UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13G
UNDER THE SECURITIES EXCHANGE ACT OF 1934
K2 DESIGN, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
482731 10 6
(CUSIP Number)
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 482731 10 6 13G Page 2 of 19
<S> <C> <C>
1 NAME OF REPORTING PERSON
Matthew G. de Ganon
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) <checkbox>
(b) <box>
3 SEC USE ONLY
4 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
</TABLE>
<TABLE>
<S> <C> <C>
5 SOLE VOTING POWER
NUMBER OF
SHARES 1,925,480 (1)
BENEFICIALLY 6 SHARED VOTING POWER
OWNED BY
EACH -0- (1)
REPORTING 7 SOLE DISPOSITIVE POWER
PERSON
WITH 481,370 (2)
8 SHARED DISPOSITIVE POWER
1,444,110 (2)
</TABLE>
<TABLE>
<S> <C>
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
481,370 (1)(3)
10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
<checkbox> (3)
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
13.7%
12 TYPE OF REPORTING PERSON*
IN
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 482731 10 6 13G
<S> <C> <C>
1 NAME OF REPORTING PERSON
David J. Centner
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) <checkbox>
(b) <box>
3 SEC USE ONLY
4 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
</TABLE>
<TABLE>
<S> <C> <C> <C>
5 SOLE VOTING POWER
NUMBER OF
SHARES -0- (1)
BENEFICIALLY 6 SHARED VOTING POWER
OWNED BY
EACH -0- (1)
REPORTING 7 SOLE DISPOSITIVE POWER
PERSON
WITH 481,370 (2)
8 SHARED DISPOSITIVE POWER
1,444,110 (2)
</TABLE>
<TABLE>
<S> <C> <C>
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
481,370 (1)(3)
10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
<checkbox> (3)
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
13.7%
12 TYPE OF REPORTING PERSON*
IN
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 482731 10 6 13G
<S> <C> <C>
1 NAME OF REPORTING PERSON
Douglas E. Cleek
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) <checkbox>
(b) <box>
3 SEC USE ONLY
4 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
</TABLE>
<TABLE>
<S> <C> <C>
5 SOLE VOTING POWER
NUMBER OF
SHARES -0- (1)
BENEFICIALLY 6 SHARED VOTING POWER
OWNED BY
EACH -0- (1)
REPORTING 7 SOLE DISPOSITIVE POWER
PERSON
WITH 481,370 (2)
8 SHARED DISPOSITIVE POWER
1,444,110 (2)
</TABLE>
<TABLE>
<S> <C>
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
481,370 (1)(3)
10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
<checkbox> (3)
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
13.7%
12 TYPE OF REPORTING PERSON*
IN
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CUSIP No. 482731 10 6 13G
<S> <C> <C> <C>
1 NAME OF REPORTING PERSON
Bradley K. Szollose
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) <checkbox>
(b) <box>
3 SEC USE ONLY
4 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
</TABLE>
<TABLE>
<S> <C> <C>
5 SOLE VOTING POWER
NUMBER OF
SHARES -0- (1)
BENEFICIALLY 6 SHARED VOTING POWER
OWNED BY
EACH -0- (1)
REPORTING 7 SOLE DISPOSITIVE POWER
PERSON
WITH 481,370 (2)
8 SHARED DISPOSITIVE POWER
1,444,110 (2)
</TABLE>
<TABLE>
<S> <C>
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
481,370 (1)(3)
10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
<checkbox> (3)
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
13.7%
12 TYPE OF REPORTING PERSON*
IN
</TABLE>
<PAGE>
SCHEDULE 13G
ITEM 1.
(a) Name of Issuer
K2 Design, Inc.
(b) Address of Issuer's Principal Executive Offices
55 Broad Street, 7th Floor
New York, New York 10004
ITEM 2.
