<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 23, 1999
REGISTRATION NO. 333-87657
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PFSWEB, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7389 75-2837058
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification Number)
organization)
</TABLE>
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500 NORTH CENTRAL EXPRESSWAY
PLANO, TEXAS 75074
(972) 881-0733
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MARK C. LAYTON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PFSWEB, INC.
500 NORTH CENTRAL EXPRESSWAY
PLANO, TEXAS 75074
(972) 881-2900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
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<S> <C>
MORRIS BIENENFELD, ESQ. STEVEN R. FINLEY, ESQ.
WOLFF & SAMSON, P.A. GIBSON, DUNN & CRUTCHER LLP
5 BECKER FARM ROAD 200 PARK AVENUE
ROSELAND, NEW JERSEY 07068 NEW YORK, NEW YORK 10166
(973) 533-6532 (212) 351-3920
(973) 740-1407 (FAX) (212) 351-4035 (FAX)
</TABLE>
Approximate date of commencement of proposed sale to the public: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
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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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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 23, 1999
PROSPECTUS
3,100,000 SHARES
[PFS LOGO]
COMMON STOCK
This is the initial public offering of common stock by PFSweb, Inc. We are
selling 3,100,000 shares of common stock. The estimated initial public offering
price is between $12.00 and $14.00 per share.
------------------
There is currently no public market for the common stock. Our common stock
has been approved for listing on the Nasdaq National Market under the symbol
"PFSW."
------------------
We are currently a subsidiary of Daisytek International Corporation. When
the offering is completed, Daisytek will own approximately 82.2% of our
outstanding shares of common stock.
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<TABLE>
<CAPTION>
PER SHARE TOTAL
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<S> <C> <C>
Public offering price..................................... $ $
Underwriting discount..................................... $ $
Proceeds, before offering expenses, to PFSweb............. $ $
</TABLE>
The underwriters may also purchase up to 465,000 additional shares of
common stock from us at the public offering price, less the underwriting
discount, within 30 days from the date of this prospectus to cover
over-allotments.
Delivery of the shares of common stock will be made on or about
, 1999.
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INVESTING IN THE COMMON STOCK INVOLVES RISKS.
SEE "RISK FACTORS" BEGINNING ON PAGE 5.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
HAMBRECHT & QUIST
DAIN RAUSCHER WESSELS
A DIVISION OF DAIN RAUSCHER
INCORPORATED
JEFFERIES & COMPANY, INC.
, 1999
<PAGE> 3
[Inside Front Cover]
A picture depicting two concentric circles. The outer circle contains
the words "Account Management", "Technology", "Financial", PFSweb Professional
Services Organization", Project Management", and "Sales Executive". The inner
circle contains the words "Order Management Services" , Total Transaction
Management" , "Customer Care Services", "Distribution Services", "Billing
Services", and "Total Transaction Management".
PFSweb logo and "From the click of the mouse to the knock at the house"
(TM)
<PAGE> 4
TABLE OF CONTENTS
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PAGE
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Prospectus Summary.......................................... 1
Risk Factors................................................ 5
Forward-Looking Statements.................................. 14
Proposed Spin-off........................................... 15
Use of Proceeds............................................. 17
Dividend Policy............................................. 17
Capitalization.............................................. 18
Dilution.................................................... 19
Selected Combined Historical and Pro Forma Financial Data... 20
Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 23
Business.................................................... 36
Management.................................................. 45
Certain Transactions........................................ 54
Principal Stockholder....................................... 63
Description of Capital Stock................................ 64
Shares Eligible for Future Sale............................. 67
Underwriting................................................ 68
Legal Matters............................................... 71
Experts..................................................... 71
Where You Can Find More Information......................... 71
Index to Financial Statements............................... F-1
</TABLE>
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Unless otherwise indicated, all references to "PFSweb," "we," "us" and
"our" refer to PFSweb, Inc., a Delaware corporation, and the subsidiaries of
Daisytek representing the business operations of PFSweb that will become
subsidiaries of PFSweb upon completion of this offering. All references to
"Daisytek" refer to Daisytek International Corporation, a Delaware corporation,
and its subsidiaries.
i
<PAGE> 5
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this
prospectus. This summary does not contain all of the information that you should
consider before investing in our common stock. You should read the entire
prospectus carefully, including the information under "Risk Factors" beginning
on page 5 and the financial statements beginning on page F-1, before making an
investment decision.
OUR BUSINESS
We are an international provider of transaction management services for
both traditional commerce and electronic commerce, or e-commerce, companies. We
provide a broad range of services, including order management, customer care
services, billing services, information management and fulfillment and
distribution services. Our fulfillment and distribution services are conducted
at our warehouses and include picking, packing and shipping our clients'
customer orders. We offer our services as an integrated solution, which enables
our clients to outsource their transaction management needs to a single source
and to focus on their core competencies. We currently provide transaction
management services to over 30 clients that operate in a range of markets,
including apparel, computer products, printers, sporting goods and consumer
electronics, among others. During fiscal year 1999, IBM was our largest client
and represented approximately 93% of our total revenue. Within the past twelve
months, we have signed contracts with over 10 new clients, including
Hewlett-Packard, Thomson Consumer Electronics, Nokia, Global Sports Interactive
and ISA International plc. Collectively, these new clients represented
approximately two percent of our total revenue for the six month period ended
September 30, 1999.
As the Internet has become an increasingly important communications medium,
merchants and consumers have embraced using the Internet to buy and sell goods
and services. International Data Corporation, or IDC, currently forecasts that
the actual number of Web buyers worldwide will expand from nearly 31 million in
1998 to more than 182 million in 2003 and that the amount of worldwide commerce
conducted over the Internet will increase from approximately $50 billion in 1998
to approximately $1.3 trillion in 2003. To succeed on-line, a merchant must
attract customers to its Web site and provide an appealing and easy to use
environment that encourages customers to place an order. Once the customer
places an order, the merchant must then process the order by executing numerous
transactions, such as confirming product availability, authorizing a credit card
purchase, calculating sales tax, fulfilling the order and, when necessary,
processing returns. These "behind the scenes" activities are critical to
complete the entire transaction.
While early adopters of e-commerce business models often developed their
own transaction management systems, today many on-line merchants seek to
outsource their transaction management needs to third parties. We believe that
we are strategically positioned to benefit from the growing use and acceptance
of e-commerce.
We offer a comprehensive and integrated set of transaction management
services, including:
- order management, including handling the complete shopping check-out
process and on-line order management;
- customer care services, including customer care centers integrating
voice, e-mail, data and Internet chat communications;
- billing services, including secure on-line credit card processing,
invoicing, credit management and collection;
- information management, including real-time data interfaces, data
exchange services and data mining; and
- distribution services, including inventory management, product
warehousing, order picking and packing, transportation management and
product return administration.
