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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
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Razorfish, Inc.
(Name of Issuer)
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Class A Common Stock, par value $0.01 per share
(Title of Class of Securities)
---------------
755236 10 6
(CUSIP Number of Class of Securities)
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David M. Samuels, Esq.
INTERNATIONAL INTEGRATION INCORPORATED
101 Main Street
Cambridge, MA 02142
TELEPHONE: (617) 250-2500
FACSIMILE: (617) 225-2471
(Name, Address And Telephone Number Of Person Authorized To
Receive Notices And Communications)
Copy to:
Peter B. Tarr, Esq.
Jeffrey A Stein, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
TELEPHONE: (617) 526-6000
FACSIMILE: (617) 526-5000
AUGUST 10, 1999
(Date of Event Which Requires Filing of Statement on Schedule 13D)
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If the filing person has previously filed a statement on Schedule 13G
to report the acquisition, check the following box: [ ]
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SCHEDULE 13D
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CUSIP NO. 755236 10 6 PAGE 2 OF 7 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
International Integration Incorporated (IRS Identification Number:
04-3169145)
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS*
4
not applicable
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
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SOLE VOTING POWER
7
NUMBER OF None
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8 20,515,420
OWNED BY
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EACH SOLE DISPOSITIVE POWER
9
REPORTING None
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,515,420
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[__]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
83.0
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TYPE OF REPORTING PERSON*
14
CO
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The shares of Issuer common stock covered by this report are subject to voting
agreements ("Voting Agreements") signed by the beneficial owner of the shares,
pursuant to which such beneficial owner agrees to vote the shares of Issuer
common stock held by him, her or it in favor of the issuance of shares of the
Issuer to stockholders of International Integration Incorporated ("i-Cube") in
connection with the merger between i-Cube and a subsidiary of the Issuer
pursuant to the Agreement and Plan of Merger dated as of August 10, 1999 by and
among Razorfish, Inc., Razorfish Merger Sub, Inc., a Delaware corporation and
wholly owned subsidiary of Razorfish ("Merger Sub"), and i-Cube (the "Merger
Agreement").
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Item 1. SECURITY AND ISSUER.
This statement on Schedule 13D (this "Statement" or the "Schedule 13D")
relates to the Class A common stock, par value $.01 per share (the "Shares"), of
Razorfish, Inc., a Delaware corporation ("Razorfish"). The address of
Razorfish's principal executive offices is 107 Grand Street, 3rd Floor, New
York, NY 10013.
The information set forth in the Exhibits hereto is hereby expressly
incorporated herein by reference and the responses to each item of this Schedule
13D are qualified in their entirety by the provisions of such Exhibits.
Item 2. IDENTITY AND BACKGROUND.
(a) - (c) This Statement is being filed by International International
Incorporated, a Delaware corporation ("i-Cube").
i-Cube is an information technology ("IT") solutions provider specializing
in consulting, electronic business, and transformation services for the complex
IT environments inherent in the world's leading organizations. The address of
i-Cube's principal business and principal office is 101 Main Street, Cambridge,
MA 02142.
To the best of i-Cube's knowledge as of the date hereof, the name, business
address, present principal occupation or employment, name, principal business
and address of any corporation or other organization in which such employment is
conducted, and citizenship of each executive officer and director of i-Cube is
set forth in Schedule I hereto. The information contained in Schedule I is
incorporated herein by reference.
(d) - (e) During the past five years, neither i-Cube nor, to the best
knowledge of i-Cube, any of the persons listed on Schedule I, have been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) nor been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which i-Cube or any
of such persons was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation of such laws.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Not applicable
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Item 4. PURPOSE OF THE TRANSACTION.
(a)-(j) The information set forth in Item 3 is hereby incorporated herein
by reference.
In connection with the Merger Agreement, certain holders of Razorfish Class
A Common Stock have agreed to vote their shares in favor of the issuance of
shares to stockholders of i-Cube in connection with the Merger. The stockholders
have granted a proxy to representatives of i-Cube to vote the shares.
Upon consummation of the Merger as contemplated by the Merger Agreement,
(a) a new subsidiary of Razorfish will be merged into i-Cube, (b) the Board of
Directors of i-Cube will be replaced by the Board of Directors of Merger Sub,
(c) the Certificate of Incorporation and Bylaws of i-Cube will be replaced by
the Certificate of Incorporation and Bylaws of the Merger Sub, (d) the Shares of
i-Cube Common Stock will cease to be authorized for listing on the Nasdaq
National Market and (e) the Shares will become eligible for termination of
registration pursuant to Section 12(g)(4) of the Exchange Act.
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Item 5. INTEREST IN SECURITIES OF i-CUBE.
(a)-(b) The number of Shares covered by the Voting Agreements is
20,515,420, which constitutes approximately (i) 83.0% of Razorfish Class A
Common Stock based on the Shares issued and outstanding on August 10, 1999.
i-Cube (i) is not entitled to any rights as a stockholder of Issuer
as to the Shares covered by the voting agreement (except to vote the shares
pursuant to the Voting Agreement) and (ii) disclaims any beneficial ownership of
the shares of Razorfish Common Stock which may be voted by i-Cube pursuant to
the Voting Agreements because the proxy under the Voting Agreements is
exercisable only in the limited circumstances referred to in Item 4 above.
(c) Other than as set forth in this Item 5, to the best of i-Cube's
knowledge as of the date hereof (i) neither i-Cube nor any subsidiary or
affiliate of i-Cube nor any of i-Cube's executive officers or directors,
beneficially owns any shares of Razorfish Common Stock, and (ii) there have been
no transactions in the shares of Razorfish Common Stock effected during the past
60 days by i-Cube, nor to the best of i-Cube's knowledge, by any subsidiary or
affiliate of i-Cube or any of i-Cube's executive officers of directors.
(d) To i-Cube's knowledge, the beneficial owners of the shares subject to
the respective Voting Agreements have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of,
Razorfish Common Stock subject to the respective Voting Agreement.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of Razorfish.
Copies of the forms of Voting Agreement are attached as Exhibits hereto
and, to the best of i-Cube's knowledge, other than the Voting Agreements, there
are at present no contracts, arrangements, understandings or relationship (legal
or otherwise) among the persons named in Item 2 above and between any such
persons and any person which respect to any securities of i-Cube.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
The following documents are being filed as exhibits to this Statement and
are each incorporated by reference herein.
(1) Form of Voting Agreements dated as of August 10, 1999 by and
between i-Cube and each of the following persons:
Communicade, Inc.
Jeffrey A. Dachis
Craig M. Kanarick
Spray Ventures AB
(2) Agreement and Plan of Merger by and among Razorfish, Inc.,
Razorfish Merger Sub, Inc. and i-Cube.
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
INTERNATIONAL INTEGRATION INCORPORATED
By: /s/ Lawrence P. Begley
--------------------------------------
Lawrence P. Begley
Date: August 19, 1999 Executive Vice President and
Chief Financial Officer
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SCHEDULE I
DIRECTORS, EXECUTIVE OFFICERS AND CONTROLLING STOCKHOLDERS OF
INTERNATIONAL INTEGRATION CORPORATION
The following table sets forth the name, business address and present
principal occupation or employment of each director,executive officer and
controlling stockholder of i-Cube.
Present Principal Occupation
Name and Business Address/1/ Citizenship
- ---- ---------------------------- -----------
Michael Pehl Chief Executive Officer and Chairman of the Germany
Board of Directors
Madhav Anand President, Co-Founder and Director India
Lawrence P. Begley Executive Vice President, Chief Financial USA
Officer, Treasurer and Director
Jane Callanan Vice President, Human Resources USA
Maria A. Cirino Vice President, Sales and Marketing USA
Christopher A. Mathias Managing Director, Europe UK
James K. McCann Vice President, Client Services USA
Thomas J. Meredith Senior Vice President and Chief Financial USA
Officer, Dell Computer Corporation
Joseph M. Tucci President and Chief Executive Officer, Wang USA
Global
Gregory S. Young President, Teton Capital Management USA
John A. Young Former Chief Executive Officer and USA
President, Hewlett-Packard Company, now
retired
Patrick J. Zilvitis Vice President, Corporate Information USA
Technology and Chief Information Officer of
The Gillette Company
Sundar Subramaniam President, Cambridge Technology Enterprises USA
219 Vassar Street
Cambridge, Massachusetts 02139
/1/ Except as otherwise indicated, the business address of each such person is
101 Main Street, Cambridge, Massachusetts 02142.
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EXHIBIT INDEX
Exhibit
Number Exhibit
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(1) Form of Voting Agreements dated as of August 10, 1999 by and
between i-Cube and each of the following persons:
Communicade, Inc.
Jeffrey A. Dachis
Craig M. Kanarick
Spray Ventures AB
(2) Agreement and Plan of Merger by and among Razorfish, Inc.,
Razorfish Merger Sub, Inc. and i-Cube.
<PAGE> 1
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
2
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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.
3
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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: David Samuels, Esq.
Facsimile No.: (617) 225-2471
Telephone No.: (617) 250-2500
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Peter B. Tarr, Esq.
Jeffrey A. Stein, Esq.
Facsimile No.: (617) 526-5000
4
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Telephone No.: (617) 526-6000
(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
5
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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.
6
<PAGE> 7
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:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Shares beneficially owned:
_______ shares of Razorfish Common Stock
By:_________________________________________
7
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Stockholder's Address for Notice:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Shares beneficially owned:
_______ shares of Razorfish Common Stock
By:_________________________________________
8
<PAGE> 9
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 Michael Pehl and David
Samuels 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
<PAGE> 10
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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<PAGE> 11
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
--------------------------------------------
(Signature of Stockholder)
--------------------------------------------
(Print Name of Stockholder)
Shares beneficially owned:
_______ shares of Razorfish Common Stock
3
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================================================================================
AGREEMENT AND PLAN OF MERGER
Dated August 10, 1999
By and Among
RAZORFISH, INC.,
RAZORFISH MERGER SUB, INC.
And
INTERNATIONAL INTEGRATION INCORPORATED
================================================================================
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TABLE OF CONTENTS
Page
ARTICLE I THE MERGER..........................................................1
SECTION 1.01. The Merger.................................................1
SECTION 1.02. Closing 2
SECTION 1.03. Effective Time.............................................2
SECTION 1.04. Effects of the Merger......................................2
SECTION 1.05. Certificate of Incorporation and By-laws...................2
SECTION 1.06. Board of Directors and Officers............................2
ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES................3
SECTION 2.01. Effect on Capital Stock....................................3
(a) Capital Stock of Sub...................................3
(b) Cancellation of Treasury Stock and
Razorfish-Owned Stock.................................3
(c) Conversion of i-Cube Common Stock......................3
(d) Anti-Dilution Provisions...............................3
SECTION 2.02. Exchange of Certificates...................................3
(a) Exchange Agent.........................................3
(b) Exchange Procedures....................................4
(c) Distributions with Respect to Unexchanged Shares.......4
(d) No Further Ownership Rights in i-Cube Common Stock.....5
(e) No Fractional Shares...................................5
(f) Termination of Exchange Fund...........................6
(g) No Liability...........................................6
(h) Investment of Exchange Fund............................6
(i) Lost Certificates......................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................6
SECTION 3.01. Representations and Warranties of i-Cube...................6
(a) Organization, Standing and Corporate Power.............6
(b) Subsidiaries...........................................7
(c) Capital Structure......................................7
(d) Authority; Noncontravention............................8
(e) SEC Documents; Undisclosed Liabilities.................9
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Page
(f) Information Supplied..................................10
(g) Absence of Certain Changes or Events..................10
(h) Litigation............................................11
(i) Compliance with Applicable Laws.......................11
(j) Absence of Changes in Benefit Plans...................12
(k) ERISA Compliance......................................12
(l) Taxes 13
(m) Voting Requirements...................................15
(n) State Takeover Statutes...............................15
(o) Accounting Matters....................................15
(p) Brokers...............................................15
(q) Opinion of Financial Advisor..........................15
(r) Intellectual Property; Year 2000......................15
(s) Certain Contracts.....................................16
(t) Customer..............................................16
SECTION 3.02. Representations and Warranties of Razorfish and Sub.......16
(a) Organization, Standing and Corporate Power............17
(b) Subsidiaries..........................................17
(c) Capital Structure.....................................17
(d) Authority; Noncontravention...........................18
(e) SEC Documents; Undisclosed Liabilities................19
(f) Information Supplied..................................20
(g) Absence of Certain Changes or Events..................20
(h) Litigation............................................21
(i) Compliance with Applicable Laws.......................21
(j) Absence of Changes in Benefit Plans...................22
(k) ERISA Compliance......................................22
(l) Taxes.................................................23
(m) Voting Requirements...................................24
(n) Accounting Matters....................................24
(o) Brokers...............................................24
(p) Opinion of Financial Advisor..........................25
(q) Intellectual Property; Year 2000......................25
(r) Certain Contracts.....................................26
(s) Interim Operations of Sub.............................26
(t) Customers.............................................26
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS.........................26
SECTION 4.01. (a) Conduct of Business by i-Cube.........................26
(b) Conduct of Business by Razorfish......................29
(c) Other Actions.........................................30
(d) Advice of Changes.....................................30
SECTION 4.02. No Solicitation by i-Cube.................................30
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Page
SECTION 4.03. Standstill Agreements; Confidentiality Agreements.........32
ARTICLE V ADDITIONAL AGREEMENTS..............................................32
SECTION 5.01. Preparation of the Form S-4 and the Joint Proxy
Statement; i-Cube Stockholders Meetings..................32
SECTION 5.02. Letters of i-Cube's Accountants...........................33
SECTION 5.03. Letters of Razorfish's Accountants........................34
SECTION 5.04. Access to Information; Confidentiality....................34
SECTION 5.05. Commercially Reasonable Best Efforts......................34
SECTION 5.06. Stock Options.............................................35
SECTION 5.07. i-Cube Stock Plans........................................36
SECTION 5.08. Employee Benefit Plans; Existing Agreements...............36
SECTION 5.09. Indemnification, Exculpation and Insurance................37
SECTION 5.10. Fees and Expenses.........................................38
SECTION 5.11. Public Announcements......................................39
SECTION 5.12. Affiliates................................................39
SECTION 5.13. Nasdaq Quotation..........................................39
SECTION 5.14. Stockholder Litigation....................................39
SECTION 5.15. Tax Treatment.............................................39
SECTION 5.16. Pooling of Interests......................................39
SECTION 5.17 Resignation of i-Cube Board of Directors..................40
SECTION 5.18 Action by i-Cube and Razorfish............................40
SECTION 5.19 Board of Directors........................................40
SECTION 5.20 Chief Financial Officer...................................40
SECTION 5.21 i-Cube Employee Bonuses...................................42
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Page
ARTICLE VI CONDITIONS PRECEDENT..............................................40
SECTION 6.01. Conditions to Each Party's Obligation To Effect
the Merger...............................................40
(a) Stockholder Approvals.................................40
(b) HSR Act...............................................40
(c) No Litigation.........................................40
(d) Form S-4..............................................41
(e) Nasdaq Quotation......................................41
(f) Pooling Letters.......................................41
(g) Government Approvals..................................41
(h) No Injunction.........................................41
SECTION 6.02. Conditions to Obligations of Razorfish and Sub............41
(a) Representations and Warranties........................41
(b) Performance of Obligations of i-Cube..................41
(c) No Material Adverse Change............................41
(d) The i-Cube Voting Agreement...........................41
(e) Resignation of i-Cube Board of Directors..............42
SECTION 6.03. Conditions to Obligations of i-Cube.......................42
(a) Representations and Warranties........................42
(b) Performance of Obligations of Razorfish and Sub.......42
(d) No Material Adverse Change............................42
(d) The Razorfish Voting Agreement........................42
SECTION 6.04. Frustration of Closing Conditions.........................42
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER................................42
SECTION 7.01. Termination...............................................42
SECTION 7.02. Effect of Termination.....................................43
SECTION 7.03. Amendment.................................................44
SECTION 7.04. Extension; Waiver.........................................44
SECTION 7.05. Procedure for Termination, Amendment, Extension
or Waiver................................................44
ARTICLE VIII GENERAL PROVISIONS..............................................44
SECTION 8.01. Nonsurvival of Representations and Warranties.............44
SECTION 8.02. Notices...................................................44
SECTION 8.03. Definitions...............................................45
SECTION 8.04. Interpretation............................................46
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Page
SECTION 8.05. Counterparts..............................................47
SECTION 8.06. Entire Agreement; No Third-Party Beneficiaries............47
SECTION 8.07. Governing Law.............................................47
SECTION 8.08. Assignment................................................47
SECTION 8.09. Enforcement...............................................47
SECTION 8.10. Headings..................................................47
SECTION 8.11. Severability..............................................48
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AGREEMENT AND PLAN OF MERGER (this "Agreement") dated August 10,
1999, among RAZORFISH, INC., a Delaware corporation ("Razorfish"), RAZORFISH
MERGER SUB, INC. a Delaware corporation and a wholly owned subsidiary of
Razorfish ("Sub"), and INTERNATIONAL INTEGRATION INCORPORATED, a Delaware
corporation ("i-Cube").
WHEREAS, the respective Boards of Directors of Razorfish, Sub and
i-Cube have approved and declared advisable this Agreement and the merger of Sub
with and into i-Cube (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement, whereby each issued and outstanding
share of common stock, par value $.01 per share, of i-Cube ("i-Cube Common
Stock"), other than shares owned by RAZORFISH, Sub or i-Cube, will be converted
into the right to receive the Merger Consideration (as defined in Section
2.01(c)); and
WHEREAS, the respective Boards of Directors of Razorfish, Sub and
i-Cube have each determined that the Merger and the other transactions
contemplated hereby are consistent with, and in furtherance of, their respective
business strategies and goals; and
WHEREAS, Razorfish, Sub and i-Cube desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger; and
WHEREAS, for U.S. federal income tax purposes, it is intended that
the Merger will qualify as a reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and that
this Agreement constitutes a plan of reorganization; and
WHEREAS, for financial accounting purposes, it is intended that the
Merger will be accounted for as a pooling of interests transaction; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, each of i-Cube and Razorfish will enter into a Voting Agreement (the
"i-Cube Voting Agreement" and the "Razorfish Voting Agreement," respectively")
with certain significant shareholders of i-Cube and Razorfish.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
The Merger
SECTION 1.01. THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the "DGCL"), Sub shall be merged with and into i-Cube
at the Effective Time (as defined in Section 1.03).
