<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 7, 1999
REGISTRATION NO. 333-87671
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PROXICOM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7371 52-1770631
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) No.)
</TABLE>
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11600 SUNRISE VALLEY DRIVE
RESTON, VA 20191
(703) 262-3200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------
RAUL J. FERNANDEZ
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PROXICOM, INC.
11600 SUNRISE VALLEY DRIVE
RESTON, VA 20191
(703) 262-3200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
<TABLE>
<S> <C>
DAVID B. H. MARTIN, JR., ESQ. PAUL V. ROGERS, ESQ.
HOGAN & HARTSON L.L.P. WILLIAM F. WINSLOW, ESQ.
555 THIRTEENTH STREET, N.W. HALE AND DORR LLP
WASHINGTON, D.C. 20004 1455 PENNSYLVANIA AVENUE, N.W.
(202) 637-5600 WASHINGTON, D.C. 20004
(202) 942-8400
</TABLE>
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE TO AMENDMENT NO. 2
This Amendment No. 2 to the Proxicom, Inc. Registration Statement on Form
S-1 has been filed solely for the purpose of filing certain exhibits to the
Registration Statement.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement
2.1+ Agreement and Plan of Merger, dated as of January 30, 1998,
among the Registrant, Proxicom Acquisition Corp., Square
Earth, Inc. and the stockholders of Square Earth, Inc.
2.2+ Agreement and Plan of Merger, dated as of August 21, 1998,
among the Registrant, Proxicom Merger Sub, Inc., IBIS
Consulting, Inc. and the stockholders of IBIS Consulting,
Inc.
2.3+ Agreement and Plan of Merger, dated as of March 22, 1999,
among the Registrant, Proxicom Merger Sub II, Inc., ad hoc
Interactive, Inc. and the Principal Stockholders of ad hoc
Interactive, Inc.
3.1+ Restated Certificate of Incorporation of the Registrant
3.2+ Bylaws of the Registrant
4.1+ Form of Common Stock Certificate of the Registrant
5.1 Opinion of Hogan & Hartson L.L.P.
10.1+ Preferred Stock and Warrant Purchase Agreement, dated August
30, 1996, among the Registrant, General Atlantic Partners
34, L.P. and GAP Coinvestment Partners, L.P.
10.2+ Preferred Stock Purchase Agreement, dated February 20, 1997,
among the Registrant, General Atlantic Partners 34, L.P.,
GAP Coinvestment Partners, L.P., FBR Venture Capital
Managers, Inc. and The Mario M. Morino Trust
10.3+ Preferred Stock Purchase Agreement, dated November 24, 1997,
between the Registrant and General Electric Capital
Corporation
10.4+ Preferred Stock Purchase Agreement, dated February 1, 1999,
among the Registrant, Jack Kemp, Theodore J. Leonsis, John
McKinley, The Washington Post Company, General Atlantic
Partners 52, L.P., GAP Coinvestment Partners II, L.P., The
Mario M. Morino Trust and GE Capital Equity Investments,
Inc.
10.5+ Third Amended and Restated Registration Rights Agreement,
dated February 1, 1999, among the Registrant, General
Atlantic Partners 34, L.P., General Atlantic Partners 52,
L.P., GAP Coinvestment Partners, L.P., GAP Coinvestment
Partners II, L.P., Raul Fernandez, The Mario M. Morino
Trust, FBR Venture Capital Managers Inc., General Electric
Capital Corporation, GE Capital Equity Investments, Inc.,
Brenda Wong, Scott McDonald, Vincent Hoenigman, Jack Kemp,
Theodore J. Leonsis, John McKinley and The Washington Post
Company
10.6+ Proxicom, Inc. 1996 Stock Option Plan
10.7+ Proxicom, Inc. 1997 Stock Option Plan for Non-employee
Directors
10.8+ Proxicom, Inc. Employee Stock Purchase Plan
10.9+ Lease Agreement, dated July 14, 1997 between Sunrise Limited
Partnership and the Registrant
10.10+ Secured Credit Agreement, dated as of October 30, 1998,
between the Registrant and NationsBank, N.A.
10.11** Amendment to Secured Credit Agreement, dated as of June 1,
1999, between the Registrant and NationsBank, N.A.
10.12+ Severance Agreement between the Registrant and Christopher
Capuano
10.13+ Severance Agreement between the Registrant and Larry Clark
</TABLE>
II-1
<PAGE> 4
<TABLE>
<C> <S>
10.14+ Severance Agreement between the Registrant and Kenneth J. Tarpey
10.15 Fourth Amended and Restated Registration Rights Agreement, dated September 24, 1999, among the
Registrant and the stockholders named therein
21.1+ Subsidiaries of the Registrant
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
24.1** Power of Attorney (included on the signature page)
</TABLE>
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** Previously filed.
+ Incorporated by reference to the Registrant's Registration Statement on Form
S-1, File No. 333-72297.
(B) FINANCIAL STATEMENT SCHEDULES
Schedules have been omitted because the information required to be set
forth therein is not applicable or is included elsewhere in the Financial
Statements or the notes thereto.
II-2
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of
Reston, Commonwealth of Virginia, on October 7, 1999.
PROXICOM, INC.
By: *
----------------------------------
Raul J. Fernandez
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
* Chairman, President and Chief October 7, 1999
- ------------------------------------------------ Executive Officer (Principal
Raul J. Fernandez Executive Officer)
* Senior Vice President, Human October 7, 1999
- ------------------------------------------------ Resources and Director
Brenda Wagner
/s/ KENNETH J. TARPEY Executive Vice President, Chief October 7, 1999
- ------------------------------------------------ Financial Officer and Treasurer
Kenneth J. Tarpey (Principal Financial and
Accounting Officer)
* Director October 7, 1999
- ------------------------------------------------
David C. Hodgson
* Director October 7, 1999
- ------------------------------------------------
Jack Kemp
* Director October 7, 1999
- ------------------------------------------------
Theodore J. Leonsis
* Director October 7, 1999
- ------------------------------------------------
John A. McKinley, Jr.
* Director October 7, 1999
- ------------------------------------------------
Mario M. Morino
*By: /s/ KENNETH J. TARPEY October 7, 1999
-------------------------------------------
Kenneth J. Tarpey
Attorney-in-Fact
</TABLE>
II-3
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement
2.1+ Agreement and Plan of Merger, dated as of January 30, 1998,
among the Registrant, Proxicom Acquisition Corp., Square
Earth, Inc. and the stockholders of Square Earth, Inc.
2.2+ Agreement and Plan of Merger, dated as of August 21, 1998,
among the Registrant, Proxicom Merger Sub, Inc., IBIS
Consulting, Inc. and the stockholders of IBIS Consulting,
Inc.