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<PAGE> 6
Our integrated solution enables our clients to focus on their core
business, products and services instead of making substantial investments in
transaction management systems, facilities and ongoing personnel. Additionally,
our services enable our clients to quickly capitalize on new business
opportunities, provide an improved experience for their customers, improve
operating efficiencies and cash flows and access sophisticated technology.
Our objective is to grow rapidly by being an international provider of
business-to-business and business-to-consumer transaction management services
for both traditional commerce and e-commerce businesses. The key elements of our
business strategy are to:
- target clients with major brand names;
- expand existing client relationships;
- promote our PFSweb brand;
- seek strategic alliances and acquisitions; and
- expand our international presence.
In order to execute our strategy, we must, among other things, continue to
incur significant operating and marketing expenses, invest in additional
technology infrastructure and maintain sufficient capacity. In addition, if our
spin-off from Daisytek does not occur, our ability to grow our business with
some manufacturers and realize other benefits may be adversely affected. See
"Risk Factors" and "Proposed Spin-off" for a more complete discussion of these
and other risk factors.
OUR RELATIONSHIP WITH DAISYTEK
We are currently a subsidiary of Daisytek International Corporation, one of
the world's largest wholesale distributors of non-paper consumable computer
supplies and professional video and audio tape products. Our business unit was
formed in 1991 to leverage Daisytek's core competencies in customer service,
order management, product fulfillment and distribution. Since 1996, the
operations of our business unit have been primarily focused in several Daisytek
subsidiaries operating collectively as Priority Fulfillment Services, Inc.
("PFS"). After the completion of this offering, Daisytek will own approximately
82.2% of the outstanding shares of our common stock, or approximately 80.1% if
the underwriters exercise their over-allotment option in full. Daisytek has
announced that it plans to effect the complete separation of PFSweb from
Daisytek sometime in mid-2000 (and within one year of the closing of this
offering) through a pro rata distribution to its common stockholders of all of
the shares of our common stock which Daisytek then holds (which is also known as
a "spin-off"). There are, however, various conditions to the completion of the
spin-off, and we cannot assure you as to whether or when it will occur.
Upon completion of this offering we will enter into a number of agreements
with Daisytek relating to our business and our proposed spin-off from Daisytek.
Under these agreements, Daisytek will continue to provide us with certain
administrative services and facilities, and we will provide Daisytek with
transaction management services for its U.S. wholesale consumable computer
supplies business. See "Certain Transactions" and "Risk Factors -- Risks Related
to Daisytek".
We were incorporated in Delaware in 1999 to be, upon completion of this
offering, the parent holding company for PFS. Our principal executive offices
are located at 500 North Central Expressway, Plano, Texas 75074, and our
telephone number is 972-881-2900.
We maintain a Web site at www.pfsweb.com, and Daisytek maintains a Web site
at www.daisytek.com. Information contained on these Web sites does not
constitute part of this prospectus and is not incorporated by reference in this
prospectus.
2
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THE OFFERING
Common stock offered by
PFSweb.......................... 3,100,000 shares
Common stock to be outstanding
after the offering.............. 17,405,000 shares
Use of proceeds................. - to repay an intercompany payable to
Daisytek ($22.3 million as of September 30,
1999);
- to acquire certain assets from Daisytek of
approximately $5.4 million;
- for presently anticipated capital
expenditures of $7-$10 million, a portion
of which we may finance through capital or
operating leases; and
- the balance of the proceeds for general
working capital and possible acquisitions.
See "Use of Proceeds."
Nasdaq National Market symbol... "PFSW"
Unless otherwise noted, the information in this prospectus assumes the
underwriters do not exercise their option to purchase an additional 465,000
shares of common stock from us to cover over-allotments. The number of
outstanding shares used in this prospectus is 17,405,000 and excludes 1,376,500
shares of common stock issuable upon exercise of outstanding options and
4,623,500 shares of common stock available for the future grant of stock options
under our stock option plans.
FISCAL YEAR
Our fiscal year and Daisytek's fiscal year ends on March 31 of each year.
All references to fiscal years in this prospectus refer to the fiscal years
ending in the indicated calendar years. For example, "fiscal 1999" refers to the
fiscal year ended March 31, 1999.
3
<PAGE> 8
SUMMARY FINANCIAL INFORMATION
The following table presents summary combined financial data for PFSweb.
The data presented in this table are derived from the historical combined
financial statements and notes thereto that are included elsewhere in this
prospectus. You should read those sections for a further explanation of the
financial data summarized here.
Our historical financial information may not necessarily reflect our
results of operations or financial position in the future or what our results of
operations and financial position would have been had we operated as a separate,
stand-alone entity during the periods presented.
Our historical financial statements are only of limited use in making an
investment decision. This is because the financial presentation of our
operations in the future will be different from what they have been
historically. Specifically:
- we have new agreements with IBM, one of our major clients;
- we will have a new agreement with Daisytek; and
- we will acquire various assets and liabilities from Daisytek upon
completion of this offering.
See "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Future Financial Presentation" for a complete
discussion of the change in our business model and its effect on our financial
presentation.
<TABLE>
<CAPTION>
UNAUDITED SIX MONTHS
FISCAL YEARS ENDED MARCH 31, ENDED SEPTEMBER 30,
------------------------------------------ ---------------------------------------
1999 1999
---------------------- -----------------------
1997 1998 ACTUAL PRO FORMA 1998 ACTUAL PRO FORMA
------- ------- -------- ----------- ------------- --------- -----------
(IN THOUSANDS, EXCEPT PER SHARE DATA) (IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
COMBINED STATEMENT OF OPERATIONS
DATA:
Revenues:
Product revenue............. $16,543 $45,804 $ 93,702 $ 93,702 $41,327 $55,778 $55,778
Service fee revenue......... 1,034 3,539 7,547 7,547 2,761 7,004 7,004
------- ------- -------- -------- ------- ------- -------
Total revenues........... 17,577 49,343 101,249 101,249 44,088 62,782 62,782
------- ------- -------- -------- ------- ------- -------
Gross profit.................. 1,213 3,743 7,591 7,591 2,690 5,245 5,245
Income (loss) from
operations.................. 139 38 880 880 114 (626) (626)
Net income (loss)............. $ 24 $ (75) $ 292 $ 926 $ (16) $ (773) $ (122)
======= ======= ======== ======== ======= ======= =======
PER SHARE DATA:
Net income (loss) per share:
Basic and diluted........... $ 0.00 $ (0.01) $ 0.02 $ 0.05 $ (0.00) $ (0.05) $ (0.01)
======= ======= ======== ======== ======= ======= =======
Weighted average number of
shares outstanding:
Basic and diluted........... 14,305 14,305 14,305 17,405 14,305 14,305 17,405
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999
-------------------
ACTUAL PRO FORMA
------- ---------
(IN THOUSANDS)
(UNAUDITED)
<S> <C> <C>
COMBINED BALANCE SHEET DATA:
Working capital........................................ $ 1,161 $13,841
Total assets........................................... 29,988 42,668
Long-term obligations.................................. 22,319 --
Shareholders' equity (deficit)......................... (238) 34,761
</TABLE>
4
<PAGE> 9
RISK FACTORS
You should carefully consider the risks and uncertainties described below
before making an investment decision. Our business, financial condition and
operating results could be adversely affected by any of the following factors,
in which event the trading price of our common stock could decline, and you
could lose part or all of your investment. The risks and uncertainties described
below are not the only ones that we face. Additional risks and uncertainties not
presently known to us, or that we currently think are immaterial, may also
impair our business operations.
