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EXHIBIT 10.15
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
dated September 24, 1999 (this "AGREEMENT"), among Proxicom, Inc., a Delaware
corporation (the "COMPANY"), General Atlantic Partners 34, L.P., a Delaware
limited partnership ("GAP LP"), General Atlantic Partners 52, L.P., a Delaware
limited partnership ("GAP 52"), GAP Coinvestment Partners, L.P., a New York
limited partnership ("GAP COINVESTMENT I"), GAP Coinvestment Partners II, L.P.,
a Delaware limited partnership ("GAP COINVESTMENT II"), Xxxx Xxxxxxxxx
("XXXXXXXXX"), The Xxxxx X. Xxxxxx Trust ("MORINO TRUST"), FBR Technology
Venture Partners L.P., a Delaware limited partnership ("FBR"), General Electric
Capital Corporation, a New York corporation ("GE CAPITAL"), GE Capital Equity
Investments, Inc., a Delaware corporation ("GE CAPITAL EQUITY"), Xxxxxx Xxxxxx,
Xxxxx XxXxxxxx and Xxxxxxx Xxxxxxxxx (the "IBIS STOCKHOLDERS"), and Xxxx Xxxx
("XXXX"), Xxxxxxxx X. Leonsis ("LEONSIS"), Xxxx XxXxxxxx ("XXXXXXXX"), and The
Washington Post Company, a Delaware corporation ("WPC"), and the individuals
listed on Exhibit A hereto (the "AD HOC STOCKHOLDERS"), (GAP LP, GAP 52, GAP
Coinvestment I, GAP Coinvestment II, Xxxxxxxxx, FBR, GE Capital, GE Capital
Equity, IBIS Stockholders, Xxxx, Leonsis, XxXxxxxx, WPC and the Ad Hoc
Stockholders, collectively, the "EXISTING HOLDERS"), and General Electric
Company, a New York corporation ("GE").
WHEREAS, the Company and the Existing Holders are parties to
that certain Third Amended and Restated Registration Rights Agreement dated
March 26, 1999 (the "AGREEMENT"), pursuant to which the Company has granted
certain registration rights to the Existing Holders;
WHEREAS, the Company and GE have entered into a Master
Professional Services Agreement dated as of September 24, 1999 (the "SERVICES
AGREEMENT"), pursuant to which the Company has agreed to provide certain
services to GE and its Affiliates;
WHEREAS, in consideration for GE's commitment to order a certain
minimum amount of services from the Company pursuant to the Services Agreement,
the Company has agreed to issue to GE a warrant to purchase, subject to the
terms and conditions thereof, an aggregate of 150,000 shares of common stock of
the Company (the "GE WARRANT SHARES");
WHEREAS, subject to the requisite consent of the Existing
Holders, the Company has agreed to grant to GE certain registration rights with
respect to the Warrant Shares; and
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WHEREAS, the parties hereto desire to amend and restate in its
entirety the Third Amended and Restated Registration Rights Agreement (as
hereinafter defined) by entering into this Agreement pursuant to which the
Company has agreed to grant registration rights with respect to the Registrable
Securities (as hereinafter defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereby agree
as follows:
1. Definitions. As used in this Agreement the following
terms have the meanings indicated:
"Affiliate" shall mean, with respect to any Person, any
other Person who controls, is controlled by or is under common control with such
Person. In addition, the following shall be deemed to be Affiliates of GAP LP
and GAP 52: (a) GAP LLC, the members of GAP LLC, the limited partners of GAP LP
and the limited partners of GAP 52; (b) any Affiliate of GAP LLC, the members of
GAP LLC, the limited partners of GAP LP and the limited partners of GAP 52; and
(c) any limited liability company or partnership a majority of whose members or
partners, as the case may be, are members of GAP LLC. In addition, GAP LP, GAP
52, GAP Coinvestment I and GAP Coinvestment II shall be deemed to be Affiliates
of one another.
"Ad Hoc" has the meaning assigned to such term in the
recital to this Agreement.
"Ad Hoc Stockholders" has the meaning assigned to such
term in the recital to this Agreement.
"Ad Hoc Stockholders' Representative" shall mean Xxxx
Xxxxx Xxxxxx, or any successor thereto who is appointed by the Ad Hoc
Stockholders holding at least a majority of the Registrable Securities held by
the Ad Hoc Stockholders.
"Approved Underwriter" has the meaning set forth in
Section 3(f) of this Agreement.
"Common Stock" means the common stock, par value $.01 per
share, of the Company or any other equity securities of the Company into which
such securities are converted, reclassified, reconstituted or exchanged.
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"Company" has the meaning assigned to such term in the
recital to this Agreement.
"Company Underwriter" has the meaning set forth in Section
4(a) of this Agreement.
"Demand Registration" has the meaning set forth in Section
3(a) of this Agreement.