(a) Name of Person Filing
Each of Matthew G. de Ganon, David J. Centner, Douglas E. Cleek and
Bradley K. Szollose, individually, and together as a group as a result
of a Voting Agreement among them. (1)
(b) Address of Principal Business Office or, if none, Residence
55 Broad Street, 7th Floor
New York, New York 10004
(c) Citizenship
United States
(d) Title of Class of Securities
Common Stock, par value $.01 per share
(e) CUSIP Number
482731 10 6
ITEM 3. IF THIS STATEMENT IS FILED PURSUANT TO RULE 13D-1(B), OR 13D-2(B),
CHECK WHETHER THE PERSON FILING IS A:
(a) [ ]Broker or Dealer registered under Section 15 of the Act
(b) [ ]Bank as defined in Section 3(a)(6) of the Act
(c) [ ]Insurance Company as defined in Section 3(a)(19) of the Act
(d) [ ]Investment Company registered under Section 8 of the Investment
Company Act
(e) [ ]Investment Advisor registered under Section 203 of the Investment
Advisors Act of 1940
(f) [ ]Employee Benefit Plan, Pension Fund which is subject to the
provisions of the Employee Retirement Income Security Act of 1974 or
Endowment Fund; see <section>240.13d-1(b)(1)(ii)(F)
(g) [ ]Parent Holding Company, in accordance with <section>240.13d-
1(b)(ii)(G) (Note: See Item 7)
(h) [ ]Group, in accordance with <section>240.13d-1(b)(1)(ii)(H)
ITEM 4. OWNERSHIP
If the percent of the class owned, as of December 31 of the year covered
by the statement, or as of the last day of any month described in Rule 13d-
1(b)(2), if applicable, exceeds five percent, provide the following information
as of that date and identify those shares which there is a right to acquire.
(a) Amount Beneficially Owned
Messrs. Centner, de Ganon, Cleek and Szollose are each record and
beneficial owners of 481,370 shares, or 1,925,480 shares in the aggregate,
all of which are subject to a Voting Agreement.(1)(3)
(b) Percent of Class
Messrs. Centner, de Ganon, Cleek and Szollose are each record and
beneficial owners of approximately 13.7% of the class, or approximately 55%
of the class in the aggregate.
(c) Number of shares as to which such person has:
(i) sole power to vote or to direct the vote
As to Matthew de Ganon, 1,925,480 shares; as to Messrs. Centner,
Cleek and Szollose,
0 shares. (1)
(ii) shared power to vote or to direct the vote
-0- (1)
(iii) sole power to dispose or to direct the disposition of
481,370 shares as to each of Messrs. Centner, de Ganon, Cleek
and Szollose. (2)
(iv) shared power to dispose or to direct the disposition of
1,444,110 (2)
ITEM 5. OWNERSHIP OF FIVE PERCENT OR LESS OF A CLASS
N/A
ITEM 6. OWNERSHIP OF MORE THAN FIVE PERCENT ON BEHALF OF ANOTHER PERSON.
N/A
ITEM 7. IDENTIFICATION AND CLASSIFICATION OF THE SUBSIDIARY WHICH ACQUIRED THE
SECURITY BEING REPORTED ON BY THE PARENT HOLDING COMPANY
N/A
ITEM 8. IDENTIFICATION AND CLASSIFICATION OF MEMBERS OF THE GROUP
David J. Centner, Matthew G. de Ganon, Douglas E. Cleek and Bradley
K. Szollose are filing this Schedule 13G both individually and as a group as a
result of a Voting Agreement (attached hereto as Exhibit A), dated July 26,
1996. Each of them is a director and executive officer of the issuer.
ITEM 9. NOTICE OF DISSOLUTION OF GROUP
N/A
<PAGE>
ITEM 10. CERTIFICATION
After reasonable inquiry and to the best of each of the undersigned's
knowledge and belief, each of the undersigned certifies that the information
set forth in this statement is true, complete and correct.