2.3+ Agreement and Plan of Merger, dated as of March 22, 1999,
among the Registrant, Proxicom Merger Sub II, Inc., ad hoc
Interactive, Inc. and the Principal Stockholders of ad hoc
Interactive, Inc.
3.1+ Restated Certificate of Incorporation of the Registrant
3.2+ Bylaws of the Registrant
4.1+ Form of Common Stock Certificate of the Registrant
5.1 Opinion of Hogan & Hartson L.L.P.
10.1+ Preferred Stock and Warrant Purchase Agreement, dated August
30, 1996, among the Registrant, General Atlantic Partners
34, L.P. and GAP Coinvestment Partners, L.P.
10.2+ Preferred Stock Purchase Agreement, dated February 20, 1997,
among the Registrant, General Atlantic Partners 34, L.P.,
GAP Coinvestment Partners, L.P., FBR Venture Capital
Managers, Inc. and The Mario M. Morino Trust
10.3+ Preferred Stock Purchase Agreement, dated November 24, 1997,
between the Registrant and General Electric Capital
Corporation
10.4+ Preferred Stock Purchase Agreement, dated February 1, 1999,
among the Registrant, Jack Kemp, Theodore J. Leonsis, John
McKinley, The Washington Post Company, General Atlantic
Partners 52, L.P., GAP Coinvestment Partners II, L.P., The
Mario M. Morino Trust and GE Capital Equity Investments,
Inc.
10.5+ Third Amended and Restated Registration Rights Agreement,
dated February 1, 1999, among the Registrant, General
Atlantic Partners 34, L.P., General Atlantic Partners 52,
L.P., GAP Coinvestment Partners, L.P., GAP Coinvestment
Partners II, L.P., Raul Fernandez, The Mario M. Morino
Trust, FBR Venture Capital Managers Inc., General Electric
Capital Corporation, GE Capital Equity Investments, Inc.,
Brenda Wong, Scott McDonald, Vincent Hoenigman, Jack Kemp,
Theodore J. Leonsis, John McKinley and The Washington Post
Company
10.6+ Proxicom, Inc. 1996 Stock Option Plan
10.7+ Proxicom, Inc. 1997 Stock Option Plan for Non-employee
Directors
10.8+ Proxicom, Inc. Employee Stock Purchase Plan
10.9+ Lease Agreement, dated July 14, 1997 between Sunrise Limited
Partnership and the Registrant
10.10+ Secured Credit Agreement, dated as of October 30, 1998,
between the Registrant and NationsBank, N.A.
10.11** Amendment to Secured Credit Agreement, dated as of June 1,
1999, between the Registrant and NationsBank, N.A.
10.12+ Severance Agreement between the Registrant and Christopher
Capuano
10.13+ Severance Agreement between the Registrant and Larry Clark
10.14+ Severance Agreement between the Registrant and Kenneth J.
Tarpey
10.15 Fourth Amended and Restated Registration Rights Agreement,
dated September 24, 1999, among the Registrant and the
stockholders named therein
21.1+ Subsidiaries of the Registrant
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
24.1** Power of Attorney (included on the signature page)
</TABLE>
- ---------------
** Previously filed.
+ Incorporated by reference to the Registrant's Registration Statement on Form
S-1, File No. 333-72297.
<PAGE> 1
PROXICOM, INC.
COMMON STOCK, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
__________, 1999
Thomas Weisel Partners LLC
First Union Capital Markets Corp.
Friedman, Billings, Ramsey & Co., Inc.
Prudential Securities Incorporated
E*OFFERING Corp.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Thomas Weisel Partners LLC
One Montgomery Street
San Francisco, California 94104
Ladies and Gentlemen:
Proxicom, Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 1,000,000 shares
of Common Stock, par value $.01 per share ("Common Stock"), of the Company(the
"Company Shares"), the stockholders of the Company named in Schedule II hereto
(the "Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 2,000,000 shares of Common
Stock (the "Selling Stockholder Shares")and, at the election of the
Underwriters, the Company and certain of the Selling Stockholders propose to
sell to the Underwriters up to 450,000 additional shares of Common Stock (the
"Optional Shares"). The Company Shares and the Selling Stockholder Shares are
herein referred to as the "Firm Shares." The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares". The respective amounts of Firm Shares to be
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto and the amount to be sold by each Selling Stockholder is set
forth opposite his or her name in Schedule II hereto. Thomas Weisel Partners
LLC, First Union Capital Markets Corp., Friedman, Billings, Ramsey & Co., Inc.,
Prudential Securities Incorporated and E*OFFERING Corp. are the representatives
of the several Underwriters and shall hereinafter be referred to as the
"Representatives."