"Designated Holder" means each of the Xxxxxxxxx
Stockholders, the Morino Stockholders, the General Atlantic Stockholders, the
FBR Stockholders, the GE Capital Stockholders, the IBIS Stockholders, the Xxxx
Stockholders, the Leonsis Stockholders, the XxXxxxxx Stockholders, the WPC
Stockholders and the Ad Hoc Stockholders and any transferee of any of them to
whom Registrable Securities have been transferred in accordance with the
provisions of Section 9(f) of this Agreement, other than a transferee to whom
such securities have been transferred pursuant to a registration statement under
the Securities Act or Rule 144 or Regulation S under the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"FBR" has the meaning assigned to such term in the recital
to this Agreement.
"FBR Stockholders" means FBR and any transferee thereof to
which Registrable Securities are transferred in accordance with the provisions
of Section 9(f) of this Agreement.
"Xxxxxxxxx" has the meaning assigned to such term in the
recital to this Agreement.
"Xxxxxxxxx Stockholders" means Xxxxxxxxx and any
transferee thereof to which Registrable Securities are transferred in accordance
with the provisions of Section 9(f) of this Agreement.
"GAP 52" has the meaning assigned to such term in the
recital to this Agreement.
"GAP Coinvestment I" has the meaning assigned to such term
in the recital to this Agreement.
"GAP Coinvestment II" has the meaning assigned to such
term in the recital to this Agreement.
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"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP LP and GAP 52, and any
successor to such entity.
"GAP LP" has the meaning assigned to such term in the
recital to this Agreement.
"GE" means General Electric Company, a New York
corporation.
"GE Warrant" means the Warrant dated September 24, 1999,
issued by the Company to GE to acquire 150,000 shares of Common Stock, as such
warrant may be subsequently amended or modified in accordance with its terms.
"GE Warrant Shares" mean the shares of Common Stock
issuable upon the exercise of the GE Warrant.
"GE Capital" has the meaning assigned to such term in the
recital to this Agreement.
"GE Capital Equity" has the meaning assigned to such term
in the recital to this Agreement.
"GE Capital Stockholders" means GE, GE Capital, GE Capital
Equity and any Affiliate thereof to which Registrable Securities are transferred
in accordance with the provisions of Section 9(f) of this Agreement.
"General Atlantic Stockholders" means GAP LP, GAP 52, GAP
Coinvestment I, GAP Coinvestment II and any Affiliate thereof to which
Registrable Securities are transferred in accordance with the provisions of
Section 9(f) of this Agreement.
"Holders' Counsel" has the meaning set forth in Section
6(a)(i) of this Agreement.
"IBIS Stockholders" means the IBIS Stockholders as such
term is defined in the recital to this Agreement and any transferee thereof to
which Registrable Securities are transferred in accordance with the provisions
of Section 9(f) of this Agreement.
"Incidental Registration" has the meaning set forth in
Section 4(a) of this Agreement.
"Indemnified Party" has the meaning set forth in Section
7(c) of this Agreement.
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"Indemnifying Party" has the meaning set forth in Section
7(c) of this Agreement.
"Initiating Holder" has the meaning set forth in Section
3(a) of this Agreement.
"Inspector" has the meaning set forth in Section 6(a)
(viii) of this Agreement.
"IPO Closing Date" means April 23, 1999.
"Xxxx" has the meaning assigned to such term in the
recital to this Agreement.
"Xxxx Stockholders" means Xxxx and any transferee thereof
to which Registrable Securities are transferred in accordance with the
provisions of Section 9(f) of this Agreement.
"Leonsis" has the meaning assigned to such term in the
recital to this Agreement.
"Leonsis Stockholders" means Leonsis and any transferee
thereof to which Registrable Securities are transferred in accordance with the
provisions of Section 9(f) of this Agreement.
"XxXxxxxx" has the meaning assigned to such term in the
recital to this Agreement.
"XxXxxxxx Stockholders" means XxXxxxxx and any transferee
thereof to which Registrable Securities are transferred in accordance with the
provisions of Section 9(f) of this Agreement.
"Morino Trust" has the meaning assigned to such term in
the recital to this Agreement.
"Morino Stockholders" means Morino Trust and any
transferee thereof to which Registrable Securities are transferred in accordance
with the provisions of Section 9(f) of this Agreement.
"NASD" has the meaning set forth in Section 6(a)(xiv) of
this Agreement.
"Person" means any individual, firm, corporation,
partnership, limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, limited liability company,
government (or an agency
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or political subdivision thereof) or other entity of any kind, and shall include
any successor (by merger or otherwise) of such entity.
"Records" has the meaning set forth in Section 6(a)(viii)
of this Agreement.
"Registrable Securities" means each of the following: (a)
any and all shares of Common Stock owned by the Designated Holders, (b) any
other shares of Common Stock acquired or owned by any of the Designated Holders
after the IPO Closing Date if such Designated Holder is an Affiliate of the
Company, (c) the GE Warrant Shares, and (d) any shares of Common Stock issued or
issuable to any of the Designated Holders with respect to shares of Common Stock
by way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise and shares of Common Stock issuable upon conversion, exercise or
exchange thereof. For purposes of clause (b) above, the members of the board of
directors of the Company shall be Affiliates of the Company.
"Registration Expense Cap" has the meaning set forth in
Section 3(d) of this Agreement.
"Registration Expenses" has the meaning set forth in
Section 6(d) of this Agreement.
"Registration Statement" means a registration statement
filed pursuant to the Securities Act.