<PAGE> 8
Following the Effective Time, i-Cube shall be the surviving corporation (the
"Surviving Corporation") and shall succeed to and assume all the rights and
obligations of Sub in accordance with the DGCL.
SECTION 1.02. CLOSING. The closing of the Merger (the "Closing") will
take place at 10:00 a.m. on a date to be specified by the parties (the "Closing
Date"), which shall be no later than the second business day after satisfaction
or waiver of the conditions set forth in Article VI (other than those conditions
that by their nature are to be satisfied at the Closing, but subject to the
satisfaction or waiver of those conditions), unless another time or date is
agreed to by the parties hereto. The Closing will be held at the offices of
Morrison & Foerster LLP, 1290 Avenue of the Americas, New York, NY 10104.
SECTION 1.03. EFFECTIVE TIME. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the parties
shall file a certificate of merger or other appropriate documents (in any such
case, the "Certificate of Merger") executed in accordance with the relevant
provisions of the DGCL and shall make all other filings or recordings required
under the DGCL. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Delaware Secretary of State, or at
such subsequent date or time as Razorfish and i-Cube shall agree and specify in
the Certificate of Merger (the time the Merger becomes effective being
hereinafter referred to as the "Effective Time").
SECTION 1.04. EFFECTS OF THE MERGER. The Merger shall have the
effects set forth in Section 259 of the DGCL.
SECTION 1.05. CERTIFICATE OF INCORPORATION AND BY-LAWS. (a) The
certificate of incorporation of Sub, as in effect immediately prior to the
Effective Time shall be the certificate of incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable law.
(b) The by-laws of Sub, as in effect immediately prior to the
Effective Time, shall be the by-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.06. BOARD OF DIRECTORS AND OFFICERS. (a) The directors of
Sub immediately prior to the Effective Time shall be the directors of the
Surviving Corporation, until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as the case
may be.
(b) The officers of Sub immediately prior to the Effective Time
shall be the officers of the Surviving Corporation, until the earlier of their
resignation or removal or their respective successors are duly elected and
qualified, as the case may be.
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<PAGE> 9
ARTICLE II
Effect of the Merger on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
SECTION 2.01. EFFECT ON CAPITAL STOCK. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of i-Cube Common Stock or any shares of capital stock of Sub:
(a) CAPITAL STOCK OF SUB. Each issued and outstanding share of
capital stock of Sub shall be converted into one share of common stock of the
Surviving Corporation.
(b) CANCELLATION OF TREASURY STOCK AND RAZORFISH-OWNED STOCK.
Each share of i-Cube Common Stock that is owned by i-Cube, Sub or Razorfish
shall automatically be canceled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
(c) CONVERSION OF I-CUBE COMMON STOCK. Subject to Section
2.02(e), each issued and outstanding share of i-Cube Common Stock (other than
shares to be canceled in accordance with Section 2.01(b)) shall be converted
into the right to receive 0.875 (the "Exchange Ratio") fully paid and
nonassessable shares of Class A common stock, par value $0.01 per share, of
Razorfish ("Razorfish Common Stock") (the "Merger Consideration"). As of the
Effective Time, all such shares of i-Cube Common Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares of i-Cube
Common Stock shall cease to have any rights with respect thereto, except the
right to receive the Merger Consideration and any cash in lieu of fractional
shares of Razorfish Common Stock to be issued or paid in consideration therefor
upon surrender of such certificate in accordance with Section 2.02, without
interest.
(d) ANTI-DILUTION PROVISIONS. In the event Razorfish changes
(or establishes a record date for changing) the number of shares of Razorfish
Common Stock issued and outstanding prior to the Effective Date as a result of a
stock split, stock dividend, recapitalization, subdivision, reclassification,
combination, exchange of shares or similar transaction with respect to the
outstanding Razorfish Common Stock and the record date therefor shall be prior
to the Effective Date, the Exchange Ratio shall be proportionately adjusted to
reflect such stock split, stock dividend, recapitalization, subdivision,
reclassification, combination, exchange of shares or similar transaction.
SECTION 2.02. EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. As of the Effective Time, Razorfish shall
enter into an agreement with such bank or trust company as may be designated by
Razorfish (the "Exchange Agent"), which shall provide that Razorfish shall
deposit with the Exchange Agent as of the Effective Time, for the benefit of the
holders of shares of i-Cube Common Stock, for exchange in accordance with this
Article II, through the Exchange Agent, certificates representing the shares of
Razorfish Common Stock (such shares of Razorfish Common Stock, together with any
dividends or distributions with respect thereto with a record date after the
Effective Time and
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<PAGE> 10
any cash payable in lieu of any fractional shares of Razorfish Common Stock
being hereinafter referred to as the "Exchange Fund") issuable pursuant to
Section 2.01 in exchange for outstanding shares of i-Cube Common Stock.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable
after the Effective Time, the Exchange Agent shall mail to each holder of record
of a certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of i-Cube Common Stock (the "Certificates") whose
shares were converted into the right to receive the Merger Consideration
pursuant to Section 2.01, (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as Razorfish and i-Cube may
reasonably specify) and (ii) instructions for use in surrendering the
Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Exchange Agent, together with such letter of
transmittal, duly executed, and such other documents as may reasonably be
required by the Exchange Agent, the holder of such Certificate shall receive in
exchange therefor a certificate representing that number of whole shares of
Razorfish Common Stock which such holder has the right to receive pursuant to
the provisions of this Article II, certain dividends or other distributions in
accordance with Section 2.02(c) and cash in lieu of any fractional share of
Razorfish Common Stock in accordance with Section 2.02(e), and the Certificate
so surrendered shall forthwith be canceled. In the event of a transfer of
ownership of i-Cube Common Stock which is not registered in the transfer records
of i-Cube, a certificate representing the proper number of shares of Razorfish
Common Stock may be issued to a person (as defined in Section 8.03) other than
the person in whose name the Certificate so surrendered is registered if such
Certificate shall be properly endorsed or otherwise be in proper form for
transfer and the person requesting such issuance shall pay any transfer or other
taxes required by reason of the issuance of shares of Razorfish Common Stock to
a person other than the registered holder of such Certificate or establish to
the satisfaction of Razorfish that such tax has been paid or is not applicable.
Until surrendered as contemplated by this Section 2.02(b), each Certificate
shall be deemed at any time after the Effective Time to represent only the right
to receive upon such surrender the Merger Consideration and any cash in lieu of
fractional shares of Razorfish Common Stock to be issued or paid in
consideration therefor upon surrender of such certificate in accordance with
this Section 2.02. No interest shall be paid or will accrue on any cash payable
to holders of Certificates pursuant to the provisions of this Article II.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions with respect to Razorfish Common Stock with a
record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the shares of Razorfish Common Stock
represented thereby, and no cash payment in lieu of fractional shares shall be
paid to any such holder pursuant to Section 2.02(e), and all such dividends,
other distributions and cash in lieu of fractional shares of Razorfish Common
Stock shall be paid by Razorfish to the Exchange Agent and shall be included in
the Exchange Fund, in each case until the surrender of such Certificate in
accordance with this Article II. Subject to the effect of applicable escheat or
similar laws, following surrender of any such Certificate there shall be paid to
the holder of the certificate representing whole shares of Razorfish Common
Stock issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to
4
<PAGE> 11
such whole shares of Razorfish Common Stock, and the amount of any cash payable
in lieu of a fractional share of Razorfish Common Stock to which such holder is
entitled pursuant to Section 2.02(e) and (ii) at the appropriate payment date,
the amount of dividends or other distributions with a record date after the
Effective Time but prior to such surrender and with a payment date subsequent to
such surrender payable with respect to such whole shares of Razorfish Common
Stock.
(d) NO FURTHER OWNERSHIP RIGHTS IN I-CUBE COMMON STOCK. All
shares of Razorfish Common Stock issued upon the surrender for exchange of
Certificates in accordance with the terms of this Article II (including any cash
paid pursuant to this Article II) shall be deemed to have been issued (and paid)
in full satisfaction of all rights pertaining to the shares of i-Cube Common
Stock theretofore represented by such Certificates, subject, however, to the
Surviving Corporation's obligation to pay any dividends or make any other
distributions with a record date prior to the Effective Time which may have been
declared or made by i-Cube on such shares of i-Cube Common Stock which remain
unpaid at the Effective Time, and there shall be no further registration of
transfers on the stock transfer books of the Surviving Corporation of the shares
of i-Cube Common Stock which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates are presented to the Surviving
Corporation or the Exchange Agent for any reason, they shall be canceled and
exchanged as provided in this Article II, except as otherwise provided by law.
(e) NO FRACTIONAL SHARES. (i) No certificates or scrip
representing fractional shares of Razorfish Common Stock shall be issued upon
the surrender for exchange of Certificates, no dividend or distribution of
Razorfish shall relate to such fractional share interests and such fractional
share interests will not entitle the owner thereof to vote or to any rights of a
stockholder of Razorfish.
(ii) Razorfish shall pay each former holder of
i-Cube Common Stock an amount in cash equal to the product obtained by
multiplying (A) the fractional share interest to which such former holder (after
taking into account all shares of i-Cube Common Stock held at the Effective Time
by such holder) would otherwise be entitled by (B) the closing price for a share
of Razorfish Common Stock as furnished by the National Association of Securities
Dealers through Nasdaq on the Closing Date, and, in such case, all references
herein to the cash proceeds of the sale of the Excess Shares and similar
references shall be deemed to mean and refer to the payments calculated as set
forth in this Section 2.02(e)(ii).
(iii) As soon as practicable after the determination
of the amount of cash, if any, to be paid to holders of Certificates formerly
representing i-Cube Common Stock with respect to any fractional share interests,
the Exchange Agent shall make available such amounts to such holders of
Certificates formerly representing i-Cube Common Stock subject to and in
accordance with the terms of Section 2.02(c).
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange
Fund which remains undistributed to the holders of the Certificates for twelve
months after the Effective Time shall be delivered to Razorfish, upon demand by
Razorfish, and any holders of the Certificates who have not theretofore complied
with this Article II shall thereafter look only to
5
<PAGE> 12
Razorfish for payment of their claim for Merger Consideration, any dividends or
distributions with respect to Razorfish Common Stock and any cash in lieu of
fractional shares of Razorfish Common Stock.
(g) NO LIABILITY. None of Razorfish, Sub, i-Cube or the
Exchange Agent shall be liable to any person in respect of any shares of
Razorfish Common Stock, any dividends or distributions with respect thereto, any
cash in lieu of fractional shares of Razorfish Common Stock or any cash from the
Exchange Fund, in each case delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
(h) INVESTMENT OF EXCHANGE FUND. The Exchange Agent shall
invest any cash included in the Exchange Fund, as directed by Razorfish, on a
daily basis. Any interest and other income resulting from such investments shall
be paid to Razorfish.
(i) LOST CERTIFICATES. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by Razorfish, the posting by such person of a bond in such reasonable
amount as Razorfish may direct as indemnity against any claim that may be made
against it with respect to such Certificate, the Exchange Agent shall issue in
exchange for such lost, stolen or destroyed Certificate the Merger Consideration
and, if applicable, any unpaid dividends and distributions on shares of
Razorfish Common Stock deliverable in respect thereof and any cash in lieu of
fractional shares, in each case pursuant to this Agreement.
ARTICLE III
Representations and Warranties
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF I-CUBE. Except as
disclosed in the i-Cube Filed SEC Documents (as defined in Section 3.01(g)) or
as set forth on the Disclosure Schedule delivered by i-Cube to Razorfish prior
to the execution of this Agreement (the "i-Cube Disclosure Schedule") and making
reference to the particular subsection of this Agreement to which exception is
being taken, i-Cube represents and warrants to Razorfish and Sub as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of i-Cube
and its subsidiaries (as defined in Section 8.03) is a corporation or other
legal entity duly organized, validly existing and in good standing (with respect
to jurisdictions which recognize such concept) under the laws of the
jurisdiction in which it is organized and has the requisite corporate or other
power, as the case may be, and authority to carry on its business as now being
conducted, except for those jurisdictions where the failure to be so organized,
existing or in good standing individually or in the aggregate is not reasonably
likely to have a material adverse effect (as defined in Section 8.03) on i-Cube.
Each of i-Cube and its subsidiaries is duly qualified or licensed to do business
and is in good standing (with respect to jurisdictions which recognize such
concept) in each jurisdiction in which the nature of its business or the
ownership, leasing or operation of its properties makes such qualification or
licensing necessary, except for those jurisdictions where the failure to be so
qualified or licensed or to be in good standing individually or in the aggregate
is not reasonably likely to have a material adverse effect on i-
6
<PAGE> 13
Cube. i-Cube has made available to Razorfish prior to the execution of this
Agreement complete and correct copies of its certificate of incorporation and
by-laws, as amended to date.
(b) SUBSIDIARIES. Exhibit 21 to I-Cube's Annual Report on Form
10-K for the fiscal year ended December 31, 1998 includes all of the
subsidiaries of I-Cube which as of the date of this Agreement are Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X of the Securities and
Exchange Commission (the "SEC"). All the outstanding shares of capital stock of,
or other equity interests in, each such Significant Subsidiary and Conduit
Communications Limited have been validly issued and are fully paid and
nonassessable and are owned directly or indirectly by i-Cube, free and clear of
all pledges, claims, liens, charges, encumbrances and security interests of any
kind or nature whatsoever (collectively, "Liens") and free of any restriction on
the right to vote, sell or otherwise dispose of such capital stock or other
ownership interests.
(c) CAPITAL STRUCTURE. The authorized capital stock of i-Cube
consists of 100 million shares of i-Cube Common Stock and one million shares of
preferred stock, par value $.01 per share, of i-Cube ("i-Cube Authorized
Preferred Stock"). (i) 19,678,825 shares of i-Cube Common Stock are issued and
outstanding; (ii) 0 shares of i-Cube Common Stock are held by i-Cube in its
treasury; (iii) 0 shares of i-Cube Authorized Preferred Stock were issued and
outstanding; and (iv) 9,103,912 shares of i-Cube Common Stock are reserved for
issuance pursuant to the 1993 Stock Plan, 1996 Stock Plan, 1998 Stock Incentive
Plan, 1998 Employee Stock Purchase Plan, 1998 Non-employee Director Stock Plan
and Conduit Plan (such plans, collectively, the "i-Cube Stock Plans") (of which
7,023,643 are subject to outstanding i-Cube Stock Options (as defined below)).
Except as set forth above, no shares of capital stock or other voting securities
of i-Cube were issued, reserved for issuance or outstanding. There are no
outstanding stock appreciation rights ("SARs") or rights (other than the i-Cube
Stock Options) to receive shares of i-Cube Common Stock on a deferred basis
granted under the i-Cube Stock Plans or otherwise. i-Cube has delivered to
Razorfish a complete and correct list, as of August 6, 1999, of the number of
shares of i-Cube Common Stock subject to outstanding stock options or other
rights to purchase or receive i-Cube Common Stock granted under the i-Cube Stock
Plans (collectively, "i-Cube Stock Options") and the exercise prices thereof.
Except as set forth on the i-Cube Disclosure Schedule, no bonds, debentures,
notes or other indebtedness of i-Cube having the right to vote (or convertible
into, or exchangeable for, securities having the right to vote) on any matters
on which stockholders of i-Cube may vote are issued or outstanding. All
outstanding shares of capital stock of i-Cube are, and all shares which may be
issued will be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. Except as set forth in this
Section 3.01(c), (x) there are not issued, reserved for issuance or outstanding
(A) any shares of capital stock or other voting securities of i-Cube, (B) any
securities of i-Cube convertible into or exchangeable or exercisable for shares
of capital stock or voting securities of i-Cube, (C) any warrants, calls,
options or other rights to acquire from i-Cube or any i-Cube subsidiary, and no
obligation of i-Cube or any i-Cube subsidiary to issue, any capital stock,
voting securities or securities convertible into or exchangeable or exercisable
for capital stock or voting securities of i-Cube and (y) there are not any
outstanding obligations of i-Cube or any i-Cube subsidiary to repurchase, redeem
or otherwise acquire any such securities or to issue, deliver or sell, or cause
to be issued, delivered or sold, any such securities. i-Cube is not a party to
any voting agreement with respect to the voting of any such securities. There
are no outstanding (A) securities of i-Cube or any i-Cube subsidiary convertible
into or exchangeable or
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exercisable for shares of capital stock or other voting securities or ownership
interests in any i-Cube subsidiary, (B) warrants, calls, options or other rights
to acquire from i-Cube or any i-Cube subsidiary, and no obligation of i-Cube or
any i-Cube subsidiary to issue, any capital stock, voting securities or other
ownership interests in, or any securities convertible into or exchangeable or
exercisable for any capital stock, voting securities or ownership interests in,
any i-Cube subsidiary or (C) obligations of i-Cube or any i-Cube subsidiary to
repurchase, redeem or otherwise acquire any such outstanding securities of
i-Cube subsidiaries or to issue, deliver or sell, or cause to be issued,
delivered or sold, any such securities. Other than the i-Cube subsidiaries,
i-Cube does not directly or indirectly beneficially own any securities or other
beneficial ownership interests in any other entity.
(d) AUTHORITY; NONCONTRAVENTION. i-Cube has all requisite
corporate power and authority to enter into this Agreement and, subject to the
i-Cube Stockholder Approval (as defined in Section 3.01(m)), to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by i-Cube and the consummation by i-Cube of the transactions
contemplated by this Agreement has been duly authorized by all necessary
corporate action on the part of i-Cube, subject, in the case of the Merger, to
the i-Cube Stockholders Approval. This Agreement has been duly executed and
delivered by i-Cube and, assuming the due authorization, execution and delivery
by each of the other parties hereto, constitutes legal, valid and binding
obligations of i-Cube, enforceable against i-Cube in accordance with its terms.
