Exhibit (d)(5)
SECOND AMENDMENT
TO ACQUISITION AGREEMENT
This SECOND AMENDMENT TO ACQUISITION AGREEMENT (this "Amendment") is dated
as of January 14, 2003 and is made by and among SBI AND COMPANY, a Utah
corporation ("Parent"), SBI PURCHASE CORP., a Delaware corporation and a
wholly-owned subsidiary of SBI ("Purchaser") and RAZORFISH, INC., a Delaware
corporation ("Razorfish"). Capitalized terms used herein and not otherwise
defined shall be given the meaning ascribed to such terms in the Acquisition
Agreement and Agreement and Plan of Merger, dated as of November 21, 2002, by
and among Parent, Purchaser and Razorfish, as amended as of January 6, 2003 (the
"Acquisition Agreement").
WHEREAS, on January 6, 2003, Parent, Purchaser and Razorfish mutually
agreed that the Minimum Condition shall be determine with respect to issued and
outstanding Razorfish Shares; and
WHEREAS, Parent, Purchaser and Razorfish desire to further amend the
Acquisition Agreement (a) to reflect the prior agreement of the parties with
respect to the Minimum Condition, (b) to make a conforming change to provide
that the number of directors Parent is entitled to appoint on completion of the
Offer is based on the number of Razorfish Shares so acquired compared to the
outstanding number of Razorfish Shares and (c) to clarify that the Merger may be
approved by written consent of the holders of a majority of the Razorfish Shares
in lieu of the Razorfish Stockholders Meeting, all in accordance with the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the legal sufficiency of which is hereby expressly
acknowledged, the parties hereto agree as follows:
1. Amendment of the Acquisition Agreement. The following amendments are
hereby made to the Acquisition Agreement:
(a) The second sentence of Section 1.1.1 of the Acquisition Agreement is
hereby deleted in its entirety and replaced with the following:
The obligation of the Purchaser to accept for payment and pay for
Razorfish Shares tendered pursuant to the Offer will be subject only to
the following conditions: (i) that there will be validly tendered and not
withdrawn prior to the final expiration of the Offer that number of
Razorfish Shares, together with Razorfish Shares then owned by the Parent,
the Purchaser and their respective Subsidiaries that represents at least a
majority of Razorfish Shares outstanding (the "Minimum Condition") and
(ii) the satisfaction or waiver by the Purchaser as permitted hereunder of
the other conditions set forth in Annex I hereto.
(b) The first sentence of Section 1.3.1 of the Acquisition Agreement is
hereby deleted in its entirety and replaced with the following:
1.3.1 Designation; Independent Directors. Promptly upon the purchase
of and payment for Razorfish Shares by the Parent or the Purchaser
representing
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at least a majority of the then issued and outstanding Razorfish Shares,
the Purchaser will be entitled to designate for appointment or election to
Razorfish's then existing Board of Directors, upon written notice to
Razorfish, such number of directors, rounded up to the next whole number,
on the Board of Directors such that the percentage of its designees on the
Board will equal the percentage of the then issued and outstanding
Razorfish Shares owned of record by the Parent and its direct or indirect
Subsidiaries.
(c) The following is hereby inserted as the last sentence in Section 2.7
of the Acquisition Agreement:
If following the Consummation of the Offer or any subsequent offering
period, the Purchaser owns at least fifty percent (50%) of the outstanding
Razorfish Shares, each of the parties hereto will, at the Purchaser's
request, take all necessary and appropriate action to cause the Merger to
become effective as soon as reasonably practicable after such acquisition,
without a Razorfish Stockholders Meeting, in accordance with Section 228
of the Delaware Act.
(d) The last sentence of Section 5.2.1 of the Acquisition Agreement is
hereby deleted in its entirety and replaced with the following:
The number of Razorfish Shares outstanding required to be validly tendered
to satisfy the Minimum Condition, calculated as of November 19, 2002, is
2,417,513.