"SEC" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"Third Amended and Restated Registrations Rights
Agreement" means the Third Amended and Restated Registration Rights Agreement
dated March 26, 1999, by and among the Company and the Existing Holders.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"WPC" has the meaning assigned to such term in the recital
to this Agreement.
"WPC Stockholders" means WPC and any transferee thereof to
which Registrable Securities are transferred in accordance with the provisions
of Section 9(f) of this Agreement.
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2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants
registration rights to the Xxxxxxxxx Stockholders, the Morino Stockholders, the
General Atlantic Stockholders, the FBR Stockholders, the GE Capital
Stockholders, the IBIS Stockholders, the Xxxx Stockholders, the Leonsis
Stockholders, the XxXxxxxx Stockholders, the WPC Stockholders and the Ad Hoc
Stockholders upon the terms and conditions set forth in this Agreement.
(b) Registrable Securities. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a registration statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective registration
statement, (ii) the entire amount of Registrable Securities proposed to be sold
in a single sale, in the opinion of counsel satisfactory to the Company and the
Designated Holder thereof, each in their reasonable judgment, may be distributed
to the public without any limitation as to volume for such sale pursuant to Rule
144 (or any successor provision then in effect) under the Securities Act or
(iii) the Registrable Securities are proposed to be sold or distributed by a
Person not entitled to the registration rights granted by this Agreement.
(c) Holders of Registrable Securities. A Person is
deemed to be a holder of Registrable Securities whenever such Person owns of
record Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company may act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
3. Demand Registration.
(a) Request for Demand Registration. At any time, one
or more of the General Atlantic Stockholders as a group, acting through GAP LLC
or its written designee (the "INITIATING HOLDER(S)"), may make a written request
to the Company to register, under the Securities Act (other than pursuant to a
registration statement on Form S-4 or S-8 or any successor thereto) and under
the securities or "blue sky" laws of any jurisdiction designated by such holder
or holders (a "DEMAND REGISTRATION"), the number of Registrable Securities
stated in such request; provided, however, that the Company shall not be
obligated to effect more than one (1) Demand Registration pursuant to this
Section 3. If at the time of any
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request to register Registrable Securities pursuant to this Section 3(a), the
Company is engaged in, or has fixed plans to engage in within ninety (90) days
of the time of such request, a registered public offering or is engaged in any
other activity which, in the good faith determination of the Board of Directors
of the Company, would be materially adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a reasonable period not in
excess of (i) one hundred eighty (180) days from the effective date of such
offering or (ii) ninety (90) days from the date of completion of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any one-year period. In addition,
the Company shall not be required to effect any registration within sixty (60)
days after the effective date of any other Registration Statement of the
Company. Each request for a Demand Registration by the Initiating Holder(s)
shall state the amount of the Registrable Securities proposed to be sold and the
intended method of disposition thereof. Upon a request for a Demand
Registration, the Company shall promptly take such steps as are necessary or
appropriate to prepare for the registration of the Registrable Securities to be
registered.
(b) Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration. Each of the Designated Holders (other than the Initiating
Holders) may offer such Designated Holder's Registrable Securities under any
Demand Registration pursuant to this Section 3. Within ten (10) days after the
receipt from an Initiating Holder of a request for a Demand Registration, the
Company shall (i) give written notice thereof to all of the Designated Holders
(other than the Initiating Holder) and (ii) subject to Section 3(e), include in
such registration all of the Registrable Securities held by such Designated
Holders from whom the Company has received a written request for inclusion
therein within ten (10) days of the receipt by such Designated Holders of such
written notice referred to clause (i) above. Each such request by such
Designated Holders shall specify the number of Registrable Securities proposed
to be registered and the intended method of disposition thereof. The failure of
any Designated Holder to respond within such 10-day period referred to in clause
(ii) above shall be deemed to be a waiver of such Designated Holder's rights
under this Section 3, provided that any Designated Holder may waive such
Designated Holder's rights under this Section 3 prior to the expiration of such
10-day period by giving written notice to the Company, with a copy to the
Initiating Holder. The Ad Hoc Stockholders acknowledge and agree that the
Company shall be permitted to satisfy the Company's notice requirement pursuant
to clause (i) above with respect to the Ad Hoc Stockholders by providing such
written notice to the Ad Hoc Stockholders' Representative only (and not all of
the Ad Hoc Stockholders). Any request by an Ad Hoc Stockholder to have his or
her Registrable Securities included in a Demand Registration pursuant to this
Section 3(b) shall be submitted to the Ad Hoc Stockholders' Representative, and
the Ad Hoc Stockholders' Representative shall submit all such requests to the
Company prior to the expiration of the 10-day period referred to in clause (ii)
above. In
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addition to and without limiting the provisions of Section 3(e) hereof, the
Company shall have no obligation to include in any Demand Registration pursuant
to this Section 3(b), any Registrable Securities of the Ad Hoc Stockholders,
unless prior to the expiration of the 10-day period referred to in clause (ii)
above, the Company shall have received from the Ad Hoc Stockholders'
Representative a written request or requests to include in such registration at
least 60% of the Registrable Securities owned in the aggregate by all of the Ad
Hoc Stockholders.