1. (a) The Company hereby represents and warrants to, and agrees with,
each of the Underwriters that:
<PAGE> 2
(i) A registration statement on Form S-1 (File No. 333-87671) (the
"Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which will
become effective upon filing, no other document with respect to the
Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus;" the various parts of the
Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, each as
amended at the time such part of the Initial Registration Statement
became effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant
to Rule 424(b) under the Act, is hereinafter called the "Prospectus;"
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Thomas Weisel Partners LLC expressly for use
therein or by the Selling Stockholders expressly for use in the
preparation of the answers therein to Items 7 and 11(m) of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
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<PAGE> 3
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Thomas Weisel Partners LLC expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the answers
therein to Items 7 and 11(m) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in
the Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(v) Neither the Company nor any of its subsidiaries owns any real
property, and each has good and marketable title to all personal
property owned by it, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus
or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or the subsidiary; and any real property and
buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company
and its subsidiaries;
(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation;
(vii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description of the Stock
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except
for
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<PAGE> 4
directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued and fully paid and non-assessable and
will conform to the description of the Stock contained in the
Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company and
the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(x) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock" insofar as they purport to constitute a
summary of the terms of the Stock and under the caption "Underwriting,"
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(xii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
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<PAGE> 5
(xiii) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company," as such
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xiv) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes; and
(xv) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(xvi) Other than as set forth or contemplated in the Prospectus, the
Company and its subsidiaries have sufficient interests or rights in all
patents, patent licenses, trademarks, servicemarks, trade names,
copyrights, trade secrets, information proprietary rights and processes
("Intellectual Property") necessary for their business as now conducted
and, to the Company's knowledge, necessary in connection with the
products and services under development and described in the
Prospectus, without any conflict with or infringement of the interests
or rights of others; except as disclosed in the Prospectus, the Company
is not aware of material outstanding options, licenses or agreements of
any kind relating to the Intellectual Property, and, except as
disclosed in the Prospectus, neither the Company nor any of its
subsidiaries is a party to or bound by any material options, licenses
or agreements with respect to the Intellectual Property of any other
person or entity; none of the technology employed by the Company or any
of its subsidiaries has been obtained or is being used by the Company
or its subsidiaries in violation of any contractual fiduciary
obligation binding on the Company, any of its subsidiaries or any of
its executive officers or, to the Company's knowledge, any of its
employees or otherwise in violation of the rights of any person; except
as disclosed in the Prospectus, neither of the Company or any of its
subsidiaries nor any of its employees have received any written or, to
the Company's knowledge, oral communications alleging that the Company
or any of its subsidiaries has violated, infringed or conflicted with
(and knows of no such violation, infringement or conflict) or, by
conducting its business as proposed, would violate, infringe or
conflict with (and knows of no such violation, infringement or
conflict) any of the Intellectual Property of any other person or
entity; neither the execution nor delivery of this Agreement, nor the
operation of the Company's business by the employees of the Company,
nor the operation of the business of any of its subsidiaries, nor the
conduct of the Company's business as proposed or the business of any of
its subsidiaries as proposed, will result in a breach or violation of
the terms, conditions or provisions of, or constitute a default under,
any material contract, covenant or instrument known to the Company
under which any of such employees is now obligated; and the Company and
its subsidiaries have taken and will maintain reasonable measures to
prevent the unauthorized dissemination or publication of their
confidential information and, to the extent contractually required to
do so, the confidential information of third parties in their
possession;
-5-
<PAGE> 6
(xvii) The Company maintains insurance of the types and in the
amounts generally deemed adequate for its business, including, but not
limited to, insurance covering real and personal property owned or
leased by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect;
(xviii) There are no contracts, other documents or other agreements
required to be described in the Registration Statement or to be filed
as exhibits to the Registration Statement by the Act or by the rules
and regulations thereunder which have not been described or filed as
required; the contracts so described in the Prospectus are in full
force and effect on the date hereof; and neither the Company nor, to
the best of the Company's knowledge, any other party is in breach of or
default in any material respect under any of such contracts; and
(xix) The Company has not been advised, and has no reason to
believe, that it is not conducting business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, including, without limitation, all applicable
local, state and federal environmental laws and regulations; except
where failure to be so in compliance would not materially adversely
affect the condition (financial or otherwise), business, results of
operations or prospects of the Company.
(xx) The Company has filed all tax returns, Federal, state, county
and local, required to be filed by it, and the Company has paid all
taxes shown to be due by such returns as well as all other taxes,
assessments and governmental charges which have become due or payable,
including without limitation, all taxes which the Company is obligated
to withhold from amounts owing to employees, creditors and third
parties. The Company has established adequate reserves for all taxes
accrued but not yet payable. No audit of the Company's tax returns is
in progress, pending or, to the Company's knowledge, threatened. No
deficiency assessment with respect to or proposed adjustment of the
Company's Federal, state, county or local taxes is pending or, to the
best of the Company's knowledged, threatened.
(xxi) The computer systems and software owned, and to the best
knowledge of the Company, licensed, by the Company are able to
accurately process, provide and/or receive date data, including but not
limited to, calculating, comparing and sequencing from, into and
between the twentieth century (through year 1999), the year 2000 and
the twenty-first century, including leap year calculations. The Company
has instituted a program of questioning its material vendors and
suppliers to assess their Year 2000 readiness. Of the vendors and
suppliers that have responded to the Company's inquiries, none have
informed the Company of any material Year 2000 compliance issues and
the Company has no reason to believe otherwise; and
(xxii) The Company has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
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<PAGE> 7
(xxiii) The Shares have been duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation National
Market System.
(xxiv) The Company has filed, or caused to be filed, in a timely
manner with the Commission all filings, forms and periodic reports as
are required to be filed by the Company pursuant to the Securities
Exchange Act of 1934, as amended.
(b) Each of the Selling Stockholders represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this
Agreement and the Power of Attorney and the Custody Agreement
hereinafter referred to, and for the sale and delivery of the Shares to
be sold by such Selling Stockholder hereunder, have been obtained; and
such Selling Stockholder has full right, power and authority to enter
into this Agreement, the Power-of-Attorney and the Custody Agreement
and to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of
the provisions of this Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of
the property or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the property
of such Selling Stockholder;
(iii) Such Selling Stockholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) such Selling
Stockholder will have, good and valid title to the Shares to be sold by
such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
(iv) During the period beginning from the date hereof and continuing
to and including the date 90 days after the effective date of the
Registration Statement, such Selling Stockholder will not, directly or
indirectly, offer, sell, pledge, contract to sell (including any short
sale), grant any option to purchase or otherwise dispose of, except as
provided hereunder, any shares of Common Stock (including, without
limitation, shares of Common Stock which may be deemed to be
beneficially owned by such Selling Stockholder in accordance with the
rules and regulations of the Commission or Shares which may be issuable
upon exercise of a stock option or warrant) or enter into any short
sale (whether or not against the box) or any purchase, sale or grant of
any right (including any
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<PAGE> 8
put or call option) with respect to any security (other than a
broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common Stock,
without your prior written consent; notwithstanding the foregoing, such
Selling Stockholder may transfer any or all of such shares by gift,
will or intestacy; provided, however, that in any such case it shall be
a condition to the transfer that the transferee execute an agreement
stating that the transferee is receiving and holding such shares
subject to the provisions of this paragraph, and there shall be no
further transfer of such shares except in accordance with this
paragraph;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(viii) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder have been
placed in custody under a Custody Agreement, in the form heretofore
furnished to you (the "Custody Agreement"), duly executed and delivered
by such Selling Stockholder to the Company, as custodian (the
"Custodian"), and such Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to you
(the "Power of Attorney"), appointing the persons indicated in Schedule
II hereto, and each of them, as such Selling Stockholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute
and deliver this Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Stockholder as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Stockholder hereunder
and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the
Custody Agreement; and
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<PAGE> 9
(ix) The Shares represented by the certificates held in custody for
such Selling Stockholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder; the arrangements made by such
Selling Stockholder for such custody, and the appointment by such
Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney,
are to that extent irrevocable; the obligations of the Selling
Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling
Stockholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such estate
or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of
any other event; if any individual Selling Stockholder or any such
executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should
occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the
Selling Stockholder in accordance with the terms and conditions of this
Agreement and of the Custody Agreements; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid
as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the Company
and the Selling Stockholders agree, severally and not jointly, to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders, at a
purchase price per share of $_______, the number of Firm Shares (to be adjusted
by you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Shares to be sold by the Company and the Selling
Stockholders as set forth opposite their respective names in Schedule II hereto
by a fraction, the numerator of which is the aggregate number of Firm Shares to
be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the aggregate
number of Firm Shares to be purchased by all of the Underwriters from the
Company and the Selling Stockholders hereunder and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Company and certain of the Selling Stockholders as
named in Schedule II hereto agree to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company and such Selling Stockholders, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company and certain of the Selling Stockholders, as named in Schedule
II hereto hereby grant to the Underwriters the right to purchase at their
election up to 450,000 Optional Shares, at the purchase
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<PAGE> 10
price per share set forth in the paragraph above, for the sole purpose of
covering over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of such
notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form and in such authorized denominations and registered in such
names as Thomas Weisel Partners LLC may request upon at least 48 hours' prior
notice to the Company and the Selling Stockholders, shall be delivered by or on
behalf of the Company and the Selling Stockholders to Thomas Weisel Partners
LLC, for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company and the Selling
Stockholders, as their interests may appear, to Thomas Weisel Partners LLC at
least 48 hours in advance. The Company will cause the certificates representing
the Shares to be made available for checking and packaging at least 24 hours
prior to the Time of Delivery (as defined below) with respect thereto at the
office of Thomas Weisel Partners LLC, One Montgomery Street, San Francisco,
California 94104 (the "Designated Office"). The time and date of such delivery
and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time,
on __________, 1999 or such other time and date as Thomas Weisel Partners LLC,
the Company and the Selling Stockholders may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by Thomas Weisel Partners LLC in the written notice given by Thomas Weisel
Partners LLC of the Underwriters' election to purchase such Optional Shares, or
such other time and date as Thomas Weisel Partners LLC and the Company may agree
upon in writing. Such time and date for delivery of the Firm Shares is herein
called the "First Time of Delivery;" such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called the "Second
Time of Delivery," and each such time and date for delivery is herein called a
"Time of Delivery."
