Exhibit 99.5
STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT ("Agreement"), dated as of July 15, 2004,
by and between Modem Media, Inc., a Delaware corporation (the "Seller"),
and the undersigned holder of common stock, par value $0.001 per share, of
Digitas Inc., a Delaware corporation ("Stockholder").
WHEREAS, concurrently with the execution of this Agreement, Digitas Inc.,
a Delaware corporation (the "Buyer"), Digitas Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of the Buyer ("Merger Sub") and the
Seller, have entered into an Agreement and Plan of Merger, dated of even date
herewith (as such agreement may be subsequently amended or modified, the
"Agreement and Plan of Merger"), providing for the merger of Merger Sub with
and into the Seller (the "Merger");
WHEREAS, the Stockholder beneficially owns and has sole or shared voting
power with respect to the number of shares of common stock, par value $0.001
per share, of the Buyer, and holds stock options or other rights to acquire the
number of shares of such common stock, indicated opposite the Stockholder's
name on Schedule 1 attached hereto (together with any such shares subsequently
acquired prior to the Expiration Date, the "Shares"); and
WHEREAS, the Seller desires the Stockholder to agree, and the Stockholder
is willing to agree to vote the Shares in a manner so as to facilitate
consummation of the Merger, as provided herein; and
WHEREAS, all capitalized terms used in this Agreement without definition
herein shall have the meanings ascribed to them in the Agreement and Plan of
Merger.
NOW, THEREFORE, in consideration of, and as a condition to, the Seller
entering into the Agreement and Plan of Merger and proceeding with the
transactions contemplated thereby, and in consideration of the expenses
incurred and to be incurred by the Seller in connection therewith, the
Stockholder and the Seller agree as follows:
1. Agreement to Vote Shares. The Stockholder agrees that, from and after
the date hereof until the Expiration Date (as defined below), at any meeting of
the stockholders of the Buyer (or adjournment or postponement thereof), or in
connection with any written consent of the stockholders of the Buyer, with
respect to the Merger, the Agreement and Plan of Merger or any Acquisition
Proposal, Stockholder shall:
(a) appear at such meeting or otherwise cause the Shares that such
Stockholder shall be entitled to so vote at such meeting to be
counted as present thereat for purposes of calculating a quorum;
(b) vote (or cause to be voted), or deliver a written consent (or cause a
consent to be delivered) covering all of the Shares that such
Stockholder shall be entitled to so vote, whether such Shares are
beneficially owned by such
1
Stockholder on the date of this Agreement or are subsequently
acquired, (i) in favor of approval of the issuance of the shares of
common stock, par value $.01 per share, of the Buyer to be issued as
consideration in the Merger; (ii) against any action or agreement
that would reasonably be expected to result in a breach of any
covenant, representation, or warranty or any other obligation or
agreement of the Seller contained in the Agreement and Plan of Merger
such that the conditions to closing set forth in Section 7.3 of the
Agreement and Plan of Merger would not be satisfied; and (iii)
against the approval or adoption of any Acquisition Proposal relating
to the Buyer that is conditioned on, or the terms of which depend on,
the Merger not being consummated, or any agreement or transaction
that is intended, or would reasonably be expected, to materially
impede, interfere with, delay, postpone, discourage or materially and
adversely affect the consummation of the Merger or any of the
transactions contemplated by the Agreement and Plan of Merger;
2. Expiration Date. As used in this Agreement, the term "Expiration Date"
shall mean the earlier to occur of (i) the Effective Time; (ii) such date and
time as the Agreement and Plan of Merger shall be terminated pursuant to
Article VIII thereof, or (iii) upon mutual written agreement of the parties to
terminate this Agreement. Upon termination or expiration of this Agreement, no
party shall have any further obligations or liabilities under this Agreement;
provided however, such termination or expiration shall not relieve any party
from liability for any willful breach of this Agreement prior to termination
hereof.
3. Representations and Warranties of Stockholder. The Stockholder hereby
represents and warrants to the Seller as follows:
(a) Stockholder has the full power and the unqualified right to enter
into and perform the terms of this Agreement;
(b) This Agreement (assuming this Agreement constitutes a valid and
binding agreement of the Seller) constitutes a valid and binding
agreement with respect to Stockholder, enforceable against
Stockholder in accordance with its terms, except as enforcement may
be limited by general principles of equity whether applied in a court
of law or a court of equity and by bankruptcy, insolvency and similar
laws affecting creditors' rights and remedies generally;
(c) Except as set forth on Schedule 1, the Stockholder beneficially owns
the number of Shares indicated opposite such Stockholder's name on
Schedule 1, free and clear of any liens, claims, charges or other
encumbrances or restrictions of any kind whatsoever ("Liens"), and
has sole or shared, and otherwise unrestricted, voting power with
respect to such Shares;
2
(d) The execution and delivery of this Agreement by Stockholder does not,
and the performance by Stockholder of his or her obligations
hereunder and the consummation by Stockholder of the transactions
contemplated hereby will not, violate or conflict with, or constitute
a default under, any agreement, instrument, contract or other
obligation or any order, arbitration award, judgment or decree to
which Stockholder is a party or by which Stockholder is bound, or any
statute, rule or regulation to which Stockholder is subject or, in
the event that Stockholder is a corporation, partnership, trust or
other entity, any bylaw or other organizational document of
Stockholder.