(c) Effective Demand Registration. The Company shall
use its best efforts to cause any such Demand Registration to become and remain
effective not later than ninety (90) days after it receives a request under
Section 3(a) hereof. A registration shall not constitute a Demand Registration
until it has become effective and remains continuously effective for the lesser
of (i) the period during which all Registrable Securities registered in the
Demand Registration are sold and (ii) 120 days; provided, however, that a
registration shall not constitute a Demand Registration if (x) after such Demand
Registration has become effective, such registration or the related offer, sale
or distribution of Registrable Securities thereunder is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not attributable to the Initiating
Holders and such interference is not thereafter eliminated or (y) the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such Demand Registration are not satisfied or waived, other than
by reason of a failure by the Initiating Holders.
(d) Expenses. In any registration initiated as a Demand
Registration pursuant to Section 3(a), the Company shall pay 50% of all
Registration Expenses (other than underwriting discounts and commissions) in
connection therewith (the "REGISTRATION EXPENSE CAP"), whether or not such
Demand Registration becomes effective.
(e) Underwriting Procedures. If the Initiating Holders
holding a majority of the Registrable Securities held by all of the Initiating
Holders to which the requested Demand Registration relates so elect, the
offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter (as hereinafter defined) selected in accordance with Section 3(f).
In connection with any Demand Registration under this Section 3 involving an
underwriting, none of the Registrable Securities held by any Designated Holder
making a request for inclusion of such Registrable Securities pursuant to
Section 3(b) hereof shall be included in such underwriting unless such
Designated Holder accepts the terms of the underwriting as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter, and then only in
such quantity as will not, in the opinion of the Approved Underwriter,
jeopardize the success of such offering by the Initiating Holders. If the
Approved Underwriter advises the Company in writing that in its
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opinion the aggregate amount of such Registrable Securities requested to be
included in such offering is sufficiently large to have a material adverse
effect on the success of such offering, then the Company shall include in such
registration only the aggregate amount of Registrable Securities that in the
opinion of the Approved Underwriter may be sold without any such material
adverse effect and shall reduce, first as to the Designated Holders who
requested to participate in such registration pursuant to Section 3(b) hereof)
as a group, if any (other than the Initiating Holders and the GE Capital
Stockholders); and second as to the Initiating Holders and the GE Capital
Stockholders as a group, pro rata within each group based on the number of
Registrable Securities included in the request for Demand Registration.
(f) Selection of Underwriters. If any Demand
Registration of Registrable Securities is in the form of an underwritten
offering, the Initiating Holders holding a majority of the Registrable
Securities held by all such Initiating Holders shall select and obtain an
investment banking firm of national reputation to act as the managing
underwriter of the offering (the "APPROVED UNDERWRITER"); provided, however,
that the Approved Underwriter shall, in any case, be acceptable to the Company
in its reasonable judgment.
4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time,
if the Company proposes to file a Registration Statement under the Securities
Act with respect to an offering by the Company for its own account (other than a
registration statement on Form S-4 or S-8 or any successor thereto), then the
Company shall give written notice of such proposed filing to each of the
Designated Holders of Registrable Securities at least twenty (20) days before
the anticipated filing date, and such notice shall describe the proposed
registration and distribution and offer such Designated Holders the opportunity
to register the number of Registrable Securities as each such holder may request
(an "INCIDENTAL REGISTRATION"). The Ad Hoc Stockholders acknowledge and agree
that the Company shall be permitted to satisfy such notice requirement with
respect to the Ad Hoc Stockholders by providing such written notice to the Ad
Hoc Stockholders' Representative only (and not all of the Ad Hoc Stockholders).
The Company shall, and shall use its best efforts (within ten (10) days of the
notice provided for in the preceding sentence) to cause the managing underwriter
or underwriters of a proposed underwritten offering (the "COMPANY UNDERWRITER")
to permit each of the Designated Holders who have requested in writing to
participate in the Incidental Registration to include such Designated Holder's
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company included therein. Any request by an Ad Hoc Stockholder
to have his or her Registrable Securities included in such Incidental
Registration shall be submitted to the Ad Hoc Stockholders' Representative, and
the Ad Hoc Stockholders' Representative shall submit all such requests to the
Company. The Company shall have no obligation to include in any
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Incidental Registration pursuant to this Section 4(a), any Registrable
Securities of the Ad Hoc Stockholders, unless the Company shall have received
from the Ad Hoc Stockholders' Representative written requests to include in such
registration at least 60% of the Registrable Securities owned in the aggregate
by all of the Ad Hoc Stockholders. In connection with any Incidental
Registration under this Section 4(a) involving an underwriting, the Company
shall not be required to include any Registrable Securities in such underwriting
unless the holders thereof accept the terms of the underwriting as agreed upon
between the Company and the Company Underwriter, and then only in such quantity
as will not, in the opinion of the Company Underwriter, jeopardize the success
of the offering by the Company. If in the written opinion of the Company
Underwriter the registration of all or part of the Registrable Securities which
the Designated Holders have requested to be included would materially adversely
affect such offering, then the Company shall be required to include in such
Incidental Registration, to the extent of the amount that the Company
Underwriter believes may be sold without causing such adverse effect, first, all
of the securities to be offered for the account of the Company; second, the
Registrable Securities to be offered for the account of the Designated Holders
pursuant to this Section 4, pro rata based on the amount recommended by the
Company Underwriter; and third, any other securities requested to be included in
such underwriting.