RISKS RELATED TO OUR BUSINESS
OUR HISTORICAL FINANCIAL INFORMATION MAY NOT BE REPRESENTATIVE OF OUR RESULTS AS
A SEPARATE COMPANY.
The historical financial information included in this prospectus may not
reflect what our results of operations, financial position and cash flows would
have been had we been a separate, stand-alone entity during the periods
presented or what our results of operations, financial position and cash flows
will be in the future. This is because:
- we made certain adjustments and allocations since Daisytek did not
account for us as, and we were not operated as, a single stand-alone
business for the periods presented; and
- the information does not reflect many significant changes that will occur
in our funding and operations as a result of our new agreements with IBM
and our separation from Daisytek.
We cannot assure you that the adjustments and allocations we made in
preparing our historical combined financial statements appropriately reflect our
operations during such periods as if we had, in fact, operated as a stand-alone
entity or what the actual effect of our separation from Daisytek will be.
Accordingly, we cannot assure you that our historical results of operations are
indicative of our future operating or financial performance.
OUR REVENUE IS DEPENDENT UPON OUR CLIENTS' BUSINESS AND PRODUCT SALES; ALL OF
OUR CLIENT AGREEMENTS ARE TERMINABLE BY THE CLIENT AT WILL.
Our revenue is primarily transaction based and will fluctuate with the
volume of transactions or level of sales of the products by our clients for
which we provide transaction management services. If we dedicate significant
resources to clients whose business does not generate substantial transactions
or whose products do not generate substantial customer sales, our business may
be materially adversely affected. In addition, all of our agreements with our
clients are terminable by the client at will. Therefore, we cannot assure you
that any of our clients will continue to use our services for any period of
time.
WE ANTICIPATE INCURRING SIGNIFICANT EXPENSES IN THE FORESEEABLE FUTURE WHICH MAY
REDUCE OUR PROFITABILITY.
In order to reach our business growth objectives, we expect to incur
significant operating and marketing expenses, as well as capital expenditures,
during the next several years. We also expect to incur significant expenses in
connection with the spin-off of our company from Daisytek. In order to offset
these expenses, we will need to generate significant additional revenue. If our
revenue grows more slowly than we anticipate or if our operating and marketing
expenses exceed our expectations, we may not generate sufficient revenue to be
profitable or be able to sustain or increase profitability on a quarterly or an
annual basis in the future.
YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY AND SHOULD NOT CONSIDER ANY
PARTICULAR STATEMENT HEREIN OR IN A BOOK RECENTLY PUBLISHED BY MARK LAYTON OR
PUBLISHED NEWS ARTICLES ABOUT THIS BOOK OR OUR COMPANY WITHOUT CAREFULLY
CONSIDERING THE RISKS AND OTHER INFORMATION CONTAINED HEREIN.
5
<PAGE> 10
Mark Layton, our Chairman, President and Chief Executive Officer, recently
published a book entitled .coms or .bombs ... strategies for profit in
e-business. In this book, Mr. Layton describes the growth of e-commerce and the
opportunities that the Internet offers for businesses today. In particular, the
book contains statements concerning e-business such as "making a profit in
e-business is the greatest business of the new millennium" and "the profit
opportunity is endless".
Similarly, the book describes the growth in e-commerce with statements such
as:
"The fuss is over the $90 billion shift and countless other dollars
that will be influenced by Internet shopping in the next three years";
"Few, if any, industries or products will be immune to the
ever-growing revolution that the growth of the Internet and electronic
commerce is bringing";
"My contention is that e-commerce will grow from virtually
immeasurable part of total commerce today to more than 20 percent of all
commerce in the next five to 10 years"; and
"[w]ithin five short years, according to Mary Tolan, a partner with
Andersen Consulting, e-commerce sales are projected to represent 25 percent
of all retail sales in the United States. The dollars represented by this
projection are generally not market-growth dollars. The dollars represent
market share that is changing to a new shopping paradigm."
The book also offers an explanation of the growth in e-commerce by noting
that "Several demographic factors will combine in the next five to 10 years to
make a significant major shift in e-commerce activity" and then listing factors
such as youth as consumers with increasing spending power and computer literacy,
the purchasing power of baby boomers and the spending habits of women.
Similarly, recent press articles, including a press release issued to
Business Wire dated October 11, 1999 and an article in VARBusiness dated
November 4, 1999, describe the book and contain information about our company
and e-business.
In addition, the book describes our company in a manner that does not
include all of the risks and uncertainties described in this prospectus. For
example, it says "PFSweb offers the two key elements of a successful e-business
we have discussed; outstanding e-experience features and efficient operating
costs (that secret formula!) that can benefit your business."
These statements should not be considered in isolation, and you should make
your investment decision only after reading this entire prospectus carefully.
You should only consider these statements after carefully evaluating all of the
information in this prospectus, including the risks described in this section
and throughout this prospectus.
Neither we nor any of the underwriters in this offering have confirmed,
endorsed or adopted any statements other than those contained in this prospectus
for utilization by, or distribution to, prospective purchasers in this offering.
To the extent any other statements are inconsistent or conflict with the
information contained in this prospectus, or relate to information not contained
in this prospectus, they are disclaimed by us and the underwriters. Accordingly,
you should not rely upon any other statements that were not made by us.
OUR SYSTEMS MAY NOT ACCOMMODATE SIGNIFICANT GROWTH IN OUR NUMBER OF CLIENTS.
Our success depends on our ability to handle a large number of transactions
for many different clients in various product categories. We expect that the
volume of transactions will increase significantly as we expand our operations.
If this occurs, additional stress will be placed upon the network hardware and
software that manages our operations. We cannot assure you of our ability to
efficiently manage a large number of transactions. If we are not able to
maintain an appropriate level of operating performance, we may develop a
negative reputation and our business would be materially adversely affected.
