have cumulative voting rights with
respect to the election of directors. Unless authority is withheld, it is the
intention of the persons named on the Acxiom proxy to vote the shares of
Acxiom Common Stock represented thereby for the nominees. While it is not
anticipated that any of the nominees will be unable to serve, the persons
named on the Acxiom proxy may, unless authority is withheld, vote for any
substitute nominee proposed by the Acxiom Board of Directors. In the event of
any director's death, disqualification or inability to serve, the vacancy so
arising will be filled by the Acxiom Board of Directors.
THE ACXIOM BOARD OF DIRECTORS RECOMMENDS THAT ACXIOM STOCKHOLDERS VOTE "FOR"
THE ELECTION AS DIRECTORS OF THE THREE INDIVIDUALS NAMED ABOVE AS NOMINEES AT
THE ACXIOM MEETING.
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MANAGEMENT
CURRENT DIRECTORS, NOMINEES AND EXECUTIVE OFFICERS
The following table provides information as of March 31, 1998 with respect
to each of Acxiom's directors, director nominees, and executive officers.
DIRECTORS AND DIRECTOR NOMINEES
<TABLE>
<CAPTION>
SERVED AS
OFFICER OR
DIRECTOR OF
ACXIOM
NAME AGE POSITION SINCE
---- --- -------- -----------
NOMINEES FOR TERMS EXPIRING AT THE 2001 ANNUAL MEETING OF ACXIOM STOCKHOLDERS
<C> <C> <S> <C>
Director, Operations
Rodger S. Kline...................... 55 Leader 1975
Robert A. Pritzker................... 71 Director 1994
Director, Division
James T. Womble...................... 55 Leader 1975
TERMS EXPIRING AT THE 2000 ANNUAL MEETING OF ACXIOM STOCKHOLDERS
Dr. Ann H. Die....................... 53 Director 1993
Charles D. Morgan.................... 55 Chairman of the Board
and Company Leader 1975
TERMS EXPIRING AT THE 1999 ANNUAL MEETING OF ACXIOM STOCKHOLDERS
William T. Dillard II................ 53 Director 1988
Harry C. Gambill..................... 52 Director 1993
Walter V. Smiley..................... 60 Director 1983
OTHER EXECUTIVE OFFICERS
C. Alex Dietz........................ 55 Division Leader 1979
Paul L. Zaffaroni.................... 51 Division Leader 1990
Jerry C. D. Ellis.................... 48 Division Leader 1991
Robert S. Bloom...................... 42 Financial Leader 1992
</TABLE>
Rodger S. Kline, 55, joined Acxiom in 1973. He has been a director since
1975, and serves as Acxiom's Treasurer and Chief Operating Officer (Operations
Leader). Prior to joining Acxiom, Mr. Kline was employed by IBM Corporation.
Mr. Kline holds an electrical engineering degree from the University of
Arkansas.
Robert A. Pritzker, 71, was appointed to fill a newly created position on
the Acxiom Board of Directors in 1994 and was elected a director in 1996.
Since before 1992, Mr. Pritzker has been a director and the Chairman of Trans
Union Corporation, a company engaged in the business of providing consumer
credit reporting services, a director and the President of each of Union Tank
Car Company, a company principally engaged in the leasing of railway tank cars
and other railcars, and Marmon Holdings, Inc., a holding company of
diversified manufacturing and services businesses. Mr. Pritzker is also a
director of Hyatt Corporation, a company which owns and operates domestic and
international hotels, and a director of Southern Peru Copper Corporation, a
company which mines, smelts, refines and markets copper. Mr. Pritzker holds an
industrial engineering degree from the Illinois Institute of Technology. See
"SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF ACXIOM" and
"CERTAIN TRANSACTIONS."
James T. Womble, 55, joined Acxiom in 1974. He has been a director since
1975, and serves as one of Acxiom's four division leaders. Prior to joining
Acxiom, Mr. Womble was employed by IBM Corporation. Mr. Womble holds a degree
in civil engineering from the University of Arkansas.
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Dr. Ann H. Die, 53, was elected as a director in 1993. She has served as
President of Hendrix College in Conway, Arkansas since 1992. She is a member
of the Board of Directors of the National Merit Scholarship Corporation, The
Pritzker Foundation for Independent Higher Education, and the American Council
on Education. She is Past Chair of the Board of Directors of the National
Association of Independent Colleges and Universities. Prior to coming to
Hendrix, she served as Dean of the H. Sophie Newcomb Memorial College and
Associate Provost at Tulane University. Dr. Die graduated summa cum laude from
Lamar University, earned a master's degree from the University of Houston and
a Ph.D. in Counseling Psychology from Texas A&M University.
Charles D. Morgan, 55, joined Acxiom in 1972. He has been Chairman of the
Acxiom Board of Directors since 1975, and serves as Acxiom's Company Leader.
He was employed by IBM Corporation prior to joining Acxiom. Mr. Morgan is also
a director of Fairfield Communities, Inc. Mr. Morgan holds a mechanical
engineering degree from the University of Arkansas.
William T. Dillard II, 53, was elected as a director in 1988. He has served
since 1968 as a member of the Board of Directors and since 1977 as President
and Chief Operating Officer of Dillard's, Inc. of Little Rock, Arkansas, a
regional chain of traditional department stores with 270 retail outlets in 27
states in the Southeast, Southwest and Midwest areas of the United States. In
addition to Dillard's, Inc., Mr. Dillard is also a director of Barnes & Noble,
Inc. and Simon Debartolo Group, Inc. He holds a master's degree in business
administration from Harvard University and a bachelor's degree in the same
field from the University of Arkansas.
Harry C. Gambill, 52, was appointed to fill a vacancy on Acxiom's Board of
Directors in 1992 and was elected as a director in 1993. He is a director and
has held the positions of Chief Executive Officer and President of Trans Union
Corporation, a company engaged in the business of providing consumer credit
reporting services, since April 1992. Mr. Gambill joined Trans Union in 1985
as Vice President/General Manager of the Chicago Division. In 1987 he was
named Central Region Vice President. In 1990, he was named President of
Transaction, and assumed the added title of President of TransMark in 1991.
Mr. Gambill is also a director of Associated Credit Bureaus and the
International Credit Association. He holds degrees in business administration
and economics from Arkansas State University. See "SECURITY OWNERSHIP OF
CERTAIN OWNERS AND MANAGEMENT OF ACXIOM" and "CERTAIN TRANSACTIONS."
Walter V. Smiley, 60, was elected as a director in 1983. He served from 1968
until 1989 as Chairman of the Board of Directors and from 1968 until 1985 as
Chief Executive Officer of Systematics, Inc., the predecessor of ALLTEL
Information Services, Inc., an Arkansas based company which provides data
processing services to financial institutions throughout the United States and
abroad. Mr. Smiley currently owns and is President of Smiley Investment
Corporation, a consulting and venture capital firm. Mr. Smiley is also a
director of Southern Development Banc Corp. and Computer Language Research. He
holds a master's degree in business administration and a bachelor's degree in
industrial management from the University of Arkansas. Mr. Smiley resigned as
a Director of Acxiom effective as of June 1, 1998; Mr. Smiley has not yet been
replaced.
C. Alex Dietz, 55, joined Acxiom in 1970 and served as a vice president
until 1975. Between 1975 and 1979 he was an officer of a commercial bank
responsible for data processing matters. Following his return to Acxiom in
1979, Mr. Dietz served as senior level officer of Acxiom and is presently one
of Acxiom's four division leaders. Mr. Dietz holds a degree in electrical
engineering from Tulane University.
Paul L. Zaffaroni, 51, joined Acxiom in 1990. He serves as one of Acxiom's
four division leaders. Prior to joining Acxiom, he was employed by IBM
Corporation for 21 years, most recently serving as regional sales manager. Mr.
Zaffaroni holds a degree in marketing from Youngstown State University.
Jerry C. D. Ellis, 48, joined Acxiom in 1991 as managing director of
Acxiom's U.K. operations. He serves as one of Acxiom's four division leaders.
Prior to 1991, Mr. Ellis was employed for 22 years with IBM Corporation,
serving most recently as assistant to the CEO of IBM's U.K. operations. Prior
to that, Mr. Ellis served as branch manager of the IBM U.K. Public Sector
division.
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Robert S. Bloom, 42, joined Acxiom in 1992 as chief financial officer. Prior
to joining Acxiom, he was employed for six years with Wilson Sporting Goods
Co. as chief financial officer of its international division. Prior to his
employment with Wilson, Mr. Bloom was employed by Arthur Andersen & Co. for
nine years, serving most recently as manager. Mr. Bloom, a Certified Public
Accountant, holds a degree in accounting from the University of Illinois.
ACXIOM BOARD OF DIRECTORS' MEETINGS AND COMMITTEES
The Acxiom Board of Directors holds quarterly meetings to review significant
developments affecting Acxiom and to act on matters requiring approval of the
Acxiom Board of Directors. The Acxiom Board of Directors currently has three
standing committees to assist it in the discharge of its responsibilities: an
Audit Committee, a Compensation Committee and an Executive Committee. The
Audit Committee, composed of outside directors Dr. Ann H. Die, William T.
Dillard II, Harry C. Gambill, Robert A. Pritzker and Walter V. Smiley, reviews
the reports of the auditors and has the authority to investigate the financial
and business affairs of Acxiom. Messrs. Dillard and Smiley also serve on the
Compensation Committee, which administers certain of Acxiom's employee benefit
plans and approves the compensation paid to Acxiom's senior leaders. The
Executive Committee is responsible for implementing the policy decisions of
the Board. Current members of the Executive Committee are Messrs. Kline,
Morgan and Womble.
During the past fiscal year, the Acxiom Board of Directors met four times,
the Audit Committee met one time and the Compensation Committee met two times.
Action pursuant to unanimous written consent in lieu of a meeting was taken
one time by the Acxiom Board of Directors, two times by the Compensation
Committee and eleven times by the Executive Committee. All of the incumbent
directors attended at least three-fourths of the aggregate number of meetings
of the Board and of the committees on which they served during the past fiscal
year except for Mr. Gambill.
Walter V. Smiley, who served on the Audit Committee and the Compensation
Committee for the fiscal year ended March 31, 1998, resigned as a director of
Acxiom effective as of June 1, 1998. Mr. Smiley has not yet been replaced.
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EXECUTIVE COMPENSATION
Cash and Other Compensation. The following table sets forth, for the fiscal
years indicated, the cash and other compensation provided by Acxiom and its
subsidiaries to Acxiom's Company Leader and each of the four most highly
compensated members of Acxiom's leadership team (the "named individuals") in
all capacities in which they served.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
ANNUAL COMPENSATION COMPENSATION AWARDS
-------------------- ---------------------
OTHER ANNUAL ALL OTHER
NAME AND PRINCIPAL SALARY COMPENSATION OPTIONS/ COMPENSATION
POSITION YEAR ($) ($)(1) SARS(#) ($)(2)
------------------ ---- ------- ------------ -------- ------------
<S> <C> <C> <C> <C> <C>
Charles D. Morgan, 1998 375,000 267,857 0 14,813
Chairman of the Board 1997 325,000 63,476 33,545 8,239
and Company Leader 1996 304,167 84,021 101,163 7,327
Rodger S. Kline 1998 250,000 178,571 0 9,869
Operations Leader 1997 213,000 41,601 21,985 2,817
1996 196,833 54,221 66,301 4,801
James T. Womble 1998 202,000 126,250 0 7,829
Division Leader 1997 183,500 35,340 18,900 5,329
1996 172,833 47,808 57,118 4,698
Paul L. Zaffaroni 1998 193,000 120,625 0 7,564
Division Leader 1997 172,300 33,652 17,784 2,563
1996 161,633 36,772 53,632 3,822
C. Alex Dietz 1998 191,000 119,375 0 7,328
Division Leader 1997 168,300 32,871 17,371 4,986
1996 158,467 43,831 52,387 4,562
</TABLE>
- --------
(1) This amount represents the named individuals' at-risk pay for each fiscal
year. See discussion of At-Risk Base Pay below under "Report of Compensation
Committee."
(2) This amount represents Acxiom's contribution on behalf of each named
executive officer to Acxiom's 401(k) and SERP Plans.
Stock Option Exercises and Holdings. The following table sets forth
information concerning stock options exercised during the last fiscal year and
stock options held as of the end of the last fiscal year by the named
individuals.
65
<PAGE>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR AND
FY-END OPTION/SAR VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED IN-
UNDERLYING UNEXERCISED THE-MONEY OPTIONS/SARSAT
SHARES OPTIONS/SARS AT FY-END FY-END
ACQUIRED ON VALUE ------------------------- -------------------------
EXERCISE REALIZED EXERCISABLE EXERCISABLE
NAME (#) ($) (#) UNEXERCISABLE ($) UNEXERCISABLE
---- ----------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Charles D. Morgan....... 0 0 297,654 310,929 4,994,892 3,803,473
Rodger S. Kline......... 0 0 231,349 205,510 4,137,276 2,528,097
James T. Womble......... 0 0 174,215 181,633 2,946,118 2,271,617
Paul L. Zaffaroni....... 5,000 76,250 295,597 179,539 5,882,284 2,353,187
C. Alex Dietz........... 0 0 227,643 172,626 4,326,648 2,242,842
</TABLE>
Compensation of Directors. In January 1998, each outside director received
1,000 shares of unregistered Acxiom Common Stock as an annual retainer fee. In
addition, each outside director receives a $1,500 fee for each meeting he or
she attends. Inside directors do not receive any additional compensation for
their service as directors.
Compensation Committee Interlocks and Insider Participation. The members of
the Compensation Committee are William T. Dillard II and Walter V. Smiley. No
compensation committee interlocks exist with respect to the Acxiom Board of
Directors' Compensation Committee, nor do any present or past officers of
Acxiom serve on the Compensation Committee. Walter V. Smiley, who served on
the Compensation Committee for the fiscal year ended March 31, 1998, resigned
as a director of Acxiom effective as of June 1, 1998. Mr. Smiley has not yet
been replaced.
Report of Compensation Committee. Decisions on compensation of Acxiom's
leadership are made by the Compensation Committee of the Acxiom Board of
Directors. The members of the Compensation Committee are non-employee and
outside directors pursuant to Commission rules and applicable Treasury
regulations. Set forth below is a report submitted by William T. Dillard II
and Walter V. Smiley, in their capacity as the Acxiom Board of Directors'
Compensation Committee, addressing the compensation policies for Acxiom's
leadership team, for the individuals named in the tables above, and for Mr.
Morgan.
Compensation Policies. Compensation for Acxiom's leadership is based upon
beliefs and guiding principles designed to align leadership compensation with
business strategy, Acxiom's values and management initiatives. The plan is
designed to:
. Align the leaders' interests with the stockholders' and investors'
interests.
. Motivate the leaders to achieve the highest level of performance.
. Retain key leaders by linking executive compensation to Acxiom's
performance.
. Attract the best candidates through competitive, growth-oriented plans.
The resulting compensation strategy is targeted to provide an overall level
of compensation opportunity that is competitive within the markets in which
Acxiom competes, as well as within a broader group of companies of comparable
size and complexity. Actual compensation levels may eventually be greater than
or less than the average competitive market levels, based upon the achievement
of Acxiom, as well as upon individual performance. The Compensation Committee
uses its discretion to set the parameters of the leadership compensation plan
when, in its judgment, external, internal and/or individual circumstances
warrant it. Increased orientation of leadership compensation policies toward
long-term performance has been accompanied by increased utilization of
objective performance criteria. See "MANAGEMENT--Executive Compensation--
Report of Compensation Committee--Components of Compensation".
The Compensation Committee also endorses the position that stock ownership
by management and stock-based performance compensation arrangements are
beneficial in aligning management's and Stockholders'
66
<PAGE>
interests and the enhancement of shareholder value. Thus, the Committee has
also increasingly utilized these elements in Acxiom's compensation program for
its leadership team.
Components of Compensation. Compensation paid to Acxiom's leaders in fiscal
1998, the separate elements of which are discussed below, consisted of the
following: not-at-risk base pay, at-risk base pay, and long-term incentive
("ALTI") compensation granted under Acxiom's stock option plans. The
Compensation Committee's increasing emphasis on tying pay to long-term
performance criteria is reflected in a recent change to Acxiom's leadership
compensation plan effective for fiscal 1998. The plan contains five possible
compensation levels with overlapping ranges for base salaries, which provides
flexibility in establishing appropriate compensation packages for Acxiom's
leadership. The plan provides for increasingly large percentages of total
compensation being weighted towards at-risk pay and, to an even greater
degree, toward LTI compensation. The higher the compensation level, the
greater the overall percentage of at-risk and LTI. Under the plan, the
compensation for Acxiom's senior leaders, who participate in the top two
levels of the plan, is as follows: not-at-risk base pay (35-40%); at-risk base
pay (25%); and LTI compensation (35-40%). Under the previous plan, the maximum
percentage of total comp assignable to LTI was 35%.
(i) Not-At-Risk Base Pay. Base pay levels are largely determined through
market comparisons. Actual salaries are based on individual performance
contributions within a salary range that has been established through job
evaluation and the use of market surveys for comparable companies and
positions. Base salaries for Acxiom's senior leadership were targeted in
fiscal 1998 to represent 35-40% of total compensation, which includes the
annual at-risk base pay and LTI compensation. For other corporate, group
and business unit level leaders, base salaries were targeted at 40-70% of
total compensation.
(ii) At-Risk Base Pay. The at-risk base pay for all of Acxiom's leaders
is funded after Acxiom achieves its earnings per share target. Attainment
of targeted at-risk base pay is largely determined by using the EVA7
(Economic Value Added) model. (EVA is a registered trademark of Stern
Stewart & Co.) In fiscal 1998, at-risk base pay was targeted to represent
25% of total compensation for the senior leadership team and 15-25% for
other corporate, group and business unit leaders. For fiscal 1998, Acxiom's
diluted earnings per share goal was $.59 per share, which was exceeded by
$.01.
(iii) Long-Term Incentive Compensation. The Committee's LTI compensation
plan is composed of awards of stock options designed to align long-term
interests between Acxiom's leadership team and its stockholders and to
assist in the retention of key people. During fiscal 1998, the long-term
incentives were targeted to represent 35-40% of total compensation for
senior leadership and 15-35% for other corporate, group and business unit
leaders. Previously, in 1996, senior leadership members were awarded the
equivalent of three years' worth of non-statutory stock options to induce
them to adopt the long-term view of stockholders. One-fourth of the options
awarded were priced at the then current market value, one-fourth were
priced at a 50% premium over the then current market value, and the
remaining one-half were priced at a 100% premium over the then current
market value. The full value of the options cannot be realized until the
price of Acxiom Common Stock more than doubles from the fair market value
on the date of grant. Senior leadership members will not be eligible for
new grants of LTI options until 1999. The 1996 stock options vest
incrementally over a nine-year period.
The terms of all non-statutory LTI options granted on or after January
29, 1997 are 15 years (instead of ten, which was the standard term for both
incentive and non-statutory options prior to January 29, 1997), and the
exercise prices for all options granted on or after January 29, 1997 are:
one-half at the fair market value on the date of grant, one-fourth at a 50%
premium over market, and one-fourth at a 100% premium over market. Options
will continue to vest incrementally over nine years from the date of grant.
(iv) Supplemental Executive Retirement Plan. All members of Acxiom's
leadership team are eligible to participate in the Supplemental Executive
Retirement Plan ("SERP"), which was adopted in fiscal 1996, by contributing
up to 15% of their pretax income into the plan. Acxiom matches at a rate of
$.50 on the dollar up to the first 6% of the leadership team members'
combined contributions under both the SERP and
67
<PAGE>
Acxiom's 401K Retirement Plan. Acxiom's match is paid in Common Stock. On
May 20, 1998, the Acxiom Board of Directors approved an amendment to the
SERP which will allow participants to contribute up to 100% of their pretax
income into the plan.
(v) Other Compensation Plans. Acxiom maintains certain broad-based
employee benefit plans in which leadership team members are permitted to
participate on the same terms as non-leadership team associates who meet
applicable eligibility criteria, subject to any legal limitations on the
amounts that may be contributed or the benefits that may be payable under
the plans.
Mr. Morgan's Compensation. In fiscal 1998, Acxiom's revenue and earnings
increased 16% and 29% respectively, a record year in both revenue and earnings
for Acxiom. Additionally, the return on stockholders' equity for fiscal 1998
was 20.4%, in line with Acxiom's goal of achieving a 20% return. Acxiom's
stock price increased 78% over the prior year, compared to a 52% increase in
the NASDAQ National Market B U.S. Index and a 75% increase in the NASDAQ Stock
Market B Computer and Data Processing Index over the same period. In the prior
year, Acxiom's revenue and earnings increased 49% and 51% respectively, return
on stockholders' equity increased from 16.5% to 20.3%, and the stock price
rose 20%, compared to an 11% increase in the NASDAQ National Market B U.S.
Index and a 10% increase in the NASDAQ National Market B Computer and Data
Processing Index over the same period.
Because of Acxiom's performance and Mr. Morgan's performance in fiscal 1997,
Mr. Morgan's fiscal 1998 base pay was increased by 15% over fiscal 1997. His
base pay for fiscal 1999 was increased 29% over fiscal 1998. This increase was
due in part to the success of Acxiom in fiscal 1998, and in part as the first
of four proposed annual increases designed to make the salaries of Mr. Morgan
(and other Acxiom leaders) competitive with comparable market compensation
(i.e., within the 75th percentile of competitive companies) by the end of the
four-year adjustment period.
In fiscal 1998, Acxiom's earnings per share results and Acxiom's EVA
attained were the primary criteria for determining the at-risk base pay earned
by Mr. Morgan. All of Mr. Morgan's at-risk payments were made in cash. See
"MANAGEMENT--Executive Compensation--Cash and Other Compensation" for
discussion of Other Annual Compensation for Mr. Morgan.
In 1996, Mr. Morgan received non-statutory stock options under Acxiom's LTI
plan described above which consisted of a three-year grant of non-statutory
stock options, with exercise prices as follows: one-fourth at the then current
market price, one-fourth at a 50% premium over market, and the remaining one-
half at a 100% premium over market. The purpose of the 1996 grant was to
further encourage Mr. Morgan's long-term performance while aligning his
interests with those of Acxiom's other stockholders with regard to the
performance of Acxiom Common Stock. Mr. Morgan will not be eligible for
another LTI grant until 1999.
Omnibus Budget Reconciliation Act of 1993. The Omnibus Budget Reconciliation
Act of 1993 ("OBRA") generally prevents public corporations from deducting as
a business expense that portion of the compensation paid to the named
individuals in the above Summary Compensation Table that exceeds $1,000,000.
However, this deduction limit does not apply to "performance-based
compensation" paid pursuant to plans approved by Stockholders. The Acxiom
Board of Directors has modified its compensation plans so as to comply with
OBRA and thereby retain the deductibility of executive compensation, and it is
Acxiom's intention to continue to monitor its compensation plans to comply
with OBRA in the future.
68
<PAGE>
ACXIOM'S PERFORMANCE
The graph below compares for each of the last six fiscal years the cumulative
total return on Acxiom's Common Stock, the NASDAQ National Market--U.S. Index,
and the NASDAQ National Market--Computer and Data Processing Index. The
cumulative total return on Acxiom's Common Stock assumes $100 invested on March
31, 1992 in Acxiom Common Stock.
COMPARISON OF SIX YEAR CUMULATIVE TOTAL RETURN*
AMONG ACXIOM CORPORATION, THE NASDAQ STOCK MARKET (U.S.) INDEX
AND THE NASDAQ COMPUTER & DATA PROCESSING INDEX
[LINE GRAPH APPEARS HERE]
* $100 invested on 3/31/92 in stock or index--including reinvestment of
dividends. Fiscal year ending March 31.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires Acxiom's executive officers,
directors, and persons who own more than ten percent (10%) of a registered
class of Acxiom's equity securities to file reports of ownership and changes in
ownership with the Commission and the National Association of Securities
Dealers, Inc. Such persons are required by Commission rules and regulations to
furnish Acxiom with copies of all Section 16(a) forms they file.
Additionally, Commission rules and regulations require that Acxiom identify
any individuals for whom one of the referenced reports was not filed on a
timely basis during the most recent fiscal year or prior fiscal years. To
Acxiom's knowledge, based solely on its review of the copies of such forms
received by it, or written representations from certain reporting persons that
no other forms were required for those persons during and with respect to the
fiscal year ended March 31, 1998, Acxiom believes that during the past fiscal
year, all filing requirements applicable to its officers, directors, and
greater than ten percent (10%) beneficial owners were met.
69
<PAGE>
CERTAIN TRANSACTIONS
On January 5, 1996, Acxiom leased an aircraft from MorAir, Inc., a
corporation controlled by Charles D. Morgan, Acxiom's Chairman and Company
Leader, for $66,385 per month, plus maintenance and insurance. The term of
this aircraft lease expires January 4, 2001. The terms of the lease have been
found by the Acxiom Board of Directors to be as good or better than those
which could have been obtained from an unrelated third party.
In March 1998, Acxiom began using the temporary staffing services of the
national staffing firm, Norrell Staffing Services, Inc. ("Norrell"), for its
strategic staffing and contingency workforce needs. Susie P. Morgan, wife of
Charles D. Morgan, Chairman of the Board and Company Leader of Acxiom, owns
the Little Rock, Arkansas franchise (the "Franchise") of Norrell. It is
anticipated that the total annual fees to be received by the Franchise from
Norrell, based on payments to be made by Acxiom to Norrell, will be
approximately $150,000. The majority of such fees will be used to offset the
expenses of the Franchise.
In accordance with the Data Center Management Agreement dated July 27, 1992
(the "DCM Agreement") between Acxiom and Trans Union, which became effective
on August 31, 1992, Acxiom (through its subsidiary, Acxiom CDC, Inc.) acquired
all of Trans Union's interest in its Chicago data center and agreed to provide
Trans Union with various data center management services. The term of the DCM
Agreement, as amended, expires in 2005.
In connection with the DCM Agreement, on August 31, 1992 Acxiom issued
1,920,000 shares of Acxiom Common Stock to Trans Union (the "Initial Shares of
Acxiom Common Stock"), subject to certain "put" and "call" provisions.
Pursuant to a subsequent amendment, Trans Union relinquished its right to
cause Acxiom to repurchase the Initial Shares of Acxiom Common Stock, and
Acxiom relinquished its right to call the shares of Acxiom Common Stock. On
August 31, 1992, Acxiom also issued a warrant (the "Warrant") to Trans Union
to purchase up to 4,000,000 additional shares of Acxiom Common Stock prior to
August 31, 2000, at exercise prices ranging from $2.9125 per share to $3.5625
per share. In addition, effective October 26, 1994, Acxiom and Trans Union's
parent company, Marmon Industrial Corporation ("MIC"), entered into a stock
purchase agreement pursuant to which Acxiom agreed to sell, and MIC agreed to
buy, 2,000,000 shares of Acxiom Common Stock from Acxiom (the "Additional
Shares of Acxiom Common Stock") for $5.98 per share. The purchase price of the
Additional Shares of Acxiom Common Stock was established on August 31, 1994
pursuant to a letter agreement between Acxiom and Trans Union. On May 30,
1997, Trans Union transferred the Initial Shares of Acxiom Common Stock
(together with an additional 1,000 shares of Acxiom Common Stock it had
previously acquired from Mr. Gambill) to The Pritzker Foundation, an Illinois
not for profit corporation. Also on that date, MIC transferred the Additional
Shares of Acxiom Common Stock to The Pritzker Foundation. As a result of such
transfers, The Pritzker Foundation owns an aggregate of 3,921,000 shares of
Acxiom Common Stock, or approximately 7.5% of Acxiom's issued and outstanding
shares of Acxiom Common Stock. See "THE MERGER--Terms of the Merger--
Irrevocable Proxies."
Upon acquisition of the 4,000,000 shares of Acxiom Common Stock which could
currently be purchased under the Warrant, Trans Union would beneficially own
approximately 7.6% of Acxiom's issued and outstanding shares of Acxiom Common
Stock. The amount of stock which may be purchased by Trans Union under the
Warrant is limited so that the total shares of Acxiom Common Stock acquired
under the Warrant and the DCM Agreement may not exceed 10% of Acxiom's then
issued and outstanding Common Stock. Based upon the number of shares of Acxiom
Common Stock currently issued and outstanding, Trans Union would be able to
purchase approximately 3,700,000 shares of Acxiom Common Stock under the
Warrant. Trans Union retains the right, however, to acquire additional shares
of Acxiom Common Stock on the open market, which do not count towards the 10%
limit under the Warrant. In addition, pursuant to the DCM Agreement, Trans
Union has preemptive rights whereby it may, under certain circumstances,
purchase shares of Acxiom Common Stock in the event Acxiom issues additional
shares of Acxiom Common Stock. Such preemptive rights provide Trans Union with
the ability to maintain its percentage ownership of Acxiom Common Stock
acquired pursuant to the DCM Agreement. Trans Union does not have any
preemptive rights with respect to the issuance by Acxiom of shares of Acxiom
Common Stock pursuant to the Merger.
70
<PAGE>
Pursuant to a letter agreement dated July 27, 1992, which was executed in
connection with the DCM Agreement, Acxiom agreed to use its best efforts to
cause one person designated by Trans Union to be elected to the Acxiom Board
of Directors. Trans Union designated its CEO and President, Harry C. Gambill,
who was appointed to fill a vacancy on the Board in November 1992 and was
elected at the 1993 Annual Meeting of the Acxiom Stockholders to serve a
three-year term. He was elected to serve a second three-year term at the 1996
Annual Meeting. Pursuant to a second letter agreement dated August 31, 1994,
which was executed in connection with an amendment to the DCM Agreement, which
continued the term through 2002, Acxiom agreed to amend the letter agreement
dated July 27, 1992 and use its best efforts to cause two persons designated
by Trans Union to be elected to Acxiom Board of Directors. In addition to Mr.
Gambill, Trans Union designated Robert A. Pritzker, an executive officer of
MIC, who was appointed to fill a newly created position on the Acxiom's Board
of Directors on October 26, 1994. Mr. Pritzker was elected to serve a three-
year term at the 1995 Annual Meeting of Stockholders and has been nominated
for re-election to the Board of Directors at the Acxiom Meeting. These
undertakings by Acxiom are in effect until the later of the tenth anniversary
of August 31, 1992 or the termination of the DCM Agreement, the term of which
has been extended to 2005.
71
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT OF ACXIOM
The following table sets forth certain information as to the shares of
Acxiom Common Stock beneficially owned as of July 28, 1998, by (a) each person
who, as far as Acxiom has been able to ascertain, beneficially owned more than
five percent of the Acxiom Common Stock, (b) each director, (c) each of the
five most highly compensated executive officers of Acxiom, and (d) all
directors and executive officers of Acxiom as a group.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF PERCENT OF PERCENT OF ACXIOM
ACXIOM COMMON ACXIOM COMMON STOCK
NAME OF BENEFICIAL OWNER STOCK OWNED COMMON STOCK OUTSTANDING AFTER THE
OR IDENTITY OF GROUP BENEFICIALLY OUTSTANDING MERGER(1)
- ------------------------ ------------------- ------------ ---------------------
<S> <C> <C> <C>
William Blair & Company,
L.L.C. ................ 5,310,950(2) 10.1% 8.7%(3)
222 West Adams Street
Chicago, IL 60606
Charles D. Morgan....... 4,121,545(4) 7.8% 5.2%
P.O. Box 2000
Conway, AR 72033-2000
Trans Union Corporation. 4,002,000(5) 7.7% 4.8%
555 West Adams Street
Chicago, IL 60661
The Pritzker Foundation. 3,921,000(6) 7.5% 4.7%
200 W. Madison Street
Suite 3800
Chicago, IL 60606
Brown Capital
Management, Inc. ...... 3,800,000(7) 7.2% 4.6%
809 Cathedral Street
Baltimore, MD 21201
T. Rowe Price
Associates, Inc........ 3,644,220(2) 6.9% 4.4%
P.O. Box 89000
Baltimore, MD 21289
Dr. Ann H. Die.......... 10,655 * *
C. Alex Dietz........... 435,112(8) * *
William T. Dillard II... 19,000 * *
Harry C. Gambill........ 0(9) * *
Rodger S. Kline......... 1,871,694(10) 3.6% 2.4%
Robert A Pritzker....... 3,000(11) * *
James T. Womble......... 1,545,046(12) 2.9% 1.9%
Paul Zaffaroni.......... 308,932(13) * *
All directors, nominees
and executive officers,
as a group (11
persons)............... 8,465,107(14) 15.9% 10.5%
</TABLE>
72
<PAGE>
- --------
*Denotes less than 1%.