Without limiting the other provisions of this Section 3.01(d) above, the Board
of Directors of i-Cube, at a meeting duly called and held has, in light of and
subject to the terms and conditions set forth herein, (a) determined that this
Agreement, the i-Cube Voting Agreement, the Merger and the other transactions
contemplated hereby and by the i-Cube Voting Agreement are fair and in the best
interests of the stockholders of i-Cube, and (b) resolved to recommend to the
i-Cube Shareholders approval and adoption of this Agreement and the Merger. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
of this Agreement will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or
loss of a benefit under, or result in the creation of any Lien upon any of the
properties or assets of i-Cube or any of its subsidiaries under, (i) the
certificate of incorporation or by-laws of i-Cube or the comparable
organizational documents of any of its subsidiaries, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or similar authorization
applicable to i-Cube or any of its subsidiaries or their respective properties
or assets or (iii) subject to the governmental filings and other matters
referred to in the following sentence, any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to i-Cube or any of its
subsidiaries or their respective properties or assets, other than, in the case
of clauses (ii) and (iii), any such conflicts, violations, defaults, rights,
losses or Liens that individually or in the aggregate are not (x) reasonably
likely to have a material adverse effect on i-Cube or (y) reasonably likely to
impair the ability of i-Cube to perform its obligations under this Agreement. No
consent, approval, order or authorization of, action by or in respect of, or
registration, declaration or filing with, any federal, state, local or foreign
government, any court, administrative, regulatory or other governmental agency,
commission or authority or any non-governmental self-regulatory agency,
commission or authority (each a "Governmental Entity") is required by or with
respect to i-Cube or any of its subsidiaries in connection with the execution
and delivery of this Agreement by i-Cube or the
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consummation by i-Cube of the transactions contemplated by this Agreement,
except for (1) the filing of a premerger notification and report form by i-Cube
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and any applicable filings and approvals under similar foreign
antitrust laws and regulations; (2) the filing with the SEC of (A) a proxy
statement relating to the i-Cube Stockholders Meeting (as defined in Section
5.01(b)) (such proxy statement, together with the proxy statement relating to
the Razorfish Stockholders Meeting (as defined in Section 5.01(c)), in each case
as amended or supplemented from time to time, the "Joint Proxy Statement"), and
(B) such reports under Section 13(a), 13(d), 15(d) or 16(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as may be required in
connection with this Agreement, and the transactions contemplated by this
Agreement; (3) the filing of the Certificate of Merger with the Delaware
Secretary of State and appropriate documents with the relevant authorities of
other states in which i-Cube is qualified to do business and such filings with
Governmental Entities to satisfy the applicable requirements of state securities
or "blue sky" laws; and (4) such consents, approvals, orders or authorizations
the failure of which to be made or obtained individually or in the aggregate is
not reasonably likely to have a material adverse effect on i-Cube.
(e) SEC DOCUMENTS; UNDISCLOSED LIABILITIES. i-Cube has filed
all required reports, schedules, forms, statements and other documents
(including exhibits and all other information incorporated therein) with the SEC
since June 18, 1998 (the "i-Cube SEC Documents"). As of their respective dates,
the i-Cube SEC Documents complied in all material respects with the requirements
of the Securities Act of 1933, as amended (the "Securities Act"), or the
Exchange Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such i-Cube SEC Documents, and none of the
i-Cube SEC Documents when filed contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Except to the extent that
information contained in any i-Cube SEC Document has been revised or superseded
by a later filed i-Cube SEC Document, none of the i-Cube SEC Documents contains
any untrue statement of a material fact or omits 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 were made, not
misleading. The financial statements of i-Cube included in the i-Cube SEC
Documents comply as to form, as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present in all material respects the consolidated
financial position of i-Cube and its consolidated subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
recurring year-end audit adjustments). Except (i) as reflected in such financial
statements or in the notes thereto or (ii) for liabilities incurred in
connection with this Agreement or the transactions contemplated hereby or
thereby, neither i-Cube nor any of its subsidiaries has any liabilities or
obligations of any nature which, individually or in the aggregate, are
reasonably likely to have a material adverse effect on i-Cube.
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<PAGE> 16
(f) INFORMATION SUPPLIED. None of the information supplied or
to be supplied by i-Cube specifically for inclusion or incorporation by
reference in (i) the registration statement on Form S-4 to be filed with the SEC
by Razorfish in connection with the issuance of Razorfish Common Stock in the
Merger (the "Form S-4") will, at the time the Form S-4 becomes effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Joint Proxy Statement will, at the
date it is first mailed to i-Cube's stockholders or at the time of the i-Cube
Stockholders Meeting, 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 Joint Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder, except that no representation or warranty is made by
i-Cube with respect to statements made or incorporated by reference therein
based on information supplied by Razorfish specifically for inclusion or
incorporation by reference in the Joint Proxy Statement.
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby and except as disclosed in the i-Cube SEC Documents filed
and publicly available prior to the date of this Agreement (as amended to the
date of this Agreement, the "i-Cube Filed SEC Documents"), since December 31,
1998 i-Cube and its subsidiaries have conducted their business only in the
ordinary course, and there has not been (1) any material adverse change (as
defined in Section 8.03) in i-Cube, (2) any declaration, setting aside or
payment of any dividend or other distribution (whether in cash, stock or
property) with respect to any of i-Cube's capital stock, (3) any split,
combination or reclassification of any of i-Cube's capital stock or any issuance
or the authorization of any issuance of any other securities in respect of, in
lieu of or in substitution for shares of i-Cube's capital stock, except for
issuances of i-Cube Common Stock upon the exercise of i-Cube Stock Options under
the i-Cube Stock Plans, in each case awarded prior to the date hereof in
accordance with their present terms, (4) (A) any granting by i-Cube or any of
its subsidiaries to any current or former director or executive officer of
i-Cube or its subsidiaries of any increase in compensation, bonus or other
benefits, except for stock option grants listed on Schedule 3.01(g) and normal
increases in cash compensation in the ordinary course of business consistent
with past practice or as was required under any employment agreements in effect
as of the date of the most recent audited financial statements included in the
i-Cube Filed SEC Documents, (B) any granting by i-Cube or any of its
subsidiaries to any such current or former director, executive officer or key
employee of any increase in severance or termination pay, except in the ordinary
course of business consistent with past practice, (C) any entry by i-Cube or any
of its subsidiaries into, or any amendments of, any employment, deferred
compensation, consulting, severance, termination or indemnification agreement
with any such current or former director, executive officer or key employee, or
(D) any amendment to, or modification of, any i-Cube Stock Option, (5) except
insofar as may have been required by a change in generally accepted accounting
principles, any change in accounting methods, principles or practices by i-Cube
materially affecting its assets, liabilities or business, (6) any tax election
that individually or in the aggregate is reasonably likely to have a material
adverse effect on i-Cube or any of its tax attributes or any settlement or
compromise of any material income tax liability, or (7) any action taken by
i-Cube or any of its subsidiaries during the period from December 31, 1998 to
the date
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of this agreement, that, if taken during the period from the date of this
agreement through the Effective Time would constitute a breach of section
4.01(a).
(h) LITIGATION. There is no suit, action or proceeding pending
or, to the knowledge of i-Cube, threatened against or affecting i-Cube or any of
its subsidiaries that, individually or in the aggregate, is reasonably likely to
have a material adverse effect on i-Cube nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator outstanding
against i-Cube or any of its subsidiaries having, or which is reasonably likely
to have, individually or in the aggregate, a material adverse effect on i-Cube;
provided that for purposes of this paragraph (h) any such suit, action,
proceeding, judgment, decree, injunction, rule or order arising after the date
hereof shall not be deemed to have a material adverse effect on i-Cube if and to
the extent such suit, action, proceeding, judgment, decree, injunction, rule or
order (or any relevant part thereof) is based on this Agreement, or the
transactions contemplated hereby.
(i) COMPLIANCE WITH APPLICABLE LAWS. i-Cube, its subsidiaries
and employees hold all permits, licenses, variances, exemptions, orders,
registrations and approvals of all Governmental Entities which are required for
the operation of the businesses of i-Cube and its subsidiaries (the "i-Cube
Permits"), except where the failure to have any such i-Cube Permits individually
or in the aggregate is not reasonably likely to have a material adverse effect
on i-Cube. i-Cube and its subsidiaries are in compliance with the terms of the
i-Cube Permits and all applicable statutes, laws, ordinances, rules and
regulations, except where the failure so to comply individually or in the
aggregate is not reasonably likely to have a material adverse effect on i-Cube.
No action, demand, requirement or investigation by any Governmental Entity and
no suit, action or proceeding by any person, in each case with respect to i-Cube
or any of its subsidiaries or any of their respective properties, is pending or,
to the knowledge of i-Cube, threatened, other than, in each case, those the
outcome of which individually or in the aggregate are not (i) reasonably likely
to have a material adverse effect on i-Cube or (ii) reasonably likely to impair
the ability of i-Cube to perform its obligations under this Agreement or prevent
or materially delay the consummation of any of the transactions contemplated by
this Agreement; provided that for purposes of this paragraph (i) any such
action, demand, requirement or investigation or any such suit, action or
proceeding arising after the date hereof shall not be deemed to have a material
adverse effect on i-Cube if and to the extent such action, demand, requirement
or investigation or such suit, action or proceeding (or any relevant part
thereof) is based on this Agreement or the transactions contemplated hereby.
(j) ABSENCE OF CHANGES IN BENEFIT PLANS. Since the date of the
most recent audited financial statements included in the i-Cube Filed SEC
Documents, there has not been any adoption or amendment in any material respect
by i-Cube or any of its subsidiaries of any collective bargaining agreement or
any material bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
medical, welfare benefit or other plan, arrangement or understanding providing
benefits to any current or former employee, officer or director of i-Cube or any
of its wholly owned subsidiaries or any other trade or business, whether or not
incorporated, which would be treated as a single employer with Code under
Section 4001 or ERISA or Section 414(b), (c), (m) or (o) of the Code
(collectively, the "i-Cube Benefit Plans"), or any material change in any
actuarial or other assumption used to
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calculate funding obligations with respect to any i-Cube pension plans, or any
change in the manner in which contributions to any i-Cube pension plans are made
or the basis on which such contributions are determined.
(k) ERISA COMPLIANCE. (i) With respect to the i-Cube Benefit
Plans, no event has occurred and, to the knowledge of i-Cube, there exists no
condition or set of circumstances, in connection with which i-Cube or any of its
subsidiaries could be subject to any liability that individually or in the
aggregate is reasonably likely to have a material adverse effect on i-Cube under
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Code or any other applicable law.
(ii) Each i-Cube Benefit Plan has been administered
in accordance with its terms, except for any failures so to administer
any i-Cube Benefit Plan that individually or in the aggregate are not
reasonably likely to have a material adverse effect on i-Cube. i-Cube,
its subsidiaries and all the i-Cube Benefit Plans are in compliance
with the applicable provisions of ERISA, the Code and all other
applicable laws and the terms of all applicable collective bargaining
agreements, except for any failures to be in such compliance that
individually or in the aggregate are not reasonably likely to have a
material adverse effect on i-Cube. Each i-Cube Benefit Plan that is
intended to be qualified under Section 401(a) or 401(k) of the Code has
received a favorable determination letter from the IRS that it is so
qualified and each trust established in connection with any i-Cube
Benefit Plan that is intended to be exempt from federal income taxation
under Section 501(a) of the Code has received a determination letter
from the IRS that such trust is so exempt. To the knowledge of i-Cube,
no fact or event has occurred since the date of any determination
letter from the IRS which is reasonably likely to affect adversely the
qualified status of any such i-Cube Benefit Plan or the exempt status
of any such trust. There are no pending or, to the knowledge of i-Cube,
threatened lawsuits, claims, grievances, investigations or audits of
any i-Cube Benefit Plan that, individually or in the aggregate, are
reasonably likely to have a material adverse effect on i-Cube.
(iii) Neither i-Cube nor any of its subsidiaries has
incurred any liability under Title IV of ERISA (other than liability
for premiums to the Pension Benefit Guaranty Corporation arising in the
ordinary course). No i-Cube Benefit Plan has incurred an "accumulated
funding deficiency" (within the meaning of Section 302 of ERISA or
Section 412 of the Code) whether or not waived. To the knowledge of
i-Cube, there are not any facts or circumstances that are reasonably
likely to materially change the funded status of any i-Cube Benefit
Plan that is a "defined benefit" plan (as defined in Section 3(35) of
ERISA) since the date of the most recent actuarial report for such
plan. No i-Cube Benefit Plan is a "multiemployer plan" within the
meaning of Section 3(37) of ERISA.
(iv) i-Cube and its subsidiaries are in compliance
with all federal, state and local requirements regarding employment,
except for any failures to comply that individually or in the aggregate
are not reasonably likely to have a material adverse effect on i-Cube.
Neither i-Cube nor any of its subsidiaries is a party to any collective
bargaining or other labor union contract applicable to persons employed
by i-Cube or any
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of its subsidiaries and no collective bargaining agreement is being
negotiated by i-Cube or any of its subsidiaries. As of the date of this
Agreement, there is no labor dispute, strike or work stoppage against
i-Cube or any of its subsidiaries pending or, to the knowledge of
i-Cube, threatened which may interfere with the respective business
activities of i-Cube or any of its subsidiaries, except where such
dispute, strike or work stoppage individually or in the aggregate is
not reasonably likely to have a material adverse effect on i-Cube. As
of the date of this Agreement, to the knowledge of i-Cube, none of
i-Cube, any of its subsidiaries or any of their respective
representatives or employees has committed any unfair labor practice in
connection with the operation of the respective business of i-Cube or
any of its subsidiaries, and there is no charge or complaint against
i-Cube or any of its subsidiaries by the National Labor Relations Board
or any comparable governmental agency pending or threatened in writing,
in each case except where such actions, charges or complaints,
individually or in the aggregate, are not reasonably likely to have a
material adverse effect on i-Cube.
(v) No employee of i-Cube will be entitled to any
additional benefits or any acceleration of the time of payment or
vesting of any benefits under any i-Cube Benefit Plan as a result of
the transactions contemplated by this Agreement. No amount payable, or
economic benefit provided, by i-Cube or its subsidiaries (including any
acceleration of the time of payment or vesting of any benefit) could be
considered an "excess parachute payment" under Section 280G of the
Code. No person is entitled to receive any additional payment from
i-Cube or its subsidiaries or any other person (a "Parachute Gross-Up
Payment") in the event that the excise tax of Section 4999 of the Code
is imposed on such person. The Board of Directors of i-Cube or any of
its subsidiaries has not granted to any person any right to receive any
Parachute Gross-Up Payment.
(l) TAXES. (i) Each of i-Cube and its subsidiaries has timely
filed all tax returns as defined in Section 3.01 (l) (x) required to be filed by
it and all such tax returns are true, complete and correct (or requests for
extensions to file such tax returns have been timely filed, granted and have not
expired). i-Cube and each of its subsidiaries has paid (or i-Cube has paid on
its behalf) all taxes (as defined in Section 3.01(l)(ix)) shown as due on such
tax returns or otherwise due or payable, and the most recent financial
statements contained in the i-Cube Filed SEC Documents reflect an adequate
reserve for all taxes payable by i-Cube and its subsidiaries for all taxable
periods and portions thereof accrued through the date of such financial
statements.
(ii) No deficiencies for any taxes have been
proposed, asserted or assessed against i-Cube or any of its
subsidiaries that are not adequately reserved for.
(iii) Neither i-Cube nor any of its subsidiaries has
taken any action or knows of any fact, agreement, plan or other
circumstance that is reasonably likely to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of
the Code.
(iv) The i-Cube Benefit Plans and other i-Cube
employee compensation arrangements in effect as of the date of this
Agreement have been designed so that the disallowance of a material
deduction under Section 162(m) of the Code for employee
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remuneration will not apply to any amounts paid or payable by i-Cube or
any of its subsidiaries under any such plan or arrangement and, to the
knowledge of i-Cube, no fact or circumstance exists that is reasonably
likely to cause such disallowance to apply to any such amounts.
(v) Neither i-Cube nor any of its subsidiaries has
constituted either a "distributing corporation" or a "controlled
corporation" in a distribution of stock qualifying for tax-free
treatment under Section 355 of the Code (x) in the two years prior to
the date of this Agreement or (y) in a distribution which could
otherwise constitute part of a "plan" or "series of related
transactions" (within the meaning of Section 355(e) of the Code) in
conjunction with the Merger.
(vi) Neither i-Cube nor any of its subsidiaries has
executed any waiver or extension of any statute of limitations on the
assessment or collection of any taxes or with respect to any liability
arising therefrom. Neither i-Cube nor any of its subsidiaries has any
liability for the taxes of any person pursuant to Section 1.1502-6 of
the Treasury Regulations promulgated under the Code or comparable
provisions of any taxing authority in respect of any consolidated,
combined or unitary tax return. There are no tax liens on any assets of
i-Cube or any of its subsidiaries, other than liens for current taxes
not yet due and payable and liens for taxes that are being contested in
good faith by appropriate proceedings.
(vii) No consent under Section 341(f) of the Code
has been filed with respect to i-Cube or any of its subsidiaries.
(viii) There are no tax sharing agreements or similar
arrangements with respect to or involving i-Cube or any of its
subsidiaries. i-Cube and each of its subsidiaries is in compliance with
the terms and conditions of any applicable tax exemptions, tax
agreements or tax orders of any government to which it may be subject
or which it may have claimed, and the transactions contemplated by this
Agreement will not have any adverse effect on such compliance.