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(l) hereof, will be delivered at the offices of Hale and
Dorr LLP, 1455 Pennsylvania Avenue, N.W., Washington, D.C. 20004 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing Location at 4:00
p.m., Eastern time, on the Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in Washington, D.C. are generally authorized or obligated by law or executive
order to close.
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<PAGE> 11
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its reasonable best efforts
to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 A.M., Eastern time, on the Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Shares and if at such time any
events shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus in order to comply with
the Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time nine months
or more after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
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<PAGE> 12
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than 18 months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) Other than pursuant to employee stock option and purchase plans and
other contractual obligations existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement during the period beginning from the date hereof and continuing to and
including the date 90 days after the effective date of the Registration
Statement, not to offer, sell, pledge, contract to sell or otherwise dispose of,
except as provided hereunder, any shares of Common Stock or enter into any short
sale (whether or not against the box) or any purchase, sale or grant of any
right (including any put or call option) with respect to any security (other
than a broad-based market basket or index) that includes, relates to or derives
any significant part of its value from the Common Stock, without your prior
written consent;
(f) To furnish to its stockholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and statements
of income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(i) To file with the Commission Forms 10-Q or Forms 10-K containing all
such information as may be required by Rule 463 under the Act; and
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
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<PAGE> 13
(k) The Company will deliver to, or upon the order of, the
Underwriters, without charge from time to time, as many copies of any
Preliminary Prospectus as they may reasonably request. The Company will deliver
to, or upon the order of, the Underwriters without charge as many copies of the
Prospectus, or as it thereafter may be amended or supplemented, as they may from
time to time reasonably request. The Company consents to the use of such
Prospectus by the Underwriters and by all dealers to whom the Shares may be
sold, both in connection with the offering or sale of the Shares and for such
other purposes and for such period of time thereafter as the Prospectus is
required by law to be delivered in connection with the offering or sale of the
Shares. The Company will deliver to the Underwriters at or before the Closing
Date two signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the Underwriters
such number of copies of the Registration Statement, without exhibits, and of
all amendments thereto, as they may reasonably request.
6. The Company covenants and agrees with the several Underwriters that (a)
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's and the Selling Stockholders'
counsel and the Company's accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the NASDAQ; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; (viii) any fees
and expenses of the Attorney-in-Fact and the Custodian, (ix) all other costs and
expenses incident to the performance of the obligations of the Company or the
Selling Stockholders hereunder which are not otherwise specifically provided for
in this Section; and (x) all expenses and taxes incident to the sale and
delivery of the Shares to be sold by the Selling Stockholders to the
Underwriters hereunder. In connection with clause (b) of the preceding sentence,
Thomas Weisel Partners LLC agrees to pay New York State stock transfer tax, and
the Company agrees to reimburse Thomas Weisel Partners LLC for the associated
carrying costs if such tax payment is not rebated on the day of payment and for
any portion of such tax payment not rebated. It is understood, however, that the
Company shall bear, and the Selling Stockholders shall not be required to pay or
to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares pursuant to this Agreement, and
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
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<PAGE> 14
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Hale and Dorr LLP, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated such Time of Delivery, with
respect to the matters covered in paragraphs (i), (ii), (vi), (vii) and (x) of
subsection (c) below as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Hogan & Hartson L.L.P. counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company was incorporated and is validly
existing and in good standing under the laws of the State of
Delaware, with corporate power and corporate authority under
its Certificate of Incorporation and the Delaware Corporation
Law to own or lease its properties and conduct its business as
described in the Prospectus;
(ii) The Company has authorized capital stock as set
forth under the "Actual" column of the table under the caption
"Capitalization" in the Prospectus. All shares of capital
stock of the Company shown as issued and outstanding under
such column are duly authorized and are validly issued and are
fully paid and non-assessable. (Such counsel may rely, in
respect of matters of fact relating to consideration received
for such stock, upon certificates of officers of the Company.)
