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Exhibit (d)(2)
SUPPORT AGREEMENT
SUPPORT AGREEMENT dated as of April 26, 2001 between Compaq Computer
Corporation, a Delaware corporation ("PARENT"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("STOCKHOLDER").
WHEREAS, Parent, PFC Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("MERGER SUBSIDIARY"), and Proxicom, Inc., a
Delaware corporation (the "COMPANY"), propose to enter into an Agreement and
Plan of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "MERGER AGREEMENT"; terms used but not defined herein shall
have the meanings set forth in the Merger Agreement) providing for, among other
things, the tender offer by Merger Subsidiary for all of the outstanding shares
of Company Stock and, after consummation of the tender offer, the merger of
Merger Subsidiary with and into the Company upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, Stockholder owns (of record or
beneficially) 12,963,358 shares of Company Stock (such shares of Company Stock
being referred to herein as the "ORIGINAL SHARES"; the Original Shares, together
with any other shares of capital stock of the Company or other voting securities
of the Company acquired (of record or beneficially) by Stockholder after the
date hereof and during the term of this Agreement (including through the
exercise of any stock options), being collectively referred to herein as the
"SUBJECT SHARES"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that Stockholder enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto agree as follows:
ARTICLE 1
AGREEMENT TO TENDER AND VOTE
SECTION 1.01. Tender. Stockholder hereby agrees to validly tender
pursuant to and in accordance with the terms of the Offer, as soon as
practicable after commencement but in no event later than the then scheduled
expiration date of the Offer, all of the Subject Shares by physical delivery of
the certificates
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therefor, and to not withdraw such Subject Shares, except following a
termination of the Offer pursuant to its terms. Stockholder hereby permits
Parent and Merger Subsidiary to publish and disclose in the Offer Documents and,
if approval of the Company's stockholders is required under applicable law, the
Proxy Statement (including all documents and schedules filed with the SEC)
Stockholder's identity and ownership of the Subject Shares and the nature of
Stockholder's commitments, arrangements and understandings under this Agreement.
SECTION 1.02. Voting. Stockholder hereby agrees that during the time
this Agreement is in effect Stockholder shall, in connection with any meeting or
action by written consent of the stockholders of the Company, (a) vote the
Subject Shares in favor of adoption of the Merger Agreement; (b) vote the
Subject Shares against any action or agreement that could reasonably be expected
to result in a breach of any representation, warranty, covenant or agreement of
the Company under the Merger Agreement; and (c) vote the Subject Shares against
any action or agreement that could reasonably be expected to prevent, impede,
interfere with, delay or postpone the consummation of the Merger, including,
without limitation: (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or any
of its Subsidiaries; (ii) a sale or transfer of a material amount of assets of
the Company or any of its Subsidiaries or a reorganization, recapitalization or
liquidation of the Company or any of its Subsidiaries; (iii) any change in the
management or board of directors of the Company; (iv) any material change in the
present capitalization or dividend policy of the Company; or (v) any other
material change in the Company's corporate structure or business.
SECTION 1.03. Grant of Irrevocable Proxy; Appointment of Proxy. (a)
Stockholder hereby irrevocably grants to, and appoints, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇ or either of them, in their respective capacities as officers of Parent,
and any individual who shall hereafter succeed to any such office of Parent, and
each of them individually, Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of Stockholder, to
vote the Subject Shares in favor of adoption of the Merger Agreement and
otherwise as contemplated by Section 1.02.
(b) Stockholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that any such proxies are hereby
revoked.
(c) Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon Stockholder's execution and delivery
of this Agreement. Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 1.02 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of
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the duties of Stockholder under this Agreement. Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
Delaware Law.
SECTION 1.04. No Inconsistent Arrangements. Stockholder hereby agrees
that, except as contemplated by this Agreement and the Merger Agreement,
Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of
(including by gift) (collectively, "TRANSFER"), or consent to or permit any
Transfer of, any or all of the Subject Shares or any interest therein, (ii)
enter into any contract, option or other agreement or understanding with respect
to any Transfer of any or all of the Subject Shares or any interest therein,
(iii) grant any proxy, power-of-attorney or other authorization in or with
respect to the Subject Shares, (iv) deposit any Subject Shares into a voting
trust or enter into a voting agreement or arrangement with respect to the
Subject Shares or (v) take any other action that would in any way restrict,
limit or interfere with the performance of Stockholder's obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement.
SECTION 1.05. Waiver of Appraisal Rights. Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that Stockholder may
have.
ARTICLE 2
EXPIRATION
SECTION 2.01. Expiration. This Agreement and Stockholder's obligations
hereunder shall terminate upon the earlier to occur of the (i) Effective Time
and (ii) termination of the Merger Agreement.
ARTICLE 3
REPRESENTATION AND WARRANTIES
Stockholder hereby represents and warrants to Parent as follows:
SECTION 3.01. Ownership of Original Shares. Stockholder is the record
and beneficial owner of, and has good and marketable title to, the Original
Shares,
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free and clear of any Liens. As of the date hereof, Stockholder does not own (of
record or beneficially) any shares of capital stock of the Company other than
the Original Shares. Such Stockholder has the sole right to Transfer and direct
the voting of the Original Shares, and none of the Original Shares is subject to
any voting trust or other agreement, arrangement or restriction with respect to
the Transfer or the voting of the Original Shares, except as set forth in this
Agreement.
SECTION 3.02. Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Stockholder will not violate any other agreement to which
Stockholder is a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
SECTION 3.03. No Conflicts. No authorization, consent or approval of,
or filing with, any court or any public body or authority is necessary for the
consummation by Stockholder of the transactions contemplated by this Agreement.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not constitute a breach, violation
or default (or any event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any Lien upon any of the properties or
assets of Stockholder under, any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which Stockholder is a party or
by which Stockholder's properties or assets are bound.
SECTION 3.04. No Finder's Fee. No broker, investment banker, financial
advisor or other Person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Stockholder.
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ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Entire Agreement; Assignment. This Agreement (i)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (ii) shall not be assigned by operation of law or otherwise; provided that
Parent may assign its rights and obligations hereunder to any direct or indirect
wholly owned Subsidiary of Parent.
SECTION 4.02. Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
SECTION 4.03. Publicity. Stockholder shall consult with Parent before
issuing any press release or otherwise making any public statements with respect
to this Agreement or the transactions contemplated hereby and will not issue any
such press release or make any such public statement before such consultation.
SECTION 4.04. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery, telegram, telex or telecopy or by any courier service (providing proof
of delivery). All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent:
Compaq Computer Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
copy to:
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▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
SECTION 4.05. Governing Law; Jurisdiction. 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 conflicts of laws thereof. Each of Stockholder and Parent irrevocably submits
to the exclusive jurisdiction of any Delaware state or federal court sitting in
the State of Delaware in any action arising out of or relating to this
Agreement, hereby irrevocably agrees that all claims in respect of such action
shall be heard and determined in such Delaware state or federal court, and
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding.
SECTION 4.06. Specific Performance. Stockholder recognizes and
acknowledges that a breach by it of any of the covenants or agreements contained
in this Agreement will cause Parent to sustain damages for which it would not
have an adequate remedy at law, and therefore Stockholder agrees that in the
event of any such breach Parent shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
SECTION 4.07. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
SECTION 4.08. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement
to be duly executed as of the day and year first above written.
COMPAQ COMPUTER CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President and General
Manager, Professional Services
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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