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RAZORFISH VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into on
August 10, 1999, by and among International Integration Incorporated, a
corporation incorporated under the laws of the State of Delaware ("i-Cube"), and
the undersigned stockholder ("Stockholder") of Razorfish, Inc., a corporation
organized under the laws of the State of Delaware ("Razorfish"). All capitalized
terms herein not otherwise defined shall have the meaning ascribed to them in
the Merger Agreement (as defined below).
RECITALS
A. Pursuant to an Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement") by and among Razorfish, Ray Merger Sub,
Inc., a corporation organized under the laws of the State of Delaware ("Sub")
and wholly owned subsidiary of Razorfish, and i-Cube, Sub is merging with and
into i-Cube (the "Merger") and i-Cube, as the surviving corporation of the
Merger, will thereby become a wholly owned subsidiary of Razorfish;
B. Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
the shares of the outstanding Common Stock, $.01 par value per share, of
Razorfish in the amounts is indicated on the final page of this Agreement (the
"Shares"); and
C. In consideration of the execution of the Merger Agreement by
i-Cube, Stockholder agrees to the extent provided below, (i) not to Transfer (as
defined in Section 1.1 below) any of its Shares or New Shares (as defined in
Section 1.2 below) in certain circumstances and (ii) to vote its Shares and any
New Shares so as to facilitate consummation of the Merger.
NOW, THEREFORE, the parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees to be
subject to Stockholder's Proxy (as defined in Section 3) and agrees not to
transfer (except as may be specifically required by court order), sell,
exchange, or pledge or otherwise dispose of or encumber (collectively, a
"Transfer") or offer or agree to Transfer its Shares or any New Shares (as
defined in Section 1.2) prior to the Expiration Date if and only to the extent
that (a) such Transfer would result in the failure of the condition set forth in
Section 6.01(f) of the Merger Agreement to be satisfied and (b) such condition
has not either (i) been waived or (ii) otherwise become incapable of being
satisfied. Notwithstanding the foregoing, nothing herein (including without
limitation Section 7 hereof) will affect the relative rights and obligations of
the parties under the Affiliate's Letter dated August 10, 1999 between Razorfish
and Stockholder. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) the Effective Time (as such terms is defined in the
Merger Agreement) and (ii) upon delivery of a notice to the other
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party of a determination by a majority of the members of the Board of Directors
of either Razorfish or i-Cube, as applicable, to terminate the Merger Agreement.
1.2 NEW SHARES. Stockholder agrees that any shares of
capital stock of i-Cube that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership (as determined under Rule
13d-3 under the Securities Exchange Act of 1934) after the date of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. AGREEMENT TO VOTE SHARES. Provided that the Merger Agreement
has not previously been terminated and the adoption of the Merger Agreement by
the stockholders of Razorfish is being recommended by a majority of the members
of the Board of Directors of Razorfish as of the relevant time, at every meeting
of the stockholders of Razorfish called with respect to any of the following,
and at every adjournment thereof, and on every action or approval by written
consent of the stockholders of Razorfish with respect to any of the following,
Stockholder agrees it shall vote its Shares and any New Shares in favor of the
adoption of the Merger Agreement, the Merger and the transactions specifically
contemplated thereby, provided that this sentence shall not restrict Stockholder
from Transferring such Shares or New Shares to the extent permitted by Section
1. This Agreement is intended to bind Stockholder as a stockholder of Razorfish
only with respect to the specific matters set forth herein.
3. PROXY. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to i-Cube a proxy in the form attached hereto as
EXHIBIT A (the "Proxy"), which shall be irrevocable, except as provided in
Sections 3.1 or 7 hereof and in the Proxy, to the extent provided in Section 212
of the Delaware General Corporation Law, covering the total number of Shares and
New Shares beneficially owned or as to which beneficial ownership (as such term
is defined in Rule 13d-3 under the Exchange Act) is acquired by Stockholder.