(b) Expenses. The Company shall bear all Registration
Expenses (other than underwriting discounts and commissions) in connection with
any Incidental Registration pursuant to this Section 4, whether or not such
Incidental Registration becomes effective; provided, however, that each
Designated Holder participating in such registration shall bear the costs and
expenses (including disbursements) of its own legal counsel.
5. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders.
Each of the Designated Holders agrees not to effect any public sale or
distribution of any Registrable Securities being registered or of any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a public sale pursuant to Rule 144 under the Securities Act, during
the ninety (90) day period beginning on the effective date of such registration
statement (except as part of such registration), (i) in the case of a
non-underwritten public offering, if and to the extent requested by the
Initiating Holders (in the event of a Demand Registration pursuant to Section 3)
or the Company (in the event of an Incidental Registration pursuant to Section
4(a)), as the case may be, or (ii) in the case of an underwritten public
offering, if and to the extent requested by the Approved Underwriter (in the
event of a Demand Registration pursuant to Section 3) or the Company Underwriter
(in the event of an Incidental Registration pursuant to Section 4(a)), as the
case may be.
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(b) Restrictions on Public Sale by the Company. The
Company agrees not to effect any public sale or distribution of any of its
securities, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
registration statement in which the Designated Holders of Registrable Securities
are participating and ending on the earlier of (i) the date on which all
Registrable Securities registered on such registration statement are sold and
(ii) 90 days after the effective date of such registration statement.
6. Registration Procedures.
(a) Obligations of the Company. Whenever registration
of Registrable Securities has been requested pursuant to Section 3 or Section 4
of this Agreement, the Company shall use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) use its best efforts to prepare and file
with the SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of such Registrable Securities in accordance
with the intended method of distribution thereof, and use its best efforts to
cause such registration statement to become effective; provided, however, that
(x) before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall provide counsel selected by the
Designated Holders holding a majority of the Registrable Securities being
registered in such registration ("HOLDERS' COUNSEL") and any other Inspector (as
hereinafter defined) with an adequate and appropriate opportunity to participate
in the preparation of such registration statement and each prospectus included
therein (and each amendment or supplement thereto) to be filed with the SEC,
which documents shall be subject to the review of Holders' Counsel, and (y) the
Company shall notify the Holders' Counsel and each seller of Registrable
Securities of any stop order issued or threatened by the SEC and take all
reasonable action required to prevent the entry of such stop order or to remove
it if entered;
(ii) prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the lesser of (x) twelve (12) months and (y) such
shorter period which will terminate when all Registrable Securities covered by
such registration statement have been sold, and comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such registration statement during such
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period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(iii) as soon as reasonably possible, furnish to
each seller of Registrable Securities, prior to filing a registration statement,
copies of such registration statement as is proposed to be filed, and thereafter
such number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(iv) use its reasonable best efforts to
register or qualify such Registrable Securities under such other securities or
"blue sky" laws of such jurisdictions as any seller of Registrable Securities
may request, and to continue such qualification in effect in such jurisdiction
for as long as permissible pursuant to the laws of such jurisdiction, or for as
long as any such seller requests or until all of such Registrable Securities are
sold, whichever is shortest, and do any and all other acts and things which may
be reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, however, that the Company shall not be required to (x) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 6(a)(iv), (y) subject itself to
taxation in any such jurisdiction or (z) consent to general service of process
in any such jurisdiction;
(v) use its reasonable best efforts to cause
the Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the seller or sellers of Registrable Securities to consummate the
disposition of such Registrable Securities;
(vi) notify each seller of Registrable
Securities at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the happening
of any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
and the Company shall promptly prepare a supplement or amendment to such
prospectus and furnish to each seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
after delivery to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or
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14
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(vii) enter into and perform customary
agreements (including an underwriting agreement in customary form with the
Approved Underwriter or Company Underwriter, if any, selected as provided in
Section 3 or Section 4, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(viii) make available for inspection by any
seller of Registrable Securities, any managing underwriter participating in any
disposition pursuant to such registration statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any managing
underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the Company,
to supply all information reasonably requested by any such Inspector in
connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (x)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the registration statement, (y) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (z) the information in such Records was known to the Inspectors
on a non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each seller of Registrable Securities
agrees that it shall, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an
underwritten offering, use its best efforts to obtain a "cold comfort" letter
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by "cold comfort" letters as
Holders' Counsel or the managing underwriter reasonably request;
(x) use its reasonable best efforts to
furnish, at the request of any seller of Registrable Securities on the date such
securities are delivered to the underwriters for sale pursuant to such
registration or, if such securities are not being sold through underwriters, on
the date the registration statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the Company for
the purposes of such registration, addressed to the
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15
underwriters, if any, and to the seller making such request, covering such legal
matters with respect to the registration in respect of which such opinion is
being given as such seller may reasonably request and are customarily included
in such opinions;
(xi) otherwise use its reasonable best efforts
to comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable but no
later than fifteen (15) months after the effective date of the registration
statement, an earnings statement covering a period of twelve (12) months
beginning after the effective date of the registration statement, in a manner
which satisfies the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder;
(xii) cause all such Registrable Securities to
be listed on each securities exchange on which similar securities issued by the
Company are then listed, provided that the applicable listing requirements are
satisfied;
(xiii) keep Holders' Counsel advised in writing
as to the initiation and progress of any registration under Section 3 or Section
4 hereunder;
(xiv) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc. (the "NASD"); and
(xv) use reasonable best efforts to take all
other steps necessary to effect the registration of the Registrable Securities
contemplated hereby.