(ix) As used in this Agreement, "taxes" shall
include all (x) federal, state, local or foreign income, property,
sales, excise and other taxes or similar governmental charges,
including any interest, penalties or additions with respect thereto,
(y) liability for the payment of any amounts of the type described in
(x) as a result of being a member of an affiliated, consolidated,
combined or unitary group, and (z) liability for the payment of any
amounts as a result of being party to any tax sharing agreement or as a
result of any express or implied obligation to indemnify any other
person with respect to the payment of any amounts of the type described
in clause (x) or (y).
(x) As used in this Agreement, "tax returns" shall
include any tax return, declaration or estimated tax, tax report or
other tax statement, or any similar filing, including any schedule or
attachment thereto, and including any amendment thereof, required to be
submitted to any governmental authority with respect to any tax.
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(m) VOTING REQUIREMENTS. The affirmative vote of the holders
of a majority of the voting power of all outstanding shares of i-Cube Common
Stock at the i-Cube Stockholders Meeting to adopt this Agreement (the "i-Cube
Stockholder Approval") is the only vote of the holders of any class or series of
i-Cube's capital stock necessary to approve and adopt this Agreement and the
transactions contemplated hereby.
(n) STATE TAKEOVER STATUTES. The Board of Directors of i-Cube
(including the disinterested directors thereof) has unanimously approved the
terms of this Agreement and the consummation of the Merger and the other
transactions contemplated by this Agreement and such approval constitutes
approval of the Merger and the other transactions contemplated by this Agreement
by the i-Cube Board of Directors under the provisions of Section 203 of the DGCL
and represents all the action necessary to ensure that such Section 203 does not
apply to Razorfish in connection with the Merger and the other transactions
contemplated by this Agreement. To the knowledge of i-Cube, no other state
takeover statute is applicable to the Merger or the other transactions
contemplated hereby.
(o) ACCOUNTING MATTERS. To the knowledge of i-Cube, neither it
nor any of its affiliates (as defined in Section 8.03) has taken or agreed to
take any action that would prevent the business combination to be effected by
the Merger to be accounted for as a pooling of interests.
(p) BROKERS. No broker, investment banker, financial advisor
or other person, other than Morgan Stanley Dean Witter, the fees and expenses of
which will be paid by i-Cube, is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
i-Cube. i-Cube has furnished to Razorfish true and complete copies of all
agreements under which any such fees or expenses are payable and all
indemnification and other agreements related to the engagement of the persons to
whom such fees are payable.
(q) OPINION OF FINANCIAL ADVISOR. i-Cube has received the
opinion of Morgan Stanley Dean Witter, dated the date of this Agreement, to the
effect that, as of such date, the Exchange Ratio is fair from a financial point
of view to holders of shares of i-Cube Common Stock (other than Razorfish and
its affiliates), a signed copy of which opinion has been or will promptly be
delivered to Razorfish.
(r) INTELLECTUAL PROPERTY; YEAR 2000. (i) i-Cube and its
subsidiaries own, or are validly licensed or otherwise have the right to use,
all patents, patent rights, trademarks, trade secrets, trade names, service
marks, copyrights and other proprietary intellectual property rights and
computer programs (the "Intellectual Property Rights") which are material to the
conduct of the business of i-Cube and its subsidiaries.
(ii) To the knowledge of i-Cube, neither i-Cube
nor any of its subsidiaries has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Intellectual
Property Rights or other proprietary information of any other person,
except for any such interference, infringement, misappropriation or
other conflict which is not, individually or in the aggregate,
reasonably likely to have a material adverse effect on i-Cube. Neither
i-Cube nor any of its subsidiaries has received any written charge,
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complaint, claim, demand or notice alleging any such interference,
infringement, misappropriation or other conflict (including any claim
that i-Cube or any such subsidiary must license or refrain from using
any Intellectual Property Rights or other proprietary information of
any other person) which has not been settled or otherwise fully
resolved. To i-Cube's knowledge, no other person has interfered with,
infringed upon, misappropriated or otherwise come into conflict with
any Intellectual Property Rights of i-Cube or any of its subsidiaries,
except for any such interference, infringement, misappropriation or
other conflict which is not, individually or in the aggregate,
reasonably likely to have a material adverse effect on i-Cube.
(iii) As the business of i-Cube and its
subsidiaries is presently conducted and without giving effect to any
changes with respect thereto that may be made by Razorfish, to i-Cube's
knowledge, Razorfish's use of the Intellectual Property Rights which
are material to the conduct of the business of i-Cube and its
subsidiaries taken as a whole will not interfere with, infringe upon,
misappropriate or otherwise come into conflict with the Intellectual
Property Rights of any other person.
(iv) i-Cube has implemented a program directed at
ensuring that its and its subsidiaries' products (including prior and
current products and technology and products and technology currently
under development) will, when used in accordance with associated
documentation on a specified platform or platforms, be capable upon
installation of (i) operating in the same manner on dates in both the
Twentieth and Twenty-First centuries and (ii) accurately processing,
providing and receiving date data from, into and between the Twentieth
and Twenty-First centuries, including the years 1999 and 2000, and
making leap-year calculations, provided that all non-i-Cube products
(e.g., hardware, software and firmware) material to the conduct of the
business of i-Cube and used in or in combination with i-Cube's
products, exchange data with i-Cube's products in the same manner on
dates in both the Twentieth and Twenty-First centuries. i-Cube has
taken the steps as set forth in Section 3.01(r) of the i-Cube
Disclosure Schedule to assure that the year 2000 date change will not
adversely affect the systems and facilities that support the operations
of i-Cube and its subsidiaries, except as is not reasonably likely to
have a material adverse effect on i-Cube.
(s) CERTAIN CONTRACTS. Neither i-Cube nor any of its
subsidiaries is a party to or bound by any non-competition agreement or any
other similar agreement or obligation which purports to limit in any material
respect the manner in which, or the localities in which, all or any material
portion of the business of i-Cube and its subsidiaries, taken as a whole, is
conducted.
(t) CUSTOMERS. Except as listed on Schedule 3.01(t), i-Cube
has no knowledge of any loss or threatened loss of any of the ten largest
customers of i-Cube or any of its subsidiaries for the six month period ended
June 30, 1999. Schedule 3.01(t) lists each of the ten largest customers of
i-Cube and its subsidiaries (in terms of amounts paid or billed, as applicable)
for the six month period ended June 30, 1999.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF RAZORFISH AND SUB.
Except as disclosed in the Razorfish Filed SEC Documents (as defined in Section
3.02(g)) or as set forth on the Disclosure Schedule delivered by Razorfish to
i-Cube prior to the execution of this
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Agreement (the "Razorfish Disclosure Schedule") and making reference to the
particular subsection of this Agreement to which exception is being taken,
Razorfish and Sub represent and warrant to i-Cube as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of
Razorfish, Sub and their subsidiaries is a corporation or other legal entity
duly organized, validly existing and in good standing (with respect to
jurisdictions which recognize such concept) under the laws of the jurisdiction
in which it is organized and has the requisite corporate or other power, as the
case may be, and authority to carry on its business as now being conducted,
except for those jurisdictions where the failure to be so organized, existing or
in good standing individually or in the aggregate is not reasonably likely to
have a material adverse effect on Razorfish. Each of Razorfish and its
subsidiaries is duly qualified or licensed to do business and is in good
standing (with respect to jurisdictions which recognize such concept) in each
jurisdiction in which the nature of its business or the ownership, leasing or
operation of its properties makes such qualification or licensing necessary,
except for those jurisdictions where the failure to be so qualified or licensed
or to be in good standing individually or in the aggregate is not reasonably
likely to have a material adverse effect on Razorfish. Razorfish has made
available to i-Cube prior to the execution of this Agreement complete and
correct copies of its certificate of incorporation and by-laws and the
certificate of incorporation and by-laws of Sub, in each case as amended to
date.
(b) SUBSIDIARIES. Exhibit 21 to Razorfish's Registration
Statement on Form S-1 dated April 26, 1999 includes all the subsidiaries of
Razorfish which as of the date of this Agreement are Significant Subsidiaries
(as defined in Rule 1-02 of Regulation S-X of the SEC). All the outstanding
shares of capital stock of, or other equity interests in, each such Significant
Subsidiary have been validly issued and are fully paid and nonassessable and are
owned directly or indirectly by Razorfish, free and clear of all Liens and free
of any restriction on the right to vote, sell or otherwise dispose of such
capital stock or other ownership interests.
(c) CAPITAL STRUCTURE. The authorized capital stock of
Razorfish consists of 29,999,950 shares of Razorfish Common Stock, 50 shares of
Class B Common Stock ("Razorfish Class B Common Stock") and 10,000,000 shares of
preferred stock, par value $0.01 per share, of Razorfish ("Razorfish Authorized
Preferred Stock"). (i) 24,647,504 shares of Razorfish Common Stock were issued
and outstanding, (ii) 50 shares of Razorfish Class B Common Stock were issued
and outstanding, (iii) no shares of Razorfish Preferred Stock were issued and
outstanding, and (iv) approximately 4,708,623 shares of Razorfish Common Stock
were reserved for issuance pursuant to outstanding stock options or other rights
to purchase or receive Razorfish Common Stock granted under the 1997 Stock
Option Plan and the 1999 Stock Incentive Plan and various plans of companies
acquired by Razorfish (such plans, collectively, the "Razorfish Stock Plans")
(of which 1,632,867 are subject to outstanding Razorfish Stock Options (as
defined below)). Except as set forth above, no shares of capital stock or other
voting securities of Razorfish are issued, reserved for issuance or outstanding.
There are no outstanding stock appreciation rights ("SARs") or rights (other
than the Razorfish Stock Options) to receive shares of Razorfish Common Stock on
a deferred basis granted under the Razorfish Stock Plans or otherwise. Razorfish
has delivered to i-Cube a complete and correct list, as of August 9, 1999 of the
number of shares of Razorfish Common Stock subject to outstanding stock options
or other rights to purchase or receive Razorfish Common Stock granted under the
Razorfish Stock
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Plans (collectively, "Razorfish Stock Options") and the exercise prices thereof.
No bonds, debentures, notes or other indebtedness of Razorfish having the right
to vote (or convertible into, or exchangeable for, securities having the right
to vote) on any matters on which stockholders of Razorfish may vote are issued
or outstanding. All outstanding shares of capital stock of Razorfish are, and
all shares which may be issued will be, when issued, duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive rights.
Except as set forth in this Section 3.02(c) of the Razorfish Disclosure
Schedule, (x) there are not issued, reserved for issuance or outstanding (A) any
shares of capital stock or other voting securities of Razorfish, (B) any
securities of Razorfish convertible into or exchangeable or exercisable for
shares of capital stock or voting securities of Razorfish, (C) any warrants,
calls, options or other rights to acquire from Razorfish or any Razorfish
subsidiary, and no obligation of Razorfish or any Razorfish subsidiary to issue,
any capital stock, voting securities or securities convertible into or
exchangeable or exercisable for capital stock or voting securities of Razorfish
and (y) there are not any outstanding obligations of Razorfish or any Razorfish
subsidiary to repurchase, redeem or otherwise acquire any such securities or to
issue, deliver or sell, or cause to be issued, delivered or sold, any such
securities. Razorfish is not a party to any voting agreement with respect to the
voting of any such securities. There are no outstanding (A) securities of
Razorfish or any Razorfish subsidiary convertible into or exchangeable or
exercisable for shares of capital stock or other voting securities or ownership
interests in any Razorfish subsidiary, (B) warrants, calls, options or other
rights to acquire from Razorfish or any Razorfish subsidiary, and no obligation
of Razorfish or any Razorfish subsidiary to issue, any capital stock, voting
securities or other ownership interests in, or any securities convertible into
or exchangeable or exercisable for any capital stock, voting securities or
ownership interests in, any Razorfish subsidiary or (C) obligations of Razorfish
or any Razorfish subsidiary to repurchase, redeem or otherwise acquire any such
outstanding securities of Razorfish subsidiaries or to issue, deliver or sell,
or cause to be issued, delivered or sold, any such securities. Other than the
Razorfish subsidiaries, Razorfish does not directly or indirectly beneficially
own any securities or other beneficial ownership interests in any other entity.
(d) AUTHORITY; NONCONTRAVENTION. Each of Razorfish and Sub has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. The execution and
delivery of this Agreement by Razorfish and Sub and the consummation by
Razorfish and Sub of the transactions contemplated by this Agreement have been
duly authorized by all necessary corporate action on the part of Razorfish and
Sub, as applicable subject, in the case of the Merger, to the Razorfish
Stockholder Approval. This Agreement has been duly executed and delivered by
Razorfish and Sub and, assuming the due authorization, execution and delivery by
each of the other parties thereto, constitutes a legal, valid and binding
obligation of Razorfish and Sub, enforceable against each of them in accordance
with its terms. Without limiting the other provisions of this Section 3.02(d)
above, the Board of Directors of Razorfish, at a meeting duly called and held
has, in light of and subject to the terms and conditions set forth herein, (a)
determined that this Agreement, the Razorfish Voting Agreement the Merger and
the other transactions contemplated hereby and by the Razorfish Voting Agreement
are fair and in the best interests of the stockholders of Razorfish, and (b)
resolved to recommend to the Razorfish Stockholder approval and adoption of this
Agreement and the Merger. The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not, conflict with, or
result in any violation of, or default (with
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or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a benefit
under, or result in the creation of any Lien upon any of the properties or
assets of Razorfish or Sub or any of Razorfish's other subsidiaries under, (i)
the certificate of incorporation or by-laws of Razorfish or Sub or the
comparable organizational documents of any of Razorfish's other subsidiaries,
(ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license or similar
authorization applicable to Razorfish or Sub or any of Razorfish's other
subsidiaries or their respective properties or assets or (iii) subject to the
governmental filings and other matters referred to in the following sentence,
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Razorfish or any of its subsidiaries or their respective
properties or assets, other than, in the case of clauses (ii) and (iii), any
such conflicts, violations, defaults, rights, losses or Liens that individually
or in the aggregate are not (x) reasonably likely to have a material adverse
effect on Razorfish or (y) reasonably likely to impair the ability of Razorfish
or Sub to perform its obligations under this Agreement. No consent, approval,
order or authorization of, action by, or in respect of, or registration,
declaration or filing with, any Governmental Entity is required by or with
respect to Razorfish or Sub or any of Razorfish's other subsidiaries in
connection with the execution and delivery of this Agreement by Razorfish and
Sub or the execution or the consummation by Razorfish and Sub of the
transactions contemplated by this Agreement, except for (1) the filing of a
premerger notification and report form by Razorfish under the HSR Act and any
applicable filings and approvals under similar foreign antitrust laws and
regulations; (2) the filing with the SEC of (A) the Form S-4 and (B) such
reports under Section 13(a), 13(d), 15(d) or 16(a) of the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated by
this Agreement; (3) the filing of the Certificate of Merger with the Delaware
Secretary of State and appropriate documents with the relevant authorities of
other states in which Razorfish is qualified to do business and such filings
with Governmental Entities to satisfy the applicable requirements of state
securities or "blue sky" laws; (4) such filings with and approvals of Nasdaq to
permit the shares of Razorfish Common Stock that are to be issued in the Merger
to be quoted on Nasdaq; and (5) such consents, approvals, orders or
authorizations the failure of which to be made or obtained individually or in
the aggregate is not reasonably likely to have a material adverse effect on
Razorfish.
(e) SEC DOCUMENTS; UNDISCLOSED LIABILITIES. Razorfish has
filed all required reports, schedules, forms, statements and other documents
(including exhibits and all other information incorporated therein) with the SEC
since April 26, 1999 (the "Razorfish SEC Documents"). As of their respective
dates, the Razorfish SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC promulgated thereunder applicable to such
Razorfish SEC Documents, and none of the Razorfish SEC Documents when filed
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Except to the extent that information contained in any Razorfish SEC
Document has been revised or superseded by a later filed Razorfish SEC Document,
none of the Razorfish SEC Documents contains any untrue statement of a material
fact or omits 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 were made, not misleading. The financial statements of
Razorfish included in the Razorfish SEC Documents comply as to form, as of their
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respective dates of filing with the SEC, in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles (except, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and fairly
present in all material respects the consolidated financial position of
Razorfish and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal recurring
year-end audit adjustments). Except (i) as reflected in such financial
statements or in the notes thereto or (ii) for liabilities incurred in
connection with this Agreement or the transactions contemplated hereby, neither
Razorfish nor any of its subsidiaries has any liabilities or obligations of any
nature which, individually or in the aggregate, are reasonably likely to have a
material adverse effect on Razorfish.
(f) INFORMATION SUPPLIED. None of the information supplied or
to be supplied by Razorfish specifically for inclusion or incorporation by
reference in (i) the Form S-4 will, at the time the Form S-4 becomes effective
under the Securities Act, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) the Joint Proxy Statement
will, at the date it is first mailed to Razorfish's stockholders or at the time
of the Razorfish Stockholders Meeting, 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 Form S-4 will
comply as to form in all material respects with the requirements of the Exchange
Act and the rules and regulations thereunder, except that no representation or
warranty is made by Razorfish with respect to statements made or incorporated by
reference therein based on information supplied by i-Cube specifically for
inclusion or incorporation by reference in the Form S-4.
