Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DvFFdoUq6ffhTikMcmERxJtVnMdxVIumMVkV57B4AoJF7g1xHyrN3DOiZhriYPKi fTdNA0gO8DvgQt32LZUuPQ== 0001193125-04-120311.txt : 20040719 0001193125-04-120311.hdr.sgml : 20040719 20040719172228 ACCESSION NUMBER: 0001193125-04-120311 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040719 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MODEM MEDIA INC CENTRAL INDEX KEY: 0001024787 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 061464807 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-56973 FILM NUMBER: 04920552 BUSINESS ADDRESS: STREET 1: 230 EAST AVENUE CITY: NORWALK STATE: CT ZIP: 06855 BUSINESS PHONE: 2032997000 MAIL ADDRESS: STREET 1: 230 EAST AVENUE CITY: WESTPORT STATE: CT ZIP: 06855 FORMER COMPANY: FORMER CONFORMED NAME: MODEM MEDIA POPPE TYSON INC DATE OF NAME CHANGE: 19981124 FORMER COMPANY: FORMER CONFORMED NAME: TN TECHNOLOGIES HOLDING INC DATE OF NAME CHANGE: 19961015 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DIGITAS INC CENTRAL INDEX KEY: 0001100885 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 043494311 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 800 BOYLSTON STREET STREET 2: PRUDENTIAL TOWER CITY: BOSTON STATE: MA ZIP: 02199 BUSINESS PHONE: 6178671000 MAIL ADDRESS: STREET 1: 800 BOYLSTON STREET STREET 2: PRUDENTIAL TOWER CITY: BOSTON STATE: MA ZIP: 02199 FORMER COMPANY: FORMER CONFORMED NAME: BRONNERCOM INC DATE OF NAME CHANGE: 19991214 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. )*

Modem Media, Inc.

(Name of Issuer)

Common Stock, par value $.001 per share

(Title of Class of Securities)

607533106

(CUSIP number)

David W. Kenny

Chairman and Chief Executive Officer

Digitas Inc.

The Prudential Tower

800 Boylston Street

Boston, Massachusetts 02199

(617) 867-1000

(Name, address and telephone number of person authorized to receive notices and communications)

July 15, 2004

(Date of event which requires filing of this statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.

13D


CUSIP NO. 607533106				Page 2 of 9 Pages


1.	NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Digitas Inc. 04-3494311
2.	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨
3.	SEC USE ONLY
4.	SOURCE OF FUNDS* Not Applicable
5.	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)	¨
6.	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. SOLE VOTING POWER

See response to Item 5

8. SHARED VOTING POWER

See response to Item 5

9. SOLE DISPOSITIVE POWER

10. SHARED DISPOSITIVE POWER


11.	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See response to Item 5
12.	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*	¨
13.	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.7%
14.	TYPE OF REPORTING PERSON* CO

*	SEE INSTRUCTIONS BEFORE FILLING OUT!

13D


CUSIP NO. 607533106				Page 3 of 9 Pages

ITEM 1. Security and Issuer.

The class of equity security to which this statement on Schedule 13D (the “Schedule 13D”) relates is the common stock, par value $.001 per share (the “Common Stock”), of Modem Media, Inc., a Delaware corporation (the “Company”). The Company’s principal executive offices are located at 230 East Avenue, Norwalk, CT 06855.

This filing of the Schedule 13D is not, and should not be deemed to be, an admission that the Schedule 13D or that any amendment thereto is required to be filed.

ITEM 2. Identity and Background.

(a), (b) and (c) This statement is filed by Digitas Inc., a Delaware corporation with its principal place of business and executive office at 800 Boylston Street, Boston, MA 02199 (“Digitas”). Digitas offers marketing services and strategy to design, build and run the marketing engines that drive customer acquisition, cross-sell, loyalty, affinity and care operations for world-leading marketers.

Attached hereto as Schedule I is a list of the directors and executive officers of Digitas which contains the following information with respect to each such person:

(i) name;

(ii) business address; and

(iii) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted.