The Ad Hoc Stockholders acknowledge and agree that the
Company shall be permitted to satisfy the Company's notice and delivery
requirements pursuant to this Section 6(a) with respect to the Ad Hoc
Stockholders by providing notices and documents to the Ad Hoc Stockholders'
Representative only (and not all of the Ad Hoc Stockholders). All requests to
the Company by the Ad Hoc Stockholders pursuant to this Section 6(a) shall be
made to the Ad Hoc Stockholders' Representative, and the Ad Hoc Stockholders'
Representative shall promptly forward all such requests to the Company. The
Company shall have no obligation to satisfy any request of the Ad Hoc
Stockholders made pursuant to this Section 6(a), unless such request is made by
the Ad Hoc Stockholders' Representative on behalf of Ad Hoc Stockholders holding
at least 60% of the Registrable Securities owned in the aggregate by all of the
Ad Hoc Stockholders.
(b) Seller Information. The Company may require each
seller of Registrable Securities as to which any registration is being effected
to furnish to the
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16
Company such information regarding the seller and the distribution of such
securities as the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Designated Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 6(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(a)(vi) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such registration statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
6(a)(ii)) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 6(a)(vi) to and including the date
when the Designated Holder shall have received the copies of the supplemented or
amended prospectus contemplated by and meeting the requirements of Section
6(a)(vi).
(d) Registration Expenses. Subject to the Registration
Expense Cap in the case of a Demand Registration pursuant to Section 3 and
subject to Section 4(b) in the case of an Incidental Registration, the Company
shall pay all expenses arising from or incident to the performance of, or
compliance with, this Agreement, including, without limitation, (i) SEC, stock
exchange and NASD registration and filing fees, (ii) all fees and expenses
incurred in complying with securities or "blue sky" laws (including reasonable
fees, charges and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) the fees, charges and disbursements of counsel to the
Company and of its independent public accountants and any other accounting fees,
charges and expenses incurred by the Company (including, without limitation, any
expenses arising from any special audits incident to or required by any
registration or qualification) and any legal fees, charges and expenses incurred
by the Company and, in the case of a Demand Registration, the Initiating Holders
and (v) any liability insurance or other premiums for insurance obtained in
connection with any Demand Registration or Incidental Registration pursuant to
the terms of this Agreement, regardless of whether such registration statement
is declared effective. All of the expenses described in this Section 6(d) are
referred to herein as "REGISTRATION EXPENSES".
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7. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees
to indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue, or allegedly
untrue, statement of a material fact contained in any registration statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished in writing to the Company by such Designated Holder expressly
for use therein. The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In
connection with any registration statement in which a Designated Holder is
participating pursuant to Section 3 or Section 4 hereof, each such Designated
Holder shall furnish to the Company in writing such information with respect to
such Designated Holder as the Company may reasonably request or as may be
required by law for use in connection with any such registration statement or
prospectus and each Designated Holder agrees to indemnify and hold harmless, to
the fullest extent permitted by law, the Company, any underwriter retained by
the Company and their respective directors, officers, employees and each Person
who controls the Company or such underwriter (within the meaning of the
Securities Act and the Exchange Act) to the same extent as the foregoing
indemnity from the Company to the Designated Holders, but only with respect to
any such information with respect to such Designated Holder furnished in writing
to the Company by such Designated Holder expressly for use therein.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give
prompt written notice to the indemnifying party (the "INDEMNIFYING PARTY") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure so
to notify the Indemnifying
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Party shall not relieve the Indemnifying Party of any liability that it may have
to the Indemnified Party hereunder. If notice of commencement of any such action
is given to the Indemnifying Party as above provided, the Indemnifying Party
shall be entitled to participate in and, to the extent it may wish, jointly with
any other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and satisfactory to such
Indemnified Party. The Indemnified Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel (other than reasonable costs of investigation)
shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees
to pay the same, (ii) the Indemnifying Party fails to assume the defense of such
action with counsel satisfactory to the Indemnified Party in its reasonable
judgment or (iii) the named parties to any such action (including any impleaded
parties) have been advised by such counsel that either (x) representation of
such Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to it which are different from or
additional to those available to the Indemnifying Party. In either of such
cases, the Indemnifying Party shall not have the right to assume the defense of
such action on behalf of such Indemnified Party. No Indemnifying Party shall be
liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification provided for in
this Section 7 from the Indemnifying Party is unavailable to an Indemnified
Party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
faults of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Sections 7(a), 7(b)
and 7(c), any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or
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by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person.