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby and except as disclosed in the Razorfish SEC Documents filed
and publicly available prior to the date of this Agreement (the "Razorfish Filed
SEC Documents"), since April 26, 1999, Razorfish and its subsidiaries have
conducted their business only in the ordinary course, and there has not been (1)
any material adverse change in Razorfish, (2) any declaration, setting aside or
payment of any dividend or other distribution (whether in cash, stock or
property) with respect to any of Razorfish's capital stock, (3) any split,
combination or reclassification of any of Razorfish's capital stock or any
issuance or the authorization of any issuance of any other securities in respect
of, in lieu of or in substitution for shares of Razorfish's capital stock,
except for issuances of Razorfish Common Stock upon the exercise of Razorfish
Stock Options under the Razorfish Stock Plans, in each case awarded prior to the
date hereof in accordance with their present terms, (4) (A) any granting by
Razorfish or any of its subsidiaries to any current or former director or
executive officer of Razorfish or its subsidiaries of any increase in
compensation, bonus or other benefits, except for stock option grants listed on
Schedule 3.02(g) and normal increases in cash compensation in the ordinary
course of business consistent with past practice or as was required under any
employment agreements in effect as of the date of the most recent audited
financial statements included in the Razorfish Filed SEC Documents, (B) any
granting by Razorfish or any of its subsidiaries to any such current or former
director, executive officer or key employee
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of any increase in severance or termination pay, except in the ordinary course
of business consistent with past practice, (C) any entry by Razorfish or any of
its subsidiaries into, or any amendments of, any employment, deferred
compensation, consulting, severance, termination or indemnification agreement
with any such current or former director, executive officer or key employee, or
(D) any amendment to, or modification of, any Razorfish Stock Option, (5) except
insofar as may have been or required by a change in generally accepted
accounting principles, any change in accounting methods, principles or practices
by Razorfish materially affecting its assets, liabilities or business; (6) any
tax election that individually or in the aggregate is reasonably likely to have
a material adverse effect on Razorfish or any of its tax attributes or any
settlement or compromise of any material income tax liability or (7) any action
taken by Razorfish or any of its subsidiaries during the period from December
31, 1998 to the date of this agreement, that, if taken during the period from
the date of this agreement through the Effective Time would constitute a breach
of Section 4.01(b).
(h) LITIGATION. There is no suit, action or proceeding pending
or, to the knowledge of Razorfish, threatened against or affecting Razorfish or
any of its subsidiaries that, individually or in the aggregate, is reasonably
likely to have a material adverse effect on Razorfish nor is there any judgment,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against Razorfish or any of its subsidiaries having, or which is
reasonably likely to have, individually or in the aggregate, a material adverse
effect on Razorfish; provided that, for purposes of this paragraph (g), any such
suit, action, proceeding, judgment, decree, injunction, rule or order arising
after the date hereof shall not be deemed to have a material adverse effect on
Razorfish if and to the extent such suit, action, proceeding, judgment, decree,
injunction, rule or order (or any relevant part thereof) is based on this
Agreement, or the transactions contemplated hereby.
(i) COMPLIANCE WITH APPLICABLE LAWS. Razorfish, its
subsidiaries and employees hold all permits, licenses, variances, exemptions,
orders, registrations and approvals of all Governmental Entities which are
required for the operation of the businesses of Razorfish and its subsidiaries
(the "Razorfish Permits") except where the failure to have any such Razorfish
Permits individually or in the aggregate is not reasonably likely to have a
material adverse effect on Razorfish. Razorfish and its subsidiaries are in
compliance with the terms of the Razorfish Permits and all applicable statutes,
laws, ordinances, rules and regulations, except where the failure so to comply
individually or in the aggregate is not reasonably likely to have a material
adverse effect on Razorfish. No action, demand, requirement or investigation by
any Governmental Entity and no suit, action or proceeding by any person, in each
case with respect to Razorfish or any of its subsidiaries or any of their
respective properties, is pending or, to the knowledge of Razorfish, threatened,
other than, in each case, those the outcome of which individually or in the
aggregate are not (i) reasonably likely to have a material adverse effect on
Razorfish or (ii) reasonably likely to impair the ability of Razorfish to
perform its obligations under this Agreement or prevent or materially delay the
consummation of any of the transactions contemplated by this Agreement; provided
that for purposes of this paragraph (h) any such action, demand, requirement or
investigation or any such suit, action or proceeding arising after the date
hereof shall not be deemed to have a material adverse effect on Razorfish if and
to the extent such action, demand, requirement or investigation or such suit,
action or proceeding (or any relevant part thereof) is based on this Agreement
or the Voting Agreement, or the transactions contemplated hereby or thereby.
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(j) ABSENCE OF CHANGES IN BENEFIT PLANS. Since the date of the
most recent audited financial statements included in the Razorfish Filed SEC
Documents, there has not been any adoption or amendment in any material respect
by Razorfish or any of its subsidiaries of any collective bargaining agreement
or any material bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
medical, welfare benefit or other plan, arrangement or understanding providing
benefits to any current or former employee, officer or director of Razorfish or
any of its wholly owned subsidiaries or any other trade or business, whether or
not incorporated, which would be treated as a single employer with i-Cube under
Section 4001 of ERISA or Section 414(b), (c), (m) or (o) of the Code
(collectively, the "Razorfish Benefit Plans"), or any material change in any
actuarial or other assumption used to calculate funding obligations with respect
to any Razorfish pension plans, or any change in the manner in which
contributions to any Razorfish pension plans are made or the basis on which such
contributions are determined.
(k) ERISA COMPLIANCE. (i) With respect to the Razorfish
Benefit Plans, no event has occurred and, to the knowledge of Razorfish, there
exists no condition or set of circumstances, in connection with which Razorfish
or any of its subsidiaries could be subject to any liability that individually
or in the aggregate is reasonably likely to have a material adverse effect on
Razorfish under the ERISA, the Code or any other applicable law.
(ii) Each Razorfish Benefit Plan has been
administered in accordance with its terms, except for any failures so
to administer any Razorfish Benefit Plan that individually or in the
aggregate are not reasonably likely to have a material adverse effect
on Razorfish. Razorfish, its subsidiaries and all the Razorfish Benefit
Plans are in compliance with the applicable provisions of ERISA, the
Code and all other applicable laws and the terms of all applicable
collective bargaining agreements, except for any failures to be in such
compliance that individually or in the aggregate are not reasonably
likely to have a material adverse effect on Razorfish. Each Razorfish
Benefit Plan that is intended to be qualified under Section 401(a) or
401(k) of the Code has received a favorable determination letter from
the IRS that it is so qualified and each trust established in
connection with any Razorfish Benefit Plan that is intended to be
exempt from federal income taxation under Section 501(a) of the Code
has received a determination letter from the IRS that such trust is so
exempt. To the knowledge of Razorfish, no fact or event has occurred
since the date of any determination letter from the IRS which is
reasonably likely to affect adversely the qualified status of any such
Razorfish Benefit Plan or the exempt status of any such trust. There
are no pending or, to the knowledge of Razorfish, threatened lawsuits,
claims, grievances, investigations or audits of any Razorfish Benefit
Plan that, individually or in the aggregate, are reasonably likely to
have a material adverse effect on Razorfish.
(iii) Neither Razorfish nor any of its subsidiaries
has incurred any liability under Title IV of ERISA (other than
liability for premiums to the Pension Benefit Guaranty Corporation
arising in the ordinary course). No Razorfish Benefit Plan has incurred
an "accumulated funding deficiency" (within the meaning of Section 302
of ERISA or Section 412 of the Code) whether or not waived. To the
knowledge of Razorfish, there are not any facts or circumstances that
are reasonably likely to materially
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change the funded status of any Razorfish Benefit Plan that is a
"defined benefit" plan (as defined in Section 3(35) of ERISA) since the
date of the most recent actuarial report for such plan. No Razorfish
Benefit Plan is a "multiemployer plan" within the meaning of Section
3(37) of ERISA.
(iv) Razorfish and its subsidiaries are in
compliance with all federal, state and local requirements regarding
employment, except for any failures to comply that individually or in
the aggregate are not reasonably likely to have a material adverse
effect on Razorfish. Neither Razorfish nor any of its subsidiaries is a
party to any collective bargaining or other labor union contract
applicable to persons employed by Razorfish or any of its subsidiaries
and no collective bargaining agreement is being negotiated by Razorfish
or any of its subsidiaries. As of the date of this Agreement, there is
no labor dispute, strike or work stoppage against Razorfish or any of
its subsidiaries pending or, to the knowledge of Razorfish, threatened
which may interfere with the respective business activities of
Razorfish or any of its subsidiaries, except where such dispute, strike
or work stoppage individually or in the aggregate is not reasonably
likely to have a material adverse effect on Razorfish. As of the date
of this Agreement, to the knowledge of Razorfish, none of Razorfish,
any of its subsidiaries or any of their respective representatives or
employees has committed any unfair labor practice in connection with
the operation of the respective business of Razorfish or any of its
subsidiaries, and there is no charge or complaint against Razorfish or
any of its subsidiaries by the National Labor Relations Board or any
comparable governmental agency pending or threatened in writing, in
each case except where such actions, charges or complaints,
individually or in the aggregate, are not reasonably likely to have a
material adverse effect on Razorfish.
(v) No employee of Razorfish will be entitled to
any additional benefits or any acceleration of the time of payment or
vesting of any benefits under any Razorfish Benefit Plan as a result of
the transactions contemplated by this Agreement. No amount payable, or
economic benefit provided, by Razorfish or its subsidiaries (including
any acceleration of the time of payment or vesting of any benefit)
could be considered an "excess parachute payment" under Section 280G of
the Code. No person is entitled to receive any Parachute Gross-Up
Payment in the event that the excise tax of Section 4999 of the Code is
imposed on such person. The Board of Directors of Razorfish or any of
its subsidiaries has not granted to any person any right to receive any
Parachute Gross-Up Payment.
(l) TAXES. (i) Each of Razorfish and its subsidiaries has
timely filed all tax returns required to be filed by it and all such tax returns
are true, complete and correct (or requests for extensions to file such tax
returns have been timely filed, granted and have not expired). Razorfish and
each of its subsidiaries has paid (or Razorfish has paid on its behalf) all
taxes shown as due on such tax returns or otherwise due or payable, and the most
recent financial statements contained in the Razorfish Filed SEC Documents
reflect an adequate reserve for all taxes payable by Razorfish and its
subsidiaries for all taxable periods and portions thereof accrued through the
date of such financial statements.
(ii) No deficiencies for any taxes have been
proposed, asserted or assessed against Razorfish or any of its
subsidiaries that are not adequately reserved for.
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(iii) Neither Razorfish nor any of its subsidiaries
has taken any action or knows of any fact, agreement, plan or other
circumstance that is reasonably likely to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of
the Code.
(iv) The Razorfish Benefit Plans and other
Razorfish employee compensation arrangements in effect as of the date
of this Agreement have been designed so that the disallowance of a
material deduction under Section 162(m) of the Code for employee
remuneration will not apply to any amounts paid or payable by Razorfish
or any of its subsidiaries under any such plan or arrangement and, to
the knowledge of Razorfish, no fact or circumstance exists that is
reasonably likely to cause such disallowance to apply to any such
amounts.
(v) Neither Razorfish nor any of its subsidiaries
has executed any waiver or extension of any statute of limitations on
the assessment or collection of any taxes or with respect to any
liability arising therefrom. Neither i-Cube nor any of its subsidiaries
has any liability for the taxes of any person pursuant to Section
1.1502-6 of the Treasury Regulations promulgated under the Code or
comparable provisions of any taxing authority in respect of any
consolidated, combined or unitary tax return. There are no tax liens on
any assets of Razorfish or any of its subsidiaries, other than liens
for current taxes not yet due and payable and liens for taxes that are
being contested in good faith by appropriate proceedings.
(vi) No consent under Section 341(f) of the Code
has been filed with respect to Razorfish or any of its subsidiaries.
(vii) There are no tax sharing agreements or
similar arrangements with respect to or involving Razorfish or any of
its subsidiaries. Razorfish and each of its subsidiaries is in
compliance with the terms and conditions of any applicable tax
exemptions, tax agreements or tax orders of any government to which it
may be subject or which it may have claimed, and the transactions
contemplated by this Agreement will not have any adverse effect on such
compliance.
(m) VOTING REQUIREMENTS. The affirmative vote of the holders
of a majority of the total votes cast by holders of shares of Razorfish Common
Stock at the Razorfish Stockholders Meeting at which a quorum is present to
adopt this Agreement (the "Razorfish Stockholder Approval") is the only vote of
the holders of any class or series of Razorfish's capital stock necessary to
approve and adopt this Agreement, and the transactions contemplated hereby.
(n) ACCOUNTING MATTERS. To the knowledge of Razorfish, neither
Razorfish nor any of its affiliates has taken or agreed to take any action that
would prevent the business combination to be effected by the Merger to be
accounted for as a pooling of interests.
(o) BROKERS. No broker, investment banker, financial advisor
or other person, other than Credit Suisse First Boston Corporation, the fees and
expenses of which will be paid by Razorfish, is entitled to any broker's,
finder's, financial advisor's or other similar fee or
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commission in connection with the transactions contemplated by this
Agreement and the Razorfish Voting Agreement based upon arrangements
made by or on behalf of Razorfish. Razorfish has furnished to i-Cube
true and complete copies of all agreements related to the engagement of
the persons to whom such fees are payable.
(p) OPINION OF FINANCIAL ADVISOR. Razorfish has received the
opinion of Credit Suisse First Boston Corporation, dated the date of this
Agreement, to the effect that, as of such date, the Exchange Ratio is fair to
Razorfish from a financial point of view, a signed copy of which opinion has
been or will promptly be delivered to i-Cube.
(q) INTELLECTUAL PROPERTY; YEAR 2000. (i) Razorfish and its
subsidiaries own, or are validly licensed or otherwise have the right to use,
all Intellectual Property Rights which are material to the conduct of the
business of Razorfish and its subsidiaries.
(ii) To the knowledge of Razorfish, neither
Razorfish nor any of its subsidiaries has interfered with, infringed
upon, misappropriated or otherwise come into conflict with any
Intellectual Property Rights or other proprietary information of any
other person, except for any such interference, infringement,
misappropriation or other conflict which is not, individually or in the
aggregate, reasonably likely to have a material adverse effect on
Razorfish. Neither Razorfish nor any of its subsidiaries has received
any written charge, complaint, claim, demand or notice alleging any
such interference, infringement, misappropriation or other conflict
(including any claim that Razorfish or any such subsidiary must license
or refrain from using any Intellectual Property Rights or other
proprietary information of any other person) which has not been settled
or otherwise fully resolved. To Razorfish's knowledge, no other person
has interfered with, infringed upon, misappropriated or otherwise come
into conflict with any Intellectual Property Rights of Razorfish or any
of its subsidiaries, except for any such interference, infringement,
misappropriation or other conflict which is not, individually or in the
aggregate, reasonably likely to have a material adverse effect on
Razorfish.
(iii) As the business of Razorfish and its
subsidiaries is presently conducted and without giving effect to any
changes with respect thereto that may be made by Razorfish, to
Razorfish's knowledge, Razorfish's use of the Intellectual Property
Rights which are material to the conduct of the business of Razorfish
and its subsidiaries taken as a whole will not interfere with, infringe
upon, misappropriate or otherwise come into conflict with the
Intellectual Property Rights of any other person.
(iv) Razorfish has implemented a program directed
at ensuring that its and its subsidiaries' products (including prior
and current products and technology and products and technology
currently under development) will, when used in accordance with
associated documentation on a specified platform or platforms, be
capable upon installation of (i) operating in the same manner on dates
in both the Twentieth and Twenty-First centuries and (ii) accurately
processing, providing and receiving date data from, into and between
the Twentieth and Twenty-First centuries, including the years 1999 and
2000, and making leap-year calculations, provided that all
non-Razorfish products (e.g., hardware, software and firmware) material
to the conduct of the business of Razorfish and used in or in
combination with Razorfish's products, exchange data with
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Razorfish's products in the same manner on dates in both the Twentieth
and Twenty-First centuries. Razorfish has taken the steps as set forth
in Section 3.02(q) of the Razorfish Disclosure Schedule to assure that
the year 2000 date change will not adversely affect the systems and
facilities that support the operations of Razorfish and its
subsidiaries, except as is not reasonably likely to have a material
adverse effect on Razorfish.
(r) CERTAIN CONTRACTS. Neither Razorfish nor any of its
subsidiaries is a party to or bound by any non-competition agreement or any
other similar agreement or obligation which purports to limit in any material
respect the manner in which, or the localities in which, all or any material
portion of the business of Razorfish and its subsidiaries, taken as a whole, is
conducted.
(s) INTERIM OPERATIONS OF SUB. Sub was formed solely for the
purpose of engaging in the transactions contemplated hereby, has engaged in no
other business activities and has conducted its operations only as contemplated
hereby.
(t) CUSTOMERS. Except as listed on Schedule 3.01(t), Razorfish
has no knowledge of any loss or threatened loss of any of the ten largest
customers of Razorfish or any of its subsidiaries for the six month period ended
June 30, 1999. Schedule 3.02(t) lists each of the ten largest customers of
Razorfish and its subsidiaries (in terms of amounts paid or billed, as
applicable) for the six month period ended June 30, 1999.
ARTICLE IV
Covenants Relating to Conduct of Business
SECTION 4.01. (a) CONDUCT OF BUSINESS BY I-CUBE. (a) Except as set
forth in Section 4.01 of the i-Cube Disclosure Schedule, as otherwise expressly
contemplated by this Agreement or as consented to by Razorfish, such consent not
to be unreasonably withheld or delayed, during the period from the date of this
Agreement to the Effective Time, i-Cube shall, and shall cause its subsidiaries
to, carry on their respective businesses in the ordinary course consistent with
past practice and in compliance in all material respects with all applicable
laws and regulations and, to the extent consistent therewith, use all reasonable
efforts to preserve intact their current business organizations, use reasonable
efforts to keep available the services of their current officers and other key
employees and preserve their relationships with those persons having business
dealings with them to the end that their goodwill and ongoing businesses shall
be unimpaired at the Effective Time. Without limiting the generality of the
foregoing (but subject to the above exceptions), during the period from the date
of this Agreement to the Effective Time, i-Cube shall not, and shall not permit
any of its subsidiaries to:
(i) other than dividends and distributions (including
liquidating distributions) by a direct or indirect wholly owned
subsidiary of i-Cube to its parent, (x) declare, set aside or pay any
dividends on, or make any other distributions in respect of, any of its
capital stock, (y) split, combine or reclassify any of its capital
stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital
stock, except for issuances of i-Cube Common Stock pursuant to the
exercise
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of i-Cube Stock Options or i-Cube convertible debt outstanding as of
the date hereof in accordance with their present terms or (z) purchase,
redeem or otherwise acquire any shares of capital stock of i-Cube or
any of its subsidiaries or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities,
except for purchases of capital stock or other securities of i-Cube or
its subsidiaries (or any rights, warrants or options to acquires such
shares or securities) by i-Cube from those of its directors or
employees terminated after the date hereof and prior to the Closing
Date; provided that such purchases shall in no event exceed $1,500,000
in the aggregate.