(d) and (e) During the past five years, neither Digitas nor, to the knowledge of Digitas, any executive officer or director of Digitas, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction, which resulted in Digitas or any executive officer or director of Digitas being 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 with respect to such laws.

(f) To the knowledge of Digitas, each person identified in Schedule I hereto is a United States citizen.

ITEM 3. Source and Amount of Funds or Other Consideration.

As described in Items 4 and 5 below, Digitas has been given a proxy with respect to, but has not purchased, shares of Common Stock of the Company. Digitas has not expended any funds in connection therewith.

13D


CUSIP NO. 607533106				Page 4 of 9 Pages

ITEM 4. Purpose of Transactions.

(a) and (b) On July 15, 2004, Digitas entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Digitas Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Digitas (“MergerCo”) and the Company pursuant to which, MergerCo will be merged with and into the Company (the “Merger”). Under the terms of the Merger Agreement, each share of Common Stock of the Company issued and immediately outstanding prior to the effective time of the Merger will be converted into the right to receive, at the effective time of the Merger, 0.70 shares of Digitas common stock (plus cash in lieu of fractional shares). The Merger is subject to customary closing conditions and regulatory approvals, as well as the approval of the stockholders of Digitas and the Company.

In connection with the Merger Agreement, Digitas entered into voting agreements (the “Voting Agreements”) with the directors and executive officers of the Company set forth in Schedule II attached hereto (collectively, the “Stockholders”). Pursuant to the Voting Agreements, each of the Stockholders agreed to vote and has granted to Digitas an irrevocable proxy and power of attorney to vote his or her shares of Common Stock of the Company owned as of July 15, 2004 and acquired thereafter (the “Shares”) (i) in favor of adoption and approval of the Merger Agreement and the transactions contemplated thereby, including the Merger and (ii) against (x) 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 Company contained in the Merger Agreement such that the conditions to closing set forth in the Merger Agreement would not be satisfied or (y) approval or adoption of any Acquisition Proposal (as defined in the Merger Agreement), 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 Merger Agreement.

The purpose of the transactions contemplated by the Voting Agreements is to consummate the transactions contemplated under the Merger Agreement.

(c) Not applicable.

(d) If the Merger is consummated, in accordance with the terms of the Merger Agreement, the directors and officers of MergerCo immediately prior to the effective time of the Merger will become the directors and officers of the surviving corporation each to hold office in accordance with the certificate of incorporation and bylaws of the surviving corporation.

(e) Other than as a result of the Merger described in Item 4(a) and (b) above, not applicable.

(f) Not applicable.

(g) If the Merger is consummated, in accordance with the terms of the Merger Agreement, the certificate of incorporation of MergerCo, as in effect immediately prior to the effective time of the Merger, will become the certificate of incorporation of

13D


CUSIP NO. 607533106				Page 5 of 9 Pages

the surviving corporation, until thereafter amended as provided therein and in accordance with applicable law. If the Merger is consummated, in accordance with the terms of the Merger Agreement, the bylaws of MergerCo, as in effect immediately prior to the effective time of the Merger, will become the bylaws of the surviving corporation until thereafter amended as provided therein and in accordance with applicable law.

(h) and (i) As a result of the Merger, Digitas expects that the Company will request that its Common Stock be delisted from The Nasdaq National Market and that the Company will file a Form 15 terminating registration of the Common Stock pursuant to the Securities Exchange Act of 1934, as amended.

(j) Except as set forth above or in Item 5, Digitas currently does not have any plans or proposals concerning the Company with respect to the matters set forth in subparagraphs (a) through (j) of Item 4 of this Schedule.

References to, and descriptions of, the Merger, the Merger Agreement and the Voting Agreements as set forth herein are qualified in their entirety by reference to the copies of the Merger Agreement and the form of voting agreement included as Exhibits 99.1 and 99.2, respectively, to this Schedule 13D, and such agreements are incorporated herein in their entirety where such references and descriptions appear.

ITEM 5. Interest in Securities of the Issuer.