(1) Assumes the conversion of the 5% Convertible Subordinated Notes due 2003
of May & Speh (the "Notes") into shares of May & Speh Common Stock upon
consummation of the Merger. Includes: (i) 52,521,326 shares of Acxiom
Common Stock outstanding as of the Acxiom Record Date, (ii) 20,858,923
shares of Acxiom Common Stock to be issued in exchange for the 26,073,654
shares of May & Speh Common Stock outstanding as of the May & Speh Record
Date at the Exchange Ratio and (iii) 5,782,524 shares of Acxiom Common
Stock to be issued in exchange for the 7,228,155 shares of May & Speh
Common Stock issuable upon conversion of the Notes at the Exchange Ratio.
(2) Based on information contained in a Schedule 13G filed with the Commission
on February 17, 1994.
(3) Includes 1,584,240 shares of Acxiom Common Stock issuable upon
consummation of the Merger in exchange for the 1,980,300 shares of May &
Speh Common Stock held by William Blair & Company, L.L.C. at the Exchange
Ratio. See "Security Ownership of Certain Beneficial Owners and Management
of May & Speh."
(4) Includes 297,654 shares subject to currently exercisable options, of which
270,246 are in the money.
(5) Includes 4,000,000 shares of Acxiom Common Stock subject to warrant (the
"Warrant") held by Trans Union and 2,000 shares of Acxiom Common Stock
transferred to Trans Union by Harry C. Gambill, Chief Executive Officer
and President of Trans Union. Under the terms of the Warrant, Trans Union
has the right to purchase up to 4,000,000 shares of Acxiom Common Stock,
at exercise prices ranging from $2.8125 to $3.5625 per share; however, the
total number of actual shares of Acxiom Common Stock acquired by Trans
Union (excluding the shares of Acxiom Common Stock acquired from Mr.
Gambill and shares of Acxiom Common Stock acquired by Trans Union on the
open market) may not exceed 10% of Acxiom's then issued and outstanding
Common Stock. Including the shares of Acxiom Common Stock which may
presently be acquired by Trans Union under the Warrant, but excluding the
shares of Acxiom Common Stock transferred to Trans Union from Mr. Gambill,
Trans Union beneficially owns approximately 4,000,000 shares of Acxiom
Common Stock, which would be 7.6% of Acxiom's then issued and outstanding
Common Stock following issuance of the Warrant shares. See "THE MERGER--
Terms of the Merger--Irrevocable Proxies" and "CERTAIN TRANSACTIONS."
(6) Includes 1,921,000 shares of Acxiom Common Stock acquired by The Pritzker
Foundation, an Illinois not for profit corporation, from Trans Union, and
2,000,000 shares of Acxiom Common Stock acquired by The Pritzker
Foundation from Marmon Industrial Corporation, the owner of all of Trans
Union's common stock. Each of the acquisitions was made by The Pritzker
Foundation on May 30, 1997.
(7) Based on information provided by a representative of Brown Capital
Management, Inc.
(8) Includes 1,990 shares of Acxiom Common Stock held by Mr. Dietz's wife and
257,123 shares of Acxiom Common Stock subject to currently exercisable
options (29,480 of which are held by Mrs. Dietz), of which 241,847 are in
the money.
(9) See footnote (3) above regarding shares of the Acxiom Common Stock
beneficially owned by Trans Union. Mr. Gambill, who is an officer and
director of Trans Union, disclaims beneficial ownership of such shares of
Acxiom Common Stock.
(10) Includes 231,349 shares subject to currently exercisable options, of
which 213,386 are in the money.
(11) See footnote (3) above regarding shares of Acxiom's Common Stock
beneficially owned by Trans Union. Mr. Pritzker, who is an officer and
director of Trans Union, disclaims beneficial ownership of such shares of
Acxiom Common Stock. The 3,000 shares of Acxiom Common Stock were issued
to Mr. Pritzker as an annual retainer for serving on Acxiom's Board of
Directors. See "MANAGEMENT--Executive Compensation--Compensation of
Directors." Of these, 1,000 shares of Acxiom Common Stock are owned by
Mr. Pritzker's wife; however, Mr. Pritzker is deemed to beneficially own
such shares of Acxiom Common Stock.
(12) Includes 174,215 shares of Acxiom Common Stock subject to currently
exercisable options, of which 158,740 are in the money.
(13) Includes 295,597 shares of Acxiom Common Stock subject to currently
exercisable options, of which 281,067 are in the money.
(14) Includes 1,397,849 shares of Acxiom Common Stock subject to currently
exercisable options, of which 1,296,235 are in the money.
73
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT OF MAY & SPEH
The following table sets forth, (i) as of the May & Speh Record Date, the
number of shares of May & Speh Common Stock beneficially owned by all persons
known by May & Speh to beneficially own more than five percent of the
outstanding May & Speh Common Stock, each director of May & Speh, certain
executive officers and all directors and executive officers as a group and
(ii) upon consummation of the Merger, the number of shares of Acxiom Common
Stock that will be beneficially owned by each of such persons (including
shares of Acxiom Common Stock issuable pursuant to Acxiom Exchange Options
which become exercisable upon consummation of the Merger). Unless otherwise
indicated, the persons named below have sole voting and investment power with
respect to all shares shown as beneficially owned by them.
<TABLE>
<CAPTION>
SHARES OF SHARES OF ACXIOM PERCENT OF ACXIOM
MAY & SPEH PERCENT OF COMMON STOCK COMMON STOCK
COMMON STOCK MAY & SPEH BENEFICIALLY OWNED OUTSTANDING
BENEFICIALLY COMMON STOCK FOLLOWING THE FOLLOWING THE
BENEFICIAL OWNER OWNED OUTSTANDING MERGER MERGER(1)
---------------- ------------ ------------ ------------------ -----------------
<S> <C> <C> <C> <C>
May & Speh, Inc.
Employee Stock
Ownership Plan......... 6,586,336(2) 25.3% 5,269,068 6.9%
Lawrence J. Speh........ 1,830,373(3) 7.0% 1,752,298 2.2%
William Blair & Company,
L.L.C.................. 1,980,300(4) 7.6% 6,895,190(5) 2.0%
Albert J. Speh.......... 1,074,732(6) 4.1% 859,785 1.1%
Robert C. Early......... 175,615(7) * 412,492 *
Michael J. Loeffler..... 158,122(8) * 360,097 *
Terrance C. Cieslak..... 142,227(9) * 220,021 *
Casey Cowell............ 107,204 * 97,283 *
Peter I. Mason.......... 270,200(10) 1.0% 794,720 *
Jonathan Zakin.......... 68,003(11) * 71,682 *
Deborah A. Bricker...... 14,400(12) * 17,280 *
Paul G. Yovovich........ 12,200(13) * 21,280 *
All directors and
executive officers as a
group (13) persons..... 4,087,901(14) 15.4 5,000,551 8.2%
</TABLE>
- --------
* Less than one percent
(1) Assumes the conversion of the 5% Convertible Subordinated Notes due 2003
of May & Speh (the "Notes") into shares of May & Speh Common Stock upon
consummation of the Merger. Includes: (i) 52,521,326 shares of Acxiom
Common Stock outstanding as of the Acxiom Record Date, (ii) 20,858,923
shares of Acxiom Common Stock to be issued in exchange for the 26,073,654
shares of May & Speh Common Stock outstanding as of the May & Speh Record
Date at the Exchange Ratio and (iii) 5,782,524 shares of Acxiom Common
Stock to be issued in exchange for the 7,228,155 shares of May & Speh
Common Stock issuable upon conversion of the Notes at the Exchange Ratio.
(2) The address of the May & Speh, Inc. Employee Stock Ownership Plan (the
"ESOP") is c/o Cole Taylor Bank. 850 W. Jackson Blvd., Chicago, Illinois
60607. Includes 5,281,250 shares that have been allocated or are available
for allocation to the accounts of certain employees or former employees of
May & Speh. ESOP participants have shared voting and investment power with
respect to the shares allocated to their individual accounts.
(3) Includes 2,927 shares allocated to Mr. Speh's ESOP account. Excludes
22,490 shares held by Mr. Speh's wife, as to which he disclaims beneficial
ownership. Mr. Speh's address is c/o May & Speh, Inc., 1501 Opus Place,
Downers Grove, Illinois 60515.
(4) Based on a Schedule 13G dated February 14, 1998 filed by William Blair &
Company, L.L.C. ("WBC") in which WBC reported sole voting power with
respect to 821,500 shares and sole dispositive power with respect to
1,980,300 shares. The address of WBC is 222 West Adams Street, Chicago,
Illinois 60606.
(5) Includes 5,310,950 shares of Acxiom Common Stock beneficially owned by
WBC prior to the Merger. See "Security Ownership of Certain Beneficial
Owners and Management of Acxiom."
74
<PAGE>
(6) Includes 2,927 shares allocated to Mr. Speh's ESOP account. Mr. Speh's
address is c/o May & Speh, Inc., 1501 Opus Place, Downers Grove, Illinois
60515.
(7) Includes 120,803 shares issuable pursuant to currently exercisable
options, and 33,500 shares allocated to Mr. Early's ESOP account.
(8) Includes 91,100 shares issuable pursuant to options that are currently
exercisable or that will become exercisable within 60 days, and 67,022
shares allocated to Mr. Loeffler's ESOP account.
(9) Includes 67,800 shares issuable pursuant to options that are currently
exercisable or that will become exercisable within 60 days, and 74,427
shares allocated to Mr. Cieslak's ESOP account.
(10) Includes 193,400 shares issuable pursuant to options that are currently
exercisable or will become exercisable within 60 days.
(11) Represents shares held by a family foundation with respect to which Mr.
Zakin has shared voting and investment power.
(12) Represents shares issuable pursuant to options that are currently
exercisable or will become exercisable within 60 days.
(13) Includes 7,200 shares issuable pursuant to options that are currently
exercisable or that will become exercisable within 60 days.
(14) Includes 525,903 shares issuable pursuant to options that are currently
exercisable or that will become exercisable within 60 days, and 250,443
shares allocated to the ESOP accounts of the executive officers.
LEGAL MATTERS
The validity of the issuance of the shares of Acxiom Common Stock being
offered hereby will be passed upon for Acxiom by Catherine L. Hughes, Esq.,
General Counsel of Acxiom. Certain United States federal income tax matters
with respect to the Merger will be passed upon for Acxiom by Skadden, Arps,
Slate, Meagher & Flom LLP. Certain United States federal income tax matters
with respect to the Merger will passed upon for May & Speh by Winston &
Strawn.
EXPERTS
The consolidated financial statements and related financial statement
schedule of Acxiom as of March 31, 1998 and 1997, and for each of the years in
the three-year period ended March 31, 1998 incorporated by reference in this
Proxy Statement/Prospectus and the Registration Statement, have been
incorporated by reference herein and in the Registration Statement in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The May & Speh financial statements as of September 30, 1997 and 1996 and
for each of the three fiscal years in the period ended September 30, 1997
incorporated in this Proxy Statement/Prospectus by reference to pages F-1
through F-17 of the prospectus which constitutes a part of the May & Speh
registration statement on Form S-3 (333-46547) have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
RELATIONSHIP WITH INDEPENDENT PUBLIC ACCOUNTANTS
It is expected that representatives of KPMG Peat Marwick LLP, the
independent auditors of Acxiom, will be present at the Acxiom Meeting, where
they will have an opportunity to respond to appropriate questions and to make
a statement if they so desire. It is expected that representatives of
PricewaterhouseCoopers LLP, the independent auditors of May & Speh, will be
present at the May & Speh Meeting, where they will have an opportunity to
respond to appropriate questions and to make a statement if they so desire.
75
<PAGE>
STOCKHOLDER PROPOSALS FOR THE
1999 ANNUAL STOCKHOLDERS' MEETINGS
ACXIOM
Any stockholder proposal to be presented at the 1999 annual meeting of
Acxiom stockholders should be directed to the Secretary of Acxiom, P.O. Box
2000, 301 Industrial Boulevard, Conway, Arkansas 72033-2000, and must be
received by Acxiom on or before March 31, 1999. Any such proposal must comply
with the requirements of Rule 14a-8 under the Exchange Act.
MAY & SPEH
In the event that the Merger is not consummated for any reason, May & Speh
will hold a 1999 annual meeting. If such a meeting is held, any stockholder
proposal to be presented at such 1999 annual meeting of May & Speh
stockholders must be received by the Corporate Secretary of May & Speh, in
writing, on or before October 9, 1998 to be considered for inclusion in the
proxy materials relating to such meeting.
76
<PAGE>
ANNEX A
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ACXIOM CORPORATION,
ACX ACQUISITION CO., INC.
AND
MAY & SPEH, INC.
DATED AS OF MAY 26, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<C> <S> <C>
ARTICLE I
THE MERGER................................................................ 2
Section 1.1 The Merger.................................................. 2
Section 1.2 Effective Time of the Merger................................ 2
ARTICLE II
THE SURVIVING CORPORATION................................................. 2
Section 2.1 Certificate of Incorporation................................ 2
Section 2.2 By-Laws..................................................... 2
Section 2.3 Directors and Officers of Surviving Corporation............. 2
ARTICLE III
CONVERSION OF SHARES...................................................... 2
Section 3.1 Exchange Ratio.............................................. 2
Section 3.2 Exchange of Shares.......................................... 3
Section 3.3 Dividends; Transfer Taxes................................... 3
Section 3.4 No Fractional Securities.................................... 3
Section 3.5 Certain Adjustments......................................... 3
Section 3.6 Closing of Company Transfer Books........................... 4
Section 3.7 Closing..................................................... 4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT.................................. 4
Section 4.1 Organization................................................ 4
Section 4.2 Capitalization.............................................. 4
Section 4.3 Subsidiaries................................................ 4
Section 4.4 Authority Relative to this Agreement........................ 5
Section 4.5 Consents and Approvals; No Violations....................... 5
Section 4.6 Reports and Financial Statements............................ 6
Section 4.7 Absence of Certain Changes or Events........................ 6
Section 4.8 Litigation.................................................. 6
Section 4.9 Patents, Trademarks, Etc.................................... 6
Information in Disclosure Documents and Registration
Section 4.10 Statement................................................... 6
Section 4.11 Absence of Undisclosed Liabilities.......................... 7
Section 4.12 No Default.................................................. 7
Section 4.13 Title to Properties; Encumbrances........................... 7
Section 4.14 Compliance with Applicable Law.............................. 7
Section 4.15 Labor Matters............................................... 7
Section 4.16 Employee Benefit Plans; ERISA............................... 7
Section 4.17 Vote Required............................................... 9
Section 4.18 Opinion of Financial Advisor................................ 9
Section 4.19 Ownership of Company Common Stock........................... 9
Section 4.20 Pooling..................................................... 10
Section 4.21 Taxes....................................................... 10
Section 4.22 Contracts................................................... 11
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................. 11
Section 5.1 Organization................................................ 11
</TABLE>
i
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<TABLE>
<C> <S> <C>
Section 5.2 Capitalization.............................................. 11
Section 5.3 Subsidiaries................................................ 12
Section 5.4 Authority Relative to this Agreement........................ 12
Section 5.5 Consents and Approvals; No Violations....................... 12
Section 5.6 Reports and Financial Statements............................ 13
Section 5.7 Absence of Certain Changes or Events........................ 13
Section 5.8 Litigation.................................................. 13
Section 5.9 Patents, Trademarks, Etc.................................... 13
Information in Disclosure Documents and Registration
Section 5.10 Statement................................................... 13
Section 5.11 Absence of Undisclosed Liabilities.......................... 14
Section 5.12 No Default.................................................. 14
Section 5.13 Taxes....................................................... 14
Section 5.14 Title to Properties; Encumbrances........................... 15
Section 5.15 Compliance with Applicable Law.............................. 15
Section 5.16 Labor Matters............................................... 15
Section 5.17 Employee Benefit Plans; ERISA............................... 15
Section 5.18 Contracts................................................... 17
Section 5.19 Vote Required............................................... 17
Section 5.20 Opinion of Financial Advisor................................ 17
Section 5.21 Takeover Statute............................................ 17
Section 5.22 The Company Rights Agreement................................ 17
Section 5.23 Ownership of Parent Common Stock............................ 18
Section 5.24 Pooling..................................................... 18
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER.................................... 18
Section 6.1 Conduct of Business by the Company Pending the Merger....... 18
Section 6.2 Conduct of Business by Parent Pending the Merger............ 19
Section 6.3 Conduct of Business of Sub.................................. 20
ARTICLE VII
ADDITIONAL AGREEMENTS..................................................... 20
Section 7.1 Access and Information...................................... 20
Section 7.2 Acquisition Proposals....................................... 20
Section 7.3 Registration Statement...................................... 21
Section 7.4 Proxy Statements; Stockholder Approvals..................... 21
Section 7.5 Affiliate Agreements........................................ 21
Section 7.6 Antitrust Laws.............................................. 22
Section 7.7 Proxies..................................................... 22
Section 7.8 Employees, Employee Benefits................................ 22
Section 7.9 Stock Options............................................... 23
Section 7.10 Public Announcements........................................ 23
Section 7.11 By-Law Indemnification and Insurance........................ 23
Section 7.12 Expenses.................................................... 23
Section 7.13 Additional Agreements....................................... 24
Section 7.14 Control of the Company's and Parent's Operations............ 24
Section 7.15 Company Rights Plan......................................... 24
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER.................................. 25
Section 8.1 Conditions to Each Party's Obligation to Effect the Merger.. 25
</TABLE>
ii
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<TABLE>
<C> <S> <C>
Conditions to Obligation of the Company to Effect the
Section 8.2 Merger...................................................... 25
Conditions to Obligations of Parent and Sub to Effect the
Section 8.3 Merger...................................................... 25
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER......................................... 26
Section 9.1 Termination................................................. 26
Section 9.2 Effect of Termination....................................... 27
Section 9.3 Amendment................................................... 27
Section 9.4 Waiver...................................................... 27
ARTICLE X
GENERAL PROVISIONS........................................................ 27
Section 10.1 Survival of Representations, Warranties and Agreements...... 27
Section 10.2 Brokers..................................................... 27
Section 10.3 Notices..................................................... 28
Section 10.4 Descriptive Headings........................................ 28
Section 10.5 Entire Agreement; Assignment................................ 28
Section 10.6 Governing Law............................................... 28
Section 10.7 Specific Performance........................................ 28
Section 10.8 Counterparts................................................ 29
Exhibit A-1 Irrevocable Proxy........................................... 30
Exhibit A-2 Irrevocable Proxy........................................... 32
Exhibit A-3 Irrevocable Proxy........................................... 35
Exhibit B Form of Company Rights Plan Amendment....................... 37
Exhibit C Form of Affiliate Letter for Affiliates of the Company...... 40
Exhibit D Form of Affiliate Letter for Affiliates of Parent........... 43
</TABLE>
iii
<PAGE>
AMENDED AND RESTATED AGREEMENT
AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of May 26, 1998
(the "Agreement"), by and among Acxiom Corporation, a Delaware corporation
("Parent"), ACX Acquisition Co., Inc., a Delaware corporation and a wholly
owned subsidiary of Parent ("Sub"), and May & Speh, Inc., a Delaware
corporation (the "Company").
WHEREAS, Parent, Sub and the Company entered into an Agreement and Plan of
Merger dated as of May 26, 1998 (the "Original Agreement"); and
WHEREAS, the Boards of Directors of Parent, Sub and the Company have
approved and authorized this Amended and Restated Merger Agreement providing
for certain clarifications of the Original Agreement and on July 29, 1998,
Parent, Sub and the Company entered into this Amended and Restated Merger
Agreement; and
WHEREAS, the Boards of Directors of Parent and Sub and the Company deem it
advisable and in the best interests of their respective stockholders that
Parent combine with the Company, and such Boards of Directors have approved
the merger (the "Merger") of Sub with and into the Company upon the terms and
subject to the conditions set forth herein; and
WHEREAS, concurrently with the execution and delivery of this Agreement, and
as a condition and inducement to the Company's willingness to enter into this
Agreement, a holder of shares of Parent's common stock, par value $.10 per
share (the "Parent Common Stock") is granting the Company an irrevocable proxy
in the form attached hereto as Exhibit A-1 (the "Parent Stock Proxy"), to vote
such shares of Parent Common Stock; and
WHEREAS, concurrently with the execution and delivery of this Agreement and
as a condition and inducement to Parent's and Sub's willingness to enter into
this Agreement, certain holders of shares of the Company's Common Stock, par
value $.01 per share (the "Company Common Stock"), are granting Parent
irrevocable proxies, in the forms attached hereto as Exhibits A-2 and A-3 (the
"Company Stock Proxies" and, together with the Parent Stock Proxy, the
"Proxies"), to vote such shares of Company Common Stock; and
WHEREAS, immediately following the execution and delivery of this Agreement,
the Company and Parent will enter into a stock option agreement (the "Company
Option Agreement"), pursuant to which the Company will grant Parent the option
to purchase shares of Company Common Stock, upon the terms and subject to the
conditions set forth therein; and
WHEREAS, immediately following the execution and delivery of this Agreement,
the Company and Parent will enter into a stock option agreement (the "Parent
Option Agreement"), pursuant to which Parent will grant the Company the option
to purchase shares of Parent Common Stock, upon the terms and subject to the
conditions set forth therein; and
WHEREAS, for U.S. federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code") and this
Agreement is hereby adopted as a plan of reorganization for purposes of
Section 368 of the Code; and
WHEREAS, for financial accounting purposes, it is intended that the Merger
shall be accounted for as a pooling of interests under United States generally
accepted accounting principles.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Proxies, the parties hereto agree as follows:
<PAGE>
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions set
forth herein, at the Effective Time (as defined in Section 1.2 hereof), Sub
shall be merged with and into the Company and the separate existence of Sub
shall thereupon cease, and the name of the Company, as the surviving
corporation in the Merger (the "Surviving Corporation"), shall by virtue of
the Merger be "May & Speh, Inc." The Merger shall have the effects set forth
in Section 259 of the General Corporation Law of the State of Delaware (the
"GCL").
Section 1.2 Effective Time of the Merger. The Merger shall become effective
when a properly executed certificate of merger (the "Certificate of Merger")
is duly filed with the Secretary of State of the State of Delaware, which
filing shall be made as soon as practicable after the closing of the
transactions contemplated by this Agreement in accordance with Section 3.6
hereof. When used in this Agreement, the term "Effective Time" shall mean the
date and time at which the Certificate of Merger is so filed.
ARTICLE II
THE SURVIVING CORPORATION
Section 2.1 Certificate of Incorporation. The Certificate of Incorporation
of Sub in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation (except that Article
I of the Certificate of Incorporation shall be amended as of the Effective
Time to read as follows "The name of the Corporation is May & Speh, Inc.").
Section 2.2 By-Laws. Subject to Section 7.11 hereof, the By-Laws of Sub as
in effect immediately prior to the Effective Time shall be the By-Laws of the
Surviving Corporation.
Section 2.3 Directors and Officers of Surviving Corporation. (a) The
directors of Sub immediately prior to the Effective Time shall be the initial
directors of the Surviving Corporation and shall hold office from the
Effective Time until their respective successors are duly elected or appointed
and qualify in the manner provided in the Certificate of Incorporation and By-
Laws of the Surviving Corporation or as otherwise provided by law.
(b) The officers of the Company immediately prior to the Effective Time
shall be the initial officers of the Surviving Corporation and shall hold
office from the Effective Time until their respective successors are duly
elected or appointed and qualify in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation, or as otherwise
provided by law.
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Exchange Ratio. At the Effective Time, by virtue of the Merger
and without any action on the part of the holders of any of the capital stock
of Sub or the Company:
(a) Each share of Company Common Stock (the "Shares") issued and
outstanding immediately prior to the Effective Time (other than Shares held
by Parent or any direct or indirect wholly owned subsidiary of Parent or
Shares to be cancelled pursuant to Section 3.1(b)) shall be converted into
the right to receive .80 (the "Exchange Ratio") of a validly issued, fully
paid and non-assessable share of common stock, par value $.10 per share, of
Parent ("Parent Shares"), payable upon the surrender of the certificate
formerly representing such Share. Holders of Shares shall also have the
right to receive together with each Parent Share issued in the Merger, one
associated preferred stock purchase right (a "Parent Right") in accordance
A-2
<PAGE>
with the Rights Agreement dated as of January 28, 1998 (the "Parent Rights
Agreement"), between Parent and First Chicago Trust Company of New York.
References herein to the Parent Shares issuable in the Merger shall be
deemed to include the associated Parent Rights.
(b) Each Share held in the treasury of the Company and each Share held by
Parent or any direct or indirect wholly owned subsidiary of Parent
immediately prior to the Effective Time shall be cancelled and retired and
cease to exist and no consideration shall be delivered in exchange
therewith.
(c) Each share of Common Stock, par value $.01 per share, of Sub issued
and outstanding immediately prior to the Effective Time shall be converted
into and become one validly issued, fully paid and non-assessable share of
common stock, par value $.01 per share, of the Surviving Corporation, and
the Surviving Corporation shall be a wholly owned subsidiary of Parent.
Section 3.2 Exchange of Shares. Parent shall authorize one or more persons
(reasonably satisfactory to the Company) to act as exchange agent hereunder
(the "Exchange Agent"). As soon as practicable after the Effective Time,
Parent shall make available, and each holder of Shares will be entitled to
receive, upon surrender to the Exchange Agent of one or more certificates
representing such Shares for cancellation, certificates representing the
number of Parent Shares into which such Shares are converted in the Merger.
The Parent Shares into which the Shares shall be converted in the Merger shall
be deemed to have been issued at the Effective Time.
Section 3.3 Dividends; Transfer Taxes. No dividends that are declared on
Parent Shares will be paid to persons entitled to receive certificates
representing Parent Shares until such persons surrender their certificates
representing Shares. Upon such surrender, there shall be paid to the person in
whose name the certificates representing such Parent Shares shall be issued,
any dividends which shall have become payable with respect to such Parent
Shares between the Effective Time and the time of such surrender. In no event
shall the person entitled to receive such dividends be entitled to receive
interest on such dividends. If any certificates for any Parent Shares are to
be issued in a name other than that in which the certificate representing
Shares surrendered in exchange therefor is registered it shall be a condition
of such exchange that the person requesting such exchange shall pay to the
Exchange Agent any transfer or other taxes required by reason of the issuance
of certificates for such Parent Shares in a name other than that of the
registered holder of the certificate surrendered or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to a holder of Shares for any Parent Shares or
dividends thereon or, in accordance with Section 3.4 hereof, proceeds of the
sale of fractional interests, delivered to a public official pursuant to
applicable escheat laws.
Section 3.4 No Fractional Securities. No certificates or scrip representing
fractional Parent Shares shall be issued upon the surrender for exchange of
certificates representing Shares pursuant to this Article III and no dividend,
stock split-up or other change in the capital structure of Parent shall relate
to any fractional security, and such fractional interests shall not entitle
the owner thereof to vote or to any rights of a security holder. In lieu of
any such fractional securities, each holder of Shares who would otherwise have
been entitled to a fraction of a Parent Share upon surrender of stock
certificates for exchange pursuant to this Article III will be paid cash upon
such surrender in an amount equal to the product of such fraction multiplied
by the closing sale price of Parent Shares on the National Association of
Securities Dealers Automated Quotations National Market System (the "NASDAQ")
on the day of the Effective Time, or, if the Parent Shares are not so traded
on such day, the closing sale price on the next preceding day on which such
stock was traded on the NASDAQ.
Section 3.5 Certain Adjustments. If between the date hereof and the
Effective Time, the outstanding shares of Parent Common Stock or of Company
Common Stock shall be changed into a different number of shares by reason or
reclassification, recapitalization, split-up, combination or exchange of
shares, or any dividend payable in stock or other securities shall be declared
thereon with a record date within such period, the Exchange Ratio shall be
adjusted accordingly to provide the holders of Company Common Stock, the same
economic effect as contemplated by this Agreement prior to such
reclassification, recapitalization, split-up, combination, exchange or
dividend.
A-3
<PAGE>
Section 3.6 Closing of Company Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed and no transfer of Shares
shall thereafter be made. From and after the Effective Time, the holders of
the Shares issued and outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such Shares, except as
otherwise provided herein. If, after the Effective Time, certificates
representing Shares are presented to the Surviving Corporation, they shall be
cancelled and exchanged for certificates representing Parent Shares and cash
in lieu of any fractional shares in accordance with Section 3.4 hereof.
Section 3.7 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York, at 10:00
a.m., local time, on the later of (a) the date of the stockholders' meetings
referred to in Section 7.4 hereof or (b) the day on which all of the
conditions set forth in Article VIII hereof are satisfied or waived, or at
such other date, time and place as Parent and the Company shall agree.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as follows:
Section 4.1 Organization. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power to carry on its business as it is now being conducted or
presently proposed to be conducted. Parent is duly qualified as a foreign
corporation to do business, and is in good standing, in each jurisdiction
where the character of its properties owned or held under lease or the nature
of its activities make such qualification necessary, except where such
failures to be so qualified would not in the aggregate have a material adverse
effect on the business, assets, liabilities, condition (financial or
otherwise) or results of operations of Parent and its subsidiaries, taken as a
whole (a "Parent Material Adverse Effect"). Sub is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware. Sub has not engaged in any business since the date of its
incorporation.
Section 4.2 Capitalization. The authorized capital stock of Parent consists
of 200,000,000 shares of Common Stock, par value $.10 per share, and 1,000,000
shares of Preferred Stock, par value $.01 per share ("Parent Preferred
Stock"), of which 200,000 shares have been designated as Participating
Preferred Stock (the "Participating Preferred Stock"). As of the date hereof,
(i) 52,446,883 Parent Shares were issued and outstanding and (ii) no shares of
Parent Preferred Stock were issued and outstanding. Except as set forth on
Schedule 4.2 hereto, all of the issued and outstanding Parent Shares are
validly issued, fully paid and nonassessable and free of preemptive rights.
All of the Parent Shares issuable in exchange for Shares at the Effective Time
in accordance with this Agreement will be, when so issued, duly authorized,
validly issued, fully paid and nonassessable. The authorized capital stock of
Sub consists of 1,000 shares of Common Stock, par value $.01 per share, 100
shares of which are validly issued and outstanding, fully paid and
nonassessable and are owned by Parent. Except as set forth in Schedule 4.2
hereto, there are no outstanding options, warrants, subscriptions, calls,
rights, convertible securities or other agreements or commitments obligating
Parent to issue, transfer or sell any of its securities other than: (i) rights
to acquire shares of Participating Preferred Stock pursuant to the Parent
Rights Agreement, and (ii) options to receive or acquire 7,725,516 Parent
Shares pursuant to employee incentive or benefit plans, programs and
arrangements ("Parent Employee Stock Options") and (iii) the Parent Option
Agreement.