FEBRUARY 5, 1997
-------------------------------
Date
/S/ MATTHEW G. DE GANON
-------------------------------
Signature
FEBRUARY 5, 1997
-------------------------------
Date
/S/ DAVID J. CENTNER
-------------------------------
Signature
FEBRUARY 5, 1997
-------------------------------
Date
/S/ DOUGLAS E. CLEEK
-------------------------------
Signature
FEBRUARY 5, 1997
-------------------------------
Date
/S/ BRADLEY K. SZOLLOSE
-------------------------------
Signature
<PAGE>
NOTES
(1) As a result of a 10-year voting agreement by and among Messrs. Centner, de
Ganon, Cleek and Szollose, dated July 26, 1996 (the "Voting Agreement"), Mr. de
Ganon has voting control over approximately 55% of the Company's outstanding
shares, except that these shares are required to be voted in favor of the
election as directors of Messrs. Centner, de Ganon, Cleek and Szollose.
Messrs. Centner, de Ganon, Cleek and Szollose each beneficially own 481,370
shares. (See Article III of Exhibit A attached hereto).
(2) Article IV of the Voting Agreement attached hereto grants each party
thereto a right of first refusal as to the sale of the others' shares.
(3) Messrs. Centner, de Ganon, Cleek and Szollose each disclaim beneficial
ownership to shares of which they are not record owners.
<PAGE>
EXHIBIT A
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") dated as of July 26, 1996, is entered
into by and among each of David J. Centner, Matthew G. de Ganon, Douglas E.
Cleek and Bradley K. Szollose (sometimes hereinafter referred to collectively
as the "MEMBERS" or each individually as a "MEMBER").
ARTICLE 1
EFFECTIVE DATE OF AGREEMENT; DEFINITIONS
Section 1.1EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the consummation of the initial public offering (the "OFFERING")
of K2 Design, Inc., a Delaware Corporation (the "EFFECTIVE DATE").
Section 1.2DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings set forth below:
(a) "ADDITIONAL TEN-YEAR TERM" shall have the meaning set forth in
Section 2.2 hereof.
(b) "COMPANY" shall mean K2 Design, Inc., a Delaware corporation.
(c) "EFFECTIVE DATE" shall have the meaning set forth in Section 1.1
hereof.
(d) "INITIAL TEN-YEAR TERM" shall have the meaning set forth in
Section 2.1 hereof.
(e) "PERSONS ELIGIBLE TO BE VOTERS" shall mean any Member or party
designated pursuant to Article VI.
(f) "PURCHASE PRICE" shall mean the average closing ask price of the
Shares as quoted on the principal market on which such Shares are traded,
during the five (5) most recently completed trading days immediately preceding
the Offering Member's delivery of written notice of offer to the Company and
each of the other Members.
(g) "SHARES" shall mean shares of the Company's common stock, par
value $.01 per share, as now owned or hereafter acquired, plus all voting
securities hereinafter acquired.
(h) "SUBJECT SHARES" shall mean, with respect to any Member at any
date, all Shares then owned by such Member, provided that this Agreement shall
be in effect with respect to any Member at such date.
(i) "MAJORITY" shall mean no less than a majority of the then
existing Members who are signatories to this Agreement.
(j) "VOTER" shall mean Matthew G. de Ganon, or, in the event of his
death or resignation, an individual selected by a majority of the remaining
Members, and any person who becomes a successor Voter pursuant to Article VI.
ARTICLE 2
TERM OF AGREEMENT
Section 2.1INITIAL TERM. The term of this Agreement shall begin on the
Effective Date and terminate on the date ten years after the Effective Date
(the "INITIAL TEN-YEAR TERM") unless extended for an Additional Ten-Year Term
thereafter pursuant to Section 2.2 hereof.
Section 2.2OPTIONAL TEN-YEAR EXTENSION. At the written election of a
Majority made during the term of this Agreement may be extended for an
additional ten-year period beginning on the date of expiration of the Initial
Ten-Year Term and ending on the date ten years thereafter (the "ADDITIONAL TEN-
YEAR TERM").