8. Rule 144. The Company covenants that it shall file (a) any
reports required to be filed by it under the Exchange Act and (b) take such
further action as each Designated Holder of Registrable Securities may
reasonably request (including providing any information necessary to comply with
Rules 144 and 144A under the Securities Act), all to the extent required from
time to time to enable such Designated Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, or (ii) any similar rules or regulations hereafter
adopted by the SEC. The Company shall, upon the request of any Designated Holder
of Registrable Securities, deliver to such Designated Holder a written statement
as to whether it has complied with such requirements. The Ad Hoc Stockholders
acknowledge and agree that the Company shall have no obligations under this
Section 8 to any Ad Hoc Stockholder for any request submitted to the Company
pursuant to this Section 8 unless such request is submitted by the Ad Hoc
Stockholders' Representative on behalf of Ad Hoc Stockholders holding at least
60% of the Registrable Securities owned in the aggregate by all of the Ad Hoc
Stockholders.
9. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions
of this Agreement shall apply, to the full extent set forth herein with respect
to (i) the shares of Common Stock and (ii) any and all equity securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the shares of Common
Stock and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after the
date hereof. The Company shall cause any successor or assign (whether by merger,
consolidation or otherwise) to enter into a new registration rights agreement
with the Designated Holders on terms substantially similar to this Agreement as
a condition of any such transaction.
(b) No Inconsistent Agreements. The Company shall not
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement.
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(c) Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement;
provided, however, that the Ad Hoc Stockholders shall not be entitled to
exercise any such right of specific performance unless such right is exercised
by the Ad Hoc Stockholders' Representative on behalf of Ad Hoc Stockholders
holding at least 60% of the Registrable Securities owned in the aggregate by all
of the Ad Hoc Stockholders. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive in any action for
specific performance the defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company, (ii) the
Xxxxxxxxx Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the Xxxxxxxxx Stockholders, (iii) the General
Atlantic Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the General Atlantic Stockholders, (iv) the Morino
Stockholders holding Registrable Securities representing (after giving effect to
any adjustments) at least 60% of the aggregate number of Registrable Securities
owned by all of the Morino Stockholders, (v) the FBR Stockholders holding
Registrable Securities representing (after giving effect to any adjustments) at
least 60% of the aggregate number of Registrable Securities owned by all of the
FBR Stockholders, (vi) the GE Capital Stockholders holding Registrable
Securities representing (after giving effect to any adjustments) at least 60% of
the aggregate number of Registrable Securities owned by all of the GE Capital
Stockholders, (vii) the IBIS Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the IBIS
Stockholders, (viii) the Xxxx Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the Xxxx
Stockholders, (ix) the Leonsis Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the Leonsis
Stockholders, (x) the XxXxxxxx Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the XxXxxxxx
Stockholders, (xi) the WPC Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the WPC Stockholders,
and (xii) the Ad Hoc Stockholders holding Registrable Securities representing
(after giving effect to any adjustments) at least 60% of the aggregate number
Registrable
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Securities owned by all of the Ad Hoc Stockholders. Any such written consent
shall be binding upon the Company and all of the Designated Holders.
(e) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
(i) if to the Company:
Proxicom, Inc.
0000 Xxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
General Counsel
with a copy to:
Xxxxx & Xxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxx, Esq.
(ii) if to the Xxxxxxxxx Stockholders:
c/o Proxicom, Inc.
0000 Xxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
General Counsel
with a copy to:
Xxxxx & Xxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxx, Esq.
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and
Xxxxxxxx & Xxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxx
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(iii) if to GAP LP, GAP 52, GAP Coinvestment I or
GAP Coinvestment II:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(iv) if to Morino Trust:
The Xxxxx X. Xxxxxx Trust
c/o Morino Institute
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Trustee
with a copy to:
Xxxxxxxx & Xxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxx
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
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23
(v) if to FBR:
x/x XXX Xxxxxxx Capital Managers Inc.
0000 00xx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxx
(vi) if to GE, GE Capital or GE Capital Equity:
GE Capital Equity Capital Group, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
Legal Department
(vii) if to the IBIS Stockholders:
Xxxxxx Xxxxxx
Xxxxx XxXxxxxx
Xxxxxxx Xxxxxxxxx
c/o IBIS Consulting, Inc.
Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx LLP
Xxx Xxxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Low
(viii) if to the Xxxx Stockholders:
Xxxx Xxxx
Xxxxxxx Xxxxxxx
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
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(ix) if to the Leonsis Stockholders:
Xxxxxxxx X. Leonsis
America Online
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000-0000
with a copy to:
Xxxxxxx & Xxxxxx
Xxxxx 000
0000 Xxxxxxxxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: T. Xxxxx Xxxx, Esq.
(x) if to the XxXxxxxx Stockholders:
Xxxx XxXxxxxx
Xxxxxxx Xxxxx & Co.
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(xi) if the WPC Stockholders:
The Washington Post Company
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxx Xxxxx
(xii) if to the Ad Hoc Stockholders:
c/o Saul Xxxxx Xxxxxx
Ad Hoc Stockholders' Representative
ad hoc Interactive, Inc.