Section 4.3 Subsidiaries. Schedule 4.3 hereto sets forth each direct or
indirect interest owned by Parent in any other corporation, partnership, joint
venture or other business association or entity, foreign or domestic, of which
Parent or any of its other Parent Subsidiaries owns, directly or indirectly,
greater than fifty percent of the shares of capital stock or other equity
interests (including partnership interests) entitled to cast at least a
majority of the votes that may be cast by all shares or equity interests
having ordinary voting power for the
A-4
<PAGE>
election of directors or other governing body of such entity (each such entity
is hereinafter referred to as a "Parent Subsidiary" and are hereinafter
collectively referred to as the "Parent Subsidiaries"). Each Parent Subsidiary
is a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation. Each Parent Subsidiary is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary
except where the failure to be so qualified will not have a Parent Material
Adverse Effect. Each Parent Subsidiary has the corporate power to carry on its
business as it is now being conducted or presently proposed to be conducted.
All of the outstanding shares of capital stock of the Parent Subsidiaries are
validly issued, fully paid and nonassessable. Except as set forth on Schedule
4.3, all of the outstanding shares of capital stock of, or other ownership
interests in, each of the Parent Subsidiaries are owned by Parent or by a
Parent Subsidiary free and clear of any liens, claims, charges or
encumbrances. There are not now, and at the Effective Time there will not be,
any outstanding options, warrants, subscriptions, calls, rights, convertible
securities or other agreements or commitments obligating Parent or any Parent
Subsidiary to issue, transfer or sell any securities of any Parent Subsidiary.
There are not now, and at the Effective Time there will not be, any voting
trusts or other agreements or understandings to which Parent or any of the
Parent Subsidiaries is a party or is bound with respect to the voting of the
capital stock of Parent or any of the Parent Subsidiaries.
Section 4.4 Authority Relative to this Agreement. Each of Parent and Sub has
the corporate power to enter into this Agreement, the Parent Option Agreement
and the Company Option Agreement, to carry out its obligations hereunder and
thereunder and to consummate the Merger. The execution and delivery of this
Agreement, the Parent Option Agreement and the Company Option Agreement by
Parent and Sub, the consummation by Parent and Sub of the transactions
contemplated hereby and thereby and the consummation of the Merger have been
duly authorized by the Boards of Directors of Parent and Sub, and by the
Disinterested Directors (pursuant to Article Tenth, Section (b) of Parent's
Certificate of Incorporation) and by Parent as the sole stockholder of Sub,
and, except for the approvals of Parent's stockholders to be sought at the
stockholders' meeting contemplated by Section 7.4(b) hereof no other corporate
proceedings on the part of Parent or Sub are necessary to authorize this
Agreement or the transactions contemplated hereby. This Agreement, the Parent
Option Agreement and the Company Option Agreement have been duly and validly
executed and delivered by each of Parent and Sub and, assuming the due
authorization, execution and delivery by the other party hereto and thereto,
this Agreement, the Parent Option Agreement and the Company Option Agreement
constitute valid and binding agreements of each of Parent and Sub, enforceable
against Parent and Sub in accordance with their respective terms, except
insofar as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or principles governing the availability of equitable remedies.
Section 4.5 Consents and Approvals; No Violations. Except for applicable
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"HSR Act"), the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the rules
and regulations of NASDAQ, state securities or blue sky laws, and the filing
and recordation of a Certificate of Merger as required by the GCL, no filing
with, and no permit, authorization, consent or approval of, any public body or
authority is necessary for the consummation by Parent and Sub of the
transactions contemplated by this Agreement, the Parent Option Agreement and
the Company Option Agreement. Except as set forth on Schedule 4.5, neither the
execution and delivery of this Agreement, the Parent Option Agreement or the
Company Option Agreement by Parent or Sub nor the consummation by Parent or
Sub of the transactions contemplated hereby or thereby, nor compliance by
Parent or Sub with any of the provisions hereof or thereof will (a) conflict
with or result in any breach of any provisions of the Certificate of
Incorporation or By-Laws of Parent or of Sub, (b) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, agreement or other instrument or
obligation to which Parent or any of its subsidiaries is a party or by which
any of them or any of their properties or assets
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may be bound or (c) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Parent, any of its subsidiaries or any of their
properties or assets, except in the case of clauses (b) and (c) for
violations, breaches or defaults which would not individually or in the
aggregate have a Parent Material Adverse Effect.
Section 4.6 Reports and Financial Statements. Parent has filed all reports
required to be filed with the Securities and Exchange Commission (the "SEC")
pursuant to the Exchange Act since March 31, 1996 (such reports together with
all registration statements, prospectuses and information statements filed by
the Company since March 31, 1996 being hereinafter collectively referred to as
the "Parent SEC Reports"), and has previously furnished the Company with true
and complete copies of all such Parent SEC Reports. None of such Parent SEC
Reports, as of their respective dates, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of their
respective dates, all such Parent SEC Reports complied as to form in all
material respects with the applicable requirements of the Securities Act. Each
of the balance sheets (including the related notes) included in the Parent SEC
Reports fairly presents the consolidated financial position of Parent and its
subsidiaries as of the respective dates thereof, and the other related
statements (including the related notes) included therein fairly present the
results of operations and the changes in financial position of Parent and its
subsidiaries for the respective periods or as of the respective dates set
forth therein (subject, where appropriate, to normal year-end adjustments),
all in conformity with generally accepted accounting principles consistently
applied during the periods involved except as otherwise noted therein.
Section 4.7 Absence of Certain Changes or Events. Except as set forth in the
Parent SEC Reports, since December 31, 1997, neither Parent nor any of the
Parent Subsidiaries has: (a) suffered any change which had or would have a
Parent Material Adverse Effect or (b) subsequent to the date hereof, except as
permitted by Section 6.2 hereof, conducted its business and operations other
than in the ordinary course of business and consistent with past practices.
Section 4.8 Litigation. Except for litigation disclosed in the Parent SEC
Reports and except as set forth on Schedule 4.8, there is no suit, action or
proceeding pending or, to the knowledge of Parent, threatened against or
affecting Parent or any of its subsidiaries, the outcome of which, is
reasonably likely to have a Parent Material Adverse Effect; nor is there any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against Parent or any of the Parent Subsidiaries having, or which has or would
have, a Parent Material Adverse Effect.
Section 4.9 Patents, Trademarks, Etc. Except as set forth on Schedule 4.9,
to the knowledge of Parent, Parent and the Parent Subsidiaries own or possess
adequate licenses or other valid rights to use all material patents, patent
rights, trademarks, trademark rights, trade names, trade name rights,
copyrights, service marks, licenses, trade secrets, applications for
trademarks and for service marks, computer software, software programs, know-
how and other proprietary rights and information (collectively,"Proprietary
Rights") used or held for use in connection with the business of Parent and
the Parent Subsidiaries as currently conducted or as contemplated to be
conducted, free and clear of any liens, claims or encumbrances. Except as set
forth on Schedule 4.9 hereto, to the knowledge of Parent, the conduct of the
business of Parent and the Parent Subsidiaries as currently conducted does not
conflict in any way with any Proprietary Right of any third party. Except as
set forth in Schedule 4.9 hereto, to the knowledge of Parent there are no
infringements of any of the Proprietary Rights owned by or licensed to Parent
or any of the Parent Subsidiaries.
Section 4.10 Information in Disclosure Documents and Registration
Statement. None of the information to be supplied by Parent or Sub for
inclusion in (a) the Registration Statement to be filed with the SEC by Parent
on Form S-4 under the Securities Act for the purpose of registering the Parent
Shares to be issued in the Merger (the "Registration Statement") and (b) the
joint proxy statement to be distributed in connection with the Parent's and
the Company's meeting of stockholders to vote upon this Agreement (the "Proxy
Statement") will in the case of the Registration Statement, at the time it
becomes effective and at the Effective Time, or, in the case of the Proxy
Statement or any amendments thereof or supplements thereto, at the time of
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the mailing of the Proxy Statement and any amendments or supplements thereto,
and at the time of the meeting of stockholders to be held in connection with
the Merger, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading. The Registration Statement will comply as to form in all
material respects with the provisions of the Securities Act, and the rules and
regulations promulgated thereunder.
Section 4.11 Absence of Undisclosed Liabilities.
Other than obligations incurred in the ordinary course of business, neither
Parent nor any of the Parent Subsidiaries has any liabilities or obligations
of any nature, whether or not accrued, contingent or otherwise, and there is
no existing condition, situation or set of circumstances which would
reasonably be expected to result in such a liability or obligation which would
be required to be disclosed on a consolidated balance sheet under GAAP, except
(a) liabilities or obligations reflected in the Parent SEC Reports and (b)
liabilities or obligations which would not, individually or in the aggregate,
have a Parent Material Adverse Effect.
Section 4.12 No Default. Neither Parent nor any of the Parent Subsidiaries
is in default or violation (and no event has occurred which with notice or the
lapse of time or both would constitute a default or violation) of any term,
condition or provision of (a) its Certificate of Incorporation or By-Laws, (b)
any note, bond, mortgage, indenture, license, agreement, contract, lease,
commitment or other obligation to which Parent or any of the Parent
Subsidiaries is a party or by which they or any of their properties or assets
may be bound, or (c) any order, writ, injunction, decree, statute, rule or
regulation applicable to Parent or any of the Parent Subsidiaries, except in
the case of clauses (b) and (c) above for defaults or violations which would
not have a Parent Material Adverse Effect.
Section 4.13 Title to Properties; Encumbrances.
Except as described in the following sentence, each of Parent and the Parent
Subsidiaries has good and valid and marketable title to, or a valid leasehold
interest in, all of its properties and assets (real, personal and mixed,
tangible and intangible) material to the operation of Parent's business and
operations, including, without limitation, all such properties and assets
reflected in the consolidated balance sheet of Parent and the Parent
Subsidiaries as of December 31, 1997 included in Parent's Quarterly Report on
Form l0-Q for the period ended on such date (except for properties and assets
disposed of in the ordinary course of business and consistent with past
practices since December 31, 1997). None of such properties or assets are
subject to any liability, obligation, claim, lien, mortgage, pledge, security
interest, conditional sale agreement, charge or encumbrance of any kind
(whether absolute, accrued, contingent or otherwise), except (i) as set forth
in the Parent SEC Reports, and (ii) such encumbrances that do not individually
or in the aggregate have a Parent Material Adverse Effect.
Section 4.14 Compliance with Applicable Law. Each of Parent and the Parent
Subsidiaries is in compliance with all applicable laws (whether statutory or
otherwise), rules, regulations, orders, ordinances, judgments or decrees of
all governmental authorities (federal, state, local, foreign or otherwise)
(collectively "Laws") except where the failure to be in such compliance would
not, individually or in the aggregate, have a Parent Material Adverse Effect.
Section 4.15 Labor Matters. Except as set forth in Schedule 4.15 hereto,
neither Parent nor any of the Parent Subsidiaries is a party to, or bound by,
any collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization. There is no unfair
labor practice or labor arbitration proceeding pending or, to the knowledge of
Parent, threatened against Parent or the Parent Subsidiaries relating to their
business, except for any such preceding which would not have a Parent Material
Adverse Effect. To the knowledge of Parent, there are no organizational
efforts with respect to the formation of a collective bargaining unit
presently being made or threatened involving employees of Parent or any of the
Parent Subsidiaries.
Section 4.16 Employee Benefit Plans; ERISA. (a) Schedule 4.16 hereto
contains a true and complete list of each bonus, deferred compensation,
incentive compensation, stock purchase, stock option, severance or
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termination pay, hospitalization or other medical, life or other insurance,
supplemental unemployment benefits, profit-sharing, pension, or retirement
plan, program, agreement or arrangement, and each other employee benefit plan,
program, agreement or arrangement (the "Parent Plans"), maintained or
contributed to or required to be contributed to by (i) Parent, (ii) any Parent
Subsidiary or (iii) any trade or business, whether or not incorporated (an
"ERISA Affiliate"), that together with Parent would be deemed a "single
employer" within the meaning of Section 4001 of the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations promulgated
thereunder ("ERISA"), for the benefit of any employee or former employee of
Parent, any Parent Subsidiary or any ERISA Affiliate. Schedule 4.16 hereto
identifies each of the Parent Plans that is an "employee benefit plan," as
that term is defined in Section 3(3) of ERISA (such plans being hereinafter
referred to collectively as the "Parent ERISA Plans").
(b) With respect to each of the Parent Plans, Parent has heretofore made
available to the Company true and complete copies of each of the following
documents:
(i) a copy of the Parent Plan (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under
ERISA, with respect to each such Parent Plan for the last two years;
(iii) a copy of the most recent Summary Plan Description, together with
each Summary of Material Modifications, required under ERISA with respect
to such Parent Plan;
(iv) if the Parent Plan is funded through a trust or any third party
funding vehicle, a copy of the trust or other funding agreement (including
all amendments thereto) and the latest financial statements thereof; and
(v) the most recent determination letter received from the Internal
Revenue Service with respect to each Parent Plan intended to qualify under
Section 401 of the Code.
(c) No liability under Title IV of ERISA has been incurred by Parent, any
Parent Subsidiary or any ERISA Affiliate since the effective date of ERISA
that has not been satisfied in full, and no condition exists that presents a
material risk to Parent, any Parent Subsidiary or any ERISA Affiliate of
incurring a liability under such Title. To the extent this representation
applies to Sections 4064, 4069 or 4204 of Title IV of ERISA, it is made not
only with respect to the ERISA Plans but also with respect to any employee
benefit plan, program, agreement or arrangement subject to Title IV of ERISA
to which Parent, a Parent Subsidiary or an ERISA Affiliate made, or was
required to make, contributions during the five-year period ending on the
Effective Time.
(d) With respect to each Parent ERISA Plan which is subject to Title IV of
ERISA, the present value of accrued benefits under such plan, based upon the
actuarial assumptions used for funding purposes in the most recent actuarial
report prepared by such plan's actuary with respect to such plan did not
exceed, as of its latest valuation date, the then current value of the assets
of such plan allocable to such accrued benefits.
(e) No Parent ERISA Plan or any trust established thereunder has incurred
any "accumulated funding deficiency" (as defined in Section 302 of ERISA and
Section 412 of the Code), whether or not waived, as of the last day of the
most recent fiscal year of each Parent ERISA Plan ended prior to the Effective
Time; and all contributions required to be made with respect thereto (whether
pursuant to the term of any Parent ERISA Plan or otherwise) on or prior to the
Effective Time have been timely made.
(f) No Parent ERISA Plan is a "multiemployer pension plan," as defined in
Section 3(37) of ERISA, nor is any Parent ERISA Plan a plan described in
Section 4063(a) of ERISA.
(g) Each Parent ERISA Plan intended to be "qualified" within the meaning of
Section 401(a) of the Code is so qualified and the trusts maintained
thereunder are exempt from taxation under Section 501(a) of the Code.
(h) Each of the Parent Plans has been operated and administered in all
material respects in accordance with applicable laws, including, but not
limited to, ERISA and the Code.
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(i) No amounts payable under the Parent Plans will fail to be deductible for
federal income tax purposes by virtue of Section 280G of the Code.
(j) No Parent Plan provides benefits, including without limitation death or
medical benefits (whether or not insured), with respect to current or former
employees of Parent, any Parent Subsidiary or any ERISA Affiliate beyond their
retirement or other termination of service, other than (i) coverage mandated
by applicable law, (ii) death benefits or retirement benefits under any
"employee pension plan", as that term is defined in Section 3(2) of ERISA,
(iii) deferred compensation benefits accrued as liabilities on the books of
Parent, any Parent Subsidiary or any ERISA Affiliate or (iv) benefits the full
cost of which is borne by the current or former employee (or his beneficiary).
(k) The consummation of the transactions contemplated by this Agreement will
not:
(i) entitle any current or former employee or officer of Parent, any
Parent Subsidiary or any ERISA Affiliate to severance pay, unemployment
compensation or any other payment, except as expressly provided in this
Agreement,
(ii) accelerate the time of payment or vesting, or increase the amount of
compensation due any such employee or officer, or
(iii) result in any prohibited transaction described in Section 406 of
ERISA or Section 4975 of the Code for which an exemption is not available.
(l) With respect to each Parent Plan that is funded wholly or partially
through an insurance policy, there will be no material liability of Parent,
any Parent Subsidiary or any ERISA Affiliate, as of the Effective Time, under
any such insurance policy or ancillary agreement with respect to such
insurance policy in the nature of a retroactive rate adjustment, loss sharing
arrangement or other actual or contingent liability arising wholly or
partially out of events occurring prior to the closing.
(m) There are no pending, threatened or anticipated claims by or on behalf
of any of the Parent Plans, by any employee or beneficiary covered under any
such Parent Plan, or otherwise involving any such Parent Plan (other than
routine claims for benefits).
(n) Neither Parent, any Parent Subsidiary or any ERISA Affiliate, nor any of
the Parent ERISA Plans, nor any trust created thereunder, nor any trustee or
administrator thereof has engaged in a transaction in connection with which
Parent, any Parent Subsidiary or any ERISA Affiliate, any of the Parent ERISA
Plans, any such trust, or any trustee or administrator thereof, or any party
dealing with the Parent ERISA Plans or any such trust could be subject to
either a material civil liability under Section 409 of ERISA or Section 502(i)
of ERISA, or a material tax imposed pursuant to Section 4975 or 4976 of the
Code.
Section 4.17 Vote Required. Approval of the Merger by the stockholders of
Parent will require the approval of a majority of the total votes cast in
person or by proxy at the stockholders' meeting referred to in Section 7.4. No
other vote of the stockholders of Parent, or of the holders of any other
securities of Parent (equity or otherwise), is required by law, the
Certificate of Incorporation or By-laws of Parent or otherwise in order for
Parent to consummate the Merger, the Parent Option Agreement and the
transactions contemplated hereby and thereby.
Section 4.18 Opinion of Financial Advisor. The Board of Directors of Parent
(at a meeting duly called and held) has unanimously determined that the
transactions contemplated hereby are fair to and in the best interests of the
holders of the Parent Shares. Parent has received the opinion of Stephens
Inc., Parent's financial advisor, substantially to the effect that the
Exchange Ratio is fair to Parent from a financial point of view.
Section 4.19 Ownership of Company Common Stock. Except as contemplated by
this Agreement, the Proxies and the Company Option Agreement, as of the date
hereof, neither Parent nor, to its knowledge without independent
investigation, any of its affiliates, (i) beneficially owns (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, or (ii) is party
to any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of, in each case, shares of capital stock of the
Company.
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Section 4.20 Pooling. Neither Parent nor any Parent Subsidiary has knowledge
of any fact or information which causes, or should reasonably cause, Parent or
Subsidiary to believe that the transactions contemplated by this Agreement
could not be accounted for as a pooling of interests under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations.
Section 4.21 Taxes. (a) All federal, state, local and foreign Tax Returns
required to be filed by or on behalf of Parent, each of the Parent
Subsidiaries, and each affiliated, combined, consolidated or unitary group of
which Parent or any of its Subsidiaries (i) is a member (a "Current Parent
Group") or (ii) has been a member within six years prior to the date hereof
but is not currently a member, but only insofar as any such Tax Return relates
to a taxable period ending on a date within the last six years (a "Past Parent
Group," together with Current Parent Groups, a "Parent Affiliated Group") have
been timely filed, and all such Tax Returns are complete and accurate except
to the extent any failure to file or any inaccuracies in filed returns would
not, individually or in the aggregate, have a Parent Material Adverse Effect
(it being understood that the representations made in this Section, to the
extent that they relate to Past Parent Groups, are made to the knowledge of
Parent). All Taxes due and owing by Parent, any Parent Subsidiary or any
Parent Affiliated Group have been timely paid, or adequately reserved for,
except to the extent any failure to pay or reserve would not, individually or
in the aggregate, have a Parent Material Adverse Effect. There is no audit
examination, deficiency, refund litigation, proposed adjustment or matter in
controversy with respect to any Taxes due and owing by Parent, any Parent
Subsidiary or any Affiliated Group which would, individually or in the
aggregate, have a Parent Material Adverse Effect. All assessments for Taxes
due and owing by Parent, any Parent Subsidiary or any Parent Affiliated Group
with respect to completed and settled examinations or concluded litigation
have been paid. Prior to the date of this Agreement, Parent has provided the
Company with written schedules of (i) the taxable years of Parent for which
the statutes of limitations with respect to U.S. federal income Taxes have not
expired, and (ii) with respect to U.S. federal income Taxes, for all taxable
years for which the statute of limitations has not yet expired, those years
for which examinations have been completed, those years for which examinations
are presently being conducted, and those years for which examinations have not
yet been initiated. Parent and each of the Parent Subsidiaries have complied
in all material respects with all rules and regulations relating to the
payment and withholding of Taxes, except to the extent any such failure to
comply would not, individually or in the aggregate, have a Parent Material
Adverse Effect.
(b) Neither Parent nor any of the Parent Subsidiaries is a party to, bound
by, or has any obligation under any Tax sharing, allocation, indemnity, or
similar contract or arrangement.
(c) Neither Parent nor any of the Parent Subsidiaries knows of any fact or
has taken any action that could reasonably be expected to prevent the Merger
from qualifying as a reorganization with the meaning of Section 368(a) of the
Code.
(d) Schedule 4.21 sets forth (i) the taxable years of Parent for which the
statute of limitations with respect to Material State income Taxes have not
expired, and (ii) with respect to Material State income Taxes, for all taxable
years for which the statute of limitations has not expired, those years for
which examinations have been completed, those years for which examinations are
presently being conducted, and those years for which examinations have not yet
been initiated.
(e) For purposes of this Agreement: (i) "Taxes" means any and all federal,
state, local, foreign, provincial, territorial or other taxes, imposts, rates,
levies, assessments and other charges of any kind whatsoever whether imposed
directly or through withholding (together with any and all interest,
penalties, additions to tax and additional amounts applicable with respect
thereto), including, without limitation, income, franchise, windfall or other
profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
net worth, excise, withholding, ad valorem and value added taxes, and (ii)
"Tax Return" means any declaration, return, report, schedule, certificate,
statement or other similar document (including relating or supporting
information) required to be filed or, where none is required to be filed with
a taxing authority, the statement or other document issued by a taxing
authority in connection with
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any Tax, including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Tax. For purposes of this
Section 4.21 "Material State" means any state for which the average allocation
percentage of Parent and the Parent Subsidiaries for the past three years
exceeds ten percent (10%).
Section 4.22 Contracts. Except as set forth on Schedule 4.22 hereto, neither
Parent nor any of the Parent Subsidiaries is party to any agreement (whether
written or oral) that (a) involves performance of services or delivery of
goods or materials of an amount or value in excess of $3 million per year; or
(b) is a software licensing agreement involving an amount or value in excess
of $2,000,000 (the "Parent Contracts"). Each Parent Contract is valid and
binding on Parent and is in full force and effect, and Parent and each of the
Parent Subsidiaries have in all material respects performed all obligations
required to be performed by them to date under each Parent Contract, except
where such noncompliance, individually or in the aggregate, would not have a
Parent Material Adverse Effect. Neither Parent nor any of the Parent
Subsidiaries knows of, or has received notice of, any violation or default
under any Parent Contract except for such violations or defaults as would not
in the aggregate have a Parent Material Adverse Effect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Sub as follows:
Section 5.1 Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power to carry on its business as it is now being
conducted or presently proposed to be conducted. The Company is duly qualified
as a foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease
or the nature of its activities makes such qualification necessary, except
such failures to be so qualified which would not in the aggregate have a
material adverse effect on the business, assets, liabilities, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries taken as a whole (a "Company Material Adverse Effect").
Section 5.2 Capitalization. The authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock, par value $.01 per share and
2,000,000 shares of Preferred Stock, no par value ("Company Preferred Stock"),
of which 300,000 shares have been designated as Series A Participating
Preferred Stock. As of the date hereof, 26,073,654 shares of Company Common
Stock were issued and outstanding and no shares of Company Preferred Stock
were issued and outstanding. All of the issued and outstanding Shares are
validly issued, fully paid and nonassessable and free of preemptive rights.
Except for (i) the 7,228,153 shares of Company Common Stock issuable upon the
conversion of the 5 1/4% Convertible Subordinated Notes due 2003, (ii) options
to receive or acquire 4,643,503 shares of Company Common Stock granted (or to
be granted pursuant to Section 6.1(c)) pursuant to employee incentive or
benefit plans, programs and arrangements of the Company ("Employee Stock
Options"), which options are listed by optionee, price per share, date of
grant and number of shares covered thereby on Schedule 5.2 hereto, (iii)
warrants to purchase 180,000 shares of Company Common Stock and (iv) the
rights (the "Company Rights") to acquire shares of Series A Participating
Preferred Stock pursuant to the Rights Agreement between the Company and
Harris Trust and Savings Bank dated March 1, 1996 (the "Company Rights
Agreement"), and as otherwise provided for in this Agreement and the Company
Option Agreement, there are not now, and at the Effective Time there will not
be, any shares of capital stock of the Company issued or outstanding or any
options, warrants, subscriptions, calls, rights, convertible securities or
other agreements or commitments obligating the Company to issue, transfer or
sell any shares of its capital stock. Except as provided in this Agreement or
in the Schedules hereto, after the Effective Time, the Company will have no
obligation to issue, transfer or sell any shares of its capital stock pursuant
to any employee benefit plan or otherwise.
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Section 5.3 Subsidiaries. Schedule 5.3 hereto sets forth each direct or
indirect interest owned by the Company in any other corporation, partnership,
joint venture or other business association or entity, foreign or domestic, of
which the Company or any of its other Subsidiaries owns, directly or
indirectly, greater than fifty percent of the shares of capital stock or other
equity interests (including partnership interests) entitled to cast at least a
majority of the votes that may be cast by all shares or equity interests
having ordinary voting power for the election of directors or other governing
body of such entity (each such entity is hereinafter referred to as a
Subsidiary and are hereinafter collectively referred to as the
"Subsidiaries".) Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. Each Subsidiary is duly qualified as a foreign corporation to
do business, and is in good standing, in each jurisdiction where the character
of its properties owned or held under lease or the nature of its activities
makes such qualification necessary except where the failure to be so qualified
will not have a Company Material Adverse Effect. Each Subsidiary has the
corporate power to carry on its business as it is now being conducted or
presently proposed to be conducted. All of the outstanding shares of capital
stock of the Subsidiaries are validly issued, fully paid and nonassessable and
are owned by the Company or by a Subsidiary free and clear of any liens,
claims, charges or encumbrances. There are not now, and at the Effective Time
there will not be, any outstanding options, warrants, subscriptions, calls,
rights, convertible securities or other agreements or commitments obligating
the Company or any Subsidiary to issue, transfer or sell any securities of any
Subsidiary. There are not now, and at the Effective Time there will not be,
any voting trusts or other agreements or understandings to which the Company
or any of the Subsidiaries is a party or is bound with respect to the voting
of the capital stock of the Company or any of the Subsidiaries.
Section 5.4 Authority Relative to this Agreement. The Company has the
corporate power to enter into this Agreement, the Parent Option Agreement and
the Company Option Agreement, to carry out its obligations hereunder and
thereunder and to consummate the Merger. The execution and delivery of this
Agreement, the Parent Option Agreement and the Company Option Agreement by the
Company, the consummation by the Company of the transactions contemplated
hereby and thereby and the consummation of the Merger have been duly
authorized by the Company's Board of Directors and, except for the approval of
its stockholders to be sought at the stockholders meeting contemplated by
Section 7.4 hereof and the filing of the Certificate of Merger as required by
the GCL, no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement, the Parent Option Agreement and the
Company Option Agreement, the transactions contemplated hereby and thereby or
the consummation of the Merger. This Agreement, the Parent Option Agreement
and the Company Option Agreement have been duly and validly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the other parties hereto, this Agreement, the Parent Option
Agreement and the Company Option Agreement constitute valid and binding
agreements of the Company, enforceable against the Company in accordance with
their terms, except insofar as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or principles governing the availability of
equitable remedies.
Section 5.5 Consents and Approvals; No Violations. Except for applicable
requirements of the HSR Act, the Securities Act, the Exchange Act, state
securities or blue sky laws, the rules and regulations of NASDAQ and the
filing and recordation of a Certificate of Merger as required by the GCL, no
filing with, and no permit, authorization, consent or approval of, any public
body or authority is necessary for the consummation by the Company of the
transactions contemplated by this Agreement, the Parent Option Agreement and
the Company Option Agreement. Neither the execution and delivery of this
Agreement, the Parent Option Agreement or the Company Option Agreement by the
Company, nor the consummation by the Company of the transactions contemplated
hereby or thereby, nor compliance by the Company with any of the provisions
hereof or thereof, will (a) conflict with or result in any breach of any
provisions of the Certificate of Incorporation or By-Laws of the Company or
any of the Subsidiaries, (b) except as set forth on Schedule 5.5(b), result in
a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
agreement or other instrument or obligation to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their properties or
assets may
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be bound or (c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Company, any of the Subsidiaries or any of their
properties or assets, except in the case of clauses (b) and (c) for
violations, breaches or defaults which would not individually or in the
aggregate have a Company Material Adverse Effect.
Section 5.6 Reports and Financial Statements. The Company has filed all
reports required to be filed with the SEC pursuant to the Exchange Act since
March 26, 1996 (such reports, together with all registration statements,
prospectuses and information statements filed by the Company since March 26,
1996, being hereinafter collectively referred to as the "Company SEC
Reports"), and has previously furnished Parent with true and complete copies
of all such Company SEC Reports. None of such Company SEC Reports, as of their
respective dates, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. As of their respective dates, all such Company SEC
Reports complied as to form in all material respects with the applicable
requirements of the Securities Act. Each of the balance sheets (including the
related notes) included in the Company SEC Reports fairly presents the
consolidated financial position of the Company and the Subsidiaries as of the
respective dates thereof, and the other related statements (including the
related notes) included therein fairly present the results of operations and
the changes in financial position of the Company and the Subsidiaries for the
respective periods or as of the respective dates set forth therein (subject,
where appropriate, to normal year-end adjustments), all in conformity with
generally accepted accounting principles consistently applied during the
periods involved, except as otherwise noted therein.
Section 5.7 Absence of Certain Changes or Events. Except as set forth in
Schedule 5.7 hereto or in the Company SEC Reports, since September 30, 1997,
neither the Company nor any of the Subsidiaries has: (a) suffered any change
which had or would have a Company Material Adverse Effect or (b) subsequent to
the date hereof, except as permitted by Section 6.1 hereof, conducted its
business and operations other than in the ordinary course of business and
consistent with past practices.
Section 5.8 Litigation. Except for litigation disclosed in the Company SEC
Reports there is no suit, action or proceeding pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
Subsidiaries the outcome of which is reasonably likely to have a Company
Material Adverse Effect; nor is there any judgment, decree, injunction, rule
or order of any court, governmental department, commission, agency,
instrumentality or arbitrator outstanding against the Company or any of its
Subsidiaries, which has or would have a Company Material Adverse Effect.
Section 5.9 Patents, Trademarks, Etc. Except as set forth in Schedule 5.9,
to the knowledge of the Company, the Company and its Subsidiaries own or
possess adequate licenses or other valid rights to use all Proprietary Rights
used or held for use in connection with the business of the Company and its
Subsidiaries as currently conducted or as contemplated to be conducted, free
and clear of any liens, claims or encumbrances. Except as set forth in
Schedule 5.9, to the knowledge of the Company, the conduct of the business of
the Company and its Subsidiaries as currently conducted does not conflict in
any way with any Proprietary Right of any third party. To the knowledge of the
Company there are no infringements of any of the Proprietary Rights owned by
or licensed to the Company or any of its Subsidiaries.