The Shares conform to the description of the Stock contained
in the Prospectus under the caption "Description of Capital
Stock -- Common Stock" and when issued in accordance with the
provisions of this Agreement, will be validly issued, fully
paid and non-assessable;
(iii) The Company is authorized to transact business
as a foreign corporation under the laws of each jurisdiction
specified by you prior to the time of delivery based on
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<PAGE> 15
where it leases properties or conducts any business (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company
and officials of such jurisdictions);
(iv) Each domestic subsidiary of the Company was
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
and all of the issued shares of capital stock of each such
subsidiary have been duly authorized and are validly issued,
are fully paid and non-assessable, and (except for directors'
qualifying shares) are owned of record, directly or
indirectly, by the Company, free and clear, to such counsel's
knowledge, of all liens, encumbrances or claims, other than
the pledge of such shares to secure the Company's credit
facility, (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of
the Company or its subsidiaries, provided that such counsel
shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The execution, delivery and performance as of
the date of such opinion by the Company of this Agreement do
not (a) violate the Delaware General Corporation Law, or the
Certificate of Incorporation or Bylaws of the Company, (b) to
such counsel's knowledge, violate any law, rule, regulation,
or order applicable to the Company of any federal court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Company (other than with respect
to federal securities statutes, laws, rules or regulations) or
(c) breach or constitute a default under any agreement or
contract filed as an exhibit to the Registration Statement;
(vii) No approval or consent of, or registration or
filing with any federal or governmental agency or body having
jurisdiction over the Company or any of its properties is
required to be obtained or made by the Company in connection
with the execution, delivery and performance by the Company of
this Agreement as of the date of the opinion, except the
registration under the Act of the Shares, and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
the Underwriters;
(viii) The information in the Prospectus under the
caption "Description of Capital Stock", to the extent that
such information constitutes matters of law or legal
conclusions, has been reviewed by us and is correct in all
material respects. The Common Stock conforms in all material
respects to the description thereof set forth in the
Prospectus under the caption "Description of Capital Stock --
Common Stock";
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<PAGE> 16
(ix) The Company is not an "investment company", as
such term is defined in the Investment Company Act; and
(x) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the rules and regulations thereunder; although they do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (xi) of this Section 7(c), no facts
have come to their attention which cause such counsel to
believe that (a) as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that, as of the Time of
Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (b) there are any legal or
governmental proceedings pending or threatened against the
Company that are required to be disclosed in the Registration
Statement or the Prospectus other than those disclosed
therein, or (c) there are any contracts or other documents of
a character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed
or described as required, provided, however, that in making
the foregoing statements, such counsel need express no views
as to the financial statements and notes thereto, related
schedules and other financial information and data.
(d) Christopher Capuano, general counsel for the Company, shall have
furnished to you his written opinion (a draft of such opinion is attached as
Annex II(c) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's
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<PAGE> 17
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and
(ii) Any real property and buildings held in the
United States under lease by the Company and its subsidiaries
and, to such counsel's knowledge, any real property and
buildings held outside of the United States under lease by the
Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Company and its subsidiaries;
(e) Hogan & Hartson, L.L.P., counsel for the Selling Stockholders, as
indicated in Schedule II hereto, shall have furnished to you their written
opinion with respect to the Selling Stockholder (a draft of such opinion is
attached as Annex II(d) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have
been duly executed and delivered by each of the Selling
Stockholders and constitute valid and binding agreements of
each of the Selling Stockholder in accordance with their
terms, except (i) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors'
rights (including, without limitation, the effect of statutory
and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers), (ii) as may be limited
by the exercise of judicial discretion and the application of
principles of equity including, without limitation,
requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether such agreements are
considered in a proceeding at equity or at law), and (iii) no
opinion is expressed as to the enforceability of any
indemnification provisions under the federal securities laws;
(ii) This Agreement has been duly executed and
delivered by or on behalf of each of the Selling Stockholders;
and the sale of the Shares to be sold by each such Selling
Stockholder hereunder and the compliance by each such Selling
Stockholder with all of the provisions of this Agreement, the
Power-of-Attorney and the Custody Agreement and the
consummation of the transactions herein and therein
contemplated, to counsel's knowledge, do not violate (i) any
applicable provisions of federal statutes or regulations, the
contract laws of the Commonwealth of Virginia (but not
including any statutes, ordinances, administrative decisions,
rules or regulations of any political subdivision of the
Commonwealth of Virginia); or (ii) any judgment, order or
decree of any federal or Virginia governmental body, agency or
court having jurisdiction over any of the Selling
Stockholders;
(iii) To such counsel's knowledge, no consent,
approval, authorization or order of any federal or Virginia
court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement in connection with the Shares to be sold by the
Selling Stockholders hereunder, except such as have been
obtained under the Act and such as may be required under state
securities or Blue Sky
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<PAGE> 18
laws (as to which such counsel need express no opinion) in
connection with the purchase and distribution of such Shares
by the Underwriters; and
(iv) Each of the Selling Stockholders is the
registered owner of the Shares to be sold by each such Selling
Stockholder. Each Selling Stockholder acquired its Shares to
be sold in the Offering free of any adverse claims within the
meaning of Section 8.8A-302(c) of the Commercial Code of the
Commonwealth of Virginia. Upon delivery to the Underwriters of
the Shares to be sold by the Selling Stockholders, registered
in the names of the Underwriters or indorsed to the
Underwriters or in blank by an effective indorsement pursuant
to the Underwriting Agreement and the Custody Agreements, or
registration of such Shares in the names of the Underwriters
in the stock records of the Company, and assuming in either
case that the Underwriters purchased such Shares for value, in
good faith and without notice of any adverse claim to such
Shares within the meaning of Section 8.8A-302(c) of the
Commercial Code of the Commonwealth of Virginia, the
Underwriters will have acquired such Shares free of adverse
claims.
In rendering the opinion in paragraph (iv), such counsel may rely upon a
certificate of the Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on, the Shares sold by
the Selling Stockholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate;
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., Eastern time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, PricewaterhouseCoopers
LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect
set forth in Annex I hereto (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(g)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
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<PAGE> 19
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on the NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on the NASDAQ; (iii)
a general moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly listed for
quotation on the NASDAQ;
(j) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from all officers and directors of the Company and each
of the Selling Stockholders listed on Schedule II and certain other persons as
agreed to by the Company and you, substantially to the effect set forth in
Subsection 1(b)(iv) hereof in form and substance satisfactory to you;
(k) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(l) The Company and the Selling Stockholder shall have furnished to you
at such Time of Delivery certificates of officers of the Company and of the
Selling Stockholders, respectively, satisfactory to you as to the accuracy of
the representations and warranties of the Company and the Selling Stockholders,
respectively, herein at and as of such Time of Delivery, as to the performance
by the Company and the Selling Stockholders of all of their respective
obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (g) of this Section.
If any of the conditions hereinabove provided for in this Section 7
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
you by notifying the Company and the Selling Stockholders of such termination in
writing or by telegram at or prior to the relevant Time of Delivery.
8. (a) The Company and Raul J. Fernandez agree jointly and severally:
(1) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act,
against any losses, claims, damages or liabilities to which such Underwriter or
any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein
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<PAGE> 20
or necessary to make the statements therein not misleading or (iii) any act or
failure to act, or any alleged act or failure to act, by any Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement, or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for use
in the preparation thereof.