Section 2.3EXPIRATION OF AGREEMENT. Notwithstanding the foregoing
provisions of this Article II, this Agreement shall terminate upon any of the
following events:
(a) The written consent of all of the Members; or
(b) The dissolution or liquidation of the Company, or any
reorganization, merger, or sale of all or substantially all of the
Company's assets.
(c) If within ten (10) days after the resignation, death or
disability of the Voter, no successor Voter has been chosen by a Majority
in accordance with the terms of this Agreement.
ARTICLE 3
VOTING PROVISIONS
Section 3.1GRANT OF PROXY. Each Member hereby grants to the Voter an
irrevocable proxy, pursuant to the provisions of Section 212 of the Delaware
General Corporation Law, coupled with an interest, to vote such person's
Subject Shares as the Voter shall determine in his sole discretion (subject
only to the limitations set forth in Section 3.2 hereof) on all matters which
may be presented at any meeting or require the consent of stockholders of the
Company.
Section 3.2VOTE AS TO CERTAIN DIRECTORS. For as long as this Agreement
shall remain in effect:
(a) the Voter shall vote all the Subject Shares for the election of
each of David J. Centner, Matthew G. de Ganon, Douglas E. Cleek and Bradley K.
Szollose as directors of the Company.
(b) for purposes of clause (a) of this Section 3.2, any Shares held
by a corporation, partnership, trust or other entity shall be treated as owned
by the shareholders, partners or beneficiaries thereof on the basis of their
percentage interest in the entity.
(c) the Voter shall vote all the Subject Shares to limit the Board
of Directors of the Company to a maximum of seven (7) directors.
ARTICLE 4
TRANSFERS OF SUBJECT SHARES
Section 4.1TRANSFERS OF SUBJECT SHARES GENERALLY. During the term of this
Agreement, no Member hereto shall make any transfer of any Subject Shares,
except in accordance with this Article IV.
Section 4.2 OFFER TO THE REMAINING SHAREHOLDERS. If a Member desires to
transfer all or any part of his Subject Shares ("OFFERING MEMBER") he shall
serve written notice upon each of the other Members (the "FIRST NOTICE") of his
intention to do so. The First Notice shall constitute an offer to sell to each
of the other Members all of the Subject Shares owned by the Offering Members on
the terms herein described for the Purchase Price. Such offer shall be
accepted in whole or rejected by the Company and/or the other Members by notice
to the offering Member (the "SECOND NOTICE") within sixty (60) days of receipt
of the First Notice.
Section 4.3 REQUIREMENT OF PURCHASE OF ALL SHARES OFFERED. If such offer
of all of the Subject Shares is accepted by any of the Members, then the
closing of the purchase and sale shall be effected as provided for in Section
4.5. If more than one Member shall accept an offer under this Section or
otherwise under this Agreement, then each of the accepting Member shall be
obligated to purchase that number of the Subject Shares equal to the total
offered divided by the number of accepting Members. Otherwise, no Member shall
be permitted to purchase less than all of the Offering Member's Subject Shares.
Section 4.4 RIGHT TO OFFER SUBJECT SHARES TO NON-MEMBERS. If such offer
to sell all of the Offering Member's Shares shall not have been accepted, then:
(a) The offer shall be deemed to have been rejected and
withdrawn.