Section 5.10 Information in Disclosure Documents and Registration
Statement. None of the information to be supplied by the Company for inclusion
in the Proxy Statement or the Registration Statement, other than the
information to be supplied by Parent or Sub, will, in the case of the
Registration Statement, at the time it becomes effective and at the Effective
Time, or, in the case of the Proxy Statement or any amendments thereof or
supplements thereto, at the time of the mailing of the Proxy Statement and any
amendments or supplements thereto, and at the time of the meeting of
stockholders of the Company to be held in connection with the Merger, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Proxy Statement will comply as to form in all material
respects with the provisions of the Exchange Act, and the rules and
regulations promulgated thereunder.
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Section 5.11 Absence of Undisclosed Liabilities. Other than obligations
incurred in the ordinary course of business, neither the Company nor any of
its Subsidiaries has any liabilities or obligations of any nature, whether or
not accrued, contingent or otherwise, and there is no existing condition,
situation or set of circumstances which would reasonably be expected to result
in such a liability or obligation which would be required to be disclosed on a
consolidated balance sheet under GAAP, except (a) liabilities or obligations
reflected in the Company SEC Reports and (b) liabilities or obligations which
would not, individually or in the aggregate, have a Company Material Adverse
Effect.
Section 5.12 No Default. Neither the Company nor any of the Subsidiaries is
in default or violation (and no event has occurred which with notice or the
lapse of time or both would constitute a default or violation) of any term,
condition or provision of (a) its Certificate of Incorporation or By-Laws, (b)
any note, bond, mortgage, indenture, license, agreement, contract, lease,
commitment or other obligation to which the Company or any of the Subsidiaries
is a party or by which they or any of their properties or assets may be bound,
or (c) any order, writ, injunction, decree, statute, rule or regulation
applicable to the Company or any of the Subsidiaries, except in the case of
clauses (b) and (c) above for defaults or violations which would not
individually or in the aggregate have a Company Material Adverse Effect.
Section 5.13 Taxes. (a) All federal, state, local and foreign Tax Returns
required to be filed by or on behalf of the Company, each of its Subsidiaries,
and each affiliated, combined, consolidated or unitary group of which the
Company or any of its Subsidiaries (i) is a member (a "Current Company Group")
or (ii) has been a member within six years prior to the date hereof but is not
currently a member, but only insofar as any such Tax Return relates to a
taxable period ending on a date within the last six years (a "Past Company
Group," together with Current Company Groups, a "Company Affiliated Group")
have been timely filed, and all such Tax Returns are complete and accurate
except to the extent any failure to file or any inaccuracies in filed returns
would not, individually or in the aggregate, have a Company Material Adverse
Effect (it being understood that the representations made in this Section, to
the extent that they relate to Past Company Groups, are made to the knowledge
of the Company). All Taxes due and owing by the Company, any Subsidiary of the
Company or any Company Affiliated Group have been timely paid, or adequately
reserved for, except to the extent any failure to pay or reserve would not,
individually or in the aggregate, have a Company Material Adverse Effect.
There is no audit examination, deficiency, refund litigation, proposed
adjustment or matter in controversy with respect to any Taxes due and owing by
the Company, any Subsidiary or any Affiliated Group which would, individually
or in the aggregate, have a Company Material Adverse Effect. All assessments
for Taxes due and owing by the Company, any Subsidiary or any Company
Affiliated Group with respect to completed and settled examinations or
concluded litigation have been paid. Schedule 5.13 sets forth (i) the taxable
years of the Company for which the statutes of limitations with respect to
U.S. federal income Taxes have not expired, and (ii) with respect to U.S.
federal income Taxes, for all taxable years for which the statute of
limitations has not yet expired, those years for which examinations have been
completed, those years for which examinations are presently being conducted,
and those years for which examinations have not yet been initiated. The
Company and each of its Subsidiaries have complied in all material respects
with all rules and regulations relating to the payment and withholding of
Taxes, except to the extent any such failure to comply would not, individually
or in the aggregate, have a Company Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is a party to, bound by,
or has any obligation under any Tax sharing, allocation, indemnity, or similar
contract or arrangement.
(c) Neither the Company nor any of its Subsidiaries knows of any fact or has
taken any action that could reasonably be expected to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the
Code.
(d) Schedule 5.13 sets forth (i) the taxable years of the Company for which
the statute of limitations with respect to Material State income Taxes have
not expired, and (ii) with respect to Material State income Taxes, for all
taxable years for which the statute of limitations has not expired, those
years for which examinations have been completed, those years for which
examinations are presently being conducted, and those years for which
examinations have not yet been initiated.
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(e) For purposes of this Section 5.13: "Material State" means any state for
which the average allocation percentage of the Company and its Subsidiaries
for the past three years exceeds ten percent (10%).
Section 5.14 Title to Properties; Encumbrances. Except as described in the
following sentence, each of the Company and the Subsidiaries has good and
marketable title to, or a valid leasehold interest in, all of its properties
and assets (real, personal and mixed, tangible and intangible material to the
operations and business of the Company), including, without limitation, all
such properties and assets reflected in the consolidated balance sheet of the
Company and the Subsidiaries as of March 31, 1998 included in the Company's
Quarterly Report on Form 10-Q for the period ended on such date (except for
properties and assets disposed of in the ordinary course of business and
consistent with past practices since March 31, 1998). None of such properties
or assets are subject to any liability, obligation, claim, lien, mortgage,
pledge, security interest, conditional sale agreement, charge or encumbrance
of any kind (whether absolute, accrued, contingent or otherwise), except
(i) as set forth in the Company SEC Reports or in Schedule 5.14 hereto, and
(ii) such encumbrances that do not individually or in the aggregate have a
Company Material Adverse Effect.
Section 5.15 Compliance with Applicable Law. Each of the Company and the
Subsidiaries is in compliance with all applicable Laws (whether statutory or
otherwise), except where the failure to be in such compliance would not,
individually or in the aggregate, have a Company Material Adverse Effect.
Section 5.16 Labor Matters. Except as set forth on Schedule 5.16, neither
the Company nor any of the Subsidiaries is a party to, or bound by, any
collective bargaining agreement, contract or other agreement or understanding
with a labor union or labor organization. There is no unfair labor practice or
labor arbitration proceeding pending or, to the knowledge of the Company,
threatened against the Company or the Subsidiaries relating to their business,
except for any such preceding which would not have a Company Material Adverse
Effect. To the knowledge of the Company, there are no organizational efforts
with respect to the formation of a collective bargaining unit presently being
made or threatened involving employees of the Company or any of the
Subsidiaries.
Section 5.17 Employee Benefit Plans; ERISA. (a) Schedule 5.17 hereto
contains a true and complete list of each bonus, deferred compensation,
incentive compensation, stock purchase, stock option, severance or termination
pay, hospitalization or other medical, life or other insurance, supplemental
unemployment benefits, profit-sharing, pension, or retirement plan, program,
agreement or arrangement, and each other employee benefit plan, program,
agreement or arrangement (the "Plans"), maintained or contributed to or
required to be contributed to by (i) the Company, (ii) any Subsidiary or (iii)
any ERISA Affiliate, that together with the Company would be deemed a "single
employer" within the meaning of Section 4001 of ERISA, for the benefit of any
employee or former employee of the Company, any Subsidiary or any ERISA
Affiliate. Schedule 5.17(a) hereto identifies each of the Plans that is an
"employee benefit plan," as that term is defined in Section 3(3) of ERISA
(such plans being hereinafter referred to collectively as the "ERISA Plans").
(b) With respect to each of the Plans, the Company has heretofore delivered
or will deliver to Parent true and complete copies of each of the following
documents:
(i) a copy of the Plan (including all amendments thereto);
(ii) a copy of the annual report and actuarial report, if required under
ERISA, with respect to each such Plan for the last two years;
(iii) a copy of the most recent Summary Plan Description, together with
each Summary of Material Modifications, required under ERISA with respect
to such Plan;
(iv) if the Plan is funded through a trust or any third party funding
vehicle, a copy of the trust or other funding agreement (including all
amendments thereto) and the latest financial statements thereof; and
(v) the most recent determination letter received from the Internal
Revenue Service with respect to each Plan intended to qualify under Section
401 of the Code.
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(c) No liability under Title IV of ERISA has been incurred by the Company,
any Subsidiary or any ERISA Affiliate since the effective date of ERISA that
has not been satisfied in full, and no condition exists that presents a
material risk to the Company, any Subsidiary or any ERISA Affiliate of
incurring a liability under such Title. To the extent this representation
applies to Sections 4064, 4069 or 4204 of Title IV of ERISA, it is made not
only with respect to the ERISA Plans but also with respect to any employee
benefit plan, program, agreement or arrangement subject to Title IV of ERISA
to which the Company, a Subsidiary or an ERISA Affiliate made, or was required
to make, contributions during the five-year period ending on the Effective
Time.
(d) Except as disclosed in Schedule 5.17, with respect to each ERISA Plan
which is subject to Title IV of ERISA, the present value of accrued benefits
under such plan, based upon the actuarial assumptions used for funding
purposes in the most recent actuarial report prepared by such plan's actuary
with respect to such plan did not exceed, as of its latest valuation date, the
then current value of the assets of such plan allocable to such accrued
benefits.
(e) Except as disclosed in Schedule 5.17, no ERISA Plan or any trust
established thereunder has incurred any "accumulated funding deficiency" (as
defined in Section 302 of ERISA and Section 412 of the Code), whether or not
waived, as of the last day of the most recent fiscal year of each ERISA Plan
ended prior to the Effective Time; and all contributions required to be made
with respect thereto (whether pursuant to the term of any ERISA Plan or
otherwise) on or prior to the Effective Time have been timely made.
(f) No ERISA Plan is a "multiemployer pension plan," as defined in Section
3(37) of ERISA, nor is any ERISA Plan a plan described in Section 4063(a) of
ERISA.
(g) Each ERISA Plan intended to be "qualified" within the meaning of Section
401(a) of the Code is so qualified and the trusts maintained thereunder are
exempt from taxation under Section 501(a) of the Code.
(h) Each of the Plans has been operated and administered in all material
respects in accordance with applicable laws, including, but not limited to,
ERISA and the Code.
(i) Except as disclosed in Schedule 5.17, no amounts payable under the Plans
will fail to be deductible for federal income tax purposes by virtue of
Section 280G of the Code. Schedule 5.17 sets forth the aggregate amount of
entitlements and other amounts that could be (i) received (whether in cash or
property or the vesting of property) under any of the Plans as a result of any
of the transactions contemplated by this Agreement by any person which is a
"disqualified individual" (as such term is defined in Section 280G(c) of the
Code) and (ii) characterized as an "excess parachute payment" (as such term is
defined in Section 280G(b)(1) of the Code), plus the amount of any excise
taxes that may be imposed with respect thereto and any additional amounts or
gross-ups that may be paid with respect to such amounts.
(j) Except as disclosed in Schedule 5.17, no Plan provides benefits,
including without limitation death or medical benefits (whether or not
insured), with respect to current or former employees of the Company, any
Subsidiary or any ERISA Affiliate beyond their retirement or other termination
of service, other than (i) coverage mandated by applicable law, (ii) death
benefits or retirement benefits under any "employee pension plan", as that
term is defined in Section 3(2) of ERISA, (iii) deferred compensation benefits
accrued as liabilities on the books of the Company, any Subsidiary or any
ERISA Affiliate or (iv) benefits the full cost of which is borne by the
current or former employee (or his beneficiary).
(k) Except as disclosed on Schedule 5.17, the consummation of the
transactions contemplated by this Agreement will not
(i) entitle any current or former employee or officer of the Company, any
Subsidiary or any ERISA Affiliate to severance pay, unemployment
compensation or any other payment, except as expressly provided in this
Agreement,
(ii) accelerate the time of payment or vesting, or increase the amount of
compensation due any such employee or officer, or
(iii) result in any prohibited transaction described in Section 406 of
ERISA or Section 4975 of the Code for which an exemption is not available.
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(l) With respect to each Plan that is funded wholly or partially through an
insurance policy, there will be no liability of the Company, any Subsidiary or
any ERISA Affiliate, as of the Effective Time, under any such insurance policy
or ancillary agreement with respect to such insurance policy in the nature of
a retroactive rate adjustment, loss sharing arrangement or other actual or
contingent liability arising wholly or partially out of events occurring prior
to the closing.
(m) There are no pending, threatened or anticipated claims by or on behalf
of any of the Plans, by any employee or beneficiary covered under any such
Plan, or otherwise involving any such Plan (other than routine claims for
benefits).
(n) Neither the Company, any Subsidiary or any ERISA Affiliate, nor any of
the ERISA Plans, nor any trust created thereunder, nor any trustee or
administrator thereof has engaged in a transaction in connection with which
the Company, any Subsidiary or any ERISA Affiliate, any of the ERISA Plans,
any such trust, or any trustee or administrator thereof, or any party dealing
with the ERISA Plans or any such trust could be subject to either a material
civil liability under Section 409 of ERISA or Section 502(i) of ERISA, or a
material tax imposed pursuant to Section 4975 or 4976 of the Code.
Section 5.18 Contracts. Except as set forth on Schedule 5.18 hereto, neither
the Company nor any of its Subsidiaries is party to any agreement (whether
written or oral) that (a) involves performance of services or delivery of
goods or materials of an amount or value in excess of $1 million per year; or
(b) is a software licensing agreement involving an amount or value in excess
of $500,000 (the "Company Contracts"). Each Company Contract is valid and
binding on the Company and is in full force and effect, and the Company and
each of its Subsidiaries have in all material respects performed all
obligations required to be performed by them to date under each Company
Contract, except where such noncompliance, individually or in the aggregate,
would not have a Company Material Adverse Effect. Neither the Company nor any
of its Subsidiaries knows of, or has received notice of, any violation or
default under any Company Contract except for such violations or defaults as
would not in the aggregate have a Company Material Adverse Effect.
Section 5.19 Vote Required. Approval of the Merger by the stockholders of
the Company will require the affirmative vote of the holders of a majority of
the outstanding Shares. No other vote of the stockholders of the Company, or
of the holders of any other securities of the Company (equity or otherwise),
is required by law, the certificate of incorporation or by-laws of the Company
or otherwise in order for the Company to consummate the Merger and the
transactions contemplated hereby and by the Company Option Agreement.
Section 5.20 Opinion of Financial Advisor. The Board of Directors of the
Company (at meetings duly called and held) has unanimously determined that the
transactions contemplated hereby are fair to and in the best interests of the
Company's stockholders. The Company has received the opinion of Donaldson,
Lufkin & Jenrette Securities Corporation, the Company's financial advisor,
substantially to the effect that the Exchange Ratio is fair to the holders of
the Company Common Stock from a financial point of view.
Section 5.21 Takeover Statute. The Board of Directors of the Company has
approved this Agreement, the Parent Option Agreement and the Company Option
Agreement and the transactions contemplated hereby and thereby and, assuming
the accuracy of Parent's and Sub's representation and warranty contained in
Section 4.19, such approval constitutes approval of the Merger and the other
transactions contemplated hereby by such Board of Directors under the
provisions of Section 203 of the GCL such that Section 203 of the GCL does not
apply to this Agreement and the transactions contemplated hereby.
Section 5.22 The Company Rights Agreement. The Board of Directors of the
Company has approved the amendment of the Company Rights Plan in the form
attached hereto as Exhibit B and as a result thereof, none of the execution or
delivery of this Agreement, the Proxies or the Company Option Agreement or the
consummation of the transactions contemplated hereby or thereby will (a) cause
the Company Rights to become exercisable or to separate from the stock
certificates to which they are attached, (b) cause Parent to become an
"Acquiring Person" (as such term is defined in the Company Rights Agreement),
or (c) trigger any other provisions of the Company Rights Agreement.
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Section 5.23 Ownership of Parent Common Stock. Except as contemplated by
this Agreement, the Parent Option Agreement and the Parent Stock Proxy, as of
the date hereof, neither the Company nor, to its knowledge without independent
investigation, any of its affiliates, (i) beneficially owns (as defined in
Rule 13d-3 under the Exchange Act, directly or indirectly, or (ii) is party to
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of, in each case, shares of capital stock of
Parent.
Section 5.24 Pooling. Neither the Company nor any Subsidiary has knowledge
of any fact or information which causes, or should reasonably cause, the
Company or any Subsidiary to believe that the transactions contemplated by
this Agreement could not be accounted for as a pooling of interests under
Opinion 16 of the Accounting Principles Board and applicable SEC rules and
regulations.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.1 Conduct of Business by the Company Pending the Merger. Prior to
the Effective Time, unless Parent shall otherwise agree in writing, or as set
forth in Schedule 6.1 or may be expressly permitted pursuant to this
Agreement:
(a) the respective businesses of the Company and the Subsidiaries shall
be conducted only in the ordinary and usual course of business and
consistent with past practices, and there shall be no material changes in
the conduct of the Company's operations;
(b) the Company shall not (i) sell or pledge or agree to sell or pledge
any stock owned by it in any of the Subsidiaries; (ii) amend its
Certificate of Incorporation or By-Laws; or (iii) split, combine or
reclassify any shares of its outstanding capital stock or declare, set
aside or pay any dividend or other distribution payable in cash, stock or
property, or redeem or otherwise acquire any shares of its capital stock or
shares of the capital stock of any of the Subsidiaries;
(c) neither the Company nor any of the Subsidiaries shall (i) authorize
for issuance, issue or sell or agree to issue or sell any additional shares
of, or rights of any kind to acquire any shares of, its capital stock of
any class (whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise), except for
the 4,593,503 unissued Shares reserved for issuance upon the exercise of
currently outstanding employee stock options and except for employee
options to purchase not more than 50,000 shares, the 7,228,153 Shares
reserved for issuance upon conversion of the Company's 5 1/4% Convertible
Subordinated Notes due 2003, or the 180,000 Shares reserved for issuance
upon exercise of warrants; (ii) acquire, dispose of, transfer, lease,
license, mortgage, pledge or encumber any fixed or other assets other than
in the ordinary course of business and consistent with past practices;
(iii) except for certain indebtedness not in excess of $15,000,000, incur,
assume or prepay any indebtedness or any other material liabilities other
than in the ordinary course of business and consistent with past practices;
(iv) assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any
other person other than a Subsidiary in the ordinary course of business and
consistent with past practices; (v) make any loans, advances or capital
contributions to, or investments in, any other person, other than to
Subsidiaries; (vi) authorize capital expenditures not in the ordinary
course of business in excess of $1,000,000; (vii) make any Tax election or
settle or compromise any Tax liability; (viii) change its fiscal year; (ix)
except as disclosed in the Company SEC Reports filed prior to the date of
this Agreement, or as required by a governmental body or authority, change
its methods of accounting (including, without limitation, make any material
write-off or reduction in the carrying value of any assets) in effect at
September 30, 1997, except as required by changes in GAAP as concurred in
by the Company's independent auditors; or (x) enter into any contract,
agreement, commitment or arrangement with respect to any of the foregoing;
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(d) the Company shall use its reasonable best efforts to preserve intact
the business organization of the Company and the Subsidiaries, to keep
available the services of its and their present officers and key employees,
and to preserve the goodwill of those having business relationships with it
and the Subsidiaries;
(e) neither the Company nor any of the Subsidiaries will enter into any
employment agreements with any officers or employees or grant any increases
in the compensation of their respective officers and employees other than
increases in the ordinary course of business and consistent with past
practice, or enter into, adopt or amend any Plan (as that term is defined
in Schedule 5.17 hereto); and
(f) neither the Company nor any of the Subsidiaries shall (i) take or
allow to be taken any action which would jeopardize the treatment of
Parent's acquisition of the Company as a pooling of interests for
accounting purposes; or (ii) take any action which would jeopardize
qualification of the Merger as a reorganization within the meaning of
Section 368(a) of the Code.
Section 6.2 Conduct of Business by Parent Pending the Merger. Prior to the
Effective Time, unless the Company shall otherwise agree in writing, or as
otherwise expressly permitted by this Agreement:
(a) the respective businesses of Parent and the Parent Subsidiaries shall
be conducted only in the ordinary and usual course of business and
consistent with past practices, and there shall be no material changes in
the conduct of Parent's operations;
(b) Parent shall not (i) sell or pledge or agree to sell or pledge any
stock owned by it in any of the Parent Subsidiaries; (ii) amend its
Certificate of Incorporation or By-Laws; (iii) split, combine or reclassify
any shares of its outstanding capital stock or declare, set aside or pay
any dividend or other distribution payable in cash, stock or property, or
redeem or otherwise acquire any shares of its capital stock or shares of
the capital stock of any of the Parent Subsidiaries or (iv) consolidate
with or merge with or into another company unless at least 50% of the
members of the Board of Directors of the surviving entity are members of
the Board of Directors of Parent immediately prior to such merger or
consolidation or are otherwise designated by Parent.
(c) neither Parent nor any of the Parent Subsidiaries shall (i) authorize
for issuance, issue or sell or agree to issue or sell any additional shares
of, or rights of any kind to acquire any shares of, its capital stock of
any class (whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise), except for
(a) unissued shares of Parent Common Stock reserved for issuance upon the
exercise of Parent Employee Stock Options, (b) the shares of Parent Common
Stock to be granted pursuant to Parent's Employee Stock Benefit and
Recognition Program, and (c) the shares of Parent Common Stock reserved for
issuance upon the exercise of certain rights by Trans Union Corporation
("Trans Union") pursuant to the Data Center Management Agreement between
Trans Union and Parent, or (ii) enter into any contract, agreement,
commitment or arrangement with respect to any of the foregoing;
(d) Parent shall use its reasonable best efforts to preserve intact the
business organization of Parent and the Parent Subsidiaries, to keep
available the services of its and their present officers and key employees,
and to preserve the goodwill of those having business relationships with it
and the Parent Subsidiaries;
(e) neither Parent nor any of the Parent Subsidiaries shall (i) take or
allow to be taken any action which would jeopardize the treatment of the
transaction as a pooling of interests for accounting purposes or (ii) take
any action which would jeopardize qualification of the Merger as a
reorganization within the meaning of Section 368(a) of the Code.
(f) Nothing set forth in Section 6.2(a), (b), (c) or (d) above shall
limit Parent's ability to authorize or propose, enter into, or consummate
agreements relating to acquisitions, mergers or other business
combinations, including any such transaction pursuant to which Parent
issues shares of its capital stock; provided that in connection with any
such transaction Parent will not consolidate or merge with or into another
company unless at least 50% of the members of the Board of Directors of the
surviving entity are members of the Board of Directors of Parent
immediately prior to such merger or consolidation or otherwise designated
by Parent.
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Section 6.3 Conduct of Business of Sub. During the period from the date of
this Agreement to the Effective Time, Sub shall not engage in any activities
of any nature except as provided in or contemplated by this Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Access and Information. The Company and Parent shall each afford
to the other and to the other's financial advisors, legal counsel, accountants
consultants and other representatives full access upon reasonable notice and
during normal business hours throughout the period prior to the Effective Time
to all of its books, records, properties, plants and personnel and, during
such period, each shall furnish promptly to the other (a) a copy of each
report, schedule and other document filed or received by it pursuant to the
requirements of federal or state securities laws, and (b) all other
information as such other party may reasonably request, provided that no
investigation pursuant to this Section 7.1 shall affect any representations or
warranties made herein or the conditions to the obligations of the respective
parties to consummate the Merger. Each party shall hold in confidence all
nonpublic information until such time as such information is otherwise
publicly available and, if this Agreement is terminated, each party will
deliver to the other all documents, work papers and other material (including
copies) obtained by such party or on its behalf from the other party as a
result of this Agreement or in connection herewith, whether so obtained before
or after the execution hereof.
Section 7.2 Acquisition Proposals. From and after the date hereof, the
Company will not and the Company and the Subsidiaries will use their best
efforts to cause their respective directors, officers, employees, financial
advisors, legal counsel, accountants and other agents and representatives not
to initiate or solicit, directly or indirectly, any inquiries or the making of
any proposal or offer with respect to, engage in negotiations concerning,
provide any information or data to, any person relating to any acquisition,
business combination or purchase (including by way of a tender or exchange
offer) of (i) all or any significant portion of the assets of the Company and
the Subsidiaries, (ii) 15% or more of the outstanding shares of Company Common
Stock or (iii) 15% or more of the outstanding shares of capital stock of any
Subsidiary of the Company (a "Takeover Proposal"), other than the Merger;
provided, however, that nothing contained in this Section 7.2 shall prohibit
the Board of Directors of the Company from (i) furnishing information to (but
only pursuant to a confidentiality agreement in customary form) or entering
into discussions or negotiations with any person or group that makes a
Superior Proposal that was not solicited by the Company or which did not
otherwise result from a breach of this Section 7.2, if, and only to the extent
that, (A) the Board of Directors of the Company, based upon the advice of
outside legal counsel, determines in good faith that such action is reasonably
necessary for the Board of Directors to comply with its fiduciary duties to
stockholders imposed by law, (B) concurrently with furnishing such information
to, or entering into discussions or negotiations with, such person or group
making this Superior Proposal, the Company provides written notice to Parent
to the effect that it is furnishing information to, or entering into
discussions or negotiations with, such person or group, and (C) the Company
keeps Parent informed of the status and all material information including the
identity of such person or group with respect to any such discussions or
negotiations to the extent such disclosure would not constitute a violation of
any applicable law. For purposes of this Agreement "Superior Proposal" means
any Takeover Proposal which the Board of Directors of the Company concludes in
its good faith judgment (based on the advice of outside legal counsel and a
financial advisor of a nationally recognized reputation) to be more favorable
to the Company's stockholders than the Merger and for which financing, to the
extent required, is fully committed, subject to customary conditions;
provided, however, that the reference to "15%" in clauses (ii) and (iii) of
the definition of Takeover Proposal shall be deemed to be references to "51%".
The Company will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any person conducted heretofore
with respect to any of the foregoing and will notify Parent immediately in
writing if any such inquiries or proposals (including the material terms and
conditions thereof) are received by, any such information is requested from,
or any such negotiations or discussions are sought to be initiated or
continued with, the Company. Nothing contained in
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this Section 7.2 shall prohibit the Company from taking and disclosing to its
stockholders a position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act or from making any disclosure to its stockholders if, in the good
faith judgment of the Board of Directors of the Company, after consultation
with outside legal counsel, failure so to disclose may be inconsistent with
its obligations under applicable law.
Section 7.3 Registration Statement. As promptly as practicable, Parent and
the Company shall prepare and file with the SEC the Proxy Statement and Parent
shall prepare and file with the SEC the Registration Statement. Each of Parent
and the Company shall use its best efforts to have the Registration Statement
declared effective. Parent shall also use its best efforts to take any action
required to be taken under state securities or blue sky laws in connection
with the issuance of the Parent Shares pursuant hereto. Parent and the Company
shall furnish each other with all information concerning Parent and the
Company, as the case may be, and the holders of their capital stock and shall
take such other action as each party may reasonably request in connection with
the preparation of the Proxy Statement and the Registration Statement and
issuance of Parent Shares. Each such party agrees promptly to advise the other
if at any time prior to the Effective Time any information provided by any
party hereto in the Proxy Statement becomes incorrect or incomplete in any
material respect, and to provide the information needed to correct such
inaccuracy or omission. To the extent the issuance of Parent Shares pursuant
to the Merger to Lawrence J. Speh or Albert J. Speh, Jr., (or to any other
stockholder of the Company granting proxies pursuant to Section 7.7) are not
permitted by the rules and regulations of the SEC to be registered on the
Registration Statement, Parent will use its best efforts to register such
issuance of Parent Shares to such stockholders of the Company on a Form S-3 or
other appropriate form.
Section 7.4 Proxy Statements; Stockholder Approvals. (a) The Company, acting
through its Board of Directors, shall, in accordance with applicable law and
its Certificate of Incorporation and By-Laws:
(i) promptly and duly call, give notice of, convene and hold as soon as
practicable following the date upon which the Registration Statement
becomes effective a meeting of its stockholders for the purpose of voting
to approve and adopt this Agreement and shall use its reasonable best
efforts to obtain such stockholder approval; and
(ii) recommend approval and adoption of this Agreement by the
stockholders of the Company and include in the Proxy Statement such
recommendation, and take all lawful action to solicit such approval.
(b) Parent, acting through its Board of Directors, shall, in accordance with
applicable law and its Certificate of Incorporation and By-Laws:
(i) promptly and duly call, give notice of, convene and hold as soon as
practicable following the date upon which the Registration Statement
becomes effective a meeting of its stockholders for the purpose of voting
to approve the issuance of the Parent Shares pursuant to the Merger and
shall use its reasonable best efforts to obtain such stockholder approval;
and
(ii) recommend approval and adoption of the issuance of the Parent Shares
pursuant to the Merger by the stockholders of Parent and include in the
Proxy Statement such recommendation, and take all lawful action to solicit
such approval.
(c) Parent and the Company shall cause the definitive Proxy Statement to be
mailed to their stockholders as promptly as practicable after the Registration
Statement is declared effective under the Securities Act. At the stockholders'
meetings, each of Parent and the Company shall vote or cause to be voted in
favor of approval and adoption of this Agreement all Shares as to which it
holds proxies at such time.
Section 7.5 Affiliate Agreements. (a) Prior to the mailing of the Proxy
Statement to the stockholders of the Company the Company shall cause to be
delivered to Parent a list in form and substance reasonably satisfactory to
Parent identifying all persons who are at the time of the Company
stockholders' meeting convened in accordance with Section 7.4 hereof,
"affiliates" of the Company as that term is used in Rule 145 under the
Securities Act or under applicable SEC accounting releases with respect to
pooling of interests accounting treatment. The Company shall use its
reasonable best efforts to cause each person who is identified as a possible
"affiliate" in the list furnished pursuant to this Section 7.5 to deliver to
Parent at or prior to the mailing of the Proxy Statement a written agreement,
in substantially the form attached hereto as Exhibit C.
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(b) Prior to the mailing of the Proxy Statement to the stockholders of
Parent, Parent shall deliver to the Company a list, in form and substance
reasonably satisfactory to the Company, identifying all persons who are, at
the time of the Parent stockholders' meeting convened in accordance with
Section 7.4 hereof, "affiliates" of Parent under applicable SEC accounting
releases with respect to pooling of interests accounting treatment. Parent
shall use its reasonable best efforts to cause each person who is identified
as a possible "affiliate" in the list furnished pursuant to this Section 7.5
to deliver to Parent at or prior to the mailing of the Proxy Statement, a
written agreement substantially in the form of Exhibit D hereto.
Section 7.6 Antitrust Laws. As promptly as practicable, the Company, Parent
and Sub shall make all filings and submissions under the HSR Act as may be
reasonably required to be made in connection with this Agreement and the
transactions contemplated hereby. Subject to Section 7.1 hereof, the Company
will furnish to Parent and Sub, and Parent and Sub will furnish to the
Company, such information and assistance as the other may reasonably request
in connection with the preparation of any such filings or submissions. Subject
to Section 7.1 hereof, the Company will provide Parent and Sub, and Parent and
Sub will provide the Company, with copies of all correspondence, filings or
communications (or memoranda setting forth the substance thereof) between such
party or any of its representatives, on the one hand, and any governmental
agency or authority or members of their respective staffs, on the other hand,
with respect to this Agreement and the transactions contemplated hereby.