(2) to reimburse each Underwriter and each such controlling
person upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or governmental inquiry related to the
offering of the Shares, whether or not such Underwriter or controlling person is
a party to any action or proceeding. In the event that it is finally judicially
determined that the Underwriters were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the Underwriters will promptly
return all sums that had been advanced pursuant hereto. Notwithstanding the
foregoing, (i) Raul J. Fernandez shall be liable for indemnification and/or
reimbursement under this Section 8(a) only if the Company shall have failed to
indemnify or reimburse the Underwriters in accordance with this Section 8(a)
within 90 days after demand therefor made to the Company by the Underwriters.
(b) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any Preliminary Prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by 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, but only with reference to information relating to such
Selling Stockholder furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement or any amendment
thereof, any Preliminary Prospectus, the Prospectus or any amendments or
supplements thereto. Notwithstanding the foregoing, the total liability of each
Selling Stockholder under Section 8(a) and this Section 8(b) shall be limited to
an amount equal to the product of (i) the number of Shares sold by such Selling
Stockholder and (ii) the public offering price of the Shares set forth in the
Prospectus less the underwriting discount applicable to such Shares.
(c) Each Underwriter severally and not jointly will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, the Selling Stockholders, and each person, if
any, who controls the Company or Selling Stockholder within the meaning of the
Act, against any losses, claims, damages or liabilities to which the Company or
any such director, officer, Selling Shareholder or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under
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<PAGE> 21
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, Selling Stockholder or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by or through
the Representatives specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a), (b) or (c) shall be available to any party who shall fail to give notice
as provided in this Section 8(d) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a), (b) or (c). In case
any such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the
fees and expenses of the counsel retained by the indemnified party in the event
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company and the Selling Stockholders in the
case of parties indemnified pursuant to Sections 8(b) and (c). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without
the prior written consent of the indemnified party, settle or compromise or
consent
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<PAGE> 22
to the entry of any judgment in any pending or threatened claim, action
or proceeding of which indemnification may be sought hereunder (whether or not
any indemnified party is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Selling Stockholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Stockholders
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Stockholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section
8(e) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 8(e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 8(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter, and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
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<PAGE> 23
in this Section 8(e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within 36 hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company and the Selling Stockholders shall be entitled to a
further period of 36 hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Stockholders that you have so arranged for the purchase of such Shares,
or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone a Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the
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<PAGE> 24
Company and the Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be borne by the Company and the Selling Stockholders and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or the Selling Stockholder, or any officer or
director or controlling person of the Company, or any controlling person of any
of the Selling Stockholders, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor any Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. (a) This Agreement may be terminated by you by notice to the
Company and the Selling Stockholders at any time prior to the Time of Delivery
if any of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of the
Company and its subsidiaries or the earnings, business,
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<PAGE> 25
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and its subsidiaries, whether or not
arising in the ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other national or
international calamity or crisis or change in economic or political conditions
if the effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in your
reasonable judgment, make it impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares, or (iii) suspension of
trading in securities generally on the New York Stock Exchange or the NASDAQ or
limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on either of such systems, (iv) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or
order of any court or other governmental authority which in your opinion
materially and adversely affects or may materially and adversely affect the
business or operations of the Company, (v) declaration of a banking moratorium
by United States or New York State authorities, (vi) the suspension of trading
of the Company's common stock by the Nasdaq Stock Market, the Commission, or any
other governmental authority or, (vii) the taking of any action by any
governmental body or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a material adverse effect on the securities
markets in the United States; or
(b) as provided in Sections 7 and 9 of this Agreement.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Thomas Weisel Partners LLC on behalf of you as the
representatives; and in all dealings with the Selling Stockholders hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of such Selling Stockholders made or
given by any or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Thomas Weisel
Partners LLC, One Montgomery Street, San Francisco, California 94104, Attention:
Registration Department; if to the Selling Stockholders shall be delivered or
sent by mail, telex or facsimile transmission to counsel for such Selling
Stockholders at its address set forth in Schedule II hereto; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholders by you on request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other
-25-
<PAGE> 26
person shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
17. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
18. The Company, the Selling Stockholders and the Underwriters
acknowledge and agree that the only information furnished or to be furnished by
any Underwriter to the Company for inclusion in any Prospectus or the
Registration Statement consists of the information set forth in the last
paragraph on the front cover page (insofar as such information relates to the
Underwriters), legends required by Item 502(d) of Regulation S-K under the Act
and the information under the caption "Underwriting" in the Prospectus.
-26-
<PAGE> 27
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and each of the Representatives plus one
for each counsel and the Custodian, if any counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and the Selling Stockholders. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Company and the Selling Stockholders for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for a
Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
PROXICOM, INC.
By:___________________________
Kenneth J. Tarpey
Executive Vice President
By: __________________________
Kenneth J. Tarpey,
As Attorney-in-Fact acting on behalf of the
Selling Stockholders named in Schedule II
to this Agreement.
Accepted as of the date hereof
Thomas Weisel Partners LLC
First Union Capital Markets Corp.
Friedman, Billings & Ramsey Co., Inc.
Prudential Securities Incorporated
E*OFFERING Corp.
By:_______________________________
-27-
<PAGE> 28
(Thomas Weisel Partners LLC)
On behalf of each of the Underwriters
-28-
<PAGE> 29
SCHEDULE I
<TABLE>
<CAPTION>
Number of Optional
Total Number Shares to be Purchased
of Firm Shares if Maximum Option
Underwriter to be Purchased Exercised
- ----------- --------------- --------------------
<S> <C> <C>
Thomas Weisel Partners LLC . . . . . . . . . . . .
First Union Capital Markets Corp. . . . . . . . . .
Friedman, Billings, Ramsey & Co., Inc. . . . . .
Prudential Securities Incorporated . . . . . . . . .
E*OFFERING Corp.. . . . . . . . . . . . . . . . . . . . .
