EX-99.D.2 10 y48482ex99-d_2.txt SUPPORT AGREEMENT 1 Exhibit (d)(2) SUPPORT AGREEMENT SUPPORT AGREEMENT dated as of April 26, 2001 between Compaq Computer Corporation, a Delaware corporation ("PARENT"), and Raul Fernandez ("STOCKHOLDER"). WHEREAS, Parent, PFC Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("MERGER SUBSIDIARY"), and Proxicom, Inc., a Delaware corporation (the "COMPANY"), propose to enter into an Agreement and Plan of Merger dated as of the date hereof (as the same may be amended or supplemented, the "MERGER AGREEMENT"; terms used but not defined herein shall have the meanings set forth in the Merger Agreement) providing for, among other things, the tender offer by Merger Subsidiary for all of the outstanding shares of Company Stock and, after consummation of the tender offer, the merger of Merger Subsidiary with and into the Company upon the terms and subject to the conditions set forth in the Merger Agreement; WHEREAS, as of the date hereof, Stockholder owns (of record or beneficially) 12,963,358 shares of Company Stock (such shares of Company Stock being referred to herein as the "ORIGINAL SHARES"; the Original Shares, together with any other shares of capital stock of the Company or other voting securities of the Company acquired (of record or beneficially) by Stockholder after the date hereof and during the term of this Agreement (including through the exercise of any stock options), being collectively referred to herein as the "SUBJECT SHARES"); and WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Stockholder enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein and in the Merger Agreement, the parties hereto agree as follows: ARTICLE 1 AGREEMENT TO TENDER AND VOTE SECTION 1.01. Tender. Stockholder hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer, as soon as practicable after commencement but in no event later than the then scheduled expiration date of the Offer, all of the Subject Shares by physical delivery of the certificates 2 therefor, and to not withdraw such Subject Shares, except following a termination of the Offer pursuant to its terms. Stockholder hereby permits Parent and Merger Subsidiary to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) Stockholder's identity and ownership of the Subject Shares and the nature of Stockholder's commitments, arrangements and understandings under this Agreement. SECTION 1.02. Voting. Stockholder hereby agrees that during the time this Agreement is in effect Stockholder shall, in connection with any meeting or action by written consent of the stockholders of the Company, (a) vote the Subject Shares in favor of adoption of the Merger Agreement; (b) vote the Subject Shares against any action or agreement that could reasonably be expected to result in a breach of any representation, warranty, covenant or agreement of the Company under the Merger Agreement; and (c) vote the Subject Shares against any action or agreement that could reasonably be expected to prevent, impede, interfere with, delay or postpone the consummation of the Merger, including, without limitation: (i) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or any of its Subsidiaries; (ii) a sale or transfer of a material amount of assets of the Company or any of its Subsidiaries or a reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries; (iii) any change in the management or board of directors of the Company; (iv) any material change in the present capitalization or dividend policy of the Company; or (v) any other material change in the Company's corporate structure or business. SECTION 1.03. Grant of Irrevocable Proxy; Appointment of Proxy. (a) Stockholder hereby irrevocably grants to, and appoints, Jeffrey Lynn and Linda Auwers or either of them, in their respective capacities as officers of Parent, and any individual who shall hereafter succeed to any such office of Parent, and each of them individually, Stockholder's proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of Stockholder, to vote the Subject Shares in favor of adoption of the Merger Agreement and otherwise as contemplated by Section 1.02. (b) Stockholder represents that any proxies heretofore given in respect of the Shares are not irrevocable, and that any such proxies are hereby revoked. (c) Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon Stockholder's execution and delivery of this Agreement. Stockholder hereby affirms that the irrevocable proxy set forth in this Section 1.02 is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of 2 3 the duties of Stockholder under this Agreement. Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with Delaware Law. SECTION 1.04. No Inconsistent Arrangements. Stockholder hereby agrees that, except as contemplated by this Agreement and the Merger Agreement, Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "TRANSFER"), or consent to or permit any Transfer of, any or all of the Subject Shares or any interest therein, (ii) enter into any contract, option or other agreement or understanding with respect to any Transfer of any or all of the Subject Shares or any interest therein, (iii) grant any proxy, power-of-attorney or other authorization in or with respect to the Subject Shares, (iv) deposit any Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Subject Shares or (v) take any other action that would in any way restrict, limit or interfere with the performance of Stockholder's obligations hereunder or the transactions contemplated hereby or by the Merger Agreement. SECTION 1.05. Waiver of Appraisal Rights. Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger that Stockholder may have. ARTICLE 2 EXPIRATION SECTION 2.01. Expiration. This Agreement and Stockholder's obligations hereunder shall terminate upon the earlier to occur of the (i) Effective Time and (ii) termination of the Merger Agreement. ARTICLE 3 REPRESENTATION AND WARRANTIES Stockholder hereby represents and warrants to Parent as follows: SECTION 3.01. Ownership of Original Shares. Stockholder is the record and beneficial owner of, and has good and marketable title to, the Original Shares, 3 4 free and clear of any Liens. As of the date hereof, Stockholder does not own (of record or beneficially) any shares of capital stock of the Company other than the Original Shares. Such Stockholder has the sole right to Transfer and direct the voting of the Original Shares, and none of the Original Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the Transfer or the voting of the Original Shares, except as set forth in this Agreement. SECTION 3.02. Power; Binding Agreement. Stockholder has the legal capacity, power and authority to enter into and perform all of Stockholder's obligations under this Agreement. The execution, delivery and performance of this Agreement by Stockholder will not violate any other agreement to which Stockholder is a party including, without limitation, any voting agreement, stockholders agreement or voting trust. This Agreement has been duly and validly executed and delivered by Stockholder and constitutes a valid and binding agreement of Stockholder, enforceable against Stockholder in accordance with its terms. SECTION 3.03. No Conflicts. No authorization, consent or approval of, or filing with, any court or any public body or authority is necessary for the consummation by Stockholder of the transactions contemplated by this Agreement. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not constitute a breach, violation or default (or any event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the creation of any Lien upon any of the properties or assets of Stockholder under, any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument to which Stockholder is a party or by which Stockholder's properties or assets are bound. SECTION 3.04. No Finder's Fee. No broker, investment banker, financial advisor or other Person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of Stockholder. 4 5 ARTICLE 4 MISCELLANEOUS SECTION 4.01. Entire Agreement; Assignment. This Agreement (i) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and (ii) shall not be assigned by operation of law or otherwise; provided that Parent may assign its rights and obligations hereunder to any direct or indirect wholly owned Subsidiary of Parent. SECTION 4.02. Amendments. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by the parties hereto. SECTION 4.03. Publicity. Stockholder shall consult with Parent before issuing any press release or otherwise making any public statements with respect to this Agreement or the transactions contemplated hereby and will not issue any such press release or make any such public statement before such consultation. SECTION 4.04. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given by hand delivery, telegram, telex or telecopy or by any courier service (providing proof of delivery). All communications hereunder shall be delivered to the respective parties at the following addresses: If to Stockholder: Raul Fernandez 6824 Capri Place Bethesda, Maryland 20817-4209 Facsimile: (301) 365-4847 If to Parent: Compaq Computer Corporation 20555 State Highway 249 MS 110810 Houston, Texas 77070-2698 Attention: Thomas C. Siekman, Esq. Facsimile: (281) 518-8209 copy to: 5 6 Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: Chris Mayer, Esq. Facsimile: (212) 450-4800 or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above. SECTION 4.05. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Each of Stockholder and Parent irrevocably submits to the exclusive jurisdiction of any Delaware state or federal court sitting in the State of Delaware in any action arising out of or relating to this Agreement, hereby irrevocably agrees that all claims in respect of such action shall be heard and determined in such Delaware state or federal court, and hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. SECTION 4.06. Specific Performance. Stockholder recognizes and acknowledges that a breach by it of any of the covenants or agreements contained in this Agreement will cause Parent to sustain damages for which it would not have an adequate remedy at law, and therefore Stockholder agrees that in the event of any such breach Parent shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. SECTION 4.07. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. SECTION 4.08. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 6 7 IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be duly executed as of the day and year first above written. COMPAQ COMPUTER CORPORATION By: /s/ Jeff Lynn ----------------------------------------- Name: Jeff Lynn Title: Vice President and General Manager, Professional Services /s/ Raul Fernandez ----------------------------------------- Raul Fernandez