(e) Section 6.2 is hereby deleted in its entirety and replaced with the
following:
6.2 Razorfish Stockholders Meeting; Certain Filings.
6.2.1 Razorfish Stockholders Meeting. If, after the Consummation of
the Offer the Merger cannot be consummated under Section 253 of the
Delaware Act in accordance with Section 2.7, Razorfish will:
6.2.1.1 prepare and file with the SEC a preliminary proxy or
information statement in accordance with the Exchange Act relating
to the Merger and this Agreement, and use commercially reasonable
efforts to obtain and furnish the information required to be
included therein by the Exchange Act and the SEC and, after
consultation with the Parent, respond promptly to any comments made
by the SEC with respect thereto, and to cause a definitive proxy or
information statement (including any amendment or supplement
thereto, the "Proxy Statement"), to be mailed to its stockholders,
provided that no amendment or supplement to the Proxy Statement will
be made by Razorfish without consultation with the Parent and its
counsel. The Proxy Statement will include the recommendation of
Razorfish's Board of Directors that the Razorfish Stockholders
approve and adopt this Agreement and the Merger (the "Razorfish
Recommendation"); and
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6.2.1.2 if, after the Consummation of the Offer, the Merger
cannot be consummated under Section 228 of the Delaware Act in
accordance with Section 2.7, Razorfish will:
(a) duly call, give notice of, convene and hold a
special meeting of its stockholders (the "Razorfish
Stockholders Meeting") for the purpose of obtaining Razorfish
Stockholder Approval; and
(b) use commercially reasonable efforts to secure
Razorfish Stockholder Approval, including, if necessary, using
commercially reasonable efforts to solicit proxies from its
stockholders.
6.2.2 Proxy Statement. In the event a Razorfish Stockholders Meeting
is required under applicable Law in order to consummate the Merger or the
Merger is to be consummated under Section 228 of the Delaware At in
accordance with Section 2.7, the Parent will provide Razorfish with the
information concerning the Parent and the Purchaser required to be
included in the Proxy Statement, and will vote or cause to be voted (or,
as applicable, provide written consent with respect to) all Razorfish
Shares held by the Parent or its Subsidiaries in favor of the adoption and
approval of this Agreement and the transactions contemplated hereby. In
addition, each of the Parent and the Purchaser agrees that from (and
including) the Consummation of the Offer through the Effective Time, it
will not sell, transfer, pledge, assign, exchange or otherwise dispose of
any Razorfish Shares, including those purchased in the Offer.
6.2.3 Information Provided by Razorfish. The information that is
supplied by Razorfish expressly for inclusion or incorporation by
reference in the Offer Documents, the Schedule 14D-9 or the Proxy
Statement will not 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 were made, not misleading, at, (i) with respect to the Offer
Documents, the time the Offer Documents are filed with the SEC, (ii) with
respect to the Schedule 14D-9, the time the Schedule 14D-9 is filed with
the SEC, and (iii) with respect to any Proxy Statement, the time the Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed
to the Razorfish Stockholders, the time of the Razorfish Stockholders
Meeting, if any, and the Effective Time.
(e) The definition of "Razorfish Stockholders Meeting" in Article XI of
the Agreement is hereby deleted in its entirety and replaced with the following:
"Razorfish Stockholders Meeting" is defined in Section 6.2.1.2.
2. Effective Date of Amendment. This Amendment shall be effective as of
the date first set forth above.
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3. Effect of Amendment. Except as modified by this Amendment, the
Acquisition Agreement is ratified and affirmed and shall remain in full force
and effect. This Amendment shall inure to the benefit of, and be binding upon,
the parties to this Amendment and their respective successors and assigns. This
Amendment shall be governed in all respects, including validity, interpretation
and effect, by the internal law, not the law of conflicts, of the State of
Delaware. This Amendment may be executed in any number of duplicate originals or
counterparts, each of which when so executed shall constitute in the aggregate
but one and the same document.
[Signature page follows on next full page]
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IN WITNESS WHEREOF, Parent, Purchaser and Razorfish have caused this
Amendment to be signed as of the date first written above by their respective
officers or representatives thereunto duly authorized.
SBI AND COMPANY
By: /s/ L. ▇▇▇ ▇▇▇▇▇▇
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Name: L. ▇▇▇ ▇▇▇▇▇▇
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Title: Chief Financial Officer
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SBI PURCHASE CORP.
By: /s/ L. ▇▇▇ ▇▇▇▇▇▇
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Name: L. ▇▇▇ ▇▇▇▇▇▇
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Title: Chief Financial Officer
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RAZORFISH, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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