6
<PAGE> 11
BECAUSE WE MUST ALWAYS HAVE SUFFICIENT CAPACITY, WE MAY ENTER INTO
DISADVANTAGEOUS CONTRACTS.
We expect that the number of transactions and products that we handle will
continue to grow in the future. In order to ensure that we are able to handle
such additional transactions and products, we may be required to locate and
obtain additional facilities, including warehouse space, and acquire additional
systems and equipment. If we overestimate the facilities and systems capacity
that we require, we may be obligated to pay for more capacity than we actually
use, resulting in our incurring costs without corresponding revenue. Conversely,
if we underestimate our capacity needs, we may be unable to provide the
necessary services for our clients or may be required to obtain additional
capacity through more expensive means. The occurrence of either of these
situations could significantly reduce our operating margins and adversely affect
our business.
WE FACE COMPETITION FROM MANY SOURCES THAT COULD ADVERSELY AFFECT OUR BUSINESS.
Many companies offer, on an individual basis, one or more of the same
services we do, and we face competition from many different sources depending
upon the type and range of services requested by a potential client. Our
competitors include vertical outsourcers, which are companies that offer a
single function, such as call centers, public warehouses or credit card
processors, and many of these companies have greater capabilities than we do for
the function they provide. We also compete against transportation logistics
providers who offer product management functions as an ancillary service to
their primary transportation services. In many instances, our competition is the
in-house operations of our potential clients themselves. The in-house operations
departments of potential clients often believe that they can perform the same
services we do, while others are reluctant to outsource business functions which
involve direct customer contact. We cannot be certain that we will be able to
compete successfully against these or other competitors in the future.
OUR SALES AND IMPLEMENTATION CYCLES ARE HIGHLY VARIABLE AND MAY CAUSE OUR
OPERATING RESULTS TO VARY WIDELY.
The sales cycle for our services is variable, typically ranging between a
few weeks to several months from initial contact with the potential client to
the signing of a contract. Occasionally sales require substantially more time.
Delays in executing client contracts may affect our revenue and cause our
operating results to vary widely. We believe that a potential client's decision
to purchase our services is discretionary, involves a significant commitment of
its resources and is influenced by intense internal and external pricing and
operating comparisons. To successfully sell our services, we generally must
educate our potential clients regarding the use and benefit of our services,
which can require significant time and resources. Consequently, the period
between initial contact and the purchase of our services is often long and
subject to delays associated with the lengthy approval and competitive
evaluation processes that typically accompany significant operational decisions.
Additionally, the time required to implement our systems and integrate a new
client can range from several weeks to several months. Delays in integrating new
clients may affect our revenue and cause our operating results to vary widely.
WE ARE DEPENDENT ON OUR KEY PERSONNEL, AND WE NEED TO HIRE AND RETAIN SKILLED
PERSONNEL TO SUSTAIN OUR BUSINESS.
Our performance is highly dependent on the continued services of our
executive officers and other key personnel, the loss of any of whom could
materially adversely affect our business. We currently do not have employment
agreements with any of our executive officers or key personnel. In addition, we
need to attract and retain other highly-skilled technical and managerial
personnel for whom there is intense competition. We cannot assure you that we
will be able to attract and retain the personnel necessary for the continuing
growth of our business. Our inability to attract and retain qualified technical
and managerial personnel would materially adversely affect our ability to
maintain and grow our business.
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WE ARE SUBJECT TO RISKS ASSOCIATED WITH OUR INTERNATIONAL OPERATIONS.
A significant component of our business strategy is to continue to expand
internationally. For example, we recently opened a new 150,000 square foot
distribution center in Liege, Belgium. We cannot assure you that we will be
successful in expanding into additional international markets. In addition to
the uncertainty regarding our ability to generate revenue from foreign
operations and expand our international presence, there are risks inherent in
doing business internationally, including:
- changing regulatory requirements;
- legal uncertainty regarding foreign laws, tariffs and other trade
barriers;
- political instability;
- potentially adverse tax consequences;
- foreign currency fluctuations; and
- cultural differences.
Any one or more of these factors may materially adversely affect our
business in a number of ways, such as increased costs, operational difficulties
and reductions in revenue.
WE ARE UNCERTAIN ABOUT OUR NEED FOR AND THE AVAILABILITY OF ADDITIONAL FUNDS
BEYOND THE FUNDS RAISED IN THIS OFFERING.
Our future capital needs are difficult to predict. We may require
additional capital in order to take advantage of unanticipated opportunities,
including strategic alliances and acquisitions, or to respond to changing
business conditions and unanticipated competitive pressures. Additionally, funds
from operations may be less than anticipated. Should these circumstances arise,
we may need to raise additional funds either by borrowing money or issuing
additional equity. We cannot assure you that we will be able to raise such funds
on favorable terms or at all. In addition, although historically we have relied
upon Daisytek as our source of funds, upon completion of this offering, Daisytek
will be prohibited under its line of credit from providing us with funding, and
we will be restricted from borrowing from Daisytek following the spin-off. We
currently do not have any credit facility in place under which we can borrow
funds when needed. If we are unable to obtain additional funds, we may be unable
to take advantage of new opportunities or take other actions that otherwise
might be important to our business.
WE MAY ENGAGE IN FUTURE STRATEGIC ALLIANCES OR ACQUISITIONS THAT COULD DILUTE
OUR EXISTING STOCKHOLDERS, CAUSE US TO INCUR SIGNIFICANT EXPENSES OR HARM OUR
BUSINESS.
We may review strategic alliance or acquisition opportunities that would
complement our current business or enhance our technological capabilities.
Integrating any newly acquired businesses, technologies or services, may be
expensive and time-consuming. To finance any acquisitions, it may be necessary
for us to raise additional funds through public or private financings.
Additional funds may not be available on terms that are favorable to us and, in
the case of equity financings, may result in dilution to our stockholders. In
addition, we have limited ability to issue capital stock prior to or after the
spin-off. We may not be able to operate any acquired businesses profitably or
otherwise implement our growth strategy successfully. If we are unable to
integrate any newly acquired entities or technologies effectively, our operating
results could suffer. Future acquisitions by us could also result in large and
immediate write-offs, incurrence of debt and contingent liabilities, or
amortization of expenses related to goodwill and other intangibles, any of which
could harm our operating results.
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<PAGE> 13
OUR BUSINESS COULD BE ADVERSELY AFFECTED BY A SYSTEMS OR EQUIPMENT FAILURE,
WHETHER OUR OWN OR OF OUR CLIENTS.
Our operations are dependent upon our ability to protect our distribution
facilities, customer service centers, computer and telecommunications equipment
and software systems against damage and failures. Damage or failures could
result from fire, power loss, equipment malfunctions, system failures, natural
disasters and other causes. Although we believe we have sufficient property and
business interruption insurance, if our business is interrupted either from
accidents or the intentional acts of others, our business could be materially
adversely affected. In addition, in the event of widespread damage or failures
at our facilities, our short-term disaster recovery and contingency plans and
insurance coverage may not be sufficient.