Libertyship Building
00 Xxxxxxxxxxx Xxx, Xxxxx 0
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
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with a copy to:
Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin
0 Xxxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx, Esq.
(xiii) if to any other Designated Holder, at its
address as it appears on the record books of the Company.
All such notices and communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier or overnight mail, if delivered by commercial courier
service or overnight mail; five (5) Business Days after being deposited in the
mail, postage prepaid, if mailed; and when receipt is mechanically acknowledged,
if telecopied.
(f) Successors and Assigns; Third Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties hereto. The Demand Registration rights of the
General Atlantic Stockholders contained in Section 3 hereof and the other rights
of each of the General Atlantic Stockholders with respect thereto shall be, with
respect to any Registrable Security, (i) automatically transferred among the
General Atlantic Stockholders and (ii) in all other cases, transferred only with
the consent of the Company. The incidental or "piggy-back" registration rights
of the Designated Holders contained in Sections 3(b) and 4 hereof and the other
rights of each of the Designated Holders with respect thereto shall be, with
respect to any Registrable Security, automatically transferred by such
Designated Holder to any Person who is the transferee of such Registrable
Security. All of the obligations of the Company hereunder shall survive any such
transfer. No Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of any of the rights granted
hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS
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OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAW THEREOF.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of the Designated Holders shall
be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement with respect to the subject
matter hereof and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, representations,
warranties or undertakings, other than those set forth or referred to herein or
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter, including, without
limitation, the Third Amended and Restated Registration Rights Agreement.
(l) Further Assurances. Each of the parties shall
execute such documents and perform such further acts as may be reasonably
required or desirable to carry out or to perform the provisions of this
Agreement.
(m) Appointment of Ad Hoc Stockholders' Representative.
Each Ad Hoc Stockholder hereby appoints Xxxx Xxxxx Xxxxxx as attorney-in-fact
with full power and authority to act for and on behalf of any or all of the Ad
Hoc Stockholders (with full power of substitution in the premises), in
connection with the provisions of this Agreement as they relate to the Ad Hoc
Stockholders generally and such other matters as are reasonably necessary for
the consummation of the transactions contemplated hereby including, without
limitation, (i) to execute, deliver and receive on behalf of the Ad Hoc
Stockholders any notice, document or agreement contemplated by or necessary or
desirable in connection with this Agreement, (ii) to execute and deliver on
behalf of the Ad Hoc Stockholders any amendments, modifications, supplements,
waivers and consents obtained pursuant to and in accordance with Section 9(d) of
this Agreement, and (iii) to take such further actions including coordinating
and administering matters related to the rights and obligations of the Ad Hoc
Stockholders pursuant to this Agreement. The Ad Hoc Stockholders' Representative
is willing to act in the capacity of the representative of the Ad Hoc
Stockholders hereunder, and hereby accepts such appointment and agrees to act in
accordance with the terms and conditions of this Agreement. The Company and the
Designated Holders shall be entitled to rely on such appointment and treat the
Ad Hoc Stockholders' Representative as the duly appointed attorney-in-fact of
each Ad Hoc Stockholder.
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(n) Limitation of Liability. The Ad Hoc Stockholders'
Representative shall have no liability to the Ad Hoc Stockholders with respect
to any action taken by him or her under this Agreement, except with respect to
the Ad Hoc Stockholders' Representative's gross negligence or willful
misconduct. The Ad Hoc Stockholders' Representative may act in reliance upon the
advice of counsel in reference to any matter in connection with this Agreement
and shall not incur any liability to the Ad Hoc Stockholders or any one of them,
for any action taken in good faith in accordance with such advice.
-27-
28
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
PROXICOM, INC.
By:______________________________________
Name: Xxxx Xxxxxxxxx
Title: President and Chief Executive Officer
-----------------------------------------
Xxxx Xxxxxxxxx
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
29
GENERAL ATLANTIC PARTNERS 34, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, Its General Partner
By:________________________________
Name:______________________________
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 52, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, Its General Partner
By:________________________________
Name:______________________________
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By:________________________________
Name:______________________________
Title: A General Partner
GAP COINVESTMENT PARTNERS II, L.P.
By:________________________________
Name:______________________________
Title: A General Partner
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
30
THE XXXXX X. XXXXXX TRUST
By:_________________________________
Name: Xxxxx X. Xxxxxx
Title: Trustee
FBR TECHNOLOGY VENTURE PARTNERS, L.P.
By:_________________________________
Name:_______________________________
Title:______________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
GE CAPITAL EQUITY INVESTMENTS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
31
GENERAL ELECTRIC COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
------------------------------------
Xxxxxx Xxxxxx
------------------------------------
Xxxxx XxXxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxx
------------------------------------
Xxxxxxxx X. Leonsis
------------------------------------
Xxxx XxXxxxxx
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
32
THE WASHINGTON POST COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
THE AD HOC STOCKHOLDERS:
------------------------------------
XXXX XXXXX XXXXXX
[END OF SIGNATURE PAGES]
33
EXHIBIT A
AD HOC STOCKHOLDERS
Xxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxx
Xxxxx XxXxx
Xxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxx
Xxxxxxx Xxxx
Xxxxxx Xxxxxxxx
Thy Than
Xxxx Xxxxxxx