Section 7.7 Proxies. Concurrently herewith, the Parent is entering into the
Company Stock Proxies with each of Lawrence J. Speh and Albert J. Speh, Jr. in
the form attached hereto as Exhibits A-2 and A-3, respectively. Concurrently
herewith, the Company is entering into the Parent Stock Proxy with Charles D.
Morgan in the form attached hereto as Exhibit A-1. Parent will use its
reasonable best efforts to obtain proxies within ten business days following
the date hereof from the stockholders listed on Schedule 7.7(a) hereto, such
proxies to be substantially in the form of Exhibit A-1. The Company will use
its reasonable best efforts to obtain proxies within ten business days
following the date hereof from the record holders of all shares of Company
Common Stock reflected as being beneficially owned by each of Lawrence J. Speh
and Albert J. Speh, Jr., as set forth on Schedule 7.7(b), such proxies to be
substantially in the form of Exhibits A-2 and A-3.
Section 7.8 Employees, Employee Benefits. (a) Parent agrees that individuals
who are employed by the Company as of the Effective Time shall become
employees of the Surviving Corporation following the Effective Time (each such
employee, an "Affected Employee"); provided, however, that nothing contained
in this Section 7.8 shall require the Surviving Corporation to continue the
employment of any Affected Employee for any period of time following the
Effective Time.
(b) Parent shall, or shall cause the Surviving Corporation to, give Affected
Employees full credit for purposes of eligibility, vesting and determination
of the level of benefits (but not for the purpose of benefit accrual under any
defined benefit plan) under any employee benefit plans or arrangements
maintained by the Parent, the Surviving Corporation or any Subsidiary of the
Parent for such Affected Employees' service with the Company or any Subsidiary
of the Company to the same extent recognized by the Company immediately prior
to the Effective Time.
(c) Parent shall, or shall cause the Surviving Corporation to, (i) waive all
limitations as to preexisting conditions exclusions and waiting periods with
respect to participation and coverage requirements applicable to the Affected
Employees under any welfare benefit plans that such Affected Employees may be
eligible to participate in after the Effective Time, other than limitations or
waiting periods that are already in effect with respect to such Affected
Employees and that have not been satisfied as of the Effective Time under any
welfare plan maintained for the Affected Employees immediately prior to the
Effective Time, and (ii) provide each Affected Employee with credit for any
co-payments and deductibles paid prior to the Effective Time in satisfying any
applicable deductible or out-of-pocket requirements under any welfare plans
that such Affected Employees are eligible to participate in after the
Effective Time.
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Section 7.9 Stock Options. (a) As of the Effective Time, (i) each
outstanding Employee Stock Option shall be converted into an option (an
"Adjusted Option") to purchase the number of Parent Shares equal to the number
of Shares subject to such Employee Stock Option immediately prior to the
Effective Time multiplied by the Exchange Ratio (rounded to the nearest whole
number of Parent Shares), at an exercise price per share equal to the exercise
price for each such Share subject to such option divided by the Exchange Ratio
(rounded down to the nearest whole cent), and all references in each such
Employee Stock Option to the Company shall be deemed to refer to Parent, where
appropriate; provided, however, that the adjustments provided in this clause
(i) with respect to any Employee Stock Options which are "incentive stock
options" (as defined in Section 422 of the Code) or which are described in
Section 423 of the Code, shall be affected in a manner consistent with the
requirements of Section 424(a) of the Code, and (ii) Parent shall assume the
obligations of the Company under the Company's stock option plans pursuant to
which such Employee Stock Options were issued. The other terms of each
Adjusted Option, and the plans or agreements under which they were issued,
shall continue to apply in accordance with their terms. The date of grant of
each Adjusted Option shall be the date on which the corresponding Employee
Stock Option was granted.
(b) Parent shall (i) reserve for issuance the number of Parent Shares that
will become subject to the benefit plans, programs and arrangements referred
to in this Section 7.9 and (ii) issue or cause to be issued the appropriate
number of Parent Shares pursuant to applicable plans, programs and
arrangements, upon the exercise or maturation of rights existing thereunder on
the Effective Time or thereafter granted or awarded. No later than the
Effective Time, Parent shall prepare and file with the SEC a registration
statement on Form S-8 (or other appropriate form) registering a number of
Parent Shares necessary to fulfill Parent's obligations under this Section
7.9. Such registration statement shall be kept effective (and the current
status of the prospectus required thereby shall be maintained) for at least as
long as Adjusted Options remain outstanding.
(c) As soon as practicable after the Effective Time, Parent shall deliver to
the holders of Employee Stock Options appropriate notices setting forth such
holders' rights pursuant to the respective Company stock option plans and the
agreements evidencing the grants of such Employee Stock Options and that such
Employee Stock Options and the related agreements shall be assumed by Parent
and shall continue in effect on the same terms and conditions (subject to the
adjustments required by this Section 7.9 after giving effect to the Merger).
Section 7.10 Public Announcements. Parent and Sub, on the one hand, and the
Company, on the other hand, agree that they will not issue any press release
or otherwise make any public statement or respond to any press inquiry with
respect to this Agreement or the transactions contemplated hereby without the
prior approval of the other party, except as may be required by Law.
Section 7.11 By-Law Indemnification and Insurance. Parent shall cause the
Surviving Corporation to keep in effect in its By-Laws a provision for a
period of not less than six years from the Effective Time (or, in the case of
matters occurring prior to the Effective Time which have not been resolved
prior to the sixth anniversary of the Effective Time, until such matters are
finally resolved) which provides for indemnification of the past and present
officers and directors (the "Indemnified Parties") of the Company to the
fullest extent permitted by the GCL. For six years from the Effective Time,
Parent shall indemnify the Indemnified Parties to the same extent as such
Indemnified Parties are entitled to indemnification pursuant to the preceding
sentence. For a period of six years from the Effective Time, Parent shall
either cause to be maintained in effect the current policies of directors' and
officers' liability insurance maintained by the Company or provide substitute
policies of at least the same coverage and amounts containing terms and
conditions which are, in the aggregate, no less advantageous to the insured
with respect to claims arising from facts or events that occurred on or before
the Effective Time, except that in no event shall Parent be required to pay
with respect to such insurance policies in any one year more than $200,000.
Section 7.12 Expenses. (a) Except as set forth in this Section 7.12, whether
or not the Merger is consummated all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby and thereby shall
be paid by the party incurring such expenses; provided that those expenses
incurred in connection with printing the Registration Statement and the
related Proxy Statement, as well as the filing fee relating to the
Registration Statement will be shared equally by Parent and the Company.
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(b) As a condition and inducement to Parent's and Sub's willingness to enter
this Agreement, (i) if this Agreement is terminated by Parent and Sub pursuant
to Section 9.1(e) or 9.1(g), (ii) if this Agreement is terminated by Parent
and Sub or by the Company pursuant to 9.1(h) or (iii)(x) prior to the
termination of this Agreement, a bona fide Takeover Proposal is commenced,
publicly proposed or publicly disclosed and not withdrawn, (y) this Agreement
is terminated by the Parent and Sub or the Company pursuant to Section 9.1(f)
(but only due to the failure of the Company stockholders to approve the
Merger) and (z) concurrently with or within twelve months after such
termination a Takeover Proposal shall have been consummated, then, in each
case, the Company shall (i) pay to Parent a fee (the "Company Termination
Fee") of $20,000,000 in immediately available funds and (ii) reimburse Parent
and Sub for all out-of-pocket expenses and fees (including, without
limitation, the fees and expenses of their counsel and investment banking
firms) incurred by them or on their behalf in connection with the Merger, this
Agreement or the transactions contemplated hereby; provided, however, that
such fees and expenses shall not exceed $2,500,000. The Company will pay the
Company Termination Fee promptly, but in no event later than (a) the second
business day following termination by Parent and Sub pursuant to clause (i) or
(ii) above, or (b) in the case of termination by Parent and Sub pursuant to
clause (iii) above upon the consummation of the Takeover Proposal referred to
in clause (iii)(z) above. The Company will reimburse Parent and Sub for the
foregoing fees and expenses promptly, but in no event later than the second
business day following submission of statements therefor.
(c) As a condition and inducement to the Company's willingness to enter this
Agreement, if (i) this Agreement is terminated by the Company pursuant to
Section 9.1(i) or (ii) (x) prior to the termination of this Agreement, a bona
fide proposal or offer with respect to any acquisition, business combination
or purchase (including by way of a tender or exchange offer) of all or any
significant portion of the assets of, or 15% or more of the outstanding shares
of capital stock of Parent (a "Parent Takeover Proposal") is commenced,
publicly proposed or publicly disclosed and not withdrawn, (y) this Agreement
is terminated by the Company pursuant to Section 9.1(f) (but only due to the
failure of the Parent stockholders to approve the issuance of Parent Shares
pursuant to the Merger) and (z) concurrently with or within twelve months
after such termination a Parent Takeover Proposal shall have been consummated,
then Parent shall (i) pay to the Company a fee (the "Parent Termination Fee")
of $20,000,000 in immediately available funds, and (ii) reimburse the Company
for all out-of-pocket expenses and fees (including, without limitation, the
fees and expenses of its counsel and investment banking firms) incurred by it
or on its behalf in connection with the Merger, this Agreement or the
transactions contemplated hereby; provided, however, that such fees and
expenses shall not exceed $2,500,000. Parent will pay the Parent Termination
Fee promptly, but in no event later than (a) the second business day following
termination by the Company pursuant to clause (i) above, or (b) in the case of
termination by the Company pursuant to clause (ii) above, upon the
consummation of the Takeover Proposal referred to in clause (ii)(z) above.
Parent will reimburse the Company for the foregoing fees and expenses
promptly, but in no event later than the second business day following
submission of statements therefor.
Section 7.13 Additional Agreements. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including using all reasonable efforts to obtain all necessary
waivers, consents and approvals and to effect all necessary registrations and
filings. In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers and/or directors of Parent, Sub and the Company shall take all such
necessary action.
Section 7.14 Control of the Company's and Parent's Operations. Nothing
contained in this Agreement shall give Parent or the Company, directly or
indirectly, rights to control or direct the operations of the other prior to
the Effective Time. Prior to the Effective Time, each of Parent and the
Company shall exercise, consistent with the terms and conditions of this
Agreement, complete control and supervision of its operations.
Section 7.15 Company Rights Plan. No later than the date hereof, the Company
shall amend the Company Rights Plan to effect the changes thereto contemplated
by the form of amendment attached hereto as Exhibit B. Except as set forth in
Exhibit B, the Company shall not amend, modify or supplement the Company
Rights Plan without the prior written consent of Parent.
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ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 8.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the following
conditions:
(a) Any waiting period applicable to the consummation of the Merger under
the HSR Act shall have expired or been terminated, and no action shall have
been instituted by the Department of Justice or Federal Trade Commission
challenging or seeking to enjoin the consummation of this transaction,
which action shall have not been withdrawn or terminated.
(b) The Registration Statement shall have become effective in accordance
with the provisions of the Securities Act.
(c) This Agreement and the transactions contemplated hereby shall have
been approved and adopted by the requisite vote of the stockholders of each
of the Company and Parent in accordance with applicable law.
(d) No preliminary or permanent injunction or other order by any federal
or state court in the United States which prohibits the consummation of the
Merger shall have been issued and remain in effect.
(e) Each of the Company and Parent shall have obtained such consents from
third parties and government instrumentalities in addition to pursuant to
the HSR Act as shall be required and which are material to Parent and the
Company and to consummation of the transactions contemplated hereby.
(f) Parent and Sub and the Company shall have each received a letter of
KPMG Peat Marwick LLP, dated the Effective Time, in form and substance
satisfactory to Parent addressed to Parent and Sub and the Company stating
that the Merger will qualify as a pooling of interests transaction under
Opinion No. 16 of the Accounting Principles Board.
Section 8.2 Conditions to Obligation of the Company to Effect the
Merger. The obligation of the Company to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the following additional
conditions:
(a) Each of Parent and Sub shall have performed in all material respects
its obligations under this Agreement required to be performed by it at or
prior to the Effective Time and the representations and warranties of
Parent and Sub contained in this Agreement shall be true and correct in all
material respects at and as of the Effective Time as if made at and as of
such time, except as contemplated by this Agreement, and the Company shall
have received a certificate of the Chief Executive Officer or the President
of Parent as to the satisfaction of this condition.
(b) The Company shall have received an opinion of Winston & Strawn, in
form and substance reasonably satisfactory to the Company, dated as of the
Effective Time, substantially to the effect that the Merger will constitute
a reorganization for U.S. federal income tax purposes within the meaning of
Section 368(a) of the Code. The issuance of such opinion shall be
conditioned upon the receipt by Winston & Strawn of representation letters
from each of Parent, Sub and the Company, in each case, in form and
substance reasonably satisfactory to Winston & Strawn. The specific
provisions of each such representation letter shall be in form and
substance reasonably satisfactory to Winston & Strawn, and each such
representation letter shall be dated on or before the date of such opinion
and shall not have been withdrawn or modified in any material respect.
Section 8.3 Conditions to Obligations of Parent and Sub to Effect the
Merger. The obligations of Parent and Sub to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the following
additional conditions:
(a) The Company shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or prior
to the Effective Time and the representations and warranties of
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the Company contained in this Agreement shall be true and correct in all
material respects at and as of the Effective Time as if made at and as of
such time except as contemplated by this Agreement, and Parent and Sub
shall have received a Certificate of the Chief Executive Officer or the
President of the Company as to the satisfaction of this condition.
(b) Parent shall have received an opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, in form and substance reasonably satisfactory to
Parent, dated as of the Effective Time, substantially to the effect that
the Merger will constitute a reorganization for U.S. federal income tax
purposes within the meaning of Section 368(a) of the Code. The issuance of
such opinion shall be conditioned upon the receipt by such tax counsel of
representation letters from each of Parent, Sub and the Company, in each
case, in form and substance reasonably satisfactory to such tax counsel.
The specific provisions of each such representation letter shall be in form
and substance reasonably satisfactory to such tax counsel, and each such
representation letter shall be dated on or before the date of such opinion
and shall not have been withdrawn or modified in any material respect.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval by the stockholders of
the Company:
(a) by mutual consent of Parent, Sub and the Company;
(b) by either Parent and Sub, on the one hand, or the Company, on the
other hand, if the Merger shall not have been consummated on or before
December 31, 1998;
(c) by the Company if any of the conditions specified in Sections 8.1 and
8.2 hereof has not been met or waived by the Company prior to or at such
time as such condition can no longer be satisfied;
(d) by Parent and Sub if any of the conditions specified in Sections 8.1
and 8.3 hereof has not been met or waived by Parent and Sub prior to or at
such time as such condition can no longer be satisfied;
(e) by Parent and Sub if a tender offer or exchange offer for 50% or more
of the outstanding shares of capital stock of the Company is commenced
prior to the meeting of Company stockholders contemplated by Section
7.4(a), and the Board of Directors of the Company fails to recommend
against acceptance of such tender offer or exchange offer by its
stockholders (including by taking no position with respect to the
acceptance of such tender offer or exchange offer by its stockholders)
within the time period specified by Rule 14e-2 of the Exchange Act;
(f) by either Parent and Sub or the Company if the approvals of the
stockholders of either Parent or the Company contemplated by this Agreement
shall not have been obtained by reason of the failure to obtain the
required vote at a duly held meeting of stockholders or of any adjournment
thereof;
(g) by Parent and Sub if the Board of Directors of the Company shall have
withdrawn or modified in a manner adverse to Parent its approval or
recommendation of this Agreement and the transactions contemplated hereby;
(h) by either the Company or Parent and Sub if the Board of Directors of
the Company reasonably determines that a Takeover Proposal constitutes a
Superior Proposal, except that the Company may not terminate this Agreement
pursuant to this clause 7.1(h) unless and until (i) three business days
have elapsed following delivery to Parent of a written notice of such
determination by the Board of Directors of the Company and during such
three business day period the Company (x) informs Parent of the terms and
conditions of the Takeover Proposal and the identity of the person making
the Takeover Proposal and (y) otherwise reasonably cooperates with Parent
with respect thereto (subject, in the case of this clause (y), to the
condition that the Board of Directors of the Company shall not be required
to take any action that it believes, after consultation with outside legal
counsel, would present a reasonable possibility of violating
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its obligations to the Company or the Company's stockholders under
applicable law) with the intent of providing Parent with the opportunity to
offer to modify the terms and conditions of this Agreement so that the
transactions contemplated hereby may be effected, (ii) at the end of such
three business day period the Board of Directors of the Company continues
reasonably to believe that the Takeover Proposal constitutes a Superior
Proposal, (iii) simultaneously with such termination the Company enters
into a definitive acquisition, merger or similar agreement to effect the
Superior Proposal and (iv) simultaneously with such termination, the
Company pays to Parent the amounts specified and within the time periods
specified in Section 7.12(b);
(i) by the Company if the Board of Directors of Parent shall have
withdrawn or modified in a manner adverse to the Company its approval or
recommendation of this Agreement and the transactions contemplated hereby;
or
(j) by either the Company or Parent and Sub if there shall have been a
material breach by the other of any of its representations, warranties,
covenants or agreements contained in this Agreement or the Option
Agreement, which if not cured would cause the conditions set forth in
Sections 8.2(a) or 8.3(a), as the case may be, not to be satisfied, and
such breach shall not have been cured within 30 days after notice thereof
shall have been received by the party alleged to be in breach.
Section 9.2 Effect of Termination. In the event of termination of this
Agreement as provided above, this Agreement shall forthwith become void and
there shall be no liability on the part of either Parent, Sub or the Company
or their respective officers or directors (i) except as set forth in Section
7.1 hereof and except for Section 7.12 hereof which shall survive the
termination and (ii) no such termination shall release any party of any
liabilities or damages resulting from any wilful breach by that party of any
provision of this Agreement.
Section 9.3 Amendment. This Agreement may be amended by action taken by
Parent, Sub and the Company at any time before or after approval hereof by the
stockholders of the Company, but, after any such approval, no amendment shall
be made which alters the Exchange Ratio or which in any way materially
adversely affects the rights of such stockholders, without the further
approval of such stockholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 9.4 Waiver. At any time prior to the Effective Time, the parties
hereto may (a) extend the time for the performance of any of the obligations
or other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Survival of Representations, Warranties and Agreements. No
representations, warranties or agreements contained herein shall survive
beyond the Effective Time except that the agreements contained in Sections
3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 7.9, 7.11 and 7.12 hereof shall survive beyond
the Effective Time.
Section 10.2 Brokers. The Company represents and warrants that, (i) except
for its financial advisors, Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ"), no broker, finder or financial advisor is entitled to any
brokerage, finder's or other fee or commission in connection with the Merger
or the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company and (ii) the Company's fee arrangements
with DLJ have been disclosed to Parent. Parent represents and warrants that,
except for its financial advisor, Stephens Inc. ("Stephens"), (i) no broker,
finder or financial advisor is entitled to any brokerage finder's or other fee
or commission in connection with the Merger or the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Parent or
Sub and (ii) Parent's fee arrangements with Stephens have been disclosed to
the Company.
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Section 10.3 Notices. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally or by telex or telegram or mailed by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to Parent or Sub, to:
ACXIOM CORPORATION
P.O. Box 2000
301 Industrial Boulevard
Conway, AR 72033-2000
fax: (501) 336-3913
Attention: Charles D. Morgan
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
fax: (212) 735-2000
Attention: J. Michael Schell
(b) if to the Company, to:
MAY & SPEH, INC.
1501 Opus Place
Downers Grove, IL 60515
fax: (630) 719-0525
Attention: Chief Executive Officer
with a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
fax: (312) 558-5700
Attention: Bruce A. Toth
Section 10.4 Descriptive Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 10.5 Entire Agreement; Assignment. This Agreement (including the
Exhibits, Schedules and other documents and instruments referred to herein)
(a) constitutes the entire agreement and supersedes all other prior agreements
and understandings, both written and oral among the parties or any of them,
with respect to the subject matter hereof; (b) is not intended to confer upon
any other person any rights or remedies hereunder; and (c) shall not be
assigned by operation of law or otherwise, provided that Parent or Sub may
assign its rights and obligations hereunder to a direct or indirect subsidiary
of Parent, but no such assignment shall relieve Parent or Sub, as the case may
be, of its obligations hereunder.
Section 10.6 Governing Law. This Agreement 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.
Section 10.7 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any of the provisions of this Agreement were
not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
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Section 10.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREFORE, each of Parent, Sub and the Company has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
ACXIOM CORPORATION
/s/ Charles D. Morgan
By: __________________________
Name: Charles D. Morgan
Title: President
ACX ACQUISITION CO., INC.
/s/ Catherine L. Hughes
By: ___________________________
Name: Catherine L. Hughes
Title: Secretary
MAY & SPEH, INC.
/s/ Peter I. Mason
By: ___________________________
Name: Peter I. Mason
Title: Chairman, President and CEO
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EXHIBIT A-1
IRREVOCABLE PROXY
IRREVOCABLE PROXY, dated as of May 26, 1998, by and between May & Speh,
Inc., a Delaware corporation (the "Company "), and Charles D. Morgan (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.
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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.
_____________________________________
Charles D. Morgan, Jr.
May & Speh, INC.
By __________________________________
Name: Peter I. Mason
Title: Chairman, President and CEO
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EXHIBIT A-2
IRREVOCABLE PROXY
IRREVOCABLE PROXY, dated as of May 26, 1998, by and between Acxiom
Corporation, a Delaware corporation (the "Parent"), and Lawrence J. Speh (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 & Speh, 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 70,000
shares (the "Shares") of the Company Common Stock and the Stockholder is the
owner beneficially of an additional 1,759,224 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 70,000 shares of Company Common Stock owned beneficially and of
record by the Stockholder on the date hereof; such Shares together with the
additional 1,759,224 shares of Company Common Stock owned beneficially by the
Stockholder are all
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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.
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IN WITNESS WHEREOF, Parent and the Stockholder have caused this Proxy to be
duly executed on the date first above written.
_____________________________________
Lawrence J. Speh
Acxiom Corporation
By __________________________________
Name: Charles. D. Morgan, Jr.
Title: President
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EXHIBIT A-3
IRREVOCABLE PROXY
IRREVOCABLE PROXY, dated as of May 26, 1998, by and between Acxiom
Corporation, a Delaware corporation (the "Parent"), and Albert J. Speh, Jr.
(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 & Speh, 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 262,994 shares of Company Common Stock owned beneficially by the
Stockholder are all of
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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.
_____________________________________
Albert J. Speh, Jr.
Acxiom Corporation
By __________________________________
Name: Charles D. Morgan, Jr.
Title: President
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EXHIBIT B
AMENDMENT TO RIGHTS AGREEMENT
Amendment Number One, dated as of May 26, 1998, to the Rights Agreement,
dated as of March 1, 1996 (the "Rights Agreement"), between MAY & SPEH, INC.,
a Delaware corporation (the "Company"), and HARRIS TRUST AND SAVINGS BANK, an
Illinois banking corporation, as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the Rights Agreement
specifying the terms of the Rights (as defined therein);
WHEREAS, the Company desires to amend the Rights Agreement in accordance
with Section 27 of the Rights Agreement;
WHEREAS, the Company proposes to enter into an Agreement and Plan of Merger,
dated as of May 26, 1998 (the "Merger Agreement"), among the Company, Acxiom
Corporation ("Parent") and ACX Acquisition Co., Inc. ("Sub").
WHEREAS, as a condition to the Merger Agreement and in order to induce
Parent to enter into the Merger Agreement, the Company proposes to enter into
a Stock Option Agreement, dated as of May 26, 1998, between the Company and
Parent (the "Stock Option Agreement"), pursuant to which the Company will
grant Parent an irrevocable option (the "Option") to purchase up to 19.9% of
the number of shares (the "Option Shares") of common stock, par value $.01 per
share ("Common Stock"), of the Company issued and outstanding immediately
prior to the grant of the Option;
WHEREAS, as a condition to the Merger Agreement and in order to induce
Parent to enter into the Merger Agreement, certain holders of shares of Common
Stock (each, a "Stockholder" and collectively, the "Stockholders"), each
propose to enter into an irrevocable proxy, dated as of May 26, 1998, between
such Stockholder and Parent, pursuant to which such Stockholder will grant
Parent an irrevocable proxy (each, a "Proxy" and collectively, the "Proxies")
to vote such Stockholder's shares of Common Stock; and
WHEREAS, the Board of Directors of the Company has determined it advisable
and in the best interest of the stockholders of the Company to amend the
Rights Agreement to enable the Company to enter into the Merger Agreement and
the Stock Option Agreement and consummate the transactions contemplated
thereby without causing Parent to become an "Acquiring Person" (as defined in
the Rights Agreement).
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein and in the Rights Agreement, the parties hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
shall have the meaning assigned to such terms in the Rights Agreement.
2. Amendments to the Rights Agreement. The Rights Agreement is hereby
amended as set forth in this Section 2.
a. Section 1 of the Rights Agreement, "Certain Definitions", is hereby
amended and restated by deleting the definition of "Acquiring Person"
thereof and inserting in lieu thereof the following:
"Acquiring Person" shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined) of such Person, shall be the Beneficial Owner
(as such term is hereinafter defined) of 15% or more of the Common Shares of
the Company then outstanding, but shall not include the Company, any
Subsidiary (as such term is hereinafter defined) of the Company, any employee
benefit plan of the Company or any Subsidiary of the Company, any Person
holding
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Common Shares for or pursuant to the terms of any such plan, or any
Grandfathered Person. Notwithstanding the foregoing, no Person (including,
without limitation, any Grandfathered Person) shall become an "Acquiring
Person" as the result of (a) an acquisition of Common Shares by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or
more of the Common Shares of the Company then outstanding; (b) the acquisition
by such Person of newly issued Common shares directly from the Company (it
being understood that a purchase from an underwriter or other intermediary is
not directly from the Company); or (c) that the Parent, and its Affiliates and
Associates shall not be deemed to be an Acquiring Person as a result of either
(i) the grant of the Option (as such term is defined in the Stock Option
Agreement) pursuant to the Stock Option Agreement, or at any time following
the exercise thereof and the issuance of shares of Common Shares in accordance
with the terms of the Stock Option Agreement or (ii) the grant of the Proxies
by and between the Stockholders and Parent, or at any time following the
delivery and execution thereof; provided, however, that if a Person shall
become the Beneficial Owner of 15% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company or the receipt of
newly issued Common Shares directly from the Company and shall, after such
share purchases or direct issuance by the Company, become the Beneficial Owner
of any additional Common Shares of the Company, then such Person shall be
deemed to be an "Acquiring Person;" provided further, however, that any
transferee from such Person who becomes the Beneficial Owner of 15% or more of
the Common Shares of the Company then outstanding shall nevertheless be deemed
to be an "Acquiring Person." Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph, has become such inadvertently, and such Person
divests as promptly as practicable (and in any event within ten business days
after notification by the Company) a sufficient number of Common Shares so
that such Person would no longer be an Acquiring Person, as defined pursuant
to the foregoing provisions of this paragraph, then such Person shall not be
deemed to be an "Acquiring Person" for any purposes of this Agreement.
b. Section 7(a) of the Rights Agreement is hereby amended by deleting
subsections 7(a)(i), 7(a)(ii), and 7(a)(iii) and inserting in lieu
thereof the following:
(i) the close of business on the tenth anniversary of the effective date
of this Agreement (the "Final Expiration Date"), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the "Redemption
Date"), (iii) the time immediately prior to the Effective Time (as such
term is defined in that certain Agreement and Plan of Merger dated as of
May 26, 1998, among the Company, Acxiom Corporation and ACX Acquisition
Co., Inc. (the earliest to occur of (i), (ii) and (iii) being herein
referred to as the "Expiration Date"), and (iv) the time at which such
Rights are exchanged as provided in Section 24 hereof.
3. Miscellaneous.
a. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as amended hereby.
b. The foregoing amendment shall be effective as of the date first above
written, and, except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected
hereby.
c. This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all for which together
shall constitute one and the same instrument.
d. This Amendment shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
A-38
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Number One
to be duly executed and attested, all as of the day and year first above
written.
Attest: MAY & SPEH, INC.
By: _________________________________ By: _________________________________
Name: Andy V. Jonusaitis Name: Peter I. Mason
Title: Secretary Title: Chairman, President and CEO
Attest: HARRIS TRUST AND SAVINGS BANK
By: _________________________________ By: _________________________________
Name: Susan M. Schadel Name: Palmer Haffner
Title: Assistant Vice President Title: Vice President
A-39
<PAGE>
EXHIBIT C
FORM OF AFFILIATE LETTER FOR AFFILIATES OF THE COMPANY
Acxiom Corporation
301 Industrial Boulevard
Conway, AR 72032
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may be deemed to be
an "affiliate" of May & Speh, Inc., a Delaware corporation (the "Company"), as
the term "affiliate" is (i) defined for purposes of paragraphs (c) and (d) of
Rule 145 of the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act"), and/or (ii) used in and for purposes
of Accounting Series Releases No. 130 and No. 135, as amended, of the SEC.
Pursuant to the terms of the Agreement and Plan of Merger, dated as of May 26,
1998 (the "Merger Agreement"), among Acxiom Corporation, a Delaware
corporation ("Parent"), ACX Acquisition Co., a Delaware corporation ("Sub"),
and the Company, (i) Sub will be merged with and into the Company, with the
Company continuing as the surviving corporation (the "Merger"), (ii) the
Company will become a subsidiary of Parent, and (iii) stockholders of the
Company will become stockholders of Parent. Capitalized terms used in this
letter without definition shall have the meanings assigned to them in the
Merger Agreement.
As a result of the Merger, I may receive shares of common stock, par value
$.10 per share, of Parent (the "Parent Common Stock"). I would receive such
Parent Common Stock in exchange for shares (or upon exercise of options for
shares) owned by me of common stock, par value $0.01 per share, of the Company
(the "Company Common Stock").
1. I hereby represent and warrant to, and covenant with Parent that in the
event I receive any shares of Parent Common Stock as a result of the Merger:
A. I shall not make any offer, sale, pledge, transfer or other
disposition of shares of Parent Common Stock in violation of the Securities
Act or the Rules and Regulations.
B. I have carefully read this letter and the Merger Agreement and
discussed the requirements of such documents and other applicable
limitations upon my ability to sell, transfer or otherwise dispose of
shares of Parent Common Stock, to the extent I felt necessary, with my
counsel or counsel for the Company.
C. I have been advised that the issuance of shares of Parent Common Stock
to me pursuant to the Merger has been registered with the SEC under the
Securities Act on a Registration Statement on Form S-4. However, I have
also been advised that, because at the time the Merger is submitted for a
vote of the stockholders of the Company, (a) I may be deemed to be an
affiliate of the Company and (b) the distribution by me of shares of Parent
Common Stock has not been registered under the Act, I may not sell,
transfer or otherwise dispose of the shares of Parent Common Stock issued
to me in the Merger unless (i) such sale, transfer or other disposition is
made in conformity with the volume and other limitations of Rule 145
promulgated by the SEC under the Securities Act, (ii) such sale, transfer
or other disposition has been registered under the Securities Act or (iii)
in the opinion of counsel reasonably acceptable to Parent, or a "no action"
letter obtained by the undersigned from the staff of the SEC such sale,
transfer or other disposition is otherwise exempt from registration under
the Securities Act.
D. I understand that Parent is under no obligation to register the sale,
transfer or other disposition of Parent Common Stock by me or on my behalf
under the Act or, except as provided in paragraph 2(A) below, to take any
other action necessary in order to make compliance with an exemption from
such registration available.