(b) All restrictions imposed by this Agreement upon the sale
of Subject Shares shall be suspended for a period of three (3) months,
commencing with the date of the mailing of the Second Notice, during
which period the Offering Member may sell all or any part of his Subject
Shares free and clear from all restrictions imposed by this Agreement on
terms no more favorable to the Offering Member than if any of the other
Members had purchased the Subject Shares pursuant to Sections 4.2 and
4.3, PROVIDED HOWEVER, that the other Members shall have the first
option, exercisable in the manner, including the time period(s),
provided in Sections 4.2 and 4.3 for offers of Subject Shares, to
purchase all Subject Shares for which a contract for sale, predicated
upon bona fide arms-length negotiations, has been entered into between
the Offering Member and a third party purchaser (the "CONTRACT"), upon
the same price and terms of payment and conditions contained in the
Contract. The entrance into the Contract shall be deemed another offer
by the Offering Member to each of the other Members. All consideration
to be given by such third party purchaser in exchange for the Subject
Shares must be cash and/or the execution and delivery of one or more
promissory notes providing only for the payment of cash.
(c) All sales pursuant to a Contract shall be made in
accordance with applicable federal and state securities laws and the
other Members can require the Offering Member to furnish to the other
Members at the Offering Member's expense, an opinion of counsel,
reasonably acceptable as to the form, substance and issuer thereof, that
such sale is exempt from applicable federal and state securities
registration requirements. All Shares sold pursuant to this Section 4.4
to a "bona fide third party" shall continue to be subject to the terms
of this Agreement.
(d) If, at the conclusion of such three (3) months of
suspension, the Offering Member still owns any Subject Shares, all
restrictions imposed by this Agreement on the sale of Subject Shares
shall automatically once again become fully effective and applicable.
In addition, in the event any Member agrees to sell any Subject Shares to
a third party, any other Member shall have the option to include in such sale
that number of Subject Shares equal to the product of (i) the total number of
Subject Shares the Offering Member agreed to sell, and (ii) a fraction the
numerator of which is the number of Subject shares then issued to the other
Member and the denominator of which is the total number of Subject Shares
outstanding. The Offering Member shall notify the other Members of the selling
Member's agreement to sell Subject Shares to a third party and the terms
thereof, and the other Members shall exercise their option to include any of
their Shares in such sale, if at all, within the time periods and generally in
accordance with the procedures set forth above concerning the other Members'
right of first refusal; PROVIDED, HOWEVER, that if the other Members do not
elect to include their Shares pursuant to a Second Notice, a subsequent
contract between the Member and a third party shall not trigger any further
tag-along rights accruing to the other Members pursuant to this paragraph as
the other Members shall have relinquished their ability to include their
Subject Shares in such sale by the Offering Member.
4.5 CLOSING. The closing of any purchase and sale pursuant to
Section IV shall take place at 10:00 a.m. on a date which is not less than
thirty (30) and not more than forty-five (45) days after the acceptance in
whole of the offer by one or more remaining Members. Such purchase and sale
shall be effected in the manner and upon the terms and conditions set forth in
Article V.
ARTICLE 5
TRANSFERS OF STOCK; DEATH OF A STOCKHOLDER.
5.1 NO REQUIRED PURCHASE AND SALE OF STOCK -- DEATH OR DISABILITY OF
VOTER. In the event of the death or disability of the Voter, the other Members
shall not be obligated to purchase, and the legal representatives of the Voter
shall not be obligated to sell, any or all of the Shares owned by the Voter on
the date of his death or disability. The Voter may transfer his Shares by
bequest, which transfer shall be subject to the Member's right of first
refusal. Such right of first refusal shall be noticed to and exercised by the
Members within the time periods set forth in Sections 4.2 and 4.3, and if
exercised by the Members, shall be for the Purchase Price.
Section 5.2CONDITION ON CERTAIN TRANSFERS. Any proposed transfer by any
Member hereto of any Subject Shares shall be conditioned on, and may not be
effectuated without, such transferee executing and delivering to the Members an
agreement pursuant to which the transferee agrees unconditionally to be bound
by the terms of this Agreement.