(ii) issue, deliver, sell, pledge or otherwise encumber or
subject to any Lien any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants
or options to acquire, any such shares, voting securities or
convertible securities (other than (x) the issuance of i-Cube Stock
Options granted consistent with past practice to new or promoted
employees (other than executive officers) of i-Cube representing in the
aggregate not more than 350,000 shares of i-Cube Common Stock (provided
that the vesting of such i-Cube Stock Options shall not be accelerated
as a result of the Merger) or (y) the issuance of i-Cube Common Stock
upon the exercise of i-Cube Stock Options outstanding as of the date
hereof in accordance with their present terms, or upon the exercise of
the i-Cube Stock Options referred to in clause (x) in accordance with
their terms;
(iii) amend i-Cube's certificate of incorporation, by-laws
or other comparable organizational documents;
(iv) acquire or agree to acquire by merging or
consolidating with, or by purchasing assets of, or by any other manner,
any business or any person, other than purchases of or supplies in the
ordinary course of business consistent with past practice;
(v) sell, lease, license, mortgage or otherwise encumber
or subject to any Lien or otherwise dispose of any of its properties or
assets (including securitizations), other than sales or licenses of
finished goods or services in the ordinary course of business
consistent with past practice;
(vi) (x) incur any indebtedness for borrowed money or
guarantee any such indebtedness of another person, issue or sell any
debt securities or warrants or other rights to acquire any debt
securities of i-Cube or any of its subsidiaries, guarantee any debt
securities of another person, enter into any "keep well" or other
agreement to maintain any financial statement condition of another
person or enter into any arrangement having the economic effect of any
of the foregoing, except for short-term borrowings incurred in the
ordinary course of business (or to refund existing or maturing
indebtedness) consistent with past practice and except for intercompany
indebtedness between i-Cube and any of its subsidiaries or between such
subsidiaries, or (y) make any loans, advances or capital contributions
to, or investments in, any other person other than expense
reimbursement in the ordinary course of business;
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(vii) make or agree to make any new capital expenditure or
expenditures, or enter into any agreement or agreements providing for
payments which, individually, are in excess of $100,000 or, in the
aggregate, are in excess of $600,000;
(viii) make any tax election that, individually or in the
aggregate, is reasonably likely to have an adverse effect on the tax
liability of i-Cube or settle or compromise any income tax liability;
(ix) pay, discharge, settle or satisfy any material
claims, liabilities, obligations or litigation (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the
payment, discharge, settlement or satisfaction, in the ordinary course
of business consistent with past practice or in accordance with their
terms, of liabilities recognized or disclosed in the most recent
consolidated financial statements (or the notes thereto) of i-Cube
included in the i-Cube Filed SEC Documents or incurred since the date
of such financial statements, or waive the benefits of, or agree to
modify in any manner, any standstill or similar agreement to which
i-Cube or any of its subsidiaries is a party;
(x) except as required by law or contemplated hereby and
except for labor agreements negotiated in the ordinary course, enter
into, adopt or amend in any material respect or terminate any i-Cube
Benefit Plan or any other agreement, plan or policy involving i-Cube or
its subsidiaries, and one or more of its directors, officers or
employees, or materially change any actuarial or other assumption used
to calculate funding obligations with respect to any pension plan, or
change the manner in which contributions to any pension plan are made
or the basis on which such contributions are determined;
(xi) except for normal increases in the ordinary course of
business consistent with past practice that, in the aggregate, do not
materially increase benefits or compensation expenses of i-Cube or its
subsidiaries, or as contemplated hereby or by the terms of any
employment agreement in existence on the date hereof, increase the cash
compensation of any director, executive officer or other key employee
or pay any benefit or amount not required by a plan or arrangement as
in effect on the date of this Agreement to any such person;
(xii) transfer or license to any person or entity or
otherwise extend, amend or modify any rights to the Intellectual
Property Rights of i-Cube and its subsidiaries other than in the
ordinary course of business consistent with past practices or on a non-
exclusive basis not materially different from past practices;
(xiii) enter into or amend in any material respect any
material agreement or any agreements pursuant to which any person is
granted exclusive marketing, manufacturing or other rights with respect
to any i-Cube service, process or technology;
(xiv) take any action that would cause the representations
and warranties set forth in Section 3.01(g) to no longer be true and
correct; or
(xv) authorize, or commit or agree to take, any of the
foregoing actions.
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(b) CONDUCT OF BUSINESS BY RAZORFISH. Except to the extent
required to consummate the transactions contemplated by this Agreement, during
the period from the date of this Agreement to the Effective Time, Razorfish
shall not, and, if applicable, shall not permit any of its subsidiaries to:
(i) other than dividends and distributions
(including liquidating distributions) by a direct or indirect wholly
owned subsidiary of Razorfish to its parent, (x) declare, set aside or
pay any dividends on, or make any other distributions in respect of,
any of its capital stock, (y) split, combine or reclassify any of its
capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
its capital stock, except for issuances of Razorfish Common Stock
pursuant to the exercise of options outstanding under the Razorfish
Benefit Plans, Razorfish Stock Options or Razorfish convertible debt
outstanding as of the date hereof or as contemplated by Section
4.01(b)(i) in accordance with their present terms or (z) purchase,
redeem or otherwise acquire any shares of capital stock of Razorfish or
any of its subsidiaries or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities;
(ii) issue Razorfish Common Stock (or rights,
warrants or options to acquire Razorfish Common Stock) that constitutes
more than twenty percent (20%) of the Razorfish Common Stock issued and
outstanding on the date of a definitive agreement in connection with
any acquisition or series of related acquisitions (including a merger
or consolidation) or asset purchase;
(iii) sell all, or substantially all, of the assets
of Razorfish;
(iv) amend Razorfish's certificate of
incorporation, by-laws or other comparable organizational documents in
any material respect;
(v) amend the Razorfish Stock Plans; provided,
however, that Razorfish shall be permitted to increase by up to one
million additional shares of Razorfish Common Stock for reservation,
listing and issuance thereunder;
(vi) in an amount in excess of $25 million, incur
any indebtedness for borrowed money or guarantee any such indebtedness
of another person, issue or sell any debt securities or warrants or
other rights to acquire any debt securities of Razorfish or any of its
subsidiaries, guarantee any debt securities of another person, enter
into any "keep well" or other agreement to maintain any financial
statement condition of another person or enter into any arrangement
having the economic effect of any of the foregoing, except for
short-term borrowings incurred in the ordinary course of business (or
to refund existing or maturing indebtedness) consistent with past
practice and except for intercompany indebtedness between i-Cube and
any of its subsidiaries or between such subsidiaries; and
(vii) take any action that would cause the
representations and warranties set forth in Section 3.02(g) to no
longer be true and correct;
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(viii) issue preferred stock of Razorfish or
securities which by their terms are convertible into preferred stock of
Razorfish; and
(ix) authorize, or commit or agree to take, any of
the foregoing actions;
provided, however, that Razorfish may take any of the foregoing prohibited
actions with the consent of the Chief Executive Officer of i-Cube, which consent
shall not be unreasonably withheld or delayed.
(c) OTHER ACTIONS. Except as required by law, i-Cube and
Razorfish shall not, and shall not permit any of their respective subsidiaries
to, voluntarily take any action that would, or that could reasonably be expected
to, result in (i) any of the representations and warranties of such party set
forth in this Agreement that are qualified as to materiality becoming untrue at
the Effective Time, (ii) any of such representations and warranties that are not
so qualified becoming untrue in any material respect at the Effective Time, or
(iii) any of the conditions to the Merger set forth in Article VI not being
satisfied.
(d) ADVICE OF CHANGES. i-Cube and Razorfish shall promptly
advise the other party orally and in writing to the extent it has knowledge of
(i) any representation or warranty made by it contained in this Agreement
becoming untrue or inaccurate in any respect where the failure of such
representation to be so true and correct (without giving effect to any
limitation as to "materiality" or "material adverse effect" set forth therein),
individually or in the aggregate, has had or is reasonably likely to have a
material adverse effect on it, (ii) the failure by it to comply in any material
respect with or satisfy in any material respect any covenant, condition or
agreement to be complied with or satisfied by it under this Agreement and (iii)
any change or event having, or which is reasonably likely to have, a material
adverse effect on such party or on the truth of their respective representations
and warranties or the ability of the conditions set forth in Article VI to be
satisfied; provided, however, that no such notification shall affect the
representations, warranties, covenants or agreements of the parties (or remedies
with respect thereto) or the conditions to the obligations of the parties under
this Agreement.
SECTION 4.02. NO SOLICITATION BY I-CUBE. (a) i-Cube shall not, nor
shall it permit any of its subsidiaries to, nor shall it authorize or permit any
of its directors, officers or employees or any investment banker, financial
advisor, attorney, accountant or other representative retained by it or any of
its subsidiaries to, directly or indirectly through another person, (i) solicit,
initiate or encourage (including by way of furnishing information), or take any
other action designed to facilitate, any inquiries or the making of any proposal
which constitutes an i-Cube Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding any i-Cube Takeover
Proposal; provided, however, that if, at any time prior to the date of the
i-Cube Stockholders Meeting (the "i-Cube Applicable Period"), the Board of
Directors of i-Cube determines in good faith, after consultation with outside
counsel, that it is legally advisable to do so in order to comply with its
fiduciary duties to i-Cube's stockholders under applicable law, i-Cube may, in
response to an i-Cube Superior Proposal (as defined in Section 4.02(b)) which
was not solicited by it or which did not otherwise result from a breach of this
Section 4.02(a), and subject to providing prior written notice of its decision
to take such action to Razorfish (a "Section 4.02 Notice") and compliance with
Section 4.02(c), (x) furnish information with respect to i-Cube and its
subsidiaries to any person making an i-Cube Superior Proposal pursuant to a
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customary confidentiality agreement (as determined by i-Cube after consultation
with its outside counsel) and (y) participate in discussions or negotiations
regarding such i-Cube Superior Proposal. For purposes of this Agreement, "i-Cube
Takeover Proposal" means any inquiry, proposal or offer from any person relating
to any direct or indirect acquisition or purchase of a business that constitutes
15% or more of the net revenues, net income or the assets of i-Cube and its
subsidiaries, taken as a whole, or 15% or more of any class of equity securities
of i-Cube or any of its subsidiaries, any tender offer or exchange offer that if
consummated would result in any person beneficially owning 15% or more of any
class of equity securities of i-Cube or any of its subsidiaries, or any merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving i-Cube or any of its subsidiaries, other than
the transactions contemplated by this Agreement.
(b) Except as expressly permitted by this Section 4.02,
neither the Board of Directors of i-Cube nor any committee thereof shall (i)
withdraw or modify, or propose publicly to withdraw or modify, in a manner
adverse to Razorfish, the approval or recommendation by such Board of Directors
or such committee of the Merger or this Agreement, (ii) approve or recommend, or
propose publicly to approve or recommend, any i-Cube Takeover Proposal, or (iii)
cause i-Cube to enter into any letter of intent, agreement in principle,
acquisition agreement or other similar agreement (each, a "i-Cube Acquisition
Agreement") related to any i-Cube Takeover Proposal, other than any such
agreement entered into concurrently with a termination pursuant to the next
sentence in order to facilitate such action. Notwithstanding the foregoing,
during the i-Cube Applicable Period, in response to an i-Cube Superior Proposal
which was not solicited by i-Cube and which did not otherwise result from a
breach of Section 4.02(a), the Board of Directors of i-Cube may (subject to this
and the following sentences) terminate this Agreement (and concurrently with or
after such termination, if it so chooses, cause i-Cube to enter into any i-Cube
Acquisition Agreement with respect to any i-Cube Superior Proposal), but only at
a time that is during the i-Cube Applicable Period and is after the fifth
business day following Razorfish's receipt of written notice advising Razorfish
that the Board of Directors of i-Cube is prepared to accept an i-Cube Superior
Proposal, specifying the material terms and conditions of such i-Cube Superior
Proposal and identifying the person making such i-Cube Superior Proposal. For
purposes of this Agreement, a "i-Cube Superior Proposal" means any proposal made
by a third party to acquire, directly or indirectly, including pursuant to a
tender offer, exchange offer, merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction, for
consideration consisting of cash and/or securities, more than 50% of the
combined voting power of the shares of i-Cube Common Stock then outstanding or
all or substantially all the assets of i-Cube and otherwise on terms which the
Board of Directors of i-Cube determines in its good faith judgment (based on the
advice of a financial advisor of nationally recognized reputation) to be more
favorable to i-Cube's stockholders than the Merger and for which financing, to
the extent required, is then committed or which, in the good faith judgment of
the Board of Directors of i-Cube, is reasonably capable of being obtained by
such third party.
(c) In addition to the obligations of i-Cube set forth in
paragraphs (a) and (b) of this Section 4.02, i-Cube shall immediately advise
Razorfish orally and in writing of any request for information or of any i-Cube
Takeover Proposal, the material terms and conditions of such request or i-Cube
Takeover Proposal and the identity of the person making such request or i-Cube
Takeover Proposal. i-Cube will keep Razorfish informed of the status and details
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(including amendments or proposed amendments) of any such request or i-Cube
Takeover Proposal.
(d) Nothing contained in this Section 4.02 shall prohibit
i-Cube 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 i-Cube's stockholders if, in the good faith judgment of the Board of
Directors of i-Cube, after consultation with outside counsel, failure so to
disclose would be inconsistent with its obligations under applicable law;
provided, however, that neither i-Cube nor its Board of Directors nor any
committee thereof shall withdraw or modify, or propose publicly to withdraw or
modify, its position with respect to this Agreement or the Merger or approve or
recommend, or propose publicly to approve or recommend, an i-Cube Takeover
Proposal.
SECTION 4.03. Standstill Agreements; Confidentiality Agreements. During
the period from the date of this Agreement through the Effective Time, neither
i-Cube nor Razorfish shall terminate, amend, modify or waive any provision of
any confidentiality or standstill agreement to which it or any of its respective
subsidiaries is a party. During such period, i-Cube or Razorfish, as the case
may be, shall enforce, to the fullest extent permitted under applicable law, the
provisions of any such agreement, including by obtaining injunctions to prevent
any breaches of such agreements and to enforce specifically the terms and
provisions thereof in any court of the United States of America or of any state
having jurisdiction.
ARTICLE V
Additional Agreements
SECTION 5.01. Preparation of the Form S-4 and the Joint Proxy
Statement; Stockholders Meetings. (a) As soon as practicable following the date
of this Agreement, i-Cube and Razorfish shall prepare and file with the SEC the
Joint Proxy Statement and Razorfish shall prepare and file with the SEC the Form
S-4, in which the Joint Proxy Statement will be included as a prospectus. Each
of i-Cube and Razorfish shall use reasonable efforts to have the Form S-4
declared effective under the Securities Act as promptly as practicable after
such filing. i-Cube will use all reasonable efforts to cause the Joint Proxy
Statement to be mailed to i-Cube's stockholders as promptly as practicable after
the Form S-4 is declared effective under the Securities Act. Razorfish will use
all reasonable efforts to cause the Joint Proxy Statement to be mailed to
Razorfish's stockholders as promptly as practicable after the Form S-4 is
declared effective under the Securities Act. Razorfish shall also take any
action (other than qualifying to do business in any jurisdiction in which it is
not now so qualified or to file a general consent to service of process)
required to be taken under any applicable state securities laws in connection
with the issuance of Razorfish Common Stock in the Merger and i-Cube shall
furnish all information concerning i-Cube and the holders of i-Cube Common Stock
as may be reasonably requested in connection with any such action. No filing of,
or amendment or supplement to, the Form S-4 will be made by Razorfish, or the
Joint Proxy Statement will be made by either Razorfish or i-Cube, without
providing the other party the opportunity to review and comment thereon.
Razorfish will advise i-Cube, promptly after it receives notice thereof, of the
time when the Form S-4 has become effective or any supplement or amendment has
been filed, the issuance
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of any stop order, the suspension of the qualification of the Razorfish Common
Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Form S-4 or
comments thereon and responses thereto or requests by the SEC for additional
information. If at any time prior to the Effective Time any information relating
to i-Cube or Razorfish, or any of their respective affiliates, officers or
directors, should be discovered by i-Cube or Razorfish which should be set forth
in an amendment or supplement to any of the Form S-4 or the Joint Proxy
Statement, so that any of such documents would not include any misstatement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, the party which discovers such information shall promptly notify
the other parties hereto and an appropriate amendment or supplement describing
such information shall be promptly filed with the SEC and, to the extent
required by law, disseminated to the stockholders of i-Cube and Razorfish.
(b) i-Cube shall, as soon as practicable following the date of
this Agreement, duly call, give notice of, convene and hold a meeting of its
stockholders (the "i-Cube Stockholders Meeting") for the purpose of obtaining
the i-Cube Stockholder Approval and shall, through its Board of Directors,
recommend to its stockholders the approval and adoption of this Agreement, the
Merger and the other transactions contemplated hereby. Without limiting the
generality of the foregoing but subject to its rights to terminate this
Agreement pursuant to Section 4.02(b), i-Cube agrees that its obligations
pursuant to the first sentence of this Section 5.01(b) shall not be affected by
the commencement, public proposal, public disclosure or communication to i-Cube
of any i-Cube Takeover Proposal.
(c) Razorfish shall, as soon as practicable following the date
of this Agreement, duly call, give notice of, convene and hold a meeting of its
stockholders (the "Razorfish Stockholders Meeting") for the purpose of obtaining
the Razorfish Stockholder Approval and shall, through its Board of Directors,
recommend to its stockholders the approval and adoption of this Agreement, the
Merger and the other transactions contemplated hereby.
(d) i-Cube and Razorfish will use best efforts to hold the
i-Cube Stockholders Meeting and the Razorfish Stockholders Meeting on the same
day as soon as reasonably practicable after the date hereof.