A-40
<PAGE>
E. I also understand that stop transfer instructions will be given to the
Company's transfer Agent with respect to shares of Company Common Stock
currently held by me and to Parent's transfer Agent with respect to shares
of Parent Common Stock issued to me in the Merger, and there will be placed
on the certificates for such shares of Parent Common Stock, a legend
stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
ACT OF 1933 APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE
MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT DATED MAY , 1998 BETWEEN THE REGISTERED HOLDER HEREOF
AND ACXIOM CORPORATION, A COPY OF WHICH AGREEMENT IS ON FILE AT
THE PRINCIPAL OFFICES OF ACXIOM CORPORATION."
F. I also understand that unless a sale or transfer is made in conformity
with the provisions of Rule 145, or pursuant to a registration statement,
Parent reserves the right to put the following legend on the certificates
issued to my transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO WHICH
RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933 APPLIES.
THE SHARES HAVE BEEN ACQUIRED BY THE HOLDER NOT WITH A VIEW TO,
OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN
THE MEANING OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OF 1933."
G. I further represent to, and covenant with Parent that I will not sell,
transfer or otherwise dispose of or reduce my risk (as contemplated by the
SEC Accounting Series Release No. 135) with respect to shares of Company
Common Stock that I may hold and, furthermore, that I will not sell,
transfer or otherwise dispose of or reduce my risk (as contemplated by SEC
Accounting Series Release No. 135) with respect to the shares of Parent
Common Stock received by me in the Merger or any other shares of the
capital stock of Parent during the 30 days prior to the Effective Time
until after such time as results covering at least 30 days of continued
operations of Parent and the Company have been published by Parent, in the
form of a quarterly earnings report, an effective registration statement
filed with the SEC, a report to the SEC on Form 10-K, 10-Q or 8-K, or any
other public filing or announcement which includes the combined results of
operations of Parent and the Company (the period commencing 30 days prior
to the Effective Time and ending on the date of the publication of the
post-Merger financial results is referred to herein as the "Pooling
Period"). Parent shall notify the "affiliates" of the publication of such
results. Notwithstanding the foregoing, I understand that during the
Pooling Period I will be permitted to sell, transfer or otherwise dispose
of or reduce my risk with respect to an amount of Parent Common Stock and
Company Common Stock not more than the de minimus amount permitted by the
SEC in its rules and releases relating to pooling of interests accounting
treatment and in accordance with Rule 145(d)(i) under the Securities Act,
subject to providing advance written notice to Parent.
H. Execution of this letter should not be considered an admission on my
part that I am an "affiliate" of the Company as described in the first
paragraph of this letter, nor as a waiver of any rights I may have to
object to any claim that I am such an affiliate on or after the date of
this letter.
2. By Parent's acceptance of this letter, Parent hereby agrees with me as
follows:
A. For so long as and to the extent necessary to permit me to sell the
shares of Parent Common Stock pursuant to Rule 145 and, to the extent
applicable, Rule 144 under the Act, Parent shall (a) use its reasonable
best efforts to (i) file, on a timely basis, all reports and data required
to be filed with the SEC by it pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended and (ii) furnish to me upon request a
written statement as to whether Parent has complied with such reporting
requirements during the 12 months
A-41
<PAGE>
preceding any proposed sale of the shares of Parent Common Stock by me
under Rule 145, and (b) otherwise use its reasonable efforts to permit such
sales pursuant to Rule 145 and Rule 144.
B. It is understood and agreed that certificates with the legends set
forth in paragraphs E and F above will be substituted by delivery of
certificates without such legend if (i) one year shall have elapsed from
the date the undersigned acquired the shares of Parent Common Stock
received in the Merger and the provisions of Rule 145(d)(2) are then
available to the undersigned, (ii) two years shall have elapsed from the
date the undersigned acquired the shares of Parent Common Stock received in
the Merger and the provisions of Rule 145(d)(3) are then applicable to the
undersigned, or (iii) Parent has received either an opinion of counsel,
which opinion and counsel shall be reasonably satisfactory to Parent, or a
"no-action" letter obtained by the undersigned from the staff of the SEC,
to the effect that the restrictions imposed by Rule 144 and Rule 145 under
the Act no longer apply to the undersigned.
Very truly yours,
_____________________________________
Name:
Agreed and accepted this day of
, 1998, by
ACXIOM CORPORATION
By: _________________________________
Name:
Title:
A-42
<PAGE>
EXHIBIT D
FORM OF AFFILIATE LETTER FOR AFFILIATES OF PARENT
Acxiom Corporation
301 Industrial Boulevard
Conway, AR 72032
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may be deemed to be
an "affiliate" of Acxiom Corporation, a Delaware corporation ("Parent"), as
the term "affiliate" is defined for purposes of Accounting Series Releases No.
130 and No. 135, as amended, of the Securities and Exchange Commission (the
"SEC"). Pursuant to the terms of the Agreement and Plan of Merger, dated as of
May 26, 1998 (the "Merger Agreement"), among May & Speh, Inc., a Delaware
corporation (the "Company"), ACX Acquisition Co., a Delaware corporation
("Sub"), and Parent, (i) Sub will be merged with and into the Company, with
the Company continuing as the Surviving Corporation (the "Merger"), (ii) the
Company will become a subsidiary of Parent, and (iii) stockholders of the
Company will become stockholders of Parent.
I hereby represent to, and covenant with Parent that I will not sell,
transfer or otherwise dispose of or reduce my risk (as contemplated by the SEC
Accounting Series Release No. 135) with respect to any shares of common stock,
par value $.10 per share, of Parent (the "Parent Common Stock") that I may
hold and, furthermore, that I will not sell, transfer or otherwise dispose of
or reduce my risk (as contemplated by the SEC Accounting Series Release No.
135) with respect to any shares of common stock, par value $0.01 per share, of
the Company ("Company Common Stock") that I may hold during the 30 days prior
to the Effective Time (as defined in the Merger Agreement) until after such
time as results covering at least 30 days of combined operations of Parent and
the Company have been published by Parent, in the form of a quarterly earnings
report, an effective registration statement filed with the SEC, a report to
the SEC on Form 10-K, 10-Q or 8-K, or any other public filing or announcement
which includes the combined results of operations of Parent and the Company
(the period commencing 30 days prior to the Effective Time and ending on the
date of the publication of the post-Merger financial results is referred to
herein as the "Pooling Period"). Parent shall notify the "affiliates"of the
publication of such results. Notwithstanding the foregoing, I understand that
during the Pooling Period I will be permitted to sell, transfer or otherwise
dispose of or reduce my risk with respect to an amount of Parent Common Stock
and Company Common Stock not more than the de minimus amount permitted by the
SEC in its rules and releases relating to pooling of interests accounting
treatment, subject to providing advance written notice to Parent.
A-43
<PAGE>
Execution of this letter should not be considered an admission on my part
that I am an "affiliate" of Parent as described in the first paragraph of this
letter, nor as a waiver of any rights I may have to object to any claim that I
am such an affiliate on or after the date of this letter.
Very truly yours,
_____________________________________
Name:
Agreed and accepted this day of
, 1998, by
ACXIOM CORPORATION
By: _________________________________
Name:
Title:
A-44
<PAGE>
ANNEX B
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of May 26, 1998 (the "Agreement"), between
MAY & SPEH, INC., a Delaware corporation ("Issuer"), and Acxiom Corporation, a
Delaware corporation ("Grantee").
RECITALS
A. Issuer and Grantee have entered into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"; defined terms used but
not defined herein have the meanings set forth in the Merger Agreement),
providing for, among other things, the merger of Sub with and into Issuer
pursuant to the terms of the Merger; and
B. As a condition and inducement to Grantee's willingness to enter into the
Merger Agreement, Grantee has requested that Issuer agree, and Issuer has
agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, Issuer
and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein,
Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase up to 19.9% of the number of shares (the "Option Shares") of common
stock, par value $0.01 per share ("Issuer Common Stock"), of Issuer issued and
outstanding immediately prior to the grant of the Option at a purchase price
of $14.96 (as adjusted as set forth herein) per Option Share (the "Purchase
Price").
2. Exercise of Option. (a) Grantee may exercise the Option, with respect to
any or all of the Option Shares at any one time, subject to the provisions of
Section 2(c), upon the occurrence of a Purchase Event (as defined in Section
7(c)), except that (i) subject to the last sentence of this Section 2(a), the
Option will terminate and be of no further force and effect upon the earliest
to occur of (A) the Effective Time, (B) six months after the date on which a
Purchase Event (as defined herein) occurs, and (C) termination of the Merger
Agreement in accordance with its terms prior to the occurrence of a Purchase
Event, unless, in the case of clause (C), the Grantee has the right to receive
the Company Termination Fee following such termination upon the occurrence of
certain events, in which case the Option will not terminate until the later of
(x) six months following the time such Company Termination Fee becomes payable
and (y) the expiration of the period in which the Grantee has such right to
receive the Company Termination Fee, and (ii) any purchase of Option Shares
upon exercise of the Option will be subject to compliance with the HSR Act and
the obtaining or making of any consents, approvals, orders, notifications or
authorizations, the failure of which to have obtained or made would have the
effect of making the issuance of Option Shares illegal (the "Regulatory
Approvals") and no preliminary or permanent injunction or other order by any
court of competent jurisdiction prohibiting or otherwise restraining such
issuance shall be in effect. Notwithstanding the termination of the Option,
Grantee will be entitled to purchase the Option Shares if it has exercised the
Option in accordance with the terms hereof prior to the termination of the
Option, and the termination of the Option will not affect any rights hereunder
which by their terms do not terminate or expire prior to or as of such
termination.
(b) In the event that Grantee wishes to exercise the Option, it will send
to Issuer a written notice (an "Exercise Notice"; the date of which being
herein referred to as the "Notice Date") to that effect which Exercise
Notice also specifies the number of Option Shares, if any, Grantee wishes
to purchase pursuant to this Section 2(b), the number of Option Shares, if
any, with respect to which Grantee wishes to exercise its Cash-Out Right
(as defined herein) pursuant to Section 7(c), the denominations of the
certificate or certificates evidencing the Option Shares which Grantee
wishes to purchase pursuant to this Section 2(b) and a date not earlier
than 20 business days nor later than 30 business days from the Notice Date
for the closing (an "Option Closing") of such purchase (an "Option Closing
Date"). Any Option Closing will be at an agreed location and time in New
York, New York on the applicable Option Closing Date or at such later date
as may be necessary so as to comply with clause (ii) of Section 2(a).
<PAGE>
(c) Notwithstanding anything to the contrary contained herein, any
exercise of the Option and purchase of Option Shares shall be subject to
compliance with applicable laws and regulations, which may prohibit the
purchase of all the Option Shares specified in the Exercise Notice without
first obtaining or making certain Regulatory Approvals. In such event, if
the Option is otherwise exercisable and Grantee wishes to exercise the
Option, the Option may be exercised in accordance with Section 2(b) and
Grantee shall acquire the maximum number of Option Shares specified in the
Exercise Notice that Grantee is then permitted to acquire under the
applicable laws and regulations, and if Grantee thereafter obtains the
Regulatory Approvals to acquire the remaining balance of the Option Shares
specified in the Exercise Notice, then Grantee shall be entitled to acquire
such remaining balance. Issuer agrees to use its reasonable best efforts to
assist Grantee in seeking the Regulatory Approvals.
In the event (i) Grantee receives official notice that a Regulatory Approval
required for the purchase of any Option Shares will not be issued or granted
or (ii) such Regulatory Approval has not been issued or granted within six
months of the date of the Exercise Notice, Grantee shall have the right to
exercise its Cash-Out Right (as defined herein) pursuant to Section 7(c) with
respect to the Option Shares for which such Regulatory Approval will not be
issued or granted or has not been issued or granted.
3. Payment and Delivery of Certificates. (a) At any Option Closing, Grantee
will pay to Issuer in same day funds by wire transfer to a bank account
designated in writing by Issuer an amount equal to the Purchase Price
multiplied by the number of Option Shares to be purchased at such Option
Closing.
(b) At any Option Closing, simultaneously with the delivery of same day
funds as provided in Section 3(a), Issuer will deliver to Grantee a
certificate or certificates representing the Option Shares to be purchased
at such Option Closing, which Option Shares will be free and clear of all
liens, claims, charges and encumbrances of any kind whatsoever. If at the
time of issuance of Option Shares pursuant to an exercise of the Option
hereunder, Issuer shall not have issued any securities similar to rights
under a shareholder rights plan, then each Option Share issued pursuant to
such exercise will also represent such a corresponding right with terms
substantially the same as and at least as favorable to Grantee as are
provided under any Issuer shareholder rights agreement or any similar
agreement then in effect.
(c) Certificates for the Option Shares delivered at an Option Closing
will have typed or printed thereon a restrictive legend which will read
substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1993, AND MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IF SO REGISTERED OR
IF ANY EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT, DATED AS OF
MAY 26, 1998, A COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY
OF MAY & SPEH, INC. AT ITS PRINCIPAL EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions
arising under the Securities Act in the above legend will be removed by
delivery of substitute certificate(s) without such reference if such Option
Shares have been sold in compliance with the registration and prospectus
delivery requirements of the Securities Act, such Option Shares have been
sold in reliance on and in accordance with Rule 144 under the Securities
Act or Grantee has delivered to Issuer a copy of a letter from the staff of
the SEC, or an opinion of counsel in form and substance reasonably
satisfactory to Issuer and its counsel, to the effect that such legend is
not required for purposes of the Securities Act and (ii) the reference to
restrictions pursuant to this Agreement in the above legend will be removed
by delivery of substitute certificate(s) without such reference if the
Option Shares evidenced by certificate(s) containing such reference have
been sold or transferred in compliance with the provisions of this
Agreement under circumstances that do not require the retention of such
reference.
B-2
<PAGE>
4. Incorporation of Representations and Warranties of Issuer. The
representations and warranties of Issuer contained in Article V of the Merger
Agreement are hereby incorporated by reference herein with the same force and
effect as though made pursuant to this Agreement.
5. Representations and Warranties of Issuer. Issuer hereby represents and
warrants to Grantee as follows:
(a) Corporate Authorization. Issuer has the corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Issuer, and no other corporate proceedings on the
part of Issuer are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Issuer, and assuming this Agreement constitutes a
valid and binding agreement of Grantee, this Agreement constitutes a valid
and binding agreement of Issuer, enforceable against Issuer in accordance
with its terms (except insofar as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, or by principles governing the
availability of equitable remedies).
(b) Authorized Stock. Issuer has taken all necessary corporate and other
action to authorize and reserve and, subject to the expiration or
termination of any required waiting period under the HSR Act, to permit it
to issue, and, at all times from the date hereof until the obligation to
deliver Option Shares upon the exercise of the Option terminates, shall
have reserved for issuance, upon exercise of the Option, shares of Issuer
Common Stock necessary for Grantee to exercise the Option, and Issuer will
take all necessary corporate action to authorize and reserve for issuance
all additional shares of Issuer Common Stock or other securities which may
be issued pursuant to Section 7 upon exercise of the Option. The shares of
Issuer Common Stock to be issued upon due exercise of the Option, including
all additional shares of Issuer Common Stock or other securities which may
be issuable upon exercise of the Option or any other securities which may
be issued pursuant to Section 7, upon issuance pursuant hereto, will be
duly and validly issued, fully paid and nonassessable, and will be
delivered free and clear of all liens, claims, charges and encumbrances of
any kind or nature whatsoever, including without limitation any preemptive
rights of any stockholder of Issuer.
6. Representations and Warranties of Grantee. Grantee hereby represents and
warrants to Issuer that:
(a) Corporate Authorization. Grantee has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Grantee, and no other
corporate proceedings on the part of Grantee are necessary to authorize
this Agreement and the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Grantee, and assuming this
Agreement constitutes a valid and binding agreement of Issuer, this
Agreement constitutes a valid and binding agreement of Grantee, enforceable
against Grantee in accordance with its terms (except insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or by principles governing the availability of equitable
remedies).
(b) Purchase Not For Distribution. Any Option Shares or other securities
acquired by Grantee upon exercise of the Option will not be, and the Option
is not being, acquired by Grantee with a view to the public distribution
thereof. Neither the Option nor any of the Option Shares will be offered,
sold, pledged or otherwise transferred except in compliance with, or
pursuant to an exemption from, the registration requirements of the
Securities Act.
7. Adjustment upon Changes in Capitalization, Etc. (a) In the event of any
changes in Issuer Common Stock by reason of a stock dividend, reverse stock
split, merger, recapitalization, combination, exchange of shares, or similar
transaction, the type and number of shares or securities subject to the
Option, and the Purchase Price therefor, will be adjusted appropriately, and
proper provision will be made in the agreements governing such transaction, so
that Grantee will receive upon exercise of the Option the number and class of
shares or
B-3
<PAGE>
other securities or property that Grantee would have received with respect to
Issuer Common Stock if the Option had been exercised immediately prior to such
event or the record date therefor, as applicable.
(b) Without limiting the parties' relative rights and obligations under
the Merger Agreement, in the event that the Issuer enters into an agreement
(i) to consolidate with or merge into any person, other than Grantee or one
of its subsidiaries, and Issuer will not be the continuing or surviving
corporation in such consolidation or merger, (ii) to permit any person,
other than Grantee or one of its subsidiaries, to merge into Issuer and
Issuer will be the continuing or surviving corporation, but in connection
with such merger, the shares of Issuer Common Stock outstanding immediately
prior to the consummation of such merger will be changed into or exchanged
for stock or other securities of Issuer or any other person or cash or any
other property, or the shares of Issuer Common Stock outstanding
immediately prior to the consummation of such merger will, after such
merger represent less than 50% of the outstanding voting securities of the
merged company, or (iii) to sell or otherwise transfer all or substantially
all of its assets to any person, other than Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction will make proper provision so that the Option will, upon the
consummation of any such transaction and upon the terms and condition set
forth herein, be converted into, or exchanged for, an option with identical
terms appropriately adjusted to acquire the number and class of shares or
other securities or property that Grantee would have received in respect of
Issuer Common Stock if the Option had been exercised immediately prior to
such consolidation, merger, sale, or transfer, or the record date therefor,
as applicable and make any other necessary adjustments.
(c) If, at any time during the period commencing on the occurrence of an
event as a result of which Grantee is entitled to receive the Company
Termination Fee pursuant to Section 7.12 of the Merger Agreement (the
"Purchase Event") and ending on the termination of the Option in accordance
with Section 2, Grantee sends to Issuer an Exercise Notice indicating
Grantee's election to exercise its right (the "Cash-Out-Right") pursuant to
this Section 7(c), then Issuer shall pay to Grantee, on the Option Closing
Date, in exchange for the cancellation of the Option with respect to such
number of Option Shares as Grantee specifies in the Exercise Notice, an
amount in cash equal to such number of Option Shares multiplied by the
difference between (i) the average closing price for the 10 trading days
commencing on the 12th Nasdaq trading day immediately preceding the Notice
Date, per share of Issuer Common Stock as reported on the Nasdaq National
Market (or, if not listed on the Nasdaq, as reported on any other national
securities exchange or national securities quotation system on which the
Issuer Common Stock is listed or quoted, as reported in The Wall Street
Journal (Northeast edition), or, if not reported thereby, any other
authoritative source) (the "Closing Price") and (ii) the Purchase Price,
except that in no event shall the Issuer be required to pay to the Grantee
pursuant to this Section 7(c) an amount exceeding the product of (x) $2.00
and (y) such number of Option Shares. Notwithstanding the termination of
the Option, Grantee will be entitled to exercise its rights under this
Section 7(c) if it has exercised such rights in accordance with the terms
hereof prior to the termination of the Option.
8. Repurchase Option. In the event that Grantee notifies Issuer of its
intention to exercise the Option pursuant to Section 2(a), Issuer may require
Grantee upon the delivery to Grantee of written notice during the period
beginning on the Notice Date and ending two days prior to the Option Closing
Date, to sell to Issuer the Option Shares acquired by Grantee pursuant to such
exercise of the Option at a purchase price per share for such sale equal to
the Purchase Price plus $2.00. The Closing of any repurchase of Option Shares
pursuant to this Section 8 shall take place immediately following consummation
of the sale of the Option Shares to Grantee on the Option Closing Date at the
location and time agreed upon with respect to such Option Closing Date.
9. Registration Rights.
(a) Grantee may by written notice (a "Registration Notice") to Issuer
request Issuer to register under the Securities Act all or any part of the
Option Shares or other securities acquired by Grantee pursuant to this
Agreement (collectively, the "Registrable Securities") in order to permit the
sale or other disposition of such securities pursuant to a bona fide, firm
commitment underwritten public offering in which Grantee and the underwriters
shall effect as wide a distribution of such Registrable Securities as is
reasonably practicable and
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<PAGE>
shall use reasonable efforts to prevent any person or group from purchasing
through such offering shares representing more than 3% of the shares of Issuer
Common Stock then outstanding on a fully-diluted basis; provided, however,
that any such Registration Notice must relate to a number of shares equal to
at least 2% of the shares of Issuer Common Stock then outstanding on a fully-
diluted basis and that any rights to require registration hereunder shall
terminate with respect to any shares that may be sold pursuant to Rule 144(k)
under the Securities Act.
(b) Issuer shall use reasonable best efforts to effect, as promptly as
practicable, the registration under the Securities Act of the Registrable
Securities requested to be registered in the Registration Notice; provided,
however, that (i) Grantee shall not be entitled to more than an aggregate of
two effective registration statements hereunder and (ii) Issuer will not be
required to file any such registration statement during any period of time
(not to exceed 40 days after a Registration Notice in the case of clause (A)
below or 90 days after a Registration Notice in the case of clauses (B) and
(C) below) when (A) Issuer is in possession of material non-public information
which it reasonably believes would be detrimental to be disclosed at such time
and, based upon the advice of outside securities counsel to Issuer, such
information would have to be disclosed if a registration statement were filed
at that time; (B) Issuer would be 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) Issuer determines, in its reasonable judgment,
that such registration would interfere with any financing, acquisition or
other material transaction involving Issuer. If the consummation of the sale
of any Registrable Securities pursuant to a registration hereunder does not
occur within 180 days after the filing with the SEC of the initial
registration statement therefor, the provisions of this Section shall again be
applicable to any proposed registration, it being understood that Grantee
shall not be entitled to more than an aggregate of two effective registration
statements hereunder. Issuer will use reasonable efforts to cause each such
registration statement to become effective, to obtain all consents or waivers
of other parties which are required therefor, and to keep such registration
statement effective for such period not in excess of 180 calendar days from
the day such registration statement first becomes effective as may be
reasonably necessary to effect such sale or other disposition. Issuer shall
use reasonable best efforts to cause any Registrable Securities registered
pursuant to this Section to be qualified for sale under the securities or blue
sky laws of such jurisdictions as Grantee may reasonably request and shall
continue such registration or qualification in effect in such jurisdictions;
provided, however, that Issuer shall not be required to qualify to do business
in, or consent to general service of process in, any jurisdiction.
(c) If Issuer effects a registration under the Securities Act of Issuer
Common Stock for its own account or for any other stockholders of Issuer
(other than on Form S-4 or Form S-8, or any successor form), it will allow
Grantee the right to participate in such registration, and such participation
will not affect the obligation of Issuer to effect demand registration
statements for Grantee under this Section 9, except that, if the managing
underwriters of such offering advise Issuer in writing that in their opinion
the number of shares of Issuer Common Stock requested to be included in such
registration exceeds the number which can be sold in such offering, Issuer
will include the shares requested to be included therein by Grantee pro rata
with the shares intended to be included therein by Issuer.
(d) The registration rights set forth in this Section are subject to the
condition that Grantee shall provide Issuer with such information with respect
to Grantee Registrable Securities, the plan for distribution thereof, and such
other information with respect to Grantee as, in the reasonable judgment of
counsel for Issuer, is necessary to enable Issuer to include in a registration
statement all material facts required to be disclosed with respect to a
registration hereunder.
(e) A registration effected under this Section shall be effected at Issuer's
expense, except for underwriting discounts and commissions and the fees and
expenses of Grantee's counsel, and Issuer shall 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 and as such underwriters may reasonably require. In connection with
any registration, Grantee and Issuer agree to enter into an underwriting
agreement reasonably acceptable to each such party, in form and substance
customary for transactions of this type.
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<PAGE>
10. Transfers. The Option Shares may not be sold, assigned, transferred, or
otherwise disposed of except (i) pursuant to Section 8 hereof, (ii) in an
underwritten public offering as provided in Section 9 or (iii) to any
purchaser or transferee who would not, to the knowledge of the Grantee after
reasonable inquiry, immediately following such sale, assignment, transfer or
disposal beneficially own more than 4.9% of the then-outstanding voting power
of the Issuer, except that Grantee shall be permitted to sell any Option
Shares if such sale is made pursuant to a tender or exchange offer that has
been approved or recommended by a majority of the members of the Board of
Directors of Issuer (which majority shall include a majority of directors who
were directors as of the date hereof).
11. Listing. If Issuer Common Stock or any other securities to be acquired
upon exercise of the Option are then listed on the Nasdaq (or any other
national securities exchange or national securities quotation system), Issuer,
upon the request of Grantee, will promptly file an application to list the
shares of Issuer Common Stock or other securities to be acquired upon exercise
of the Option on the Nasdaq (and any such other national securities exchange
or national securities quotation system) and will use reasonable efforts to
obtain approval of such listing as promptly as practicable.
12. Miscellaneous. (a) Expenses. Except as otherwise provided in the Merger
Agreement, each of the parties hereto will pay all costs and expenses incurred
by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) Amendment. This Agreement may not be amended, except by an instrument in
writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for performance, 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.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement, the
Merger Agreement (including the documents and instruments attached thereto as
exhibits or schedules or delivered in connection therewith) and the
Confidentiality Agreement (i) constitute the entire agreement, and supersede
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter of this Agreement, and (ii) are not
intended to confer upon any person other than the parties any rights or
remedies.
(e) Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflict of laws
thereof.
(f) Notices. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and will be deemed
given if delivered personally, telecopied (which is confirmed), or sent by
overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
If to Issuer to:
May & Speh, Inc.
1501 Opus Place
Downers Grove, IL 60515
Fax: (630) 719-0525
Attention: Chief Executive Officer
with a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Fax: (312) 558-5700
Attention: Bruce A. Toth
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<PAGE>
If to Grantee to:
Acxiom Corporation
P.O. Box 2000
301 Industrial Boulevard
Conway, AR 72033-2000
Fax: (501) 336-3913
Attention: President
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: J. Michael Schell
Telecopy: (212) 735-2000
(g) Assignment. Neither this Agreement, the Option nor any of the rights,
interests, or obligations under this Agreement may be assigned, transferred or
delegated, in whole or in part, by operation of law or otherwise, by Issuer or
Grantee without the prior written consent of the other. Any assignment,
transfer or delegation in violation of the preceding sentence will be void.
Subject to the first and second sentences of this Section 12(g), this
Agreement will be binding upon, inure to the benefit of, and be enforceable
by, the parties and their respective successors and assigns.
(h) Further Assurances. In the event of any exercise of the Option by
Grantee, Issuer and Grantee will execute and deliver all other documents and
instruments and take all other action that may be reasonably necessary in
order to consummate the transactions provided for by such exercise.
(i) Enforcement. The parties agree that irreparable damage would occur and
that the parties would not have any adequate remedy at law in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
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 in any Federal court located in the State of
Delaware or in Delaware state court, the foregoing being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated by this Agreement, (ii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (iii) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a Federal court sitting
in the State of Delaware or a Delaware state court.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day
and year first written above.
May & Speh, Inc.
/s/ Peter I. Mason
By: _________________________________
Name: Peter I. Mason
Title: Chairman, President and CEO
Acxiom Corporation
/s/ Charles D. Morgan
By: _________________________________
Name: Charles D. Morgan
Title: President
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<PAGE>
ANNEX C
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of May 26, 1998 (the "Agreement"), between
Acxiom Corporation, a Delaware corporation ("Issuer"), and May & Speh, Inc., a
Delaware corporation ("Grantee").
RECITALS
A. Issuer and Grantee have entered into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"; defined terms used but
not defined herein have the meanings set forth in the Merger Agreement),
providing for, among other things, the merger of Sub with and into Grantee
pursuant to the terms of the Merger; and
B. As a condition and inducement to Grantee's willingness to enter into the
Merger Agreement, Grantee has requested that Issuer agree, and Issuer has
agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, Issuer
and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein,
Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase up to 19.9% of the number of shares (the "Option Shares") of common
stock, par value $0.10 per share ("Issuer Common Stock"), of Issuer issued and
outstanding immediately prior to the grant of the Option at a purchase price
of $23.55 (as adjusted as set forth herein) per Option Share (the "Purchase
Price").
2. Exercise of Option. (a) Grantee may exercise the Option, with respect to
any or all of the Option Shares at any one time, subject to the provisions of
Section 2(c), upon the occurrence of a Purchase Event (as defined in Section
7(c)), except that (i) subject to the last sentence of this Section 2(a), the
Option will terminate and be of no further force and effect upon the earliest
to occur of (A) the Effective Time, (B) six months after the date on which a
Purchase Event (as defined herein) occurs, and (C) termination of the Merger
Agreement in accordance with its terms prior to the occurrence of a Purchase
Event, unless, in the case of clause (C), the Grantee has the right to receive
the Parent Termination Fee following such termination upon the occurrence of
certain events, in which case the Option will not terminate until the later of
(x) six months following the time such Parent Termination Fee becomes payable
and (y) the expiration of the period in which the Grantee has such right to
receive a Parent Termination Fee, and (ii) any purchase of Option Shares upon
exercise of the Option will be subject to compliance with the HSR Act and the
obtaining or making of any consents, approvals, orders, notifications or
authorizations, the failure of which to have obtained or made would have the
effect of making the issuance of Option Shares illegal (the "Regulatory
Approvals") and no preliminary or permanent injunction or other order by any
court of competent jurisdiction prohibiting or otherwise restraining such
issuance shall be in effect. Notwithstanding the termination of the Option,
Grantee will be entitled to purchase the Option Shares if it has exercised the
Option in accordance with the terms hereof prior to the termination of the
Option, and the termination of the Option will not affect any rights hereunder
which by their terms do not terminate or expire prior to or as of such
termination.
(b) In the event that Grantee wishes to exercise the Option, it will send
to Issuer a written notice (an "Exercise Notice"; the date of which being
herein referred to as the "Notice Date") to that effect which Exercise
Notice also specifies the number of Option Shares, if any, Grantee wishes
to purchase pursuant to this Section 2(b), the number of Option Shares, if
any, with respect to which Grantee wishes to exercise its Cash-Out Right
(as defined herein) pursuant to Section 7(c), the denominations of the
certificate or certificates evidencing the Option Shares which Grantee
wishes to purchase pursuant to this Section 2(b) and a date not earlier
than 20 business days nor later than 30 business days from the Notice Date
for the closing (an "Option Closing") of such purchase (an "Option Closing
Date"). Any Option Closing will be at an agreed location and time in New
York, New York on the applicable Option Closing Date or at such later date
as may be necessary so as to comply with clause (ii) of Section 2(a).
<PAGE>
(c) Notwithstanding anything to the contrary contained herein, any
exercise of the Option and purchase of Option Shares shall be subject to
compliance with applicable laws and regulations, which may prohibit the
purchase of all the Option Shares specified in the Exercise Notice without
first obtaining or making certain Regulatory Approvals. In such event, if
the Option is otherwise exercisable and Grantee wishes to exercise the
Option, the Option may be exercised in accordance with Section 2(b) and
Grantee shall acquire the maximum number of Option Shares specified in the
Exercise Notice that Grantee is then permitted to acquire under the
applicable laws and regulations, and if Grantee thereafter obtains the
Regulatory Approvals to acquire the remaining balance of the Option Shares
specified in the Exercise Notice, then Grantee shall be entitled to acquire
such remaining balance. Issuer agrees to use its reasonable best efforts to
assist Grantee in seeking the Regulatory Approvals.