Our clients' businesses may also be harmed from any system or equipment
failures we experience. In that event, our relationship with these clients may
be adversely affected, we may lose these clients, our ability to attract new
clients may be adversely affected and we could be exposed to liability.
Interruptions could also result from the intentional acts of others, like
"hackers." If our systems are penetrated by computer hackers, or if computer
viruses infect our systems, our computers could fail or proprietary information
could be misappropriated.
If our clients suffer similar interruptions in their operations, for any of
the reasons discussed above or for others, our business could also be adversely
affected. Many of our clients' computer systems interface with our own. If they
suffer interruptions in their systems, the link to our systems could be severed
and sales of their products could be slowed or stopped.
A BREACH OF OUR E-COMMERCE SECURITY MEASURES COULD REDUCE DEMAND FOR OUR
SERVICES.
A requirement of the continued growth of e-commerce is the secure
transmission of confidential information over public networks. A party who is
able to circumvent our security measures could misappropriate proprietary
information or interrupt our operations. Any compromise or elimination of our
security could reduce demand for our services.
We may be required to expend significant capital and other resources to
protect against security breaches or to address any problem they may cause.
Because our activities involve the storage and transmission of proprietary
information, such as credit card numbers, security breaches could damage our
reputation and expose us to litigation and possible liability. Our security
measures may not prevent security breaches, and failure to prevent security
breaches may disrupt our operations.
OUR BUSINESS AND SERVICES ARE SUBJECT TO RISKS RELATED TO THE YEAR 2000 PROBLEM.
The "Year 2000" problems of our clients, our internal systems and companies
on the Internet generally could materially adversely affect our systems or
operations. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Year 2000 Issue."
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<PAGE> 14
RISKS RELATED TO DAISYTEK
THERE IS A RISK OF CHANGE IN CONTROL OF DAISYTEK.
Daisytek recently announced that it had received an unsolicited offer to
acquire all of Daisytek's outstanding shares. After considering a variety of
factors, Daisytek's board determined that the offer was inadequate and
inconsistent with Daisytek's previously disclosed plans to complete the
spin-off. If, however, the bidder decides to begin a tender offer for the
outstanding shares of Daisytek without the approval of Daisytek's board, such an
offer, or stockholder litigation in connection with such an offer, could
significantly divert our attention away from our operations and disrupt or delay
our proposed spin-off from Daisytek. In addition, if the bidder is successful in
acquiring control of Daisytek prior to the proposed spin-off, it would control a
majority of our shares and the spin-off would likely not occur.
OUR BUSINESS MAY BE MATERIALLY ADVERSELY AFFECTED IF DAISYTEK DOES NOT COMPLETE
THE SPIN-OFF OF OUR COMPANY.
There are various conditions which must be satisfied, or waived by Daisytek
in its sole discretion, prior to the completion of the spin-off. We cannot
assure you whether or when these conditions will be satisfied or waived by
Daisytek. If any of these conditions are neither satisfied, nor waived by
Daisytek, in a timely manner, the spin-off may not be completed. If the spin-off
is not completed, we will continue to be controlled by Daisytek. If that
happens, the price of our shares in the public market could be adversely
affected because of the reduced liquidity and the uncertainty as to if, when and
how the shares held by Daisytek would be sold or distributed to the public. This
would, in turn, adversely affect the potential benefits offered by employee
equity incentive compensation programs, such as employee stock options. In
addition, we believe that our control by Daisytek may limit our ability to
market our services to some manufacturers. Even if all of the conditions to the
spin-off are satisfied, or waived, we cannot assure you when the spin-off will
occur or whether or when we will obtain the expected benefits.
WE DEPEND ON DAISYTEK FOR VARIOUS SERVICES AND FOR A SIGNIFICANT PORTION OF OUR
REVENUE.
We have historically been dependent on Daisytek for various services,
including facilities, human resources, management information systems, as well
as for working capital. We will enter into a transition services agreement with
Daisytek under which Daisytek will continue to provide certain of these services
to us until the spin-off is completed, but not later than one year following the
closing of this offering. When the term of this agreement expires, we will need
either to extend the term of this agreement, engage other entities to perform
these services or perform these services ourselves. We cannot assure you that
Daisytek will continue to provide these services after the initial term of the
agreement, or that the cost of these services will not be significantly higher
if we purchase services from other parties or devote resources to handle these
functions internally.
In addition, we will be providing transaction management services for
Daisytek's U.S. wholesale consumable computer supplies business under a
five-year agreement. Daisytek is one of our largest clients, and we currently
expect that Daisytek will remain a significant client for the foreseeable
future. Consequently, a substantial portion of our business will be dependent
upon the success of Daisytek's sales and marketing of its products. Daisytek has
the right to terminate the agreement, subject to the payment of a termination
fee. In addition, Daisytek has reported that it has experienced, and may
continue to experience, a decline in sales growth in its U.S. wholesale
consumable computer supplies business. This decline may adversely affect our
service fee revenue arising under this agreement.
All of our agreements with Daisytek were made in the context of a
parent-subsidiary relationship and were negotiated in the overall context of our
spin-off from Daisytek. We cannot
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<PAGE> 15
assure you that the prices charged to us, or by us, under these agreements are
not higher or lower than the prices that may be charged by, or to, unaffiliated
third parties for similar services.
THROUGH ITS OWNERSHIP OF OUR STOCK, DAISYTEK WILL BE ABLE TO EXERT SUBSTANTIAL
INFLUENCE OVER OUR MANAGEMENT AND CORPORATE AFFAIRS.
After the completion of this offering, Daisytek will own approximately
82.2% of our outstanding shares of common stock, or approximately 80.1% if the
underwriters exercise their over-allotment option in full. As long as Daisytek
owns a majority of our outstanding common stock, Daisytek will continue to be
able to elect our entire board of directors and to remove any director, with or
without cause, and generally to determine the outcome of all corporate actions
requiring stockholder approval. As a result, Daisytek will be in a position to
continue to control all matters affecting our company, including:
- the composition of our board of directors and, through it, any decisions
with respect to the direction and policies of our company, including the
appointment and removal of officers;
- any decisions with respect to mergers or other business combinations
involving our company;
- the acquisition or disposition of assets by our company;
- future issuances of common stock or other securities of our company;
- the incurrence of debt by our company;
- amendments, waivers and modifications to our transaction management
services agreement with Daisytek and other agreements relating to our
spin-off from Daisytek;
- the payment of dividends on our common stock; and
- decisions with respect to treatment of items in those of our tax returns
which are consolidated or combined with Daisytek tax returns.