Total 3,000,000 450,000
</TABLE>
-29-
<PAGE> 30
SCHEDULE II
<TABLE>
<CAPTION>
Number of Optional
Shares to be
Total Number Sold if
of
Firm Shares Maximum Option
to be Sold Exercised
---------- ---------
<S> <C> <C>
The Company............................................................ 1,000,000 --
Raul J. Fernandez...................................................... 800,000 220,000
General Atlantic Partners 34, L.P...................................... 426,085 55,390
GAP Coinvestment Partners LP........................................... 73,915 9,610
Christopher Capuano.................................................... 10,000 --
Kenneth J. Tarpey...................................................... 20,000 --
Jack Kemp.............................................................. 20,000 --
John A. McKinley....................................................... 9,000 --
Brenda A. Wagner and Jeremy Wagner..................................... 173,000 --
Vincent Hoenigman...................................................... 100,000 --
Scott McDonald......................................................... 117,000 --
The Washington Post Company............................................ 60,000 --
GE Capital Equity Investments.......................................... 112,017 50,000
Aaron Singer........................................................... 40,000 60,000
Meghan Wheeler......................................................... 35,000 55,000
Shawn McKee............................................................ 489 --
Daphne Humes........................................................... 200 --
Chris Kelly............................................................ 100 --
Scott Hartwig.......................................................... 1,000 --
Andrew Newell.......................................................... 300 --
Sheryl Chapman......................................................... 400 --
Steven Heard........................................................... 996 --
Roby Gilbert........................................................... 498 --
--------- -----------
Total 3,000,000 450,000
</TABLE>
(a) The Selling Stockholders are represented by Hogan & Hartson
L.L.P., 555 Thirteenth Street, N.W., Washington, D.C. 20004 and
have appointed Kenneth J. Tarpey as the Attorney-in-Fact for
each such Selling Stockholder.
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<PAGE> 31
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORM S-1
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representatives and on
the basis of specified procedures including inquiries of officials of
the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years which were included or incorporated by reference
in the Company's Annual Reports on Form 10-K for such fiscal years;
-3-
<PAGE> 32
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
-4-
<PAGE> 33
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except
in each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives,
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus, or in Part II of,
or in exhibits and schedules to, the Registration Statement specified
by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
-5-
<PAGE> 34
ANNEX II(C)
FORM OF OPINION OF GENERAL COUNSEL
Based upon, subject to and limited by the foregoing, I am of the
opinion that:
(i) To the best of such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position stockholders' equity or results of operations of
the Company and its subsidiaries; and, to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others; and
(iii) Any real property and buildings held in the United States under
lease by the Company and its subsidiaries and, to such counsel's knowledge, any
real property and buildings held outside of the United States under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries.
-1-
<PAGE> 1
EXHIBIT 5.1
October 6, 1999
Board of Directors
Proxicom, Inc.
11600 Sunrise Valley Drive
Reston, Virginia 20191
Ladies and Gentlemen:
We are acting as special counsel to Proxicom, Inc., a Delaware
corporation (the "COMPANY"), in connection with its registration statement on
Form S-1, as amended (the "REGISTRATION STATEMENT"), filed with the Securities
and Exchange Commission relating to the proposed public offering of up to
3,450,000 shares of the Company's common stock, par value $.01 per share (the
"SHARES"), 1,000,000 of which shares (the "COMPANY SHARES") are to be sold by
the Company and 2,450,000 of which shares (the "SELLING STOCKHOLDER SHARES") are
to be sold by the Selling Stockholders identified in the Registration Statement.
This opinion letter is furnished to you at your request to enable you to fulfill
the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Amended and Restated Certificate of Incorporation
of the Company, as certified by the Secretary of the
Company on the date hereof as then being complete and
accurate.
3. The Amended and Restated Bylaws of the Company, as
certified by the Secretary of the Company on the date
hereof as then being complete and accurate.
4. The proposed form of Underwriting Agreement among the
Company and the several Underwriters to be named
therein, for whom Thomas Weisel Partners LLC, First
Union Capital Markets Corp., Friedman, Billings,
Ramsey & Co., Inc., Prudential Securities
Incorporated and E*OFFERING Corp.
<PAGE> 2
Board of Directors
Proxicom, Inc.
October 6, 1999
Page 2
will act as representatives, filed as Exhibit 1.1 to
the Registration Statement (the "UNDERWRITING
AGREEMENT").
5. A Unanimous Written Consent of the Board of Directors
of the Company adopted on September 22, 1999, as
certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect,
relating to the Company's issuance and sale of the
Company Shares and arrangements in connection
therewith.
6. Resolutions of the Board of Directors of the Company
and its predecessor, Proxima, Inc., adopted at
meetings or by unanimous written consent on July 26,
1996, August 24, 1996, August 26, 1996, August 30,
1996, February 7, 1997, October 24, 1997, August 7,
1998, November 23, 1998 and March 22, 1999, as
certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect,
relating to the Company's issuance and sale of the
Selling Stockholder Shares and arrangements in
connection therewith.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on
the General Corporation Law of the State of Delaware. We express no opinion
herein as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, we are of
the opinion that (a) following (i) final action of the Pricing Committee of the
Board of Directors of the Company approving the price of the Shares, (ii)
execution and delivery by the Company of the Underwriting Agreement, (iii)
effectiveness of the Registration Statement, (iv) issuance of the Company Shares
pursuant to the terms of the Underwriting Agreement and (v) receipt by the
Company of the consideration for the Company Shares specified in the resolutions
of the Board of Directors and the Pricing Committee referred to above, the
Company Shares will be validly issued, fully paid and non-assessable under the
General Corporation
<PAGE> 3
Board of Directors
Proxicom, Inc.
October 6, 1999
Page 3
Law of the State of Delaware and (b) assuming that at the time the Selling
Stockholder Shares were issued the Company received the consideration therefor
specified in the resolutions referred to in paragraph 6 above, the Selling
Stockholder Shares are validly issued, fully paid and non-assessable under the
General Corporation Law of the State of Delaware.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement and to the reference to this firm
under the caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/S/ HOGAN & HARTSON L.L.P.
<PAGE> 1
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"), Raul Fernandez
("FERNANDEZ"), The Mario M. Morino 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"), Brenda Wagner,
Scott McDonald and Vincent Hoenigman (the "IBIS STOCKHOLDERS"), and Jack Kemp
("KEMP"), Theodore J. Leonsis ("LEONSIS"), John McKinley ("MCKINLEY"), 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, Fernandez, FBR, GE Capital, GE Capital
Equity, IBIS Stockholders, Kemp, Leonsis, McKinley, 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
<PAGE> 2
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 Saul
Aaron Singer, 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.
-2-
<PAGE> 3
"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 Fernandez
Stockholders, the Morino Stockholders, the General Atlantic Stockholders, the
FBR Stockholders, the GE Capital Stockholders, the IBIS Stockholders, the Kemp
Stockholders, the Leonsis Stockholders, the McKinley 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.
"Fernandez" has the meaning assigned to such term in the
recital to this Agreement.
"Fernandez Stockholders" means Fernandez 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.
-3-
<PAGE> 4
"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.
-4-
<PAGE> 5
"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.
"Kemp" has the meaning assigned to such term in the
recital to this Agreement.
"Kemp Stockholders" means Kemp 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.
