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Exhibit (d)(3)
SUPPORT AGREEMENT
SUPPORT AGREEMENT dated as of April 26, 2001 among Compaq Computer
Corporation, a Delaware corporation ("PARENT"), General Atlantic Partners 34,
L.P., a Delaware limited partnership ("GAP 34"), General Atlantic Partners 52,
L.P., a Delaware limited partnership ("GAP 52"), GAP Coinvestment Partners,
L.P., a New York limited partnership ("GAP COINVESTMENT"), and GAP Coinvestment
Partners II, L.P., a Delaware limited partnership (collectively with GAP 34, GAP
52, GAP Coinvestment, the "STOCKHOLDERS").
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, each Stockholder owns (of record or
beneficially) the number of shares of Company Stock specified opposite such
Stockholder's name on Schedule I (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 such 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 each 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:
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ARTICLE 1
AGREEMENT TO TENDER AND VOTE
SECTION 1.01. Tender. Each 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 such Stockholder's Subject Shares by
physical delivery of the certificates therefor, and to not withdraw such
Stockholder's Subject Shares, except following a termination of the Offer
pursuant to its terms. Each 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) such Stockholder's
identity and ownership of such Stockholder's Subject Shares and the nature of
such Stockholder's commitments, arrangements and understandings under this
Agreement.
SECTION 1.02. Voting. Each Stockholder hereby agrees that during the
time this Agreement is in effect such Stockholder shall, in connection with any
meeting or action by written consent of the stockholders of the Company, (a)
vote such Stockholder's Subject Shares in favor of adoption of the Merger
Agreement; (b) vote such Stockholder's 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 such Stockholder's 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)
Each Stockholder hereby irrevocably grants to, and appoints, Xxxxxxx Xxxx and
Xxxxx Xxxxxx, 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, such Stockholder's proxy and attorney-in-
fact (with full power of substitution), for and in the name, place and stead of
such Stockholder, to vote such Stockholder's Subject Shares in favor of adoption
of the Merger Agreement and otherwise as contemplated by Section 1.02.
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(b) Each Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Each Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon such Stockholder's execution
and delivery of this Agreement. Each 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 the duties of such Stockholder under this Agreement.
Each Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Each 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. Each Stockholder hereby
agrees that, except as contemplated by this Agreement and the Merger Agreement,
such 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 such Stockholder's 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 such Stockholder's
Subject Shares or any interest therein, (iii) grant any proxy, power-of-attorney
or other authorization in or with respect to such Stockholder's Subject Shares,
(iv) deposit any of such Stockholder's Subject Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Stockholder's
Subject Shares or (v) take any other action that would in any way restrict,
limit or interfere with the performance of such Stockholder's obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement.
SECTION 1.05. Waiver of Appraisal Rights. Each Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
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ARTICLE 2
EXPIRATION
SECTION 2.01. Expiration. This Agreement and each 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
Each Stockholder hereby represents and warrants to Parent as follows:
SECTION 3.01. Ownership of Original Shares. Such Stockholder is the
record and beneficial owner of, and has good and marketable title to, such
Stockholder's Original Shares, free and clear of any Liens. As of the date
hereof, such Stockholder does not own (of record or beneficially) any shares of
capital stock of the Company other than such Stockholder's Original Shares. Such
Stockholder has the sole right to Transfer and direct the voting of such
Stockholder's Original Shares, and none of such Stockholder's Original Shares is
subject to any voting trust or other agreement, arrangement or restriction with
respect to the Transfer or the voting of such Stockholder's Original Shares,
except as set forth in this Agreement.
SECTION 3.02. Power; Binding Agreement. The execution, delivery and
performance by such Stockholder of this Agreement are within the corporate or
other powers of such Stockholder and have been duly authorized by all necessary
or other corporate action. The execution, delivery and performance of this
Agreement by such Stockholder will not violate any other agreement to which such
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 such Stockholder and constitutes a valid and binding
agreement of such Stockholder, enforceable against such 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 such 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
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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 such Stockholder under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to which
such Stockholder is a party or by which such 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 such
Stockholder.
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. Each 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.
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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 any of the Stockholders:
General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Parent:
Compaq Computer Corporation
20555 S.H. 249 MS 110810
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
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 the Stockholders 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.
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SECTION 4.06. Specific Performance. Each 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 such 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. Nature of Obligations. The obligations of each
Stockholder under this Agreement shall be several and not joint. All of the
agreements, covenants, grants and representations and warranties of any nature
of each Stockholder under this Agreement are made or given by such Stockholder
severally, and not jointly.
SECTION 4.08. 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 4.09. 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 the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
COMPAQ COMPUTER CORPORATION
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Vice President and General Manager,
Professional Services
GENERAL ATLANTIC PARTNERS 34, L.P.
By: General Atlantic Partners, LLC, its general partner
By: /s/ Xxxxxxx Ninetz
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Name: Xxxxxxx Ninetz
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 52, L.P.
By: General Atlantic Partners, LLC, its general partner
By: /s/ Xxxxxxx Ninetz
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Name: Xxxxxxx Ninetz
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxxx Ninetz
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Name: Xxxxxxx Ninetz
Title: A General Partner
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GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx Ninetz
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Name: Xxxxxxx Ninetz
Title: A General Partner
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SCHEDULE I
Name of Stockholder Original Shares
General Atlantic Partners 34, L.P. 1,405,121
General Atlantic Partners 52, L.P. 1,491,865
GAP Coinvestment Partners, L.P. 248,111
GAP Coinvestment Partners II, L.P. 335,859
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