WE MAY HAVE POTENTIAL BUSINESS CONFLICTS OF INTEREST WITH DAISYTEK.
Daisytek will continue to be one of our largest customers for a significant
period of time and, unless and until Daisytek completes the spin-off of our
common stock, it will continue to be our controlling stockholder. As a result,
conflicts of interest may arise between us and Daisytek in a number of areas,
including:
- the nature, quality and pricing of services we provide to Daisytek;
- the nature, quality and pricing of transitional services Daisytek has
agreed to provide to us;
- labor, tax, employee benefit and other matters relating to the spin-off
of our company from Daisytek;
- the incurrence of debt by our company and business combinations by our
company;
- sales or distributions by Daisytek of all or any portion of its ownership
interest in our company; and
- Daisytek's ability to control the management and affairs of our company.
We cannot assure you that we will be able to resolve any potential
conflicts or that, if resolved, we would not be able to receive more favorable
resolution if we were dealing with an unaffiliated party. Our transaction
management services agreement with Daisytek and the other agreements we will
enter into with Daisytek may be amended from time to time upon agreement between
the parties. As long as we are controlled by Daisytek, we cannot assure you that
Daisytek would not require us to agree to an amendment to the transaction
management services agreement or any other agreement that may be more or less
favorable to us than the current terms of the agreement. In addition, our
ability to incur indebtedness, make acquisitions and dispositions and issue
stock is restricted under the terms of an agreement that we will enter into with
Daisytek.
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<PAGE> 16
OUR DIRECTORS MAY HAVE CONFLICTS OF INTEREST BECAUSE THEY ARE ALSO DIRECTORS OF
DAISYTEK.
After this offering, all of the members of our board of directors will also
be directors of Daisytek and our chairman, chief executive officer and chief
financial officer will also serve in such capacities for Daisytek. In addition,
many of our executive officers, directors and employees hold shares of Daisytek
common stock and options to acquire shares of Daisytek common stock. These
individuals may have conflicts of interest with respect to certain decisions
involving business opportunities and similar matters that may arise in the
ordinary course of our business or the business of Daisytek. Conflicts, if any,
could be resolved in a manner adverse to us and our stockholders, which could
materially adversely affect our business, results of operations and financial
condition.
WE HAVE POTENTIAL LIABILITY TO DAISYTEK FOR TAX INDEMNIFICATION OBLIGATIONS.
Daisytek has announced that it plans to complete the spin-off of our
company sometime in mid-2000 (and within one year of the closing of this
offering). We will indemnify Daisytek for any tax liability it suffers arising
out of our actions, or certain actions that may exist, before or after the
spin-off that would cause the spin-off to lose its qualification as a tax-free
distribution for federal income tax purposes. These actions include any event
involving the acquisition of the shares of our capital stock after the spin-off
which has the effect of disqualifying the spin-off from tax-free treatment,
whether or not the event is the result of our direct action or within our
control. If we cause the spin-off to not qualify as a tax-free distribution,
Daisytek would incur federal income tax (which currently would be imposed at a
35% rate), and possibly state income taxes on the gain inherent in the shares
distributed, which would be based upon the market value of the PFSweb shares at
the time of the spinoff. In the event that we are required to indemnify Daisytek
in respect of this liability, it would have a material adverse effect on our
cash flow and business operations. See "Proposed Spin-off".
WE HAVE POTENTIAL LIABILITY FOR DAISYTEK'S TAX OBLIGATIONS.
For all periods in which Daisytek owns or owned 80% or more of our capital
stock, we are included in Daisytek's consolidated group for federal income tax
purposes. If Daisytek or other members of the consolidated group fail to make
any federal income tax payments, we would be liable for the shortfall since each
member of a consolidated group is liable for the group's entire tax obligation.
WE HAVE LIMITED ABILITY TO ISSUE COMMON STOCK PRIOR TO OR AFTER THE SPIN-OFF.
In order for the spin-off to be tax-free to Daisytek and Daisytek's
stockholders, we will agree not to issue additional shares of capital stock
before the spin-off if it would prevent Daisytek from distributing at least 80%
of our capital stock in the spin-off. Similarly, we will agree upon certain
limitations during the two-year period after the spin-off, such as issuing an
additional amount of our capital stock in a single transaction or series of
transactions related to the spin-off which, when combined with the common stock
issued in this offering, could cause a 50% or greater change in the vote or
value of our outstanding capital stock. These restrictions may impede our
ability to complete transactions using our capital stock or to attract qualified
persons to become officers or directors.
RISKS RELATED TO OUR INDUSTRY
IF THE TREND TOWARD OUTSOURCING DOES NOT CONTINUE, OUR BUSINESS WILL BE
ADVERSELY AFFECTED.
Our business could be materially adversely affected if the trend toward
outsourcing declines or reverses, or if corporations bring previously outsourced
functions back in-house. Particularly during
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<PAGE> 17
general economic downturns, businesses may bring in-house previously outsourced
functions in order to avoid or delay layoffs.
OUR MARKET IS SUBJECT TO RAPID TECHNOLOGICAL CHANGE AND TO COMPETE WE MUST
CONTINUALLY ENHANCE OUR SYSTEMS TO COMPLY WITH EVOLVING STANDARDS.
To remain competitive, we must continue to enhance and improve the
responsiveness, functionality and features of our services and the underlying
network infrastructure. If we are unable to adapt to changing market conditions,
client requirements or emerging industry standards, our business could be
adversely affected. The Internet and e-commerce are characterized by rapid
technological change, changes in user requirements and preferences, frequent new
product and service introductions embodying new technologies and the emergence
of new industry standards and practices that could render our technology and
systems obsolete. Our success will depend, in part, on our ability to both
internally develop and license leading technologies to enhance our existing
services and develop new services. We must continue to address the increasingly
sophisticated and varied needs of our clients and respond to technological
advances and emerging industry standards and practices on a cost-effective and
timely basis. The development of proprietary technology involves significant
technical and business risks. We may fail to develop new technologies
effectively or to adapt our proprietary technology and systems to client
requirements or emerging industry standards.
RISKS RELATED TO THIS OFFERING
THE SALE OF A SUBSTANTIAL NUMBER OF SHARES OF OUR COMMON STOCK AFTER THIS
OFFERING MAY AFFECT OUR STOCK PRICE.
The market price of our common stock could drop as a result of sales of
substantial amounts of common stock in the public market after the closing of
this offering or the perception that substantial sales could occur. After this
offering, Daisytek will own 14,305,000 shares of our common stock. If Daisytek
distributes these shares to its stockholders, they will be eligible for
immediate resale in the public market, other than any shares held by our
affiliates. In addition, upon completion of the spin-off, outstanding Daisytek
options held by our employees will be converted into options to purchase our
common stock. We cannot predict whether substantial amounts of our common stock
will be sold in the open market in anticipation of, or following, any
distribution of our shares by Daisytek to its stockholders. Daisytek has the
sole discretion to determine the timing, structure and all terms of its
distribution of our common stock, all of which may also affect the level of
market transactions in our common stock. In addition, these factors could make
it more difficult for us to raise funds through future offerings of our common
stock.