3.1 SUSPENSION AND TERMINATION. Notwithstanding any other
provision hereof or of the Proxy, this Agreement and the Proxy will
terminate in the event that (A) i-Cube has executed a definitive
agreement (as contemplated in Section 5.10 of the Merger Agreement),
(B) Section 6.02(c) of the Merger Agreement is not satisfied in
accordance with the terms of the Merger Agreement, or (C) the Closing
Date (as defined in the Merger Agreement) does not occur on or prior to
January 31, 2000.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder hereby represents, warrants and covenants to i-Cube that (i) it is
the beneficial owner of its Shares, which at the date of this Agreement are free
and clear of any material liens, claims, options, charges or other encumbrances;
(ii) it does not beneficially own any shares of capital stock of Razorfish as of
the date hereof other than the Shares (excluding shares as to which Stockholder
currently disclaims beneficial ownership in accordance with applicable law);
(iii) it has full power and authority to make, enter into and carry out
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the terms of this Agreement and Stockholder's Proxy; and (iv) except as would
not prevent or materially delay Stockholder's ability to perform under this
Agreement the execution, delivery and performance of this Agreement by
Stockholder and the consummation of the transactions contemplated hereby, will
not (a) require the consent, waiver, approval, or authorization of any
governmental authority or any other person or entity or (b) violate, conflict
with, result in a breach of or the acceleration of any obligation under, or
constitute a default (or an event which with notice or the lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a
material lien or other encumbrance on any property or asset of Stockholder
pursuant to any provision of any indenture, mortgage, lien, lease, agreement,
contract, instrument, order, judgment, ordinance, regulation or decree to which
Stockholder is subject or by which Stockholder or any of its property or assets
is bound.
5. REPRESENTATIONS OF I-CUBE. i-Cube hereby represents, warrants
and covenants to Stockholder that (i) it has all requisite corporate power and
authority to make, enter into and carry out the terms of this Agreement, (ii)
its Board of Directors has duly and validly authorized the execution and
delivery of this Agreement and the performance by it of its obligations
hereunder and no other corporate proceedings on its part are necessary to
authorize the execution, delivery or performance of this Agreement or the
performance by it of its obligations hereunder, (iii) the execution, delivery
and performance of this Agreement by it and the consummation of the transactions
contemplated hereby will not (a) require the consent, waiver, approval, or
authorization of any governmental authority or any other person or entity or (b)
violate, conflict with, result in a breach of or the acceleration of any
obligation under, or constitute a default (or an event of which with notice or
the lapse of time or both would become a default) under, or give to others any
right of termination, amendment, acceleration or cancellation of, or result in
the creation of a material lien or other encumbrance on any property or asset of
it or its subsidiaries pursuant to any provision of its or its subsidiaries'
charter and bylaws or any indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, ordinance, regulation or decree to which it or its
subsidiaries is subject or by which it or any of its subsidiaries' property or
assets is bound, (iv) this Agreement has been duly and validly executed and
delivered by it and constitutes a valid and binding agreement of it enforceable
against it in accordance with its terms, and (v) it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
6. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees
to execute and deliver any additional documents reasonably necessary or
desirable to carry out the purpose and intent of this Agreement.
7. TERMINATION. This Agreement and the Proxies delivered in
connection herewith shall terminate and shall have no further force or effect,
without further action, as of the Expiration Date.
8. MISCELLANEOUS.
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8.1 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of this terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
8.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other.
8.3 AMENDMENT AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
8.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties
hereto acknowledge that the parties will be irreparably harmed and that there
will be no adequate remedy at law for a violation of any of the covenants or
agreements set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to a non-breaching party upon such
violation, each non-breaching party shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by any
other means available to such party at law or in equity.
8.5 NOTICES. All notices that are required or may be
given pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered by hand or national
overnight courier service, transmitted by telecopy or mailed by registered or
certified mail, postage prepaid (effective when delivered by hand or telecopy,
one day after dispatch by overnight courier, and three business days after
dispatch by mail), as follows:
(a) if to i-Cube to:
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
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Telephone No.: (000) 000-0000
(b) if to Stockholder, to the address set forth
beneath Stockholder's signature below.
8.6 GOVERNING LAW; FORUM. This Agreement shall be
governed by, construed and enforced in accordance with the internal laws of the
State of Delaware.
8.7 ENTIRE AGREEMENT. This Agreement and the Proxies
contain the entire understanding of the parties in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to such subject matters.
8.8 COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
8.9 EFFECT OF HEADINGS. The section headings herein are
for convenience only and shall not affect the construction or interpretation of
this Agreement.
8.10 JURISDICTION. The parties to this Agreement agree
that any suit, action or proceeding arising out of, or with respect to, this
Agreement or any judgment entered by any court in respect thereof shall be
brought in the courts of Delaware or in the U.S. District Court for Delaware as
the commencing party may elect, and Stockholder hereby accepts the exclusive
jurisdiction of those courts for the purpose of any suit, action or proceeding.