(e) Concurrently herewith, each of Lawrence P. Begley, Gregory
S. Young, John A. Young, Patric J. Zilvitis, Thomas J. Meredith, Michael Pehl,
Joseph M. Tucci, Sundar Subramaniam, Madhav Anand and Chris Mathias (the "i-Cube
Shareholder Group") has entered into the i-Cube Voting Agreement with Razorfish
in substantially the form attached hereto as EXHIBIT A.
(f) Concurrently herewith, each of Spray Ventures AB,
Communicade, Inc., Jeffrey A. Dachis and Craig M. Kanarick, (the "Razorfish
Shareholder Group") has entered into the Razorfish Voting Agreement with i-Cube
in the form attached hereto as EXHIBIT A-1.
SECTION 5.02. Letters of i-Cube's Accountants. (a) i-Cube shall use
reasonable efforts to cause to be delivered to Razorfish two letters from
i-Cube's independent accountants, one dated a date within two business days
before the date on which the Form S-4 shall become
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effective and one dated a date within two business days before the Closing Date,
each addressed to Razorfish, in form and substance reasonably satisfactory to
Razorfish and customary in scope and substance for comfort letters delivered by
independent public accountants in connection with registration statements
similar to the Form S-4.
(b) i-Cube shall provide reasonable cooperation to each of
Razorfish's independent accountants and i-Cube's independent accountants to
enable them to issue the letters referred to in Section 6.01(f) and shall use
reasonable efforts to cause them to do so.
SECTION 5.03. Letters of Razorfish's Accountants. (a) Razorfish shall
use reasonable efforts to cause to be delivered to i-Cube two letters from
Razorfish's independent accountants, one dated a date within two business days
before the date on which the Form S-4 shall become effective and one dated a
date within two business days before the Closing Date, each addressed to i-Cube,
in form and substance reasonably satisfactory to i-Cube and customary in scope
and substance for comfort letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4.
(b) Razorfish shall provide reasonable cooperation to each of
Razorfish's independent accountants and i-Cube's independent accountants to
enable them to issue the letters referred to in Section 6.01(f) and shall use
reasonable efforts to cause them to do so. SECTION 5.04. Access to Information;
Confidentiality. Subject to the Nondisclosure Agreement dated, May 28, 1999
between Razorfish and i-Cube (the "Confidentiality Agreement"), each of
Razorfish and i-Cube shall, and shall cause each of its respective subsidiaries
to, afford to the other party and to the officers, employees, accountants,
counsel, financial advisors and other representatives of such other party,
reasonable access during normal business hours during the period prior to the
Effective Time to all their respective properties, books, contracts,
commitments, personnel and records and, during such period, each of i-Cube and
Razorfish shall, and shall cause each of its respective subsidiaries to, furnish
promptly to the other party (a) a copy of each report, schedule, registration
statement and other document filed by it during such period pursuant to the
requirements of federal or state securities laws and (b) all other information
concerning its business, properties and personnel as such other party may
reasonably request. Neither Razorfish nor i-Cube shall be required to provide
access to or disclose information where such access or disclosure would
contravene any law, rule, regulation, order or decree. No review pursuant to
this Section 5.04 shall have an effect for the purpose of determining the
accuracy of any representation or warranty given by either party hereto to the
other party hereto. Each of i-Cube and Razorfish will hold, and will cause its
respective officers, employees, accountants, counsel, financial advisors and
other representatives and affiliates to hold, any nonpublic information in
accordance with the terms of the Confidentiality Agreement.
SECTION 5.05. Commercially Reasonable Best Efforts. (a) Upon the terms
and subject to the conditions set forth in this Agreement, each of the parties
agrees to use commercially reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by this Agreement, including (i)
the obtaining of all necessary actions or nonactions, waivers, consents and
approvals from Governmental Entities
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and the making of all necessary registrations and filings and the taking of all
steps as may be necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by, any Governmental Entity, (ii) the obtaining of all
necessary consents, approvals or waivers from third parties, (iii) the defending
of any lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated
by this Agreement, including seeking to have any stay or temporary restraining
order entered by any court or other Governmental Entity vacated or reversed, and
(iv) the execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the purposes
of, this Agreement.
(b) In connection with and without limiting the foregoing,
i-Cube and Razorfish shall (i) take all action necessary to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
the Merger, this Agreement, or any of the other transactions contemplated by
this Agreement and (ii) if any state takeover statute or similar statute or
regulation becomes applicable to the Merger, this Agreement, or any other
transaction contemplated by this Agreement, take all action necessary to ensure
that the Merger and the other transactions contemplated by this Agreement may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to minimize the effect of such statute or regulation on
the Merger and the other transactions contemplated by this Agreement.
SECTION 5.06. Stock Options. (a) As soon as practicable following the
date of this Agreement, the Board of Directors of i-Cube (or, if appropriate,
any committee administering the i-Cube Stock Plans) shall adopt such resolutions
or take such other actions as may be required to effect the following:
(i) adjust the terms of all outstanding i-Cube
Stock Options granted under i-Cube Stock Plans, whether vested or
unvested, as necessary to provide that, at the Effective Time, each
i-Cube Stock Option outstanding immediately prior to the Effective Time
shall be amended and converted into an option to acquire, on the same
terms and conditions as were applicable under such i-Cube Stock Option
(as modified by the terms of an agreement (referred to in Section
3.01(k) of the i-Cube Disclosure Schedule) in effect on the date hereof
between i-Cube and the holder of such i-Cube Stock Option as disclosed
to Razorfish prior to the date hereof), the same number of shares of
Razorfish Common Stock (rounded down to the nearest whole share) as the
holder of such i-Cube Stock Option would have been entitled to receive
pursuant to the Merger had such holder exercised such i-Cube Stock
Option in full immediately prior to the Effective Time, at a price per
share of Razorfish Common Stock (rounded up to the nearest whole cent)
equal to (A) the aggregate exercise price for the shares of i-Cube
Common Stock otherwise purchasable pursuant to such i-Cube Stock Option
divided by (B) the aggregate number of shares of Razorfish Common Stock
deemed purchasable pursuant to such i-Cube Stock Option (each, as so
adjusted, an "Adjusted Option"); and
(ii) make such other changes to the i-Cube Stock
Plans as i-Cube and Razorfish may agree are appropriate to give effect
to the Merger, including as provided in Section 5.07.
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(b) As soon as practicable after the Effective Time, Razorfish
shall deliver to the holders of i-Cube Stock Options appropriate notices setting
forth such holders' rights pursuant to the respective i-Cube Stock Plans and the
agreements evidencing the grants of such i-Cube Stock Options and that such
i-Cube Stock Options and agreements shall be assumed by Razorfish and shall
continue in effect on the same terms and conditions (subject to the adjustments
required by this Section 5.06 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted
Option in whole or in part in accordance with its terms by delivering a properly
executed notice of exercise to Razorfish, together with the consideration
therefor and the federal withholding tax information, if any, required in
accordance with the related i-Cube Stock Plan.
(d) Except as otherwise contemplated by this Section 5.06 and
except to the extent required under the respective terms of the i-Cube Stock
Options or any agreement (referred to in Section 3.01(j) of the i-Cube
Disclosure Schedule) in effect on the date hereof between i-Cube and a holder of
i-Cube Stock Options (as disclosed to Razorfish prior to the date hereof), all
restrictions or limitations on transfer and vesting with respect to i-Cube Stock
Options awarded under the i-Cube Stock Plans or any other plan, program or
arrangement of i-Cube or any of its subsidiaries, to the extent that such
restrictions or limitations shall not have already lapsed, shall remain in full
force and effect with respect to such options after giving effect to the Merger
and the assumption by Razorfish as set forth above.
SECTION 5.07. i-Cube Stock Plans. At the Effective Time, by virtue of
the Merger, the i-Cube Stock Plans shall be assumed by Razorfish, with the
result that all obligations of i-Cube under the i-Cube Stock Plans, including
with respect to awards outstanding at the Effective Time under each i-Cube Stock
Plan, shall be obligations of Razorfish following the Effective Time. Prior to
the Effective Time, Razorfish shall take all necessary actions (including, if
required to comply with Section 162(m) of the Code (and the regulations
thereunder) or applicable law or rule of the Nasdaq, obtaining the approval of
its stockholders at the next regularly scheduled annual meeting of Razorfish
following the Effective Time) for the assumption of the i-Cube Stock Plans,
including the reservation, issuance and listing of Razorfish Common Stock in a
number at least equal to the number of shares of Razorfish Common Stock that
will be subject to Adjusted Options. As soon as practicable following the
Effective Time, Razorfish shall prepare and file with the SEC a registration
statement on Form S-8 (or another appropriate form) registering a number of
shares of Razorfish Common Stock determined in accordance with the preceding
sentence. Such registration statement shall be kept effective (and the current
status of the prospectus or prospectuses required thereby shall be maintained)
at least for so long as Adjusted Options or any unsettled awards granted under
the i-Cube Stock Plans after the Effective Time remain outstanding.
SECTION 5.08. Employee Benefit Plans; Existing Agreements. (a) On a
date that shall be no later than the first anniversary of the Effective Time
(the "Benefits Date"), Razorfish shall provide, or cause to be provided,
employee benefit plans, programs and arrangements to employees of i-Cube that
are no less favorable in the aggregate than those made generally available to
non-represented employees of Razorfish who are hired by Razorfish after December
31, 1998. From the Effective Time to the Benefits Date (which the parties
acknowledge may occur on different dates with respect to different plans,
programs or arrangements of i-Cube) (the
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"Continuation Period"), Razorfish shall provide, or cause to be provided, the
employee benefit plans, programs and arrangements of i-Cube provided to
employees of i-Cube as of the date hereof; provided that during the Continuation
Period, employees of i-Cube shall be eligible for grants of stock options under
Razorfish's stock option plans to the same extent as similarly situated
employees of Razorfish.
(b) With respect to each benefit plan, program practice,
policy or arrangement maintained by Razorfish in which employees of i-Cube
subsequently participate (the "Razorfish Plans"), for purposes of determining
eligibility to participate, vesting, and entitlement to benefits, including for
severance benefits and vacation entitlement (but not for accrual of pension
benefits), service with i-Cube (or predecessor employers to the extent i-Cube
provides past service credit) shall be treated as service with Razorfish;
provided, however, that such service shall not be recognized to the extent that
such recognition would result in a duplication of benefits. Such service also
shall apply for purposes of satisfying any waiting periods, evidence of
insurability requirements, or the application of any pre-existing condition
limitations. Each Razorfish Plan shall waive pre-existing condition limitations
to the same extent waived under the applicable i-Cube Benefit Plan.
SECTION 5.09. Indemnification, Exculpation and Insurance. (a) Razorfish
agrees that all rights to indemnification and exculpation from liabilities for
acts or omissions occurring at or prior to the Effective Time now existing in
favor of the current or former directors or officers of i-Cube and its
subsidiaries as provided in their respective certificates of incorporation or
by-laws (or comparable organizational documents) and any indemnification
agreements of i-Cube, the existence of which does not constitute a breach of
this Agreement, shall be assumed by the Surviving Corporation in the Merger,
without further action, as of the Effective Time and shall survive the Merger
and shall continue in full force and effect in accordance with their terms, and
Razorfish shall cause the Surviving Corporation to honor all such rights.
(b) In the event that the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person and
is not the continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfers or conveys all or substantially all of its
properties and assets to any person, then, and in each such case, Razorfish
shall cause proper provision to be made so that the successors and assigns of
the Surviving Corporation assume the obligations set forth in this Section 5.09.
(c) For six years after the Effective Time, Razorfish shall
maintain in effect i-Cube's current directors' and officers' liability insurance
covering acts or omissions occurring prior to the Effective Time with respect to
those persons who are currently covered by i-Cube's directors' and officers'
liability insurance policy on terms with respect to such coverage and amount no
less favorable than those of such policy in effect on the date hereof; provided
that Razorfish may substitute therefor policies of Razorfish or its
subsidiaries; provided further, that if the existing or substituted directors'
and officers' liability insurance expires, is terminated or canceled during such
six-year period, Razorfish will obtain as much directors' and officers'
liability insurance as can be obtained for the remainder of such period for a
premium not in excess of 150% of the aggregate premiums paid by i-Cube in 1998
on an annualized basis for such purpose and that in no event shall Razorfish be
required to pay aggregate premiums for
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insurance under this Section 5.09(c) in excess of 150% of amount of aggregate
premiums paid by i-Cube in 1998 on an annualized basis for such purpose.
(d) The provisions of this Section 5.09 (i) are intended to be
for the benefit of, and will be enforceable by, each indemnified party, his or
her heirs and his or her representatives and (ii) are in addition to, and not in
substitution for, any other rights to indemnification or contribution that any
such person may have by contract or otherwise.
SECTION 5.10. Fees and Expenses. (a) Except as provided in this
Section 5.10, all fees and expenses incurred in connection with the Merger, this
Agreement, and the transactions contemplated by this Agreement shall be paid by
the party incurring such fees or expenses, whether or not the Merger is
consummated, except that each of Razorfish and i-Cube shall bear and pay
one-half of (1) the costs and expenses incurred in connection with the filing,
printing and mailing of the Form S-4 and the Joint Proxy Statement (including
SEC filing fees) and (2) the filing fees for the premerger notification and
report forms under the HSR Act.
(b) In the event that (1) a bona fide i-Cube Takeover Proposal
shall have been made directly to the stockholders of i-Cube generally or shall
have otherwise become publicly known or any person shall have publicly announced
an intention (whether or not conditional) to make an i-Cube Takeover Proposal
and thereafter this Agreement is terminated by either Razorfish or i-Cube
pursuant to Section 7.01(b)(i) or (ii) or (2) this Agreement is terminated (x)
by i-Cube pursuant to Section 7.01(f) or (y) by Razorfish pursuant to Section
7.01(d), then i-Cube shall promptly, but in no event later than the date of such
termination, pay Razorfish a fee equal to $23.5 million (the "i-Cube Termination
Fee"), payable by wire transfer of same day funds; provided, however, that no
i-Cube Termination Fee shall be payable to Razorfish pursuant to clause (1) of
this paragraph (b) or pursuant to a termination by Razorfish pursuant to Section
7.01(d) unless and until within 12 months of such termination i-Cube or any of
its subsidiaries enters into any definitive agreement with respect to, or
consummates, any i-Cube Takeover Proposal made during the term of this Agreement
(for the purposes of the foregoing proviso the term "i-Cube Takeover Proposal"
shall have the meaning assigned to such term in Section 4.02 except that the
references to "15%" in the definition of "i-Cube Takeover Proposal" in Section
4.02(a) shall be deemed to be references to "50%" and "i-Cube Takeover Proposal"
shall only be deemed to refer to a transaction involving i-Cube, or with respect
to assets (including the shares of any subsidiary), i-Cube and its subsidiaries,
taken as a whole, and not any of its subsidiaries alone), in which event the
i-Cube Termination Fee shall be payable upon the first to occur of such events.
Notwithstanding the foregoing, if an i-Cube Takeover Proposal shall have been
made as described in clause (1) of this paragraph (b) and shall thereafter have
been publicly unconditionally withdrawn by the maker thereof prior to the event
giving rise to the termination of this Agreement referred to in clause (1) of
this paragraph (b), no i-Cube Termination Fee shall be payable by i-Cube to
Razorfish unless i-Cube or any of its subsidiaries enters into any definitive
agreement with respect to, or consummates, any i-Cube Takeover Proposal with the
same maker or any of its affiliates within the period of time set forth in the
proviso to the immediately preceding sentence. i-Cube acknowledges that the
agreements contained in this Section 5.10(b) are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
Razorfish would not enter into this Agreement; accordingly, if i-Cube fails
promptly to pay the amount due pursuant to this Section 5.10(b), and, in order
to obtain such payment, Razorfish commences a suit which results in a judgment
against i-Cube for the fee
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set forth in this Section 5.10(b), i-Cube shall pay to Razorfish its costs and
expenses (including attorneys' fees and expenses) in connection with such suit,
together with interest on the amount of the fee at the prime rate of Citibank,
N.A. in effect on the date such payment was required to be made.
SECTION 5.11. Public Announcements. Razorfish and i-Cube will consult
with each other before issuing, and provide each other the opportunity to
review, comment upon and concur with, any press release or other public
statements with respect to the transactions contemplated by this Agreement,
including the Merger, and shall not issue any such press release or make any
such public statement prior to such consultation, except as either party may
determine is required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange or
national trading system. The parties agree that the initial press release to be
issued with respect to the transactions contemplated by this Agreement shall be
in the form heretofore agreed to by the parties.
SECTION 5.12. Affiliates. As soon as practicable after the date hereof,
i-Cube shall deliver to Razorfish a letter identifying all persons who are, at
the time this Agreement is submitted for adoption by the stockholders of i-Cube,
"affiliates" of i-Cube for purposes of Rule 145 under the Securities Act or for
purposes of qualifying the Merger for pooling of interests accounting treatment
under Opinion 16 of the Accounting Principles Board and applicable SEC rules and
regulations. i-Cube shall use reasonable efforts to cause each such person to
deliver to Razorfish as of the Closing Date, a written agreement substantially
in the form attached as Exhibit B hereto.
SECTION 5.13. Nasdaq Quotation. Razorfish shall use reasonable efforts
to cause the Razorfish Common Stock issuable in the Merger to be approved for
quotation on Nasdaq, subject to official notice of issuance, as promptly as
practicable after the date hereof, and in any event prior to the Closing Date.
SECTION 5.14. Stockholder Litigation. Each of i-Cube and Razorfish
shall give the other the opportunity to participate in the defense of any
stockholder litigation against i-Cube or Razorfish as applicable and/or its
directors relating to the transactions contemplated by this Agreement and the
Voting Agreements.
SECTION 5.15. Tax Treatment. Each of Razorfish and i-Cube shall use
reasonable efforts to cause the Merger to qualify as a reorganization under the
provisions of Section 368 of the Code, and i-Cube shall obtain the opinion of
counsel referred to in Sections 6.03(c).