PURCHASERS OF OUR COMMON STOCK IN THIS OFFERING WILL EXPERIENCE IMMEDIATE AND
SUBSTANTIAL DILUTION.
The initial public offering price is substantially higher than the net
tangible book value per share of our outstanding common stock immediately after
this offering. The net tangible book value per share represents the amount of
our total tangible assets less our total liabilities divided by the total number
of shares of common stock outstanding prior to this offering. Accordingly,
purchasers of common stock will experience immediate and substantial net
tangible book value dilution of approximately $11.00 per share, or approximately
84.6% of the offering price of $13.00 per share.
WE DO NOT EXPECT TO PAY DIVIDENDS TO OUR STOCKHOLDERS.
We have not paid any cash dividends on our common stock and anticipate for
the foreseeable future that any earnings will be retained for the operation and
expansion of our business.
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<PAGE> 18
OUR CERTIFICATE OF INCORPORATION, OUR BYLAWS AND DELAWARE LAW MAKE IT DIFFICULT
FOR A THIRD PARTY TO ACQUIRE US, DESPITE THE POSSIBLE BENEFIT TO OUR
STOCKHOLDERS.
Provisions of our certificate of incorporation, our bylaws and Delaware law
could make it more difficult for a third party to acquire us, even if doing so
would be beneficial to our stockholders. For example, our certificate of
incorporation provides for a classified board of directors, meaning that only
approximately one-third of our directors will be subject to re-election at each
annual stockholder meeting. Our certificate of incorporation also permits our
Board of Directors to issue one or more series of preferred stock which may have
rights and preferences superior to those of the common stock. The ability to
issue preferred stock could have the effect of delaying or preventing a third
party from acquiring us. These provisions could discourage takeover attempts and
could materially adversely affect the price of our stock.
FORWARD-LOOKING STATEMENTS
We have made forward-looking statements in this prospectus. These
statements are subject to risks and uncertainties, and there can be no guarantee
that these statements will prove to be correct. Forward-looking statements
include assumptions as to how we may perform in the future. When we use words
like "seek," "strive," "believe," "expect," "anticipate," "predict,"
"potential," "continue," "will," "may," "could," "intend," "plan" and "estimate"
or similar expressions, we are making forward-looking statements. You should
understand that the following important factors, in addition to those set forth
above or elsewhere in this prospectus, could cause our results to differ
materially from those expressed in our forward-looking statements. These factors
include:
- our reliance on the fees generated by the transaction volume or product
sales of our clients;
- trends in the market for our services;
- trends in e-commerce;
- whether we can continue and manage growth;
- changes in the trend toward outsourcing;
- increased competition;
- effects of changes in profit margins;
- the unknown effects of possible system failures and rapid changes in
technology;
- trends in government regulation; and
- our relationship with and separation from Daisytek.
We have based these statements on our current expectations about future
events. Although we believe that the expectations reflected in our
forward-looking statements are reasonable, we cannot guarantee you that these
expectations actually will be achieved. In evaluating these statements, you
should consider various factors, including the risks set forth in the section
entitled "Risk Factors" beginning on page 6. These factors may cause our actual
results to differ materially from any forward-looking statements.
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PROPOSED SPIN-OFF
OUR HISTORY
Our business unit was formed in 1991 as a subsidiary of Daisytek named
"Working Capital of America" whose purpose was to provide inventory management,
direct shipping to end users, and accounts receivable collections for Daisytek
customers and other third parties. Until 1996, our business unit was comprised
of operations both at Working Capital of America and at Daisytek. Our business
gradually developed as we recognized an opportunity to expand our business and
capitalize on Daisytek's strengths in customer service, order management,
product fulfillment and distribution, and provide these services on an
outsourcing basis. Since 1996, the operations of our business unit have been
primarily focused in PFS. We were formed in 1999 to be, upon completion of this
offering, a holding company for PFS and to facilitate this initial public
offering and spin-off from Daisytek.
SPIN-OFF FROM DAISYTEK
Daisytek's Plan to Spin-off PFSweb
After completion of this offering, Daisytek will own approximately 82.2% of
the outstanding shares of our common stock, or approximately 80.1% if the
underwriters exercise their over-allotment option in full. Daisytek has
announced that it plans to complete the spin-off of our company sometime in
mid-2000 (and within one year of the closing of this offering) by distributing
all of the shares of our common stock it then holds to its stockholders. We
refer to this distribution as the "spin-off."
Because there are certain conditions to effecting the spin-off, Daisytek
has advised us that it has not yet definitively determined whether and when it
expects to complete the spin-off. These conditions include:
- Receipt by Daisytek of a ruling by the Internal Revenue Service that,
among certain other tax consequences of the transaction, the spin-off
will qualify as a tax-free distribution for federal income tax purposes
and will not result in the recognition of taxable gain or loss for
federal income tax purposes to Daisytek or its shareholders. Daisytek
presently intends to submit its ruling request to the IRS prior to the
completion of this offering, and it generally takes four to six months to
receive a ruling from the IRS. Whether a favorable ruling will be issued
depends upon a number of determinations that are based on the particular
facts and circumstances of Daisytek and our company. Although we believe
that these determinations will be made favorably to Daisytek, there is no
guarantee that Daisytek will receive a favorable ruling. If within one
year following completion of this offering, Daisytek has not received a
favorable ruling, Daisytek may, in its sole and absolute discretion,
determine to proceed instead on the basis of an opinion from its
professional advisor, in form and substance reasonably satisfactory to
it, as to the qualification of the transaction for tax-free treatment.
- Obtaining any material consents necessary to consummate the spin-off
which shall be in full force and effect.
- No court orders, injunctions, decrees, regulations or other legal
restraint prohibiting or restricting the completion of the spin-off shall
exist.
- No events or developments shall have occurred subsequent to the closing
of this offering that, in the sole judgement of Daisytek, would result in
the spin-off having a materially adverse effect on Daisytek, PFSweb, or
their shareholders.
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Benefits of the Spin-off
We believe we will realize certain benefits from our separation from
Daisytek. As an independent company, we expect to be better able to take
advantage of various benefits, including the ones discussed below.