In addition, Stockholder hereby irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any judgment entered by any court in respect thereof brought in
Delaware or the U.S. District Court for the District of Delaware, as selected by
the commencing party, and hereby further irrevocably waives any claim that any
suit, action or proceedings brought in Delaware or in such District Court has
been brought in an inconvenient forum.
8.11 NO LIMITATION ON ACTIONS OF STOCKHOLDER AS DIRECTOR.
Notwithstanding anything to the contrary in this Agreement, in the event
Stockholder or any affiliate thereof is a director of the Company, nothing in
this Agreement is intended or shall be construed to require Stockholder, in its
capacity as a director of the Company, to act or fail to act in accordance with
its fiduciary duties in such capacity.
8.12 NO WAIVER. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms
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hereof, will not constitute a waiver by such party of its right to exercise any
such or other right, power or remedy or to demand such compliance.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
INTERNATIONAL INTEGRATION INCORPORATED
By:_________________________________________
Title:______________________________________
STOCKHOLDER
By:_________________________________________
Stockholder's Address for Notice:
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Shares beneficially owned:
_______ shares of Razorfish Common Stock
By:_________________________________________
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Stockholder's Address for Notice:
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Shares beneficially owned:
_______ shares of Razorfish Common Stock
By:_________________________________________
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EXHIBIT A
PROXY
TO VOTE STOCK OF
RAZORFISH
The undersigned stockholder of Razorfish, Inc., a corporation
organized under the laws of the State of Delaware, ("Razorfish"), hereby
irrevocably (to the full extent permitted by Section 212 of the Delaware General
Corporation Law, except as provided below) appoints Xxxxxxx Xxxx and Xxxxx
Xxxxxxx of International Integration Incorporated, a corporation organized under
the laws of State of Delaware ("i-Cube"), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Razorfish that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Razorfish issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Proxy to the extent and as to the matters expressly referred to in the
Voting Agreement (defined below). The Shares beneficially owned (as such term is
defined in Rule 13b-3 under the Exchange Act) by the undersigned stockholder of
Razorfish as of the date of this Proxy are listed on the final page of this
Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law), is granted pursuant to that certain
Voting Agreement dated August 10, 1999, by and between i-Cube and the
undersigned stockholder (the "Voting Agreement"), and is granted in
consideration of i-Cube entering into that certain Agreement and Plan of Merger,
dated August 10, 1999, by and among i-Cube, Razorfish and Ray Merger Sub, a
corporation organized under the laws of the State of Delaware ("Sub") and wholly
owned subsidiary of Razorfish (the "Merger Agreement"); provided, however, this
Proxy will be revoked and terminated, without further action by any party
hereto, (1) on the Expiration Date, (2) if earlier, in the event (A) i-Cube has
executed a definitive agreement (as contemplated in Section 5.10 of the Merger
Agreement), (B) Section 6.02(c) of the Merger Agreement is not satisfied in
accordance with the terms of the Merger Agreement, or (C) the Closing Date (as
defined in the Merger Agreement) does not occur on or prior to January 31, 2000
and (3) as otherwise provided in the Voting Agreement. The Merger Agreement
provides for the merger of Sub with and into i-Cube (the "Merger"). As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) the
Effective Time (as such terms is defined in the Merger Agreement) and (ii) upon
delivery of a notice to the other party of a determination by a majority of the
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members of the Board of Directors of either Razorfish or i-Cube, as applicable,
to terminate the Merger Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to Section 228 of the Delaware General Corporation Law), at
every annual, special or adjourned meeting of the stockholders of Razorfish and
in every written consent in lieu of such meeting in favor of approval of the
Merger and the Merger Agreement and the transactions specifically contemplated
by the Merger Agreement. The attorneys and proxies named above may not exercise
this Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned, provided, however, that nothing
herein or in the Voting Agreement will be deemed to prohibit sales of Shares or
New Shares effected in accordance with Rule 144 under the Securities Act of
1933, as amended, and no transferee of Shares or New Shares will be bound by any
provision hereof or thereof.
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This Proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law); provided, however, this Proxy may be
revoked and will terminated solely to the extent set forth above.
Dated: August 10, 1999
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(Signature of Stockholder)
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(Print Name of Stockholder)
Shares beneficially owned:
_______ shares of Razorfish Common Stock
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