"McKinley" has the meaning assigned to such term in the
recital to this Agreement.
"McKinley Stockholders" means McKinley 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
-5-
<PAGE> 6
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 Fernandez Stockholders, the Morino Stockholders, the
General Atlantic Stockholders, the FBR Stockholders, the GE Capital
Stockholders, the IBIS Stockholders, the Kemp Stockholders, the Leonsis
Stockholders, the McKinley 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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<PAGE> 9
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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<PAGE> 11
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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<PAGE> 12
(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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<PAGE> 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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<PAGE> 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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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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<PAGE> 18
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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<PAGE> 19
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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<PAGE> 20
(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
Fernandez 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 Fernandez 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 Kemp 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 Kemp
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 McKinley 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 McKinley
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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<PAGE> 21
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.
1749 Old Meadow Road
McLean, Virginia 22102-4310
Telecopy: (703) 566-4797
Attention: Christopher Capuano, Esq.
General Counsel
with a copy to:
Hogan & Hartson
555 13th Street, N.W.
Washington, D.C. 20004-1109
Telecopy: (202) 637-5910
Attention: Jacquelyn E. Grillon, Esq.
(ii) if to the Fernandez Stockholders:
c/o Proxicom, Inc.
1749 Old Meadow Road
McLean, Virginia 22102-4310
Telecopy: (703) 566-4797
Attention: Christopher Capuano, Esq.
General Counsel
with a copy to:
Hogan & Hartson
555 13th Street, N.W.
Washington, D.C. 20004-1109
Telecopy: (202) 637-5910
Attention: Jacquelyn E. Grillon, Esq.
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<PAGE> 22
and
Comiskey & Hunt
1676 International Drive
Penthouse
McLean, Virginia 22102-4835
Telecopy: (703) 790-7867
Attention: Stephen W. Comiskey, Esq.
(iii) if to GAP LP, GAP 52, GAP Coinvestment I or
GAP Coinvestment II:
c/o General Atlantic Service Corporation
3 Pickwick Plaza
Greenwich, Connecticut 06830
Telecopy: (203) 622-8818
Attention: Mr. David C. Hodgson
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopy: (212) 757-3990
Attention: Matthew Nimetz, Esq.
(iv) if to Morino Trust:
The Mario M. Morino Trust
c/o Morino Institute
1801 Robert Fulton Drive
Suite 550
Reston, Virginia 20191
Telecopy: (703) 620-4102
Attention: Mario M. Morino, Trustee
with a copy to:
Comiskey & Hunt
1676 International Drive
Penthouse
McLean, Virginia 22102-4835
Telecopy: (703) 790-7867
Attention: Stephen W. Comiskey, Esq.
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<PAGE> 23
(v) if to FBR:
c/o FBR Venture Capital Managers Inc.
1001 19th Street
North Arlington, Virginia 22209
Telecopy: (703) 469-1002
Attention: Gene Riechers
(vi) if to GE, GE Capital or GE Capital Equity:
GE Capital Equity Capital Group, Inc.
120 Long Ridge Road
Stamford, Connecticut 06927
Telecopy: (203) 357-3400
Attention: General Counsel
Legal Department
(vii) if to the IBIS Stockholders:
Brenda Wagner
Scott McDonald
Vincent Hoenigman
c/o IBIS Consulting, Inc.
One Ecker Street
Suite 100
San Francisco, California 94104
Telecopy: (415) 820-2401
with a copy to:
Preston Gates & Ellis LLP
One Maritime Plaza
San Francisco, California 94111
Telecopy: (415) 788-8819
Attention: Lawrence B. Low
(viii) if to the Kemp Stockholders:
Jack Kemp
Empower America
1776 I Street, N.W.
Suite 890
Washington, DC 20006
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<PAGE> 24
(ix) if to the Leonsis Stockholders:
Theodore J. Leonsis
America Online
22000 AOL Way
Dulles, Virginia 20166-9323
with a copy to:
Holland & Knight
Suite 400
2100 Pennsylvania, N.W.
Washington, DC 20037-3202
Telecopy: (202) 955-5564
Attention: T. Wayne Gray, Esq.
(x) if to the McKinley Stockholders:
John McKinley
Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281
(xi) if the WPC Stockholders:
The Washington Post Company
1150 15th Street, N.W.
Washington, D.C. 20007
Attention: Mr. Jay Morse
(xii) if to the Ad Hoc Stockholders:
c/o Saul Aaron Singer
Ad Hoc Stockholders' Representative
ad hoc Interactive, Inc.
Libertyship Building
80 Libertyship Way, Suite 1
Sausalito, California 94965
Telecopy: (415) 332-0180
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<PAGE> 25
with a copy to:
Howard, Rice, Nemerovski, Canady, Falk & Rabkin
3 Embarcadero Center
7th Floor
San Francisco, California 94111
Telecopy: (415) 217-5910
Attention: Howard Lasky, 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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<PAGE> 26
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 Saul Aaron Singer 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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<PAGE> 27
(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.
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<PAGE> 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: Raul Fernandez
Title: President and Chief Executive Officer
-----------------------------------------
Raul Fernandez
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
<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]
<PAGE> 30
THE MARIO M. MORINO TRUST
By:_________________________________
Name: Mario M. Morino
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]
<PAGE> 31
GENERAL ELECTRIC COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
------------------------------------
Brenda Wagner
------------------------------------
Scott McDonald
------------------------------------
Vincent Hoenigman
------------------------------------
Jack Kemp
------------------------------------
Theodore J. Leonsis
------------------------------------
John McKinley
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
<PAGE> 32
THE WASHINGTON POST COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
THE AD HOC STOCKHOLDERS:
------------------------------------
SAUL AARON SINGER
[END OF SIGNATURE PAGES]
<PAGE> 33
EXHIBIT A
AD HOC STOCKHOLDERS
Aaron Singer
Megan Wheeler
David Gang
Shawn McKee
Rob Tsuyuki
Laura Mitchell
Daphne Humes
Chris Kelly
Scott Hartwig
Jason Saffa
Sheryl Chapman
Andrew Newell
Steven Heard
Tom Mabe
Jessica Mabe
Travis Kotzebue
Thy Than
Roby Gilbert
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Amendment No.2 to Registration Statement on
Form S-1 of our report dated February 5, 1999, except as to the pooling of
interests with ad hoc Interactive, Inc. which is as of March 26, 1999, relating
to the consolidated financial statements of Proxicom, Inc., which appear in such
Registration Statement. We also consent to the references to us under the
headings "Experts" and "Selected Consolidated Financial Data" in such
Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
McLean, Virginia
October 6, 1999