In the event (i) Grantee receives official notice that a Regulatory Approval
required for the purchase of any Option Shares will not be issued or granted
or (ii) such Regulatory Approval has not been issued or granted within six
months of the date of the Exercise Notice, Grantee shall have the right to
exercise its Cash-Out Right (as defined herein) pursuant to Section 7(c) with
respect to the Option Shares for which such Regulatory Approval will not be
issued or granted or has not been issued or granted.
3. Payment and Delivery of Certificates. (a) At any Option Closing, Grantee
will pay to Issuer in same day funds by wire transfer to a bank account
designated in writing by Issuer an amount equal to the Purchase Price
multiplied by the number of Option Shares to be purchased at such Option
Closing.
(b) At any Option Closing, simultaneously with the delivery of same day
funds as provided in Section 3(a), Issuer will deliver to Grantee a
certificate or certificates representing the Option Shares to be purchased
at such Option Closing, which Option Shares will be free and clear of all
liens, claims, charges and encumbrances of any kind whatsoever. If at the
time of issuance of Option Shares pursuant to an exercise of the Option
hereunder, Issuer shall not have issued any securities similar to rights
under a shareholder rights plan, then each Option Share issued pursuant to
such exercise will also represent such a corresponding right with terms
substantially the same as and at least as favorable to Grantee as are
provided under any Issuer shareholder rights agreement or any similar
agreement then in effect.
(c) Certificates for the Option Shares delivered at an Option Closing
will have typed or printed thereon a restrictive legend which will read
substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IF SO REGISTERED OR IF ANY
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
STOCK OPTION AGREEMENT, DATED AS OF MAY 26, 1998, A COPY OF WHICH MAY
BE OBTAINED FROM THE SECRETARY OF AXCIOM CORPORATION AT ITS PRINCIPAL
EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions arising
under the Securities Act in the above legend will be removed by delivery of
substitute certificate(s) without such reference if such Option Shares have
been sold in compliance with the registration and prospectus delivery
requirements of the Securities Act, such Option Shares have been sold in
reliance on and in accordance with Rule 144 under the Securities Act or
Grantee has delivered to Issuer a copy of a letter from the staff of the SEC,
or an opinion of counsel in form and substance reasonably satisfactory to
Issuer and its counsel, to the effect that such legend is not required for
purposes of the Securities Act and (ii) the reference to restrictions pursuant
to this Agreement in the above legend will be removed by delivery of
substitute certificate(s) without such reference if the Option Shares
evidenced by certificate(s) containing such reference have been sold or
transferred in compliance with the provisions of this Agreement under
circumstances that do not require the retention of such reference.
4. Incorporation of Representations and Warranties of Issuer. The
representations and warranties of Issuer contained in Article V of the Merger
Agreement are hereby incorporated by reference herein with the same force and
effect as though made pursuant to this Agreement.
C-2
<PAGE>
5. Representations and Warranties of Issuer. Issuer hereby represents and
warrants to Grantee as follows:
(a) Corporate Authorization. Issuer has the corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Issuer, and no other corporate proceedings on the
part of Issuer are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Issuer, and assuming this Agreement constitutes a
valid and binding agreement of Grantee, this Agreement constitutes a valid
and binding agreement of Issuer, enforceable against Issuer in accordance
with its terms (except insofar as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, or by principles governing the
availability of equitable remedies).
(b) Authorized Stock. Issuer has taken all necessary corporate and other
action to authorize and reserve and, subject to the expiration or
termination of any required waiting period under the HSR Act, to permit it
to issue, and, at all times from the date hereof until the obligation to
deliver Option Shares upon the exercise of the Option terminates, shall
have reserved for issuance, upon exercise of the Option, shares of Issuer
Common Stock necessary for Grantee to exercise the Option, and Issuer will
take all necessary corporate action to authorize and reserve for issuance
all additional shares of Issuer Common Stock or other securities which may
be issued pursuant to Section 7 upon exercise of the Option. The shares of
Issuer Common Stock to be issued upon due exercise of the Option, including
all additional shares of Issuer Common Stock or other securities which may
be issuable upon exercise of the Option or any other securities which may
be issued pursuant to Section 7, upon issuance pursuant hereto, will be
duly and validly issued, fully paid and nonassessable, and will be
delivered free and clear of all liens, claims, charges and encumbrances of
any kind or nature whatsoever, including without limitation any preemptive
rights of any stockholder of Issuer.
6. Representations and Warranties of Grantee. Grantee hereby represents and
warrants to Issuer that:
(a) Corporate Authorization. Grantee has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Grantee, and no other
corporate proceedings on the part of Grantee are necessary to authorize
this Agreement and the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Grantee, and assuming this
Agreement constitutes a valid and binding agreement of Issuer, this
Agreement constitutes a valid and binding agreement of Grantee, enforceable
against Grantee in accordance with its terms (except insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or by principles governing the availability of equitable
remedies).
(b) Purchase Not For Distribution. Any Option Shares or other securities
acquired by Grantee upon exercise of the Option will not be, and the Option
is not being, acquired by Grantee with a view to the public distribution
thereof. Neither the Option nor any of the Option Shares will be offered,
sold, pledged or otherwise transferred except in compliance with, or
pursuant to an exemption from, the registration requirements of the
Securities Act.
7. Adjustment upon Changes in Capitalization, Etc. (a) In the event of any
changes in Issuer Common Stock by reason of a stock dividend, reverse stock
split, merger, recapitalization, combination, exchange of shares, or similar
transaction, the type and number of shares or securities subject to the
Option, and the Purchase Price therefor, will be adjusted appropriately, and
proper provision will be made in the agreements governing such transaction, so
that Grantee will receive upon exercise of the Option the number and class of
shares or other securities or property that Grantee would have received with
respect to Issuer Common Stock if the Option had been exercised immediately
prior to such event or the record date therefor, as applicable.
(b) Without limiting the parties' relative rights and obligations under the
Merger Agreement, in the event that the Issuer enters into an agreement (i) to
consolidate with or merge into any person, other than
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<PAGE>
Grantee or one of its subsidiaries, and Issuer will not be the continuing
or surviving corporation in such consolidation or merger, (ii) to permit
any person, other than Grantee or one of its subsidiaries, to merge into
Issuer and Issuer will be the continuing or surviving corporation, but in
connection with such merger, the shares of Issuer Common Stock outstanding
immediately prior to the consummation of such merger will be changed into
or exchanged for stock or other securities of Issuer or any other person or
cash or any other property, or the shares of Issuer Common Stock
outstanding immediately prior to the consummation of such merger will,
after such merger represent less than 50% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than Grantee or
one of its subsidiaries, then, and in each such case, the agreement
governing such transaction will make proper provision so that the Option
will, upon the consummation of any such transaction and upon the terms and
condition set forth herein, be converted into, or exchanged for, an option
with identical terms appropriately adjusted to acquire the number and class
of shares or other securities or property that Grantee would have received
in respect of Issuer Common Stock if the Option had been exercised
immediately prior to such consolidation, merger, sale, or transfer, or the
record date therefor, as applicable and make any other necessary
adjustments.
(c) If, at any time during the period commencing on the occurrence of an
event as a result of which Grantee is entitled to receive the Parent
Termination Fee pursuant to Section 7.12 of the Merger Agreement (the
"Purchase Event") and ending on the termination of the Option in accordance
with Section 2, Grantee sends to Issuer an Exercise Notice indicating
Grantee's election to exercise its right (the "Cash-Out-Right") pursuant to
this Section 7(c), then Issuer shall pay to Grantee, on the Option Closing
Date, in exchange for the cancellation of the Option with respect to such
number of Option Shares as Grantee specifies in the Exercise Notice, an
amount in cash equal to such number of Option Shares multiplied by the
difference between (i) the average closing price for the 10 trading days
commencing on the 12th Nasdaq trading day immediately preceding the Notice
Date, per share of Issuer Common Stock as reported on the Nasdaq National
Market (or, if not listed on the Nasdaq, as reported on any other national
securities exchange or national securities quotation system on which the
Issuer Common Stock is listed or quoted, as reported in The Wall Street
Journal (Northeast edition), or, if not reported thereby, any other
authoritative source) (the "Closing Price") and (ii) the Purchase Price,
except that in no event shall the Issuer be required to pay to the Grantee
pursuant to this Section 7(c) an amount exceeding the product of (x) $1.00
and (y) such number of Option Shares. Notwithstanding the termination of
the Option, Grantee will be entitled to exercise its rights under this
Section 7(c) if it has exercised such rights in accordance with the terms
hereof prior to the termination of the Option.
8. Repurchase Option. In the event that Grantee notifies Issuer of its
intention to exercise the Option pursuant to Section 2(a), Issuer may require
Grantee upon the delivery to Grantee of written notice during the period
beginning on the Notice Date and ending two days prior to the Option Closing
Date, to sell to Issuer the Option Shares acquired by Grantee pursuant to such
exercise of the Option at a purchase price per share for such sale equal to
the Purchase Price plus $1.00. The Closing of any repurchase of Option Shares
pursuant to this Section 8 shall take place immediately following consummation
of the sale of the Option Shares to Grantee on the Option Closing Date at the
location and time agreed upon with respect to such Option Closing Date.
9. Registration Rights.
(a) Grantee may by written notice (a "Registration Notice") to Issuer
request Issuer to register under the Securities Act all or any part of the
Option Shares or other securities acquired by Grantee pursuant to this
Agreement (collectively, the "Registrable Securities") in order to permit
the sale or other disposition of such securities pursuant to a bona fide,
firm commitment underwritten public offering in which Grantee and the
underwriters shall effect as wide a distribution of such Registrable
Securities as is reasonably practicable and shall use reasonable efforts to
prevent any person or group from purchasing through such offering shares
representing more than 3% of the shares of Issuer Common Stock then
outstanding on a fully-diluted basis; provided, however, that any such
Registration Notice must relate to a number of shares equal to at least 2%
of the shares of Issuer Common Stock then outstanding on a fully-diluted
basis and
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<PAGE>
that any rights to require registration hereunder shall terminate with
respect to any shares that may be sold pursuant to Rule 144(k) under the
Securities Act.
(b) Issuer shall use reasonable best efforts to effect, as promptly as
practicable, the registration under the Securities Act of the Registrable
Securities requested to be registered in the Registration Notice; provided,
however, that (i) Grantee shall not be entitled to more than an aggregate
of two effective registration statements hereunder and (ii) Issuer will not
be required to file any such registration statement during any period of
time (not to exceed 40 days after a Registration Notice in the case of
clause (A) below or 90 days after a Registration Notice in the case of
clauses (B) and (C) below) when (A) Issuer is in possession of material
non-public information which it reasonably believes would be detrimental to
be disclosed at such time and, based upon the advice of outside securities
counsel to Issuer, such information would have to be disclosed if a
registration statement were filed at that time; (B) Issuer would be
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)
Issuer determines, in its reasonable judgment, that such registration would
interfere with any financing, acquisition or other material transaction
involving Issuer. If the consummation of the sale of any Registrable
Securities pursuant to a registration hereunder does not occur within 180
days after the filing with the SEC of the initial registration statement
therefor, the provisions of this Section shall again be applicable to any
proposed registration, it being understood that Grantee shall not be
entitled to more than an aggregate of two effective registration statements
hereunder. Issuer will use reasonable efforts to cause each such
registration statement to become effective, to obtain all consents or
waivers of other parties which are required therefor, and to keep such
registration statement effective for such period not in excess of 180
calendar days from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sale or other
disposition. Issuer shall use reasonable best efforts to cause any
Registrable Securities registered pursuant to this Section to be qualified
for sale under the securities or blue sky laws of such jurisdictions as
Grantee may reasonably request and shall continue such registration or
qualification in effect in such jurisdictions; provided, however, that
Issuer shall not be required to qualify to do business in, or consent to
general service of process in, any jurisdiction.
(c) If Issuer effects a registration under the Securities Act of Issuer
Common Stock for its own account or for any other stockholders of Issuer
(other than on Form S-4 or Form S-8, or any successor form), it will allow
Grantee the right to participate in such registration, and such
participation will not affect the obligation of Issuer to effect demand
registration statements for Grantee under this Section 9, except that, if
the managing underwriters of such offering advise Issuer in writing that in
their opinion the number of shares of Issuer Common Stock requested to be
included in such registration exceeds the number which can be sold in such
offering, Issuer will include the shares requested to be included therein
by Grantee pro rata with the shares intended to be included therein by
Issuer.
(d) The registration rights set forth in this Section are subject to the
condition that Grantee shall provide Issuer with such information with
respect to Grantee Registrable Securities, the plan for distribution
thereof, and such other information with respect to Grantee as, in the
reasonable judgment of counsel for Issuer, is necessary to enable Issuer to
include in a registration statement all material facts required to be
disclosed with respect to a registration hereunder.
(e) A registration effected under this Section shall be effected at
Issuer's expense, except for underwriting discounts and commissions and the
fees and expenses of Grantee's counsel, and Issuer shall 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 and as such underwriters may reasonably
require. In connection with any registration, Grantee and Issuer agree to
enter into an underwriting agreement reasonably acceptable to each such
party, in form and substance customary for transactions of this type.
10. Transfers. The Option Shares may not be sold, assigned, transferred, or
otherwise disposed of except (i) pursuant to Section 8 hereof, (ii) in an
underwritten public offering as provided in Section 9 or (iii) to any
purchaser or transferee who would not, to the knowledge of the Grantee after
reasonable inquiry, immediately
C-5
<PAGE>
following such sale, assignment, transfer or disposal beneficially own more
than 4.9% of the then-outstanding voting power of the Issuer, except that
Grantee shall be permitted to sell any Option Shares if such sale is made
pursuant to a tender or exchange offer that has been approved or recommended
by a majority of the members of the Board of Directors of Issuer (which
majority shall include a majority of directors who were directors as of the
date hereof).
11. Listing. If Issuer Common Stock or any other securities to be acquired
upon exercise of the Option are then listed on the Nasdaq (or any other
national securities exchange or national securities quotation system), Issuer,
upon the request of Grantee, will promptly file an application to list the
shares of Issuer Common Stock or other securities to be acquired upon exercise
of the Option on the Nasdaq (and any such other national securities exchange
or national securities quotation system) and will use reasonable efforts to
obtain approval of such listing as promptly as practicable.
12. Miscellaneous. (a) Expenses. Except as otherwise provided in the Merger
Agreement, each of the parties hereto will pay all costs and expenses incurred
by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) Amendment. This Agreement may not be amended, except by an instrument in
writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for performance, 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.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement, the
Merger Agreement (including the documents and instruments attached thereto as
exhibits or schedules or delivered in connection therewith) and the
Confidentiality Agreement (i) constitute the entire agreement, and supersede
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter of this Agreement, and (ii) are not
intended to confer upon any person other than the parties any rights or
remedies.
(e) Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflict of laws
thereof.
(f) Notices. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and will be deemed
given if delivered personally, telecopied (which is confirmed), or sent by
overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
If to Issuer to:
Acxiom Corporation
P.O. Box 2000
301 Industrial Boulevard
Conway, AR 72033-2000
Fax: (501) 336-3913
Attention: President
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: J. Michael Schell
Telecopy: (212) 735-2000
C-6
<PAGE>
If to Grantee to:
May & Speh, Inc.
1501 Opus Place
Downes Grove, IL 60515
Fax: (630) 719-0525
Attention: Chief Executive Officer
with a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Fax: (312) 558-5700
Attention: Bruce A. Toth
(g) Assignment. Neither this Agreement, the Option nor any of the rights,
interests, or obligations under this Agreement may be assigned, transferred
or delegated, in whole or in part, by operation of law or otherwise, by
Issuer or Grantee without the prior written consent of the other. Any
assignment, transfer or delegation in violation of the preceding sentence
will be void. Subject to the first and second sentences of this Section
12(g), this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
(h) Further Assurances. In the event of any exercise of the Option by
Grantee, Issuer and Grantee will execute and deliver all other documents
and instruments and take all other action that may be reasonably necessary
in order to consummate the transactions provided for by such exercise.
(i) Enforcement. The parties agree that irreparable damage would occur
and that the parties would not have any adequate remedy at law in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that 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 in any Federal
court located in the State of Delaware or in Delaware state court, the
foregoing being in addition to any other remedy to which they are entitled
at law or in equity. In addition, each of the parties hereto (i) consents
to submit itself to the personal jurisdiction of any Federal court located
in the State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (iii) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated
by this Agreement in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day
and year first written above.
ACXIOM CORPORATION
/s/ Charles D. Morgan
By: _________________________________
Name: Charles D. Morgan
Title: President
MAY & SPEH, INC.
/s/ Peter I. Mason
By: _________________________________
Name: Peter I. Mason
Title: Chairman, President, CEO
C-7
<PAGE>
ANNEX D
STEPHENS INC.
August 17, 1998
Board of Directors
Acxiom Corporation
301 Industrial Boulevard
Conway, AR 72003
Members of the Board:
We have acted as your financial advisor in connection with the proposed
merger (the "Transaction") of Acxiom Corporation ("Acxiom") and May and Speh,
Inc. ("May and Speh"). The Transaction is expected to take the form of a tax
free exchange of shares pursuant to which each outstanding share of May and
Speh will be converted into the right to receive .800 shares (the "Exchange
Ratio") of common stock of Acxiom. The terms and conditions of the Transaction
are more fully set forth in the merger agreement.
You have requested our opinion as to the fairness from a financial point of
view of the Exchange Ratio utilized in the Transaction.
In connection with rendering our opinion we have:
(i) analyzed certain publicly available financial statements and reports
regarding Acxiom and May and Speh;
(ii) analyzed certain internal financial statements and other financial and
operating data (including financial projections) concerning Acxiom and
May and Speh prepared by their respective managements;
(iii) analyzed, on a pro forma basis, the effect of the Transaction on
Acxiom's balance sheet, capitalization ratios, earnings and book
value both in the aggregate and, where applicable, on a per share
basis;
(iv) reviewed the reported prices and trading activity for the common stock
of Acxiom and May and Speh;
(v) compared the financial performance of Acxiom and May and Speh and the
prices and trading activity of its common stock with that of certain
other comparable publicly-traded companies and their securities;
(vi) reviewed the financial terms, to the extent publicly available, of
certain comparable transactions;
(vii) reviewed the merger agreement and related documents;
(viii) discussed with management of Acxiom and May and Speh the operations
of and future business prospects of such companies and the
anticipated financial consequences of the Transaction;
(ix) consulted with you regarding certain material terms of the
Transaction;
(x) performed such other analyses and provided such other services as we
have deemed appropriate.
We have relied on the accuracy and completeness of the information and
financial data provided to us by Acxiom and May and Speh, and our opinion is
based upon such information. We have inquired into the reliability of such
information and financial data only to the limited extent necessary to provide
a reasonable basis for our opinion, recognizing that we are rendering only an
informed opinion and not an appraisal or certification of value. With respect
to the financial projections prepared by the managements of Acxiom and May and
Speh, we have assumed that they have been reasonably prepared on bases
reflecting the best currently available estimates and judgments of future
financial performance.
INVESTMENT BANKERS
111 Center Street Post Office Box 3507 Little Rock, Arkansas 72203-3507 501-
374-4361 Fax 501-377-2674
<PAGE>
As part of our investment banking business, we regularly issue fairness
opinions and are continually engaged in the valuation of companies and their
securities in connection with business reorganizations, private placements,
negotiated underwritings, mergers and acquisitions and valuations for estate,
corporate and other purposes. We regularly provide investment banking services
to Acxiom and make a market in its common stock. In the ordinary course of
business, Stephens Inc. and its affiliates at any time may hold long or short
positions, and may trade or otherwise effect transactions as principal or for
the accounts of customers, in debt or equity securities or options of
securities of Acxiom and May and Speh. Stephens Inc. is receiving a fee, and
reimbursement of its expenses, in connection with the issuance of this
fairness opinion. In addition, Acxiom has agreed to indemnify Stephens Inc.
for certain potential liabilities arising out of the rendering of this
opinion.
Our opinion is necessarily based upon market, economic and other conditions
as they exist and can be evaluated on, and on the information made available
to us as of, the date hereof. The financial markets in general and the markets
for securities of Acxiom and May and Speh, in particular, are subject to
volatility, and this opinion does not purport to address potential
developments in the financial markets or the markets for the securities of
Acxiom and May and Speh after the date hereof. We have assumed that in the
course of obtaining the necessary regulatory or other consents or approvals
(contractual or otherwise) for the Transaction, no restrictions, including any
divestiture requirements or amendments or modifications, will be imposed that
will have a material adverse effect on the contemplated benefits of the
Transaction.
This opinion is being delivered for the use and benefit of the Board of
Directors of Acxiom, and neither this opinion nor any other advice or
materials provided by Stephens Inc. in connection with its engagement may be
used for any other purpose or be reproduced, disseminated, quoted or referred
to at any time, in any manner or for any purpose, nor may references to
Stephens Inc. be made by or on behalf of Acxiom without the prior written
consent of Stephens Inc.; provided, however, that the opinion and its
substance may be disclosed to Acxiom's other advisors.
This opinion and a summary discussion of our underlying analyses and role as
your financial advisor may be included in communications to Acxiom's
shareholders provided that we approve of such disclosure prior to publication.
This opinion does not address the merits of the underlying decision by Acxiom
to engage in the Transaction and does not constitute a recommendation to any
Acxiom shareholder as to how such shareholder should vote on the proposed
Transaction.
Based on the foregoing and our general experience as investment bankers, and
subject to the qualifications stated herein, we are of the opinion that as of
the date hereof that the Exchange Ratio utilized in the Transaction is fair
from a financial point of view.
Very truly yours,
Stephens Inc.
/s/ Stephens Inc.
_____________________________________
D-2
<PAGE>
ANNEX E
DONALDSON, LUFKIN & JENRETTE
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue, New York, New York 10172 - (212)892-3000
May 26, 1998
Board of Directors
May & Speh, Inc.
1501 Opus Place
Downers Grove, IL 60515
Dear Sirs and Madam:
You have requested our opinion as to the fairness from a financial point of
view to the holders of common stock, par value $0.01 per share ("Company
Common Stock"), of May & Speh, Inc. (the "Company") of the Exchange Ratio (as
defined below) contemplated by the Agreement and Plan of Merger, dated May 26,
1998 (the "Agreement"), by and among Acxiom Corporation ("Acxiom"), ACX
Acquisition Co., Inc. ("Merger Sub"), a wholly owned subsidiary of Acxiom, and
the Company pursuant to which Merger Sub will be merged (the "Merger") with
and into the Company.
Pursuant to the Agreement, each share of Company Common Stock will be
converted, subject to certain exceptions, into the right to receive 0.80
shares (the "Exchange Ratio") of common stock, $0.10 par value per share, of
Acxiom ("Acxiom Common Stock").
In arriving at our opinion, we have reviewed the Agreement and the exhibits
thereto and the Company Option Agreement and the Parent Option Agreement (each
as defined in the Agreement). We also have reviewed financial and other
information that was publicly available or furnished to us by the Company and
Acxiom including information provided during discussions with their respective
managements. Included in the information provided during discussions with the
respective managements were certain financial projections of the Company for
the period beginning October 1, 1998 and ending September 30, 2003 prepared by
the management of the Company and certain financial projections of Acxiom for
the period beginning April 1, 1998 and ending March 31, 2000 prepared by the
management of Acxiom. In addition, we have compared certain financial and
securities data of the Company and Acxiom with various other companies whose
securities are traded in public markets, reviewed the historical stock prices
and trading volumes of Company Common Stock and Acxiom Common Stock, reviewed
prices and premiums paid in certain other business combinations and conducted
such other financial studies, analyses and investigations as we deemed
appropriate for purposes of this opinion.
In rendering our opinion, we have relied upon and assumed the accuracy and
completeness of all the financial and other information that was available to
us from public sources, that was provided to us by the Company and Acxiom or
their respective representatives, or that was otherwise reviewed by us. In
particular, we have relied upon the estimates of the management of the Company
of the operating synergies achievable as a result of the Merger and upon our
discussion of such synergies with the management of Acxiom. With respect to
the financial projections supplied to us, we have assumed that they have been
reasonably prepared on the basis reflecting the best currently available
estimates and judgments of the management of the Company and Acxiom as to the
future operating and financial performance of the Company and Acxiom,
respectively. We have not assumed any responsibility for making an independent
evaluation of any assets or liabilities or for making any independent
verification of any of the information reviewed by us. We have further assumed
that the Merger will be accounted for as a pooling of interests under
generally accepted accounting principles and that it will qualify as a tax-
free reorganization for U.S. federal income tax purposes. We have relied as to
certain legal matters on advice of counsel to the Company.
<PAGE>
Our opinion is necessarily based on economic, market, financial and other
conditions as they exist on, and on the information made available to us as
of, the date of this letter. It should be understood that, although subsequent
developments may affect this opinion, we do not have any obligation to update,
revise or reaffirm this opinion. We are expressing no opinion herein as to the
price at which Aexiom Common Stock will actually trade at any time. Our
opinion does not address the relative merits of the Merger and the other
business strategies being considered by the Company's Board of Directors, nor
does it address the Board's decision to proceed with the Merger. Our opinion
does not constitute a recommendation to any stockholder as to how such
stockholder should vote on the proposed transaction.
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), as part of its
investment banking services, is regularly engaged in the valuation of
businesses and securities in connection with mergers, acquisitions,
underwritings, sales and distributions of listed and unlisted securities,
private placements and valuations for corporate and other purposes. DLJ has
performed investment banking and other services for the Company in the past
and has been compensated for such services.
Based upon the foregoing and such other factors as we deem relevant, we are
of the opinion that the Exchange Ratio is fair to the holders of the Company
Common Stock from a financial point of view.
Very truly yours,
Donaldson, Lufkin & Jenrette
Securities Corporation
By: /s/ Lawrence N. Lavine
Lawrence N. Lavine
Managing Director
E-2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Exculpation. Section 102(b)(7) of the DGCL permits a corporation to
include in its certificate of incorporation a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision may not eliminate or limit the liability of a director for any breach
of the director's duty of loyalty to the corporation or its stockholders, for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for any unlawful payment of dividends or unlawful
stock purchase or redemption, or for any transaction from which the director
derived an improper personal benefit.
The Acxiom Charter provides that, to the fullest extent permitted by the
DGCL, a director shall not be liable to Acxiom and its stockholders for monetary
damages for a breach of fiduciary duty as a director.
Indemnification. Section 145 of the DGCL permits a corporation to
indemnify any of its directors or officers who was or is a party or is
threatened to be made a party to any third party proceeding by reason of the
fact that such person is or was a director or officer of the corporation,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that such person's conduct was
unlawful. In a derivative action, i.e., one by or in the right of a
corporation, the corporation is permitted to indemnify any of its directors or
officers against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person shall have been adjudged liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that such person is fairly
and reasonably entitled to indemnity for such expenses despite such adjudication
of liability.
The Acxiom Charter provides for indemnification of directors and officers
of Acxiom against liability they may incur in their capacities as and to the
extent authorized by the DGCL.
Insurance. Acxiom has in effect directors' and officers' liability
insurance with a limit of $20 million and fiduciary liability insurance with a
limit of $10 million. The fiduciary liability insurance covers actions of
directors and officers as well as other employees with fiduciary
responsibilities under ERISA.
Directors and Officers. The Merger Agreement provides that Acxiom shall
cause the Surviving Corporation to keep in effect in its ByLaws a provision for
a period of not less than six years from the Effective Time (or, in the case of
matters occurring prior to the Effective Time which have not been resolved prior
to the sixth anniversary of the Effective Time, until such matters are finally
resolved) which provides
1
<PAGE>
for indemnification of the past and present officers and directors (the
"Indemnified Parties") of May & Speh to the fullest extent permitted by the
DGCL. For six years from the Effective Time, Acxiom shall indemnify the
Indemnified Parties to the same extent as such Indemnified Parties are entitled
to indemnification pursuant to the preceding sentence. For a period of six years
from the Effective Time, Acxiom shall either cause to be maintained in effect
the current policies of directors' and officers' liability insurance maintained
by May & Speh or provide substitute policies of at least the same coverage and
amounts containing terms and conditions which are, in the aggregate, no less
advantageous to the insured with respect to claims arising from facts or events
that occurred on or before the Effective Time, except that in no event shall
Acxiom be required to pay with respect to such insurance policies in any one
year more than $200,000.
ITEM 21(A). EXHIBITS
See Exhibit Index.
(B) FINANCIAL STATEMENT SCHEDULES
All financial statement schedules of Acxiom and May & Speh which are
required to be included herein are included in the Annual Report of Acxiom on
Form 10-K for the fiscal year ended March 31, 1998 (File No. 0-13163) or the
Annual Report of May & Speh on Form 10-K for the fiscal year ended September 31,
1997 (File No. 0-27872), respectively, which are incorporated herein by
reference.
(C) The opinions of Stephens Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation are attached as Annex D and Annex E, respectively, to the
Proxy Statement/Prospectus.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
2.1 Amended and Restated Agreement and Plan of Merger, dated as of May 26, 1998, by and
among Acxiom Corporation, ACX Acquisition Co., Inc. and May & Speh, Inc. (attached
as Annex A to the Joint Proxy Statement/Prospectus included in this Registration
Statement).*
3.1 Amended and Restated Certificate of Incorporation of the Registrant (previously filed
as
Exhibit 3(i) to Acxiom's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1996, Commission File No. 0-13163, and incorporated herein by reference).
3.2 Amended and Restated Bylaws of the Registrant (previously filed as Exhibit 3(b) to
Acxiom's Annual Report on Form 10-K for the fiscal year ended March 31, 1991,
Commission File No. 0-13163, and incorporated herein by reference).
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4.1 Specimen Common Stock Certificate. *
4.2 Rights Agreement, dated January 28, 1998 between Acxiom and First Chicago Trust
Company of New York, as Rights Agent (the "Rights Agreement"), including the forms
of Rights Certificate and of Election to Exercise, included in Exhibit A to the Rights
Agreement, and the form of Certificate of Designation and Terms of Participating
Preferred Stock of the Registrant, included in Exhibit B to the Rights Agreement
(previously filed as Exhibit 4.1 to the Registrant's Current Report on Form 8-K dated
February 10, 1998, Commission File No. 0-13163, and incorporated herein by reference).
4.3 Amendment Number One, dated as of May 26, 1998, to the Rights Agreement (previously
filed as Exhibit 4 to the Registrant's Current Report on Form 8-K dated June 4, 1998,
Commission File No. 0-13163, and incorporated herein by reference).
5.1 Opinion of Catherine L. Hughes, Esq., General Counsel of Acxiom, regarding the validity
of the securities being registered.*
8.1 Opinion of Skadden, Arps, Slate, Meager & Flom LLP, counsel to Acxiom, concerning
certain federal income tax consequences of the Merger. *
8.2 Opinion of Winston & Strawn, counsel to May & Speh, concerning certain federal income
tax consequences of the Merger. *
10.1 Data Center Management Agreement dated July 27, 1992 between Acxiom and Trans
Union Corporation (previously filed as Exhibit A to Schedule 13-D of Trans Union
Corporation dated August 31, 1992, Commission File No. 5-36226, and incorporated
herein by reference).
10.2 Agreement to Extend and Amend Data Center Management Agreement and to Amend
Registration Rights Agreement dated August 31, 1994 (previously filed as Exhibit 10(b)
to Form 10-K for the fiscal year ended March 31, 1995, as amended, Commission File
No. 0-13163, and incorporated herein by reference).