(a) and (b) As a result of the Voting Agreements, Digitas may be deemed to have sole power to control the vote of the Shares on the matters related to the Merger. Digitas has no voting power with respect to any other matters. More specifically, pursuant to the Voting Agreements, Digitas has the sole power to vote, and may be deemed to be the beneficial owner of an aggregate of 3,738,455 shares of the Common Stock of the Company, representing approximately 12.7% of the outstanding shares of the Common Stock of the Company (including any stock options of the Stockholders which may be exercisable within 60 days of the date hereof). This percentage is based upon 27,365,056 outstanding shares of the Company’s Common Stock as listed in the Company’s capitalization representation and warranty set forth in the Merger Agreement. Digitas has no power to dispose of the Shares. To the best knowledge of Digitas, no person referenced in Schedule I owns any shares of the Company’s Common Stock.

(c) Neither Digitas nor, to the knowledge of Digitas, any person named in Schedule I hereto has effected any transactions in the Company’s Common Stock in the past sixty (60) days.

(d) Not applicable.

(e) Not applicable.

13D


CUSIP NO. 607533106				Page 6 of 9 Pages

ITEM 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

The description of the Merger Agreement, the Merger and the Voting Agreements in Items 4 and 5 above are incorporated herein by reference. Other than the Merger Agreement and the Voting Agreements, to the best knowledge of Digitas, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons or entities referenced in Item 2 or between such persons or entities and any other person or entity with respect to the securities of the Company, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of profits or loss, or the giving or withholding of proxies.

ITEM 7. Material to be Filed as Exhibits.

The following documents are filed as exhibits to this Schedule 13D:


Exhibit 99.1.		Agreement and Plan of Merger, dated as of July 15, 2004, incorporated by reference to Digitas Inc.’s Current Report on Form 8-K, filed on July 15, 2004.

Exhibit 99.2.		Form of Voting Agreement, dated as of July 15, 2004, by and between Digitas Inc. and certain stockholders of Modem Media, Inc.

13D


CUSIP NO. 607533106				Page 7 of 9 Pages

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.

Date: July 19, 2004


DIGITAS INC.

By:		/s/ Joshua S. Goodman
Name:		Joshua S. Goodman
Title:		Vice President and Assistant Secretary

13D


CUSIP NO. 607533106				Page 8 of 9 Pages

SCHEDULE I

The business address of each of the following directors and executive officers of Digitas Inc., a Delaware corporation (“Digitas”) is c/o Digitas Inc., 800 Boylston Street, Boston, Massachusetts 02199, except as otherwise indicated.

David W. Kenny. Mr. Kenny is the Chairman and Chief Executive Officer of Digitas.

Jeffrey J. Cote. Mr. Cote is the Chief Financial Officer and Chief Administrative Officer of Digitas.

Laura W. Lang. Ms. Lang is President of Digitas.

Anne Drapeau. Ms. Drapeau is Chief People Officer of Digitas.

James Rossman. Mr. Rossman is Chief Operating Officer of Digitas.

Ernest W. Cloutier. Mr. Cloutier is Secretary and General Counsel of Digitas.

Brian K. Roberts. Mr. Roberts is Senior Vice President, Chief Accounting Officer and Controller of Digitas.

Gregor S. Bailar. Mr. Bailar is a director of Digitas and Executive Vice President and Chief Information Officer for Capital One Financial Corporation, a holding company whose subsidiaries market a variety of consumer financial products and services (“Capital One”). The address of Capital One is 1680 Capital One Drive, McLean, Virginia 22102.

Michael E. Bronner. Mr. Bronner is a director of Digitas and the Founder and Chairman of Upromise, Inc., a college savings network located at 117 Kendrick Street, Suite 200, Needham, Massachusetts 02494.

Robert Glatz. Mr. Glatz, who is currently retired, is a director of Digitas.

Philip U. Hammarskjold. Mr. Hammarskjold is a director of Digitas and Managing Director of Hellman & Friedman LLC, a private equity investment firm located at One Maritime Plaza, 12^th Floor, San Francisco, California 94111.

