INTERNATIONAL INTEGRATION INCORPORATED VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into August 10,
1999, by and among Razorfish, Inc., a corporation incorporated under the laws of
the State of Delaware ("Razorfish"), and the undersigned stockholder
("Stockholder") of International Integration Incorporated, a corporation
organized under the laws of the State of Delaware ("i-Cube"). 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 i-Cube in
the amount indicated on the final page of this Agreement (the "Shares"); and
C. In consideration of the execution of the Merger Agreement by
Razorfish, Stockholder agrees to the extent provided below, (i) not to Transfer
(as defined in 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.
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1.1 Transfer and Encumbrance. Stockholder agrees to be subject to
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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
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
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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
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previously been terminated and the adoption of the Merger Agreement by the
stockholders of i-Cube is being recommended by a majority of the members of the
Board of Directors of i-Cube as of the relevant time, at every meeting of the
stockholders of i-Cube 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 i-Cube with respect to any of the following, Stockholder agrees
it shall vote its Shares and any New Shares in favor of 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 i-Cube only with respect to
the specific matters set forth herein.
3. Proxy. Concurrently with the execution of this Agreement, Stockholder
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agrees to deliver to Razorfish a proxy in the form attached hereto as Exhibit A
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(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 Termination. Notwithstanding any other provision hereof or of
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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 6.03(d) 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
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hereby represents, warrants and covenants to Razorfish 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 i-Cube 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 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 Razorfish. Razorfish hereby represents, warrants
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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
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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 Proxy delivered in connection
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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
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of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the 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
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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,
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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
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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
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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 Razorfish or Sub, to:
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
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,
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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
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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
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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
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convenience only and shall not affect the construction or interpretation of this
Agreement.
8.10 Jurisdiction. The parties to this Agreement agree that any
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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.
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Notwithstanding anything to the contrary in this Agreement, in the event
Stockholder 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
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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 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
RAZORFISH, INC.
By:_____________________________________
Title:__________________________________
STOCKHOLDER
By:_____________________________________
Stockholder's Address for Notice:
________________________________________
________________________________________
________________________________________
Shares beneficially owned:
_______ shares of i-Cube Common Stock
[SIGNATURE PAGE TO VOTING AGREEMENT]
EXHIBIT A
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PROXY
TO VOTE STOCK OF
INTERNATIONAL INTEGRATION INCORPORATED
The undersigned stockholder of International Integration Incorporated, a
corporation organized under the laws of the State of Delaware ("i-Cube"),
hereby irrevocably (to the full extent permitted by Section 212 of the Delaware
General Corporation Law, except as provided below) appoints Xxxxxxx X. Xxxxxx
and Xxxxxxx Xxxxx of Razorfish, Inc., a corporation organized under the laws of
State of Delaware ("Razorfish"), 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 i-Cube that now are or hereafter may be beneficially
owned by the undersigned, and any and all other shares or securities of i-Cube
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 i-Cube 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 Razorfish and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of
Razorfish entering into that certain Agreement and Plan of Merger, dated August
10, 1999, by and among i-Cube, Razorfish and Ray Merger Sub, Inc., 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 6.03(d) 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 term is defined in the Merger Agreement) and (ii) upon delivery of a notice
to the other party of a determination
1
by a majority of the 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 i-Cube 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 subject to
Section 1 of the Voting Agreement, 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.
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 terminate solely to the extent set forth above.
Dated: August 10, 1999
______________________________________
(Signature of Stockholder)
______________________________________
(Print Name of Stockholder)
Shares beneficially owned:
_______ shares of i-Cube Common Stock
2