- To Raise Equity Capital at a Higher Valuation. We believe that capital
for PFSweb can be raised at a higher valuation through an offering of our
stock, rather than Daisytek stock. This is because we believe companies
in the e-commerce business, such as PFSweb, are generally currently
valued in the public market at a higher valuation compared to
distribution companies, such as Daisytek. We also believe that it is
beneficial to our capital raising efforts that Daisytek has announced its
plan to complete the spin-off of our company. This is because the public
market's perception that Daisytek will continue to control our company
(other than for a limited period of time prior to the spin-off) could
adversely affect the price of our shares in the public market because of
the reduced liquidity and uncertainty as to if, when and how the shares
held by Daisytek would be sold or distributed to the public.
- Better Incentives for Employees and Greater Accountability. We expect
that the motivation of our employees and the focus of our management will
be strengthened by incentive compensation programs tied to the market
performance of stock representing an interest solely in our business
unit. The separation will allow better and more direct incentives for our
employees and management. As a separate, publicly traded company after
the spin-off, we will be able to implement stock-based compensation plans
for our employees and management, which will be focused entirely on the
successful results and achievements of our business. For example, as a
separate, publicly traded company, we will be able to tie incentive
compensation of our employees more closely to the results of our business
segment. We believe this will enhance our ability to attract and retain
qualified personnel.
- Competition. We believe that our ability to market our services to
certain manufacturers of certain products may be hampered by our
ownership by Daisytek. In particular, we believe that for certain
manufacturers, our separation from Daisytek would reduce or eliminate any
potential channel conflicts as well as any concern regarding the
potential disclosure of proprietary information.
- Greater Strategic Focus. As a result of having our own board of directors
and separate management team, we expect to have a sharper focus on our
business and strategic opportunities. We will also have greater ability
to modify business processes to better fit the needs of our customers,
business units and employees.
Separation, Transaction Management and Transitional Arrangements
Concurrently with the completion of this offering, we and Daisytek will
enter into certain agreements providing for the separation of our business from
Daisytek, including a master separation agreement. These agreements generally
provide for various interim and ongoing relationships between the parties. Under
these agreements, Daisytek will transfer to us assets, including all fixed
assets in its Memphis distribution facility as well as certain assets associated
with providing information technology services and the stock of several
subsidiaries of Daisytek representing the business operations of PFSweb, and we
will transfer to Daisytek $5.4 million in cash and assume $0.3 million of
capital lease obligations, as well as the operating lease obligations related to
these assets. In connection with this offering, we will also repay our payable
to Daisytek. In addition, we and Daisytek will enter into a transaction
management services agreement under which we will provide transaction management
services for Daisytek's U.S. wholesale consumable computer supplies business. We
and Daisytek will also enter into a transition services agreement under which
Daisytek will provide us with transitional services, such as payroll and
administrative services, use of facilities and certain shared management
information services. These services will generally be available until the
completion of the spinoff, but not later than one year following completion of
this offering.
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<PAGE> 21
All of our agreements with Daisytek were made in the context of a
parent-subsidiary relationship and were negotiated in the overall context of our
separation from Daisytek. Although we generally believe that the terms of these
agreements are consistent with fair market values, we cannot assure you that the
prices charged to us, or by us, under these agreements are not higher or lower
than the prices that may be charged by, or to, unaffiliated third parties for
similar services.
For more information regarding the separation arrangements, see "Certain
Transactions."
USE OF PROCEEDS
Assuming an initial public offering price of $13.00 per share, we will
receive net proceeds of approximately $35.0 million from the sale of 3,100,000
shares of common stock in this offering ($40.6 million if the underwriters
exercise their over-allotment option in full). We intend to use the net proceeds
of this offering:
- to repay an intercompany payable to Daisytek ($22.3 million as of
September 30, 1999) which is payable on demand and accrues interest at a
fluctuating rate equal to Daisytek's cost of funds (6.5% as of September
30, 1999), the proceeds of which were used within the past year to fund
working capital needs and to fund an increase in a non-current receivable
from one of our clients;
- to acquire from Daisytek all fixed assets in its Memphis distribution
facility, as well as certain assets providing information technology
services and the stock of several subsidiaries of Daisytek representing
the business operations of PFSweb for approximately $5.4 million, which
represents the net book value of these assets;
- for presently anticipated capital expenditures of approximately $7-$10
million, a portion of which may be financed through capital or operating
leases; and
- for general working capital and possible acquisitions.
DIVIDEND POLICY
We have never declared or paid cash dividends on our common stock. We
currently intend to retain any future earnings to fund the development and
growth of our business. Therefore, we do not currently anticipate paying any
cash dividends in the foreseeable future.
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CAPITALIZATION
The following table sets forth the Company's cash and capitalization as of
September 30, 1999:
- on an actual basis; and
- on a pro forma basis after giving effect to the following:
-- the contribution from Daisytek of $20,000 for 14,305,000 shares of
our common stock;
-- the reclassification of Daisytek's net equity investment as common
stock and additional paid-in capital; and
-- the issuance of 3,100,000 shares of common stock in this offering,
assuming an initial public offering price of $13.00 per common share,
and the application of approximately $22.3 million of the estimated
$35.0 million net proceeds (including $466,000 of deferred offering
costs that have already been paid as of September 30, 1999) to repay
the payable to Daisytek.
This table should be read in conjunction with "Use of Proceeds," "Selected
Combined Historical and Pro Forma Financial Data," the "Combined Financial
Statements" and related notes, and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included elsewhere in this
prospectus.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1999
---------------------------------
ACTUAL PRO FORMA
------ ---------
(IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C>
Cash........................................................ $ 1,247 $14,393
======= =======
Payable to Daisytek......................................... $22,319 $ --
Shareholders' Equity:
Preferred stock, $1.00 par value; 1,000,000 shares
authorized, none issued and outstanding.............. -- --
Common stock, $0.001 par value; 40,000,000 shares
authorized; 17,405,000 shares issued and outstanding
(pro forma).......................................... -- 17
Additional paid-in capital............................. -- 34,921
Daisytek's net equity investment....................... (61) --
Accumulated other comprehensive income................. (177) (177)
------- -------
Total shareholders' equity (deficit).............. (238) 34,761
------- -------
Total capitalization.............................. $22,081 $34,761
======= =======
</TABLE>
18
<PAGE> 23
DILUTION
The net tangible book value of our common stock as of September 30, 1999
was $(0.2) million, or $(0.02) per share of common stock. Net tangible book
value per share represents the amount of our total tangible assets less our
total liabilities, divided by the total number of shares of common stock
outstanding prior to this offering.
After giving effect to this offering and the receipt of $35.0 million of
net proceeds from this offering (based on an assumed initial public offering
price of $13.00 per share), the pro forma net tangible book value of the common
stock as of September 30, 1999 would have been approximately $34.8 million, or
$2.00 per share. This amount represents an immediate increase in net tangible
book value of $2.02 per share to Daisytek, our existing stockholder, and an
immediate dilution in net tangible book value of