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
10.3 Agreement for Professional Services dated November 23, 1992 between the Registrant
and Allstate Insurance Company (previously filed as Exhibit 28 to Amendment No. 1 to
Registrant's Current Report on Form 8-K dated December 9, 1992, Commission File No.
0-13613, and incorporated herein by reference).
10.4 Acxiom Corporation Deferred Compensation Plan (previously filed as Exhibit 10(b) to
Acxiom's Annual Report on Form 10-K for the fiscal year ended March 31, 1990,
Commission File No. 0-13163, and incorporated herein by reference).
10.5 Amended and Restated Key Associate Stock Option Plan of Acxiom (previously filed as
Exhibit 10(e) to Acxiom's Annual Report on Form 10-K for the fiscal year ended March
31, 1997, Commission File No. 0-13163, and incorporated herein by reference).
10.6 Acxiom Corporation U.K. Share Option Scheme (previously filed as Exhibit 10(f) to
Acxiom's Annual Report on Form 10-K for the fiscal year ended March 31, 1997,
Commission File No. 0-13163, and incorporated herein by reference).
10.7 Leadership Compensation Plan (previously filed as Exhibit 10(g) to Acxiom's Annual
Report on Form 10-K for the fiscal year ended March 31, 1998, Commission File No. 0-,
and incorporated herein by reference).
10.8 Acxiom Corporation Non-Qualified Deferred Compensation Plan (previously filed as
Exhibit 10(i) to Acxiom's Annual Report on Form 10-K for the fiscal year ended March
31, 1996, Commission File No. 0-13163, and incorporated herein by reference).
10.9 Asset Purchase Agreement dated April 1, 1996 between Acxiom and Direct Media/DMI,
Inc. (previously filed as Exhibit 2 to Acxiom's Current Report on Form 8-K dated April
30, 1996, Commission File No. 0-13613, and incorporated herein by reference).
21 Subsidiaries of Acxiom, incorporated by reference to Exhibit 21 to Acxiom's annual
report on Form 10-K for the fiscal year ended March 31, 1998.
23.1 Consent of Stephens Inc..*
23.2 Consent of Donaldson, Lufkin & Jenrette Securities Corporation.*
23.3 Consent of KPMG Peat Marwick LLP.*
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
23.4 Consent of Catherine L. Hughes, Esq., General Counsel of Acxiom (included in the
opinion filed as Exhibit 5.1 to this Registration Statement and incorporated herein by
reference).*
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in the opinion filed as
Exhibit 8.1 to this Registration Statement and incorporated herein by reference).*
23.6 Consent of Winston & Strawn (included in the opinion filed as Exhibit 8.2 to this
Registration Statement and incorporated herein by reference).*
23.7 Consent of PricewaterhouseCoopers LLP. *
24 Powers of Attorney (set forth on signature page of this Registration Statement).*
</TABLE>
- --------------------------
* Filed herewith.
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement.
5
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(5) That every prospectus (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act of 1933 and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part
of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(b) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Proxy
Statement/Prospectus pursuant to Item 4, 10(b), 11 or 13 of this Form, within
one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(c) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its
6
<PAGE>
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Conway, State of
Arkansas, on August 17, 1998.
ACXIOM CORPORATION
By: /s/ Charles D. Morgan
---------------------------------
Charles D. Morgan
Chairman of the Board of Directors
and Company Leader
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Catherine L. Hughes as his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) and supplements to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that such attorney-in-fact and
agent, or either of them, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons on behalf
of the Registrant in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Charles D. Morgan Chairman of the Board and August 17, 1998
- --------------------------- Company Leader
(Charles D. Morgan) (principal executive officer)
8
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert S. Bloom Financial Leader August 17, 1998
- --------------------------- (principal financial officer and
(Robert S. Bloom) principal accounting officer)
/s/ Ann H. Die Director August 17, 1998
- ---------------------------
(Dr. Ann H. Die)
/s/ William T. Dillard II Director August 17, 1998
- ---------------------------
(William T. Dillard II)
/s/ Harry C. Gambill Director August 17, 1998
- ---------------------------
Harry C. Gambill
/s/ Rodger S. Kline Director August 17, 1998
- ---------------------------
(Rodger S. Kline)
/s/ Robert A. Pritzker Director August 17, 1998
- ---------------------------
(Robert A. Pritzker)
/s/ James T. Womble Director August 17, 1998
- ---------------------------
(James T. Womble)
9
<PAGE>
PLEASE MARK VOTE IN OVAL IN THE FOLLOWING MANNER USING DARK INK ONLY. LOGO
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS SPECIFIED BY THE
STOCKHOLDER. IF NO SPECIFICATIONS ARE MADE, THE PROXY WILL BE VOTED FOR EACH
OF THE FOLLOWING PROPOSALS, AND WITH DISCRETIONARY AUTHORITY ON ALL OTHER
MATTERS THAT MAY PROPERLY COME BEFORE THE SPECIAL MEETING OR ANY POSTPONEMENTS
OR ADJOURNMENTS THEREOF.
1. Proposal to approve, authorize and adopt the Amended and Restated Agreement
and Plan of Merger, dated as of May 26, 1998, among Acxiom Corporation, ACX
Acquisition Co., Inc. and May & Speh, Inc.
- -------
Nominee Exception
For Against Abstain
LOGO
2. In their discretion, to vote upon such other business as may properly come
before the meeting.
For Against Abstain
LOGO
Receipt of Notice of Special Meeting of Stockholders and the related Joint
Proxy Statement/Prospectus is hereby acknowledged.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Signature(s)
Date __________________________________________________________________________
Please sign as your name appears herein. If shares are held jointly, all
holders must sign. When signing as an attorney, executor, administrator,
trustee or guardian, please give your full title. If a corporation, please
sign in full corporate name by president or other authorized officer. If a
partnership, please sign in partnership name by authorized person, indicating
where appropriate official position or representative capacity.
^ FOLD AND DETACH HERE ^^
PLEASE VOTE, SIGN, DATE AND RETURN THIS PROXY FORM PROMPTLY USING THE ENCLOSED
ENVELOPE.
<PAGE>
PRELIMINARY COPY--CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY
PROXY
MAY & SPEH, INC.
1501 OPUS PLACE
DOWNERS GROVE, IL 60615
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Peter I. Mason and Eric M. Loughmiller,
and each of them, the attorneys and proxies of the undersigned with full
power of substitution to vote as indicated herein, all the common stock
("May & Speh Common Stock"), par value $.01 per share, of May & Speh, Inc.
("May & Speh") held of record by the undersigned at the close of business
on July 31, 1998, at the Special Meeting of May & Speh Stockholders to be
held on September 17, 1998 at 9:00 A.M., local time, at The Standard Club,
320 South Plymouth Court, Chicago, Illinois, or any postponements or
adjournments thereof, with all the powers the undersigned would possess if
then and there personally present.
SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE.
(CONTINUED ON REVERSE SIDE)
<PAGE>
PRELIMINARY COPY--CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY
ACXIOM CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR ANNUAL MEETING TO BE HELD ON SEPTEMBER 17, 1998
The undersigned hereby appoints Catherine L. Hughes and Shayne D. Smith, and
each of them, proxies for the undersigned, each with full power of
substitution, to vote all shares of Common Stock of Acxiom Corporation
("Acxiom") that the undersigned may be entitled to vote at the Annual Meeting
of Stockholders of Acxiom to be held on September 17, 1998 at 10:00 A.M., local
time, at Acxiom's headquarters, 301 Industrial Boulevard, Conway, Arkansas, or
at any adjournment thereof, upon the matters set forth on the reverse side
hereof and described in the accompanying Proxy Statement/Prospectus and on such
other matters as may properly come before the meeting or any adjournments or
postponements thereof.
PLEASE MARK THIS PROXY AS INDICATED ON THE REVERSE SIDE TO VOTE ON ANY ITEM,
IF YOU WISH TO VOTE IN ACCORDANCE WITH THE BOARD OF DIRECTORS' RECOMMENDATIONS,
PLEASE SIGN THE REVERSE SIDE; NO BOXES NEED BE CHECKED.
Comments/Address change: Please mark comment/address box on reverse side
P R O X Y
SEE REVERSE
SIDE
Please mark your votes as in this sample.
4988
----
X
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR ITEMS 1 AND 2.
FOR all nominees
WITHHOLD AUTHORITY to Vote for all Nominees
FOR
AGAINST
ABSTAIN
Item 1.
Item 2.
Election of Rodger S. Kline, Robert A. Pritzker and James T. Womble as
directors of Acxiom for terms expiring at the 2001 Annual Meeting.
WITHHOLD for the following only: (Write the name of the nominee(s) in the space
below)
- -------------------------
To approve the Merger Proposal as described in the accompanying Proxy
Statement/Prospectus.
COMMENTS/ADDRESS CHANGE. Please mark the box if you have written
comments/address change on your reverse side.
SIGNATURE(S) ____________________________ DATED: ______________________________
Receipt is hereby acknowledged of the Acxiom Corporation Notice of Meeting and
Proxy Statement/Prospectus
SIGNATURE(S) ____________________________ DATED: ______________________________
NOTE: Please sign exactly as name appears hereon. If a joint account, each
joint owner must sign. When signing as agent, attorney, fiduciary executor,
administrator, trustee or guardian, please give full title as such.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF ACXIOM
CORPORATION
<PAGE>
OCR PROXY PLANNING GUIDE--SOCIETY
PLEASE MARK YOUR
X VOTES AS IN THIS
EXAMPLE.
SHARES IN YOUR NAME REINVESTMENT SHARES
- ---
- -
ORWITHHELDF
ORF
AGAINST
ABSTAIN
ORF
AGAINST
ABSTAIN
1
2
4
3
For, except vote withheld from the following nominee(s):
- -------------
5
6
7
8
9
SIGNATURE(S) ___________ DATE _________________________________________________
SIGNATURE(S) ___________ DATE
NOTE: PLEASE SIGN EXACTLY
AS NAME APPEARS HERE-
ON. JOINT OWNERS
SHOULD EACH SIGN.
WHEN SIGNING AS AT-
TORNEY, EXECUTOR, AD-
MINISTRATOR, TRUSTEE
OR GUARDIAN, PLEASE
GIVE FULL TITLE AS
SUCH.
10
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
2.1 Amended and Restated Agreement and Plan of Merger, dated as of May 26, 1998, by and
among Acxiom Corporation, ACX Acquisition Co., Inc. and May & Speh, Inc. (attached
as Annex A to the Joint Proxy Statement/Prospectus included in this Registration
Statement).*
3.1 Amended and Restated Certificate of Incorporation of the Registrant (previously filed
as
Exhibit 3(i) to Acxiom's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1996, Commission File No. 0-13163, and incorporated herein by reference).
3.2 Amended and Restated Bylaws of the Registrant (previously filed as Exhibit 3(b) to
Acxiom's Annual Report on Form 10-K for the fiscal year ended March 31, 1991,
Commission File No. 0-13163, and incorporated herein by reference).
4.1 Specimen Common Stock Certificate. *
4.2 Rights Agreement, dated January 28, 1998 between Acxiom and First Chicago Trust
Company of New York, as Rights Agent (the "Rights Agreement"), including the forms
of Rights Certificate and of Election to Exercise, included in Exhibit A to the Rights
Agreement, and the form of Certificate of Designation and Terms of Participating
Preferred Stock of the Registrant, included in Exhibit B to the Rights Agreement
(previously filed as Exhibit 4.1 to the Registrant's Current Report on Form 8-K dated
February 10, 1998, Commission File No. 0-13163, and incorporated herein by reference).
4.3 Amendment Number One, dated as of May 26, 1998, to the Rights Agreement (previously
filed as Exhibit 4 to the Registrant's Current Report on Form 8-K dated June 4, 1998,
Commission File No. 0-13163, and incorporated herein by reference).
5.1 Opinion of Catherine L. Hughes, Esq., General Counsel of Acxiom, regarding the validity
of the securities being registered.*
8.1 Opinion of Skadden, Arps, Slate, Meager & Flom LLP, counsel to Acxiom, concerning
certain federal income tax consequences of the Merger. *
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
8.2 Opinion of Winston & Strawn, counsel to May & Speh, concerning certain federal income
tax consequences of the Merger. *
10.1 Data Center Management Agreement dated July 27, 1992 between Acxiom and Trans
Union Corporation (previously filed as Exhibit A to Schedule 13-D of Trans Union
Corporation dated August 31, 1992, Commission File No. 5-36226, and incorporated
herein by reference).
10.2 Agreement to Extend and Amend Data Center Management Agreement and to Amend
Registration Rights Agreement dated August 31, 1994 (previously filed as Exhibit 10(b)
to Form 10-K for the fiscal year ended March 31, 1995, as amended, Commission File
No. 0-13163, and incorporated herein by reference).
10.3 Agreement for Professional Services dated November 23, 1992 between the Registrant
and Allstate Insurance Company (previously filed as Exhibit 28 to Amendment No. 1 to
Registrant's Current Report on Form 8-K dated December 9, 1992, Commission File No.
0-13613, and incorporated herein by reference).
10.4 Acxiom Corporation Deferred Compensation Plan (previously filed as Exhibit 10(b) to
Acxiom's Annual Report on Form 10-K for the fiscal year ended March 31, 1990,
Commission File No. 0-13163, and incorporated herein by reference).
10.5 Amended and Restated Key Associate Stock Option Plan of Acxiom (previously filed as
Exhibit 10(e) to Acxiom's Annual Report on Form 10-K for the fiscal year ended March
31, 1997, Commission File No. 0-13163, and incorporated herein by reference).
10.6 Acxiom Corporation U.K. Share Option Scheme (previously filed as Exhibit 10(f) to
Acxiom's Annual Report on Form 10-K for the fiscal year ended March 31, 1997,
Commission File No. 0-13163, and incorporated herein by reference).
10.7 Leadership Compensation Plan (previously filed as Exhibit 10(g) to Acxiom's Annual
Report on Form 10-K for the fiscal year ended March 31, 1998, Commission File No. 0-,
and incorporated herein by reference).
10.8 Acxiom Corporation Non-Qualified Deferred Compensation Plan (previously filed as
Exhibit 10(i) to Acxiom's Annual Report on Form 10-K for the fiscal year ended March
31, 1996, Commission File No. 0-13163, and incorporated herein by reference).
</TABLE>
2
<PAGE>
<TABLE>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
10.9 Asset Purchase Agreement dated April 1, 1996 between Acxiom and Direct Media/DMI,
Inc. (previously filed as Exhibit 2 to Acxiom's Current Report on Form 8-K dated April
30, 1996, Commission File No. 0-13613, and incorporated herein by reference).
21 Subsidiaries of Acxiom, incorporated by reference to Exhibit 21 to Acxiom's annual
report on Form 10-K for the fiscal year ended March 31, 1998.
23.1 Consent of Stephens Inc..*
23.2 Consent of Donaldson, Lufkin & Jenrette Securities Corporation.*
23.3 Consent of KPMG Peat Marwick LLP.*
23.4 Consent of Catherine L. Hughes, Esq., General Cousnel of
Acxiom (included in the opinion filed as Exhibit 5.1 to this
Registration Statement and incorporated herein by reference).*
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in the opinion filed as
Exhibit 8.1 to this Registration Statement and incorporated herein by reference).*
23.6 Consent of Winston & Strawn (included in the opinion filed as Exhibit 8.2 to this
Registration Statement and incorporated herein by reference).*
23.7 Consent of PricewaterhouseCoopers LLP. *
24 Powers of Attorney (set forth on signature page of this Registration Statement).*
</TABLE>
- --------------------------
* Filed herewith.
3
<PAGE>
ACXIOM(R)
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
[LOGO] ACX [LOGO] SHARES
COMMON STOCK SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 005125 10 9
ACXION CORPORATION
THIS CERTIFIES THAT
[SEAL]
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, $.10 PAR VALUE, OF
============================= ACXION CORPORATION =============================
transferable on the books of the Corporation by the holder hereof, in person or
by duly authorized attorney, upon surrender of this Certificate properly
endorsed. This Certificate and the shares represented hereby are issued and
shall be held subject to all the provisions of the Certificate of Incorporation
of the Corporation, and all amendments thereof, to all of which each holder by
the acceptance hereof consents.
This Certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its authorized officers.
Dated:
[SEAL] COUNTERSIGNED AND REGISTERED
FIRST CHICAGO TRUST COMPANY
Charles D. Morgan, Jr. Catherine L. Hughes OF NEW YORK
CHAIRMAN SECRETARY TRANSFER AGENT AND REGISTRAR.
BY
AUTHORIZED SIGNATURE
<PAGE>
ACXIOM CORPORATION
The following abbreviations, when used in the inscription on the face of
the certificate, shall be construed as through they we written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -___Custodian_____
TEN ENT - as tenants by the entireties (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to Minors
tenants in common Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received,_______________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________________
Attorney to transfer the said stock on the books of the within-named Company
with full power of substitution in the premises.
Dated____________________________
X ___________________________________________
(SIGNATURE)
NOTICE:
THIS SIGNATURES(S) TO
THIS ASSIGNMENT MUST
CORRESPOND WITH THE
NAME(S) AS WRITTEN
UPON THE FACE OF THE
CERTIFICATE IN EVERY
PARTICULAR WITHOUT
ALTERATION OR ANY
CHANGE WHATEVER.
X ___________________________________________
(SIGNATURE)
Until the Separation Time (as defined in the Rights Agreement referred to
below), this certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement, dated as of January 28,
1998, (as such may be amended from time to time, the "Rights Agreement"),
between Acxiom Corporation (the "Company") and First Chicago Trust Company of
New York, as Rights Agent, the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of
the Company. Under certain circumstances, as set forth in the Rights Agreement,
such Rights may be redeemed, may be exchanged for shares of Common Stock or
other securities or assets of the Company or a Subsidiary of the Company, may
expire, may become void (if they are "Beneficially Owned" by an "Acquiring
Person" or an Affiliate or Associate thereof, as such terms are defined in the
Rights Agreement, or by any transferee of any of the foregoing) or may be
evidenced by separate certificates and may no longer be evidenced by this
certificate. The Company will mail or arrange for the mailing of a copy of the
Rights Agreement to the holder of this certificate without charge within five
days after the receipt of a written request therefor.
- -----------------------------------------------------------------------------
THE SIGNATURES(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
SIGNATURE(S) GUARANTEED BY:
- -----------------------------------------------------------------------------
<PAGE>
Exhibit 5.1
[LETTERHEAD OF ACXIOM CORPORATION]
August 17, 1998
Board of Directors
Acxiom Corporation
301 Industrial Boulevard
Conway, AR 72033
Re: Acxiom Corporation
Registration Statement on Form S-4
----------------------------------
Ladies and Gentlemen:
I am the Secretary and General Counsel to Acxiom Corporation, a
Delaware corporation (the "Company"), and have acted as such in connection with
the preparation of a Registration Statement on Form S-4 (the "Registration
Statement") of the Company to be filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"), which Registration Statement relates to the proposed
issuance (the "Merger Proposal") by the Company of 31,084,248 shares (the
"Shares") of the Company's common stock, par value $.10 per share ("Common
Stock"), pursuant to the Amended and Restated Agreement and Plan of Merger,
dated as of May 26, 1998 (the "Merger Agreement"), among the Company, ACX
Acquisition Co., Inc. ("Sub") and May & Speh, Inc.. The Merger Agreement
provides that May & Speh will be merged with and into Sub, a wholly owned
subsidiary of the Company (the "Merger"). The Registration Statement includes a
joint proxy statement/prospectus (the "Joint Proxy Statement/Prospectus") to be
furnished to the stockholders of the Company in connection with the approval of
the Merger Proposal and the stockholders of May & Speh in connection with the
approval and adoption of the Merger Agreement.
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Act.
In connection with this opinion, I have examined (i) the Registration
Statement, (ii) the Merger Agreement, (iii) the Amended and Restated Articles of
Incor poration and the Amended and Restated By-Laws of the Company, in each
case as amended to the date hereof, (iv) certain resolutions of the Board of
Directors of the Company relating to, among other things, the approval of the
transactions contemplated
<PAGE>
Board of Directors
Acxiom Corporation
August 17, 1998
Page 2
by the Merger Agreement, and (v) such other documents as I deemed necessary or
appropriate as a basis for the opinion set forth below.
In my examination, I have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such copies. In making my examination of
documents executed by parties other than the Company, I have assumed that such
parties had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such parties
of such documents and the validity and binding effect thereof on such parties.
I am admitted to the bar of the State of Arkansas and I express no
opinion as to the laws of any other jurisdiction except for the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware to the extent specifically referred to herein.
Based upon the foregoing and subject to the foregoing I am of the
opinion that the Common Stock, when issued in accordance with the terms of the
Merger Agreement, will be validly issued, fully paid and nonassessable.
For purposes of this opinion, I have assumed that prior to the
issuance of any of the Shares (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), becomes effective; (ii) May
& Speh's stockholders approve and adopt the Merger Agreement; (iii) Acxiom's
stockholders approve the Merger Proposal; (iv) the Certificate of Merger which
will give effect to the Merger will be properly filed with the Secretary of
State of the State of Delaware; (v) the transaction contemplated by the Merger
Agreement will be consummated; and (vi) certificates representing the Shares
will be manually signed by an authorized officer of the transfer agent for the
Common Stock and will be registered by the registrar for the Common Stock.
<PAGE>
Board of Directors
Acxiom Corporation
August 17, 1998
Page 3
I hereby consent to the filing of this opinion as an exhibit to the
Registra tion Statement and to the use of my name in the Registration Statement
under the caption "Legal Matters." In giving such consent, I do not hereby admit
that I come into the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ Catherine L. Hughes
Catherine L. Hughes
Secretary and General Counsel
<PAGE>
Exhibit 8.1
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
August 17, 1998
Acxiom Corporation
301 Industrial Boulevard
Conway, Arkansas 72033
Ladies and Gentlemen:
We have acted as counsel to Acxiom Corporation, a Delaware corporation
("Acxiom"), in connection with (i) the Merger, as defined and described in the
Amended and Restated Agreement and Plan of Merger, dated as of May 26, 1998 (the
"Merger Agreement"), by and among Acxiom, ACX Acquisition Co., Inc., a Delaware
corporation and a wholly owned subsidiary of Acxiom ("Sub"), and May & Speh,
Inc., a Delaware corporation ("May & Speh"), and (ii) the preparation and filing
of the Registration Statement with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), on August 17, 1998 (the "Registration Statement"), which includes the
Proxy Statement of May & Speh and the Proxy Statement and Prospectus of Acxiom
(the "Proxy Statement/Prospectus"). Unless otherwise indicated, each
capitalized term used herein has the meaning ascribed to it in the Merger
Agreement.
<PAGE>
August 17, 1998
Page 2
In connection with this opinion, we have examined the Merger
Agreement, the Proxy Statement/Prospectus, and such other documents and
corporate records as we have deemed necessary or appropriate in order to enable
us to render the opinion below. For purposes of this opinion, we have assumed
(i) the validity and accuracy of the documents and corporate records that we
have examined and the facts and representations concerning the Merger that have
come to our attention during our engagement and (ii) that the Merger will be
consummated in the manner described in the Merger Agreement and the Proxy
Statement/Prospectus.
Subject to the foregoing and the fact that the discussion in the
Proxy Statement/Prospectus under the heading "THE MERGER - Certain United States
Federal Income Tax Consequences of the Merger" (the "Discussion") is a summary
and does not purport to discuss all possible United States federal income tax
consequences of the Merger, we are of the opinion that the Discussion states the
material United States federal income tax consequences of the Merger to holders
of May & Speh Common Stock who exchange such stock for Acxiom Common Stock
pursuant to the Merger Agreement. In addition, we express no opinion as to the
United States federal, state, local, foreign or other tax consequences, other
than as set forth in the Discussion. Further, there can be no assurances that
the opinion ex pressed herein will be accepted by the Internal Revenue Service
(the "IRS") or, if challenged, by a court. This opinion is delivered in
accordance with the require ments of Item 601(b)(8) of Regulation S-K under the
Securities Act.
In rendering our opinion, we have considered the applicable provisions
of the Code, Treasury Department regulations promulgated thereunder, pertinent
judicial authorities, interpretive rulings of the IRS, and such other
authorities as we have considered relevant. It should be noted that statutes,
regulations, judicial decisions, and administrative interpretations are subject
to change at any time, possibly with retroactive effect. A change in the
authorities or the accuracy or completeness of any of the information,
documents, corporate records, covenants, statements, representations, or
assumptions on which our opinion is based could affect our conclusions. This
opinion is expressed as of the date hereof, and we are
<PAGE>
August 17, 1998
Page 3
under no obligation to supplement or revise our opinion to reflect any changes
(in cluding changes that have retroactive effect) (i) in applicable law or (ii)
in any information, document, corporate record, covenant, statement,
representation, or assumption stated herein that becomes untrue or incorrect.
This letter is furnished to you solely for use in connection with the
Merger, as described in the Merger Agreement and the Proxy Statement/Prospectus,
and is not to be used, circulated, quoted, or otherwise referred to for any
other purpose without our express written permission. In accordance with the
require ments of Item 601(b)(23) of Regulation S-K under the Securities Act, we
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm name under the headings "THE MERGER -
Terms of the Merger - Conditions to Consummation of the Merger," "THE MERGER -
Certain United States Federal Income Tax Consequences of the Merger," and "LEGAL
MATTERS" in the Proxy Statement/Prospectus. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
<PAGE>
Exhibit 8.2
[LETTERHEAD OF WINSTON & STRAWN]
August 17, 1998
May & Speh, Inc.
1501 Opus Place
Downers Grove, Illinois 60615
Ladies and Gentlemen:
We have acted as counsel to May & Speh, Inc., a Delaware corporation
("May & Speh"), in connection with (i) the Merger, as defined and described in
the Amended and Restated Agreement and Plan of Merger, dated as of May 26, 1998
(the "Merger Agreement"), by and among May & Speh, Acxiom Corporation, a
Delaware corporation ("Acxiom"), and ACX Acquisition Co., Inc., a Delaware
corporation and a wholly owned subsidiary of Acxiom ("Sub"), and (ii) the prepa
ration and filing of the Registration Statement with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), on August 17, 1998 (the "Registration Statement"), which
includes the Proxy Statement of May & Speh and the Proxy Statement and
Prospectus of Acxiom (the "Proxy Statement/Prospectus"). Unless otherwise
indicated, each capitalized term used herein has the meaning ascribed to it in
the Merger Agreement.
<PAGE>
August 17, 1998
Page 2
In connection with this opinion, we have examined the Merger
Agreement, the Proxy Statement/Prospectus, and such other documents and
corporate records as we have deemed necessary or appropriate in order to enable
us to render the opinion below. For purposes of this opinion, we have assumed
(i) the validity and accuracy of the documents and corporate records that we
have examined and the facts and representations concerning the Merger that have
come to our attention during our engagement and (ii) that the Merger will be
consummated in the manner described in the Merger Agreement and the Proxy
Statement/Prospectus.
Subject to the foregoing and the fact that the discussion in the
Proxy Statement/Prospectus under the heading "THE MERGER - Certain United States
Federal Income Tax Consequences of the Merger" (the "Discussion") is a summary
and does not purport to discuss all possible United States federal income tax
consequences of the Merger, we are of the opinion that the Discussion states the
material United States federal income tax consequences of the Merger to holders
of May & Speh Common Stock who exchange such stock for Acxiom Common Stock
pursuant to the Merger Agreement. In addition, we express no opinion as to the
United States federal, state, local, foreign or other tax consequences, other
than as set forth in the Discussion. Further, there can be no assurances that
the opinion expressed herein will be accepted by the Internal Revenue Service
(the "IRS") or, if challenged, by a court. This opinion is delivered in
accordance with the require ments of Item 601(b)(8) of Regulation S-K under the
Securities Act.
In rendering our opinion, we have considered the applicable provisions
of the Code, Treasury Department regulations promulgated thereunder, pertinent
judicial authorities, interpretive rulings of the IRS, and such other
authorities as we have considered relevant. It should be noted that statutes,
regulations, judicial decisions, and administrative interpretations are subject
to change at any time, possibly with retroactive effect. A change in the
authorities or the accuracy or completeness of any of the information,
documents, corporate records, covenants, statements, representations, or
assumptions on which our opinion is based could affect our conclusions. This
opinion is expressed as of the date hereof, and we are
<PAGE>
August 17, 1998
Page 3
under no obligation to supplement or revise our opinion to reflect any changes
(including changes that have retroactive effect) (i) in applicable law or (ii)
in any information, document, corporate record, covenant, statement,
representation, or assumption stated herein that becomes untrue or incorrect.
This letter is furnished to you solely for use in connection with the
Merger, as described in the Merger Agreement and the Proxy Statement/Prospectus,
and is not to be used, circulated, quoted, or otherwise referred to for any
other purpose without our express written permission. In accordance with the
require ments of Item 601(b)(23) of Regulation S-K under the Securities Act, we
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm name under the headings "THE MERGER -
Terms of the Merger - Conditions to Consummation of the Merger," "THE MERGER -
Certain United States Federal Income Tax Consequences of the Merger," and "LEGAL
MATTERS" in the Proxy Statement/Prospectus. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Winston & Strawn
<PAGE>
Exhibit 23.1
We hereby consent to the use of our opinion letter dated August 17, 1998
to the Board of Directors of Acxiom Corporation included as an Exhibit to the
Joint Proxy Statement/Prospectus which forms a part of the Registration
Statement on Form S-4 relating to the proposed merger of ACX Acquisition Co.,
Inc., a wholly owned subsidiary of Acxiom Corporation with and into May & Speh,
Inc. and to the references to such opinion in such Joint Proxy
Statement/Prospectus under the caption "Opinions of Financial Advisors." In
giving such consent, we do not admit and we disclaim that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933 or the rules and regulations issued by the Securities and Exchange
Commission thereunder.
STEPHENS INC.
/s/ Stephens Inc.
-----------------------------
<PAGE>
Exhibit 23.2
CONSENT OF DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
We hereby consent to (i) the inclusion of our opinion letter, dated May 26,
1998, to the Board of Directors of May & Speh, Inc. (the "Company") as Annex E
to the Joint Proxy Statement/Prospectus of the Company relating to the Company's
proposed merger with a wholly-owned subsidiary of Acxiom Corporation and (ii)
all references to DLJ in the sections captioned "SUMMARY -- The Merger" and "THE
MERGER" as set forth in the Joint Proxy Statement/Prospectus of Acxiom
Corporation which forms a part of this Registration Statement on Form S-4. In
giving such consent, we do not admit that we come within the category of persons
whose consent is required under, and we do not admit that we are "experts" for
purposes of, the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ ANDREA HAGAN
----------------------------
Andrea Hagan
Senior Vice President
New York, New York
August 17, 1998
<PAGE>
Exhibit 23.3
The Board of Directors
Acxiom Corporation
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the Proxy
Statement/Prospectus.
/s/ KPMG Peat Marwick LLP
Little Rock, Arkansas
August 14, 1998
<PAGE>
Exhibit 23.7
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of Acxiom
Corporation of our report dated November 10, 1997, except as to the paragraph of
Note 1 entitled "Per Share Information" and Note 12, which are as of February
12, 1998, appearing on page F-2 on the Prospectuses which constitute part of the
May & Speh, Inc. Registration Statement on Form S-3 (Commission File No.
333-46547). We also consent to the reference to us under the heading "Experts"
in such Prospectus.
PricewaterhouseCoopers LLP
Chicago, Illinois
August 17, 1998