4. Representation and Warranties of the Seller. The Seller hereby
represents and warrants to Stockholder as follows:
(a) The Seller is a Delaware corporation duly incorporated, validly
existing and in good standing under the laws of the state of
Delaware;
(b) The execution, delivery and performance by the Seller of this
Agreement has been duly authorized and approved by its Board of
Directors;
(c) This Agreement has been duly executed and delivered by the Seller,
and (assuming this Agreement constitutes a valid and binding
agreement of Stockholder) constitutes a valid and binding agreement
with respect to the Seller, enforceable against it in accordance with
its terms, except as enforcement may be limited by general principles
of equity whether applied in a court of law or a court of equity and
by bankruptcy, insolvency and similar laws affecting creditors'
rights and remedies generally;
(d) The execution and delivery of this Agreement by the Seller does not,
and the performance by the Seller of its obligations hereunder and
the consummation by the Seller of the transactions contemplated
hereby will not, violate or conflict with, or constitute a default
under, any agreement, instrument, contract or other obligation or any
order, arbitration award, judgment or decree to which the Seller is a
party or by which the Seller is bound, or any statute, rule or
regulation to which the Seller is subject or, the charter or bylaws
of the Seller.
5. Irrevocable Proxy. Subject to the last sentence of this Section 5, by
execution of this Agreement, Stockholder does hereby appoint and constitute the
Seller and the Chief Executive Officer and Chief Financial Officer of the
Seller, in their respective capacities as officers of the Seller and any
individual who shall hereafter succeed to any such office of the Seller and any
other designee of the Seller, and each of them individually, with full power of
substitution and resubstitution, as Stockholder's true and lawful
attorneys-in-fact and irrevocable proxies, to the full extent of the
undersigned's rights with respect to the Shares, to vote each of the Shares
that such Stockholder shall be entitled to so vote solely with respect to the
matters
3
set forth in Section 1 hereof. Stockholder intends this proxy to be irrevocable
and coupled with an interest hereafter until the Expiration Date and hereby
revokes any proxy previously granted by Stockholder with respect to the Shares.
Notwithstanding anything contained herein to the contrary, this irrevocable
proxy shall automatically terminate upon the Expiration Date.
6. Specific Enforcement. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof or was otherwise breached. It is accordingly
agreed that the parties shall be entitled to specific relief hereunder,
including, without limitation, an injunction or injunctions to prevent and
enjoin breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof, in any state or federal court in the State of
Delaware, in addition to any other remedy to which they may be entitled at law
or in equity. Any requirements for the securing or posting of any bond with
respect to any such remedy are hereby waived.
7. Binding Effect and Assignment. All of the covenants and agreements
contained in this Agreement shall be binding upon, and inure to the benefit of,
the respective parties and their permitted successors, assigns, heirs,
executors, administrators and other legal representatives, as the case may be.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together shall constitute one and the same instrument.
9. Waivers. No waiver of any provisions hereof by either party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall any
such waiver be deemed a continuing waiver of any provision hereof by such
party.
10. Governing Law. This Agreement to be governed by the laws of the State
of Delaware, without giving effect to the principles of conflicts of laws
thereof. The parties hereto hereby irrevocably and unconditionally consent to
and submit to the exclusive jurisdiction of the courts of the State of Delaware
and of the United States of America located in such state (the "Delaware
Courts") for any litigation arising out of or relating to this Agreement and
the transactions contemplated hereby (and agree not to commence any litigation
relating thereto except in such courts), waive any objection to the laying of
venue of any such litigation in the Delaware Courts and agree not to plead or
claim in any Delaware Court that such litigation brought therein has been
brought in any inconvenient forum.
11. Severability. If any term or other provision of this Agreement is
determined to be 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 so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term
or other
4
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.
12. Capacity as Stockholder. Stockholder signs this Agreement solely in
the Stockholder's capacity as a Stockholder of the Buyer, and not in the
Stockholder's capacity as a director, officer or employee of the Buyer or any
of its subsidiaries or in the Stockholder's capacity as a trustee or fiduciary
of any ERISA plan or trust. Notwithstanding anything herein to the contrary,
nothing herein shall in any way restrict a director and/or officer of the Buyer
in the exercise of his or her fiduciary duties as a director and/or officer of
the Buyer or in his or her capacity as a trustee or fiduciary of any ERISA plan
or trust or prevent or be construed to create any obligation on the part of any
director and/or officer of the Buyer or any trustee or fiduciary of any ERISA
plan or trust from taking any action in his or her capacity as a director of
the Buyer.
13. No Agreement Until Executed. Irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement, this Agreement shall not
constitute or be deemed to evidence a contract, agreement, arrangement or
understanding between the parties hereto unless and until (i) the Agreement and
Plan of Merger is executed by all parties thereto, and (iii) this Agreement is
executed by all parties hereto.
14. Entire Agreement; Amendments. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by each party hereto.
5
EXECUTED as of the date first above written.
STOCKHOLDER
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
MODEM MEDIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Title: Senior Vice President,
---------------------------
General Counsel, Human
Resources and Corporate
Secretary
6
SCHEDULE 1
Stockholder Shares Options
----------- ------ -------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 90,217 1,296
7