Arthur Kern. Mr. Kern is a director of Digitas. Mr. Kern is a private investor.

Gail J. McGovern. Ms. McGovern is a director of Digitas and a Professor of Management Practice at Harvard Business School located at Soldiers Field Road, Boston, Massachusetts 02163.

13D


CUSIP NO. 607533106				Page 9 of 9 Pages

SCHEDULE II

Robert H. Beeby

Frank J. Connolly, Jr.

David P. Lynch

Gerald M. O’Connell

Marc C. Particelli

Don Peppers

Donald L. Seeley

Joseph R. Zimmel

EX-99.2 2 dex992.htm FORM OF VOTING AGREEMENT Form of Voting Agreement

Exhibit 99.2

Form of Stockholder Voting Agreement

STOCKHOLDER VOTING AGREEMENT

STOCKHOLDER VOTING AGREEMENT (“Agreement”), dated as of , 2004, by and between Digitas Inc., a Delaware corporation (the “Buyer”), and the undersigned holder of common stock, par value $0.001 per share, of Modem Media, Inc., a Delaware corporation (“Stockholder”).

WHEREAS, concurrently with the execution of this Agreement, the Buyer, Digitas Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Buyer (“Merger Sub”) and Modem Media, Inc., a Delaware corporation (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 Seller, 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 Buyer 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 Buyer 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 Buyer in connection therewith, the Stockholder and the Buyer 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 Seller (or adjournment or postponement thereof), or in connection with any written consent of the stockholders of the Seller, 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

Form of Stockholder Voting Agreement

Stockholder on the date of this Agreement or are subsequently acquired, (i) in favor of adoption and approval of the Agreement and Plan of Merger and the transactions contemplated thereby, including 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 7.2 of the Agreement and Plan of Merger would not be satisfied; and (iii) against the approval or adoption of any Acquisition Proposal, 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 Buyer 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 Buyer) 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;

(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

Form of Stockholder Voting Agreement

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 Buyer. The Buyer hereby represents and warrants to Stockholder as follows:

(a)

The Buyer 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 Buyer of this Agreement has been duly authorized and approved by its Board of Directors;

(c)

This Agreement has been duly executed and delivered by Buyer, and (assuming this Agreement constitutes a valid and binding agreement of Stockholder) constitutes a valid and binding agreement with respect to the Buyer, 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 Buyer does not, and the performance by the Buyer of its obligations hereunder and the consummation by the Buyer 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 Buyer is a party or by which the Buyer is bound, or any statute, rule or regulation to which the Buyer is subject or, the charter or bylaws of the Buyer.

5. Irrevocable Proxy. Subject to the last sentence of this Section 5, by execution of this Agreement, Stockholder does hereby appoint and constitute Buyer and the Chief Executive Officer and Chief Financial Officer of the Buyer, in their respective capacities as officers of the Buyer and any individual who shall hereafter succeed to any such office of the Buyer and any other designee of the Buyer, 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 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.

Form of Stockholder Voting Agreement

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 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.

Form of Stockholder Voting Agreement

12. Capacity as Stockholder. Stockholder signs this Agreement solely in the Stockholder’s capacity as a Stockholder of the Seller, and not in the Stockholder’s capacity as a director, officer or employee of the Seller 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 Seller in the exercise of his or her fiduciary duties as a director and/or officer of the Seller 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 Seller 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 Seller.

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 Board of Directors of the Seller has approved, for purposes of any applicable anti-takeover laws and regulations, the possible acquisition of the Shares by Buyer pursuant to the Agreement and Plan of Merger, (ii) 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.

Form of Stockholder Voting Agreement

EXECUTED as of the date first above written.


STOCKHOLDER

Name:
DIGITAS INC.
By:
Name:
Title:

Form of Stockholder Voting Agreement

SCHEDULE 1


Stockholder		Shares		Options

-----END PRIVACY-ENHANCED MESSAGE-----