ARTICLE 6
THE VOTER
Section 6.1SUCCESSOR VOTERS. A Voter may at any time resign by delivery
to each of the Members a written resignation, to take effect ten (10) days
thereafter or upon the prior acceptance thereof by each of such Members. There
shall be no more than one Voter hereunder at all times. Upon the resignation
of a Voter, or upon the failure of a Voter to serve as Voter because of his
death or incapacity or otherwise, a Majority may appoint a successor Voter. If
the Majority should fail to do so, this Agreement shall be deemed to have been
terminated. Any successor Voter shall have all rights granted to the Voter
named herein and all references herein to the Voter shall include not only the
Voter named herein, but also any successor Voter.
Section 6.2VOTER MAY BE A COMPANY OFFICIAL. Nothing in this Agreement
shall preclude a Voter from (i) serving as an officer or director of the
Company, (ii) directly or indirectly receiving compensation, commissions or
other income from the Company, and (iii) directly or indirectly contracting
with the Company, or be or becoming pecuniarily interested in any matter or
transaction to which the Company may directly or indirectly be concerned, all
as fully and freely as though such Voter were not a Voter hereunder.
Section 6.3COMPENSATION OF VOTER. The Voter shall serve at all times
without compensation. All costs incurred with respect to this Agreement shall
be borne equally among the Members.
ARTICLE 7
LEGENDS ON SUBJECT SHARES; FILING OF AGREEMENT
Section 7.1LEGEND ON SUBJECT SHARES. All certificates representing
Subject Shares shall bear the following legend: THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO A VOTING AGREEMENT ON FILE AT THE OFFICES OF
THE COMPANY.
Section 7.2FILING OF AGREEMENT. Copies of this Agreement and of each
amendment modification, supplement or addendum hereto shall be filed in the
principal office of the Company.
ARTICLE 8
MISCELLANEOUS
Section 8.1JOINT EFFORT AND REPRESENTATIONS. The Agreement evidences the
effort of each of the Members and shall not be more constructively or harshly
interpreted against any of the Members. Each of the Members (i) has been
advised that he should seek independent legal and tax advice with regard to
this Voting Agreement; and (ii) acknowledges that Sills Cummis Zuckerman Radin
Tischman Epstein & Gross, P.A. ("Sills Cummis") has represented only the
Company in connection with the preparation and execution of the Company
Agreement.
The Company and the Members understand and accept responsibility for the
fact that they have substantial conflicting interests. They have been advised
by Robert W. Burke, Esq. of Sills Cummis of their right to and need for
independent counsel and with full knowledge and understanding, have declined to
retain independent counsel. The parties have read and fully understand the
terms, conditions and provisions of this Agreement. They acknowledge that all
the terms, conditions and provisions of this Agreement have been negotiated by
them without any influence whatsoever by any attorney associated with Sills
Cummis. The parties acknowledge and understand that this Agreement is
necessary to preserve harmony and continuity with respect to the management of
the Company. As part of the consideration for Sills Cummis performing the
legal work necessary to prepare this Agreement, the Company and the Members
hereby jointly and severally agree to indemnify Sills Cummis, and all its
members, shareholders, directors and employees who are such on the date of this
Agreement, or any time thereafter for, and hold such firm, its members,
shareholders, directors and employees harmless from, any claims made by (and
expenses incurred in defending against such claims) any of the parties or any
of their heirs, assignees, administrators, legal or personal representatives,
executors or successors based upon such firm's involvement in the transactions
which are the subject of this Agreement. This agreement to "hold harmless"
shall be binding upon the Company and the Members and their heirs, executors,
administrators, successors and assignees, and shall inure to the benefit of all
members, shareholders, directors and employees of Sills Cummis who are such on
the date of this Agreement, or any time thereafter, and all such members;
shareholders', directors' and employees' heirs, executors, administrators,
successors and assignees. Each of the Members and the Company understand that
in any dispute among the Members or any Member and the Company, Sills Cummis
would not represent them.