SECTION 5.16. Pooling of Interests. Each of i-Cube and Razorfish shall
use reasonable efforts to cause the transactions contemplated by this Agreement,
including the Merger and the Voting Agreement, to be accounted for as a pooling
of interests under Opinion 16 of the Accounting Principles Board and applicable
SEC rules and regulations, and Razorfish's and i-Cube's managements' conclusion
that such accounting treatment is appropriate for the Merger to be concurred
with by each of i-Cube's and Razorfish's auditors and by the SEC, respectively,
and each of i-Cube and Razorfish agrees that it shall voluntarily take no action
that would cause such accounting treatment not to be obtained.
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SECTION 5.17. Resignation of i-Cube Board of Directors. i-Cube shall
obtain written letters of resignation from each of the current members of the
i-Cube Board of Directors, in each case effective immediately after the
Effective Time.
SECTION 5.18. Action by i-Cube and Razorfish. Prior to the Effective
Time, the Board of Directors of Razorfish and the Board of Directors of i-Cube
shall each comply with the provisions of the SEC's no-action letter dated
January 12, 1999 addressed to Skadden, Arps, Slate, Meagher and Flom LLP
relating to Rule 16b.
SECTION 5.19. Board of Directors. On the Closing Date, the Board of
Directors of Razorfish shall consist of the following nine directors: Jeffrey A.
Dachis, Craig M. Kanarick, Per Bystedt, Jonas Svensson, Carter Bales, John Wren,
or if Mr. Wren is unable to serve, another executive officer of Omnicom Group,
Inc. reasonably acceptable to the CEO of Razorfish, Michael Pehl, Larry Begley
and one outside director designated by i-Cube.
SECTION 5.20. Chief Financial Officer. On or prior to the Closing Date,
Larry Begley shall be appointed Executive Vice President, Finance and Chief
Financial Officer of Razorfish.
SECTION 5.21. i-Cube Employee Bonuses. In the event that the Closing
Date occurs prior to December 31, 1999, i-Cube employee eligible to receive a
bonus for the 1999 calendar year pursuant to the terms and conditions of the
i-Cube bonus plan in effect immediately prior to the Closing Date (the "i-Cube
Bonus Plan") shall be eligible to receive such bonus pursuant to the i-Cube
Bonus Plan as administered by the Chief Executive Officer of Razorfish in
consultation with the Chief Executive Officer of i-Cube. i-Cube shall make all
revisions to the i-Cube Bonus Plan necessary to give effect to the foregoing.
ARTICLE VI
Conditions Precedent
SECTION 6.01. Conditions to Each Party's Obligation To Effect the Merger. The
respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Stockholder Approvals. Each of the i-Cube Stockholder
Approval and the Razorfish Stockholder Approval shall have been obtained.
(b) HSR Act. The waiting period (and any extension thereof)
applicable to the Merger under the HSR Act shall have been terminated or shall
have expired.
(c) No Litigation. No judgment, order, decree, statute, law,
ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued
by any court or other Governmental Entity of competent jurisdiction or other
legal restraint or prohibition (collectively, "Restraints") shall be in effect,
and there shall not be pending any suit, action or proceeding by any
Governmental Entity (i) preventing the consummation of the Merger or (ii) which
otherwise is reasonably likely to have a material adverse effect on i-Cube or
Razorfish, as applicable; provided, however, that each of the parties shall have
used its reasonable efforts to
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prevent the entry of any such Restraints and to appeal as promptly as possible
any such Restraints that may be entered.
(d) Form S-4. The Form S-4 shall have become effective under
the Securities Act prior to the mailing of the Joint Proxy Statement by each of
i-Cube and Razorfish to their respective stockholders and shall not be the
subject of any threatened or initiated stop order or proceedings seeking a stop
order.
(e) Nasdaq Quotation. The shares of Razorfish Common Stock
issuable to i-Cube's stockholders as contemplated by this Agreement shall have
been approved for quotation on Nasdaq, subject to official notice of issuance.
(f) Pooling Letters. Each of Razorfish and i-Cube shall have
received letters, dated as of the Closing Date, in each case addressed to
Razorfish and i-Cube, from ARTHUR ANDERSEN LLP and PRICEWATERHOUSECOOPERS LLP
stating in substance that pooling of interests accounting is appropriate for the
Merger under Opinion 16 of the Accounting Principles Board and applicable SEC
rules and regulations.
(g) Government Approvals. All necessary government approvals
shall have been obtained.
(h) No Injunction. No injunction or other order, decree or
ruling issued by any court of competent jurisdiction nor any statute, rule,
regulation or order entered, promulgated or enacted by any governmental,
regulatory or administrative agency or authority shall be in effect that would
prohibit or restrict the consummation of the Merger as contemplated hereby, or
shall be pending before any court, arbitrator or governmental agency, body or
official.
SECTION 6.02. Conditions to Obligations of Razorfish and Sub. The
obligation of Razorfish and Sub to effect the Merger is further subject to
satisfaction or waiver of the following conditions:
(a) Representations and Warranties. The representations and
warranties of i-Cube set forth herein shall be true and correct both when made
and at and as of the Closing Date, as if made at and as of such time (except to
the extent expressly made as of an earlier date, in which case as of such date),
except where the failure of such representations and warranties to be so true
and correct (without giving effect to any limitation as to "materiality" or
"material adverse effect" set forth therein) does not have, and is not
reasonably likely to have, individually or in the aggregate, a material adverse
effect on i-Cube.
(b) Performance of Obligations of i-Cube. i-Cube shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date.
(c) No Material Adverse Change. At any time after the date of
this Agreement there shall not have occurred any material adverse change
relating to i-Cube.
(d) The i-Cube Voting Agreement. The i-Cube Voting Agreements
shall have been observed and shall continue to be in full force and effect in
accordance with their terms.
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(e) Resignation of i-Cube Board of Directors. i-Cube shall
have received written letters of resignation from each of the current members of
the i-Cube Board of Directors, in each case effective immediately after the
Effective Time.
SECTION 6.03. Conditions to Obligations of i-Cube. The obligation of
i-Cube to effect the Merger is further subject to satisfaction or waiver of the
following conditions:
(a) Representations and Warranties. The representations and
warranties of Razorfish and Sub set forth herein shall be true and correct both
when made and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such date), except where the failure of such representations and warranties to
be so true and correct (without giving effect to any limitation as to
"materiality" or "material adverse effect" set forth therein) does not have, and
is not reasonably likely to have, individually or in the aggregate, a material
adverse effect on Razorfish.
(b) Performance of Obligations of Razorfish and Sub. Razorfish
and Sub shall have performed in all material respects all obligations required
to be performed by them under this Agreement at or prior to the Closing Date.
(c) Tax Opinion. i-Cube shall have received from Hale and Dorr
LLP, counsel to i-Cube, on the date which the Form S-4 is declared effective by
the SEC and on the Closing Date, an opinion, in each case dated as of such
respective date and stating that the Merger will qualify for U.S. Federal income
tax purposes as a reorganization within the meaning of Section 368(a) of the
Code. The issuance of such opinion shall be conditioned up the receipt by such
tax counsel of customary representation letters from i-Cube, Razorfish and Sub
in form and substance reasonably satisfactory to such tax counsel.
(d) No Material Adverse Change. At any time after the date of
this Agreement there shall not have occurred any material adverse change
relating to Razorfish.
(e) The Razorfish Voting Agreement. The Razorfish Voting
Agreements shall have been observed and shall continue to be in full force and
effect in accordance with their terms.
SECTION 6.04. Frustration of Closing Conditions. Neither Razorfish, Sub
nor i-Cube may rely on the failure of any condition set forth in Section 6.01,
6.02 or 6.03, as the case may be, to be satisfied if such failure was caused by
such party's failure to use reasonable efforts to consummate the Merger and the
other transactions contemplated by this Agreement, as required by and subject to
Section 5.05.
ARTICLE VII
Termination, Amendment and Waiver
SECTION 7.01. Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after the i-Cube Stockholder
Approval or the Razorfish Stockholder Approval:
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(a) by mutual written consent of Razorfish, Sub and i-Cube;
(b) by either Razorfish or i-Cube:
(i) if the Merger shall not have been consummated
by January 31, 2000; provided, however, that the right to terminate
this Agreement pursuant to this Section 7.01(b)(i) shall not be
available to any party whose failure to perform any of its obligations
under this Agreement results in the failure of the Merger to be
consummated by such time;
(ii) if the i-Cube Stockholder Approval shall not
have been obtained at an i-Cube Stockholder Meeting duly convened
therefor or at any adjournment or postponement thereof;
(iii) if the Razorfish Stockholder Approval shall
not have been obtained at a Razorfish Stockholder Meeting duly convened
therefor or at any adjournment or postponement thereof;
(iv) if any Restraint having any of the effects
set forth in Section 6.01(c) shall be in effect and shall have become
final and nonappealable; provided that the party seeking to terminate
this Agreement pursuant to this Section 7.01(b)(iv) shall have used
reasonable efforts to prevent the entry of and to remove such
Restraint;
(c) by Razorfish, if i-Cube shall have breached or failed to
perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform (A) would give rise to the failure of a condition set forth
in Section 6.02 (a) or (b), and (B) is incapable of being cured by i-Cube within
30 calendar days;
(d) by Razorfish, if i-Cube or any of its directors or
officers shall participate in discussions or negotiations in breach (other than
an immaterial breach) of Section 4.02;
(e) by i-Cube, if Razorfish shall have breached or failed to
perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform (A) would give rise to the failure of a condition set forth
in Section 6.03(a) or (b), and (B) is incapable of being cured by Razorfish
within thirty calendar days; or
(f) by i-Cube in accordance with Section 4.02(b); provided
that, in order for the termination of this Agreement pursuant to this paragraph
(f) to be deemed effective, i-Cube shall have complied with all provisions of
Section 4.02, including the notice provisions therein, and with applicable
requirements, including the payment of the i-Cube Termination Fee, of Section
5.10.
SECTION 7.02. Effect of Termination. In the event of termination of
this Agreement by either i-Cube or Razorfish as provided in Section 7.01, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Razorfish or i-Cube, other than the provisions of
Section 3.01(p), Section 3.02(o), the last sentence of Section 5.04,
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Section 5.10, this Section 7.02 and Article VIII, which provisions survive such
termination, and except to the extent that such termination results from the
willful and material breach by a party of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
SECTION 7.03. Amendment. This Agreement may be amended by the parties
at any time before or after the i-Cube Stockholder Approval or the Razorfish
Stockholder Approval; provided, however, that after any such approval, there
shall not be made any amendment that by law requires further approval by the
stockholders of i-Cube or the approval of the stockholders of Razorfish 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.
SECTION 7.04. Extension; Waiver. At any time prior to the Effective
Time, a party may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties of the other parties contained in this
Agreement or in any document delivered pursuant to this Agreement or (c) subject
to the proviso of Section 7.03, waive compliance by the other party with any of
the agreements or conditions contained in this Agreement. Any agreement on the
part of a party to any such extension or waiver shall 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 shall not constitute a waiver of such rights.
SECTION 7.05. Procedure for Termination, Amendment, Extension or
Waiver. A termination of this Agreement pursuant to Section 7.01, an amendment
of this Agreement pursuant to Section 7.03 or an extension or waiver pursuant to
Section 7.04 shall, in order to be effective, require, in the case of Razorfish
or i-Cube, action by its Board of Directors or, with respect to any amendment to
this Agreement, the duly authorized committee of its Board of Directors to the
extent permitted by law.
ARTICLE VIII
General Provisions
SECTION 8.01. Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time. This
Section 8.01 shall not limit any covenant or agreement of the parties which by
its terms contemplates performance after the Effective Time.
SECTION 8.02. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall 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):
(a) if to Razorfish or Sub, to
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107 Grand Street, 3rd Floor
New York, NY 10013
Telephone No.: (212) 966-5960
Telecopy No.: (212) 966-6915
Attention: Michael S. Simon, Esq.
with a copy to:
Morrison & Foerster, LLP
1290 Avenue of the Americas
New York, NY 10104
Telephone No.: (212) 468-8000
Telecopy No.: (212) 468-7900
Attention: Mark L. Mandel, Esq.
(b) if to i-Cube, to
101 Main Street
Cambridge, MA 02142
Telephone No.: (617) 250-2500
Telecopy No.: (617) 225-2471
Attention: David Samuels, Esq.
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Telephone No.: (617) 526-6000
Telecopy No.: (617) 526-5000
Attention: Peter B. Tarr, Esq.
Jeffrey A. Stein, Esq.
SECTION 8.03. Definitions. For purposes of this Agreement:
(a) an "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common
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control with, such first person, where "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
policies of a person, whether through the ownership of voting securities, by
contract, as trustee or executor, or otherwise;
(b) "material adverse change" or "material adverse effect"
means, when used in connection with i-Cube or Razorfish, any change, effect,
event, occurrence or state of facts that is, or is reasonably likely to be,
materially adverse to the business, financial condition or results of operations
of such party and its subsidiaries taken as a whole; provided, however, the
following are deemed not to constitute either a material adverse change or
material adverse effect, either alone or in combination: (i) a change in the
market price or trading volume of either Razorfish Common Stock or i-Cube Common
Stock; (ii) conditions affecting the information technology services or digital
communications industries; (iii) conditions affecting the U.S. economy, as a
whole; (iv) any effect arising primarily out of or resulting primarily from
actions contemplated by the parties in connection with the Agreement or which is
primarily attributable to the announcement of the Agreement and the transactions
contemplated thereby (to the extent so attributable); and (v) actions or events
permitted under the Agreement;
(c) "person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity;
(d) a "subsidiary" of any person means another person, an
amount of the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its Board of
Directors or other governing body (or, if there are no such voting interests,
50% or more of the equity interests of which) is owned directly or indirectly by
such first person;
(e) "knowledge" of any person which is not an individual
means, with respect to any specific matter, the knowledge of such person's
executive officers and other officers having primary responsibility for such
matter, in each case obtained in the conduct of their duties after due inquiry;
and
(f) "business day" means any day other than Saturday, Sunday
or any other day on which banks are legally permitted to be closed in New York.
SECTION 8.04. Interpretation. When a reference is made in this
Agreement to an Article, Section or Exhibit, such reference shall be to an
Article or Section of, or an Exhibit to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. All
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any agreement,
instrument or statute defined or referred to herein or in any
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agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a person are also to its permitted successors and assigns.
SECTION 8.05. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 8.06. Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein), the
i-Cube Voting Agreement, the Razorfish Voting Agreement and the Confidentiality
Agreement (a) constitute the entire agreement, and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement and (b) except for the
provisions of Article II, Section 5.06, Section 5.08, and Section 5.09, are not
intended to confer upon any person other than the parties any rights or
remedies.
SECTION 8.07. Governing Law. This Agreement shall 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.
SECTION 8.08. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by either of the parties hereto without
the prior written consent of the other party. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 8.09. 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 shall 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, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (a) 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, (b) 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 (c) 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.
SECTION 8.10. 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.
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SECTION 8.11. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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WITNESS WHEREOF, Razorfish, Sub and i-Cube have caused this Agreement
to be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
RAZORFISH, INC.
by _________________________________________
Name:
Title:
RAY MERGER SUB, INC.
by _________________________________________
Name:
Title:
INTERNATIONAL INTEGRATION INCORPORATED
by _________________________________________
Name:
Title:
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Index of Defined Terms
Term Page
Adjusted Option....................................... 37
affiliate............................................. 48
Agreement............................................. 1
Benefits Date......................................... 38
business day.......................................... 49
Certificate of Merger................................. 2
Certificates.......................................... 3
Closing............................................... 2
Closing Date.......................................... 2
Code.................................................. 1
Common Shares Trust................................... 5
Confidentiality Agreement............................. 35
Continuation Period................................... 38
control............................................... 48
DGCL.................................................. 1
Effective Time........................................ 1
ERISA................................................. 12
Exchange Act.......................................... 9
Exchange Agent........................................ 3
Exchange Fund......................................... 3
Exchange Ratio........................................ 3
Form S-4.............................................. 10
Governmental Entity................................. 9
HSR Act............................................... 15
i-Cube................................................ 1
i-Cube Acquisition Agreement.......................... 31
i-Cube Applicable Period 35
i-Cube Authorized Preferred Stock..................... 7
i-Cube Benefit Plans.................................. 12
i-Cube Common Stock................................... 1
i-Cube Disclosure Schedule............................ 6
i-Cube Filed SEC Documents............................ 10
i-Cube Permits........................................ 11
i-Cube SEC Documents.................................. 9
i-Cube Stock Options.................................. 7
i-Cube Stock Plans.................................... 7
i-Cube Stockholder Approval........................... 14
i-Cube Stockholders Meeting........................... 34
i-Cube Superior Proposal.............................. 31
i-Cube Takeover Proposal 29
i-Cube Termination Fee................................ 40
i-Cube Voting Agreement............................... 1
Intellectual Property Rights.......................... 15
Joint Proxy Statement................................. 9
knowledge............................................. 48
Liens................................................. 7
material adverse change............................... 48
material adverse effect............................... 48
Merger................................................ 1
Merger Consideration.................................. 1
Nasdaq................................................ 3
Parachute Gross-Up Payment............................ 13
person................................................ 48
Razorfish............................................. 1
Razorfish Acquisition Agreement....................... 33
Razorfish Applicable Period........................... 32
Razorfish Authorized Preferred Stock.................. 17
Razorfish Common Stock................................ 3
Razorfish Disclosure Schedule......................... 16
Razorfish Filed SEC Documents......................... 19
Razorfish Permits..................................... 20
Razorfish Plans....................................... 38
Razorfish SEC Documents............................... 19
Razorfish Stock Plans................................. 17
Razorfish Voting Agreement............................ 1
Restraints............................................ 43
SARs.................................................. 7
SEC................................................... 7
Section 4.02 Notice................................... 31
Securities Act........................................ 9
Sub................................................... 1
subsidiary............................................ 48
Surviving Corporation................................. 1
taxes................................................. 14