Section 8.2NOTICE PROVISIONS. (a) All notices or communications required
to be given by any person pursuant to this Agreement shall be effected in
writing either by personal delivery or by registered or certified mail, postage
prepaid with return receipt requested, (i) if to a Member hereto, to that
Member's respective address as shown on the attached Exhibit A, or (ii) if to
the Voter, at the Company, The New York Information and Technology Center, 55
Broad Street, New York, New York. Notices delivered personally shall be deemed
effective for all purposes of this Agreement as of the date of actual receipt,
mailed notices shall be deemed effective for all purposes of this Agreement as
of the date five (5) calendar days after the date of mailing.
(b) Any person may designate a different address to which notices or
other communications must thereafter be addressed by giving written notice of
the different address to the Voter, in the case of a Member hereto, and (ii) to
each of the Members hereto, in the case of the Voter.
Section 8.3AMENDMENT OF AGREEMENT. The provisions of this Agreement may
be amended only by written consent of all of the Members.
Section 8.4ENFORCEABILITY OF AGREEMENT. (a) The provisions of this
Agreement shall be specifically enforceable in any court with appropriate
jurisdiction.
(b) Any Member that wilfully breaches any provision of this
Agreement shall, in addition to other penalties, damages or liabilities, be
responsible for and shall pay to each other party hereto an amount equal to
reasonable attorneys' fees actually incurred by such other party in his or her
respective efforts to enforce the terms of this Agreement.
Section 8.5INTERPRETATION OF AGREEMENT. This Agreement shall be construed
in its entirety, with no emphasis or meaning being given to the headings or
captions utilized in this Agreement or the placement of the various provisions.
Section 8.6ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the
subject matter of this Agreement.
Section 8.7SEVERABILITY OF PROVISIONS. Each provision of this Agreement
is intended to be severable. If any term or provision is declared to be
illegal or invalid for any reason, such illegality or invalidity shall not
affect the validity of enforceability of any other provision of this Agreement.
Section 8.8GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
Section 8.9EXECUTION IN COUNTERPARTS. This Agreement and any amendments
hereto may be executed in any number of counterparts with the same effect as if
all of the parties had signed the same document.
/S/ MATTHEW G. DE GANON /S/ DAVID J. CENTNER
- ------------------------- ---------------------------
Matthew G. de Ganon, David J. Centner
in his individual
capacity and as the Voter
/S/ DOUGLAS E. CLEEK /S/ BRADLEY K. SZOLLOSE
- ------------------------ ---------------------------
Douglas E. Cleek Bradley K. Szollose
As to Section 8.1 only:
K2 DESIGN, INC., a Delaware corporation
By: /S/ MATTHEW G. DE GANON
- ----------------------------
Its: PRESIDENT
------------------------
<PAGE>
EXHIBIT B
MEMBERS OF THE GROUP
GROUP MEMBER COMPANY TITLES
David J. Centner Chairman of the Board
Chief Executive Officer
Chief Financial Officer
Director
Matthew G. de Ganon Vice Chairman
President
Chief Operating Officer
Director
Douglas E. Cleek Executive Vice President -- Chief Creative Officer
Director
Bradley K. Szollose Executive Vice President -- Marketing
Treasurer
Secretary
Director
<PAGE>
EXHIBIT C
The undersigned persons, on February 5, 1997, agree and consent to the
joint filing on their behalf of this Schedule 13G in connection with their
beneficial ownership of the Common Stock of K2 Design, Inc. at December 31,
1996.
FEBRUARY 5, 1997 FEBRUARY 5, 1997
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Date Date
/S/ MATTHEW G. DE GANON /S/ DAVID J. CENTNER
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Matthew G. de Ganon David J. Centner
FEBRUARY 5, 1997 FEBRUARY 5, 1997
- ------------------------------ -----------------------------
Date Date
/S/ DOUGLAS E. CLEEK /S/ BRADLEY K. SZOLLOSE
- ------------------------------ -----------------------------
Douglas E. Cleek Bradley K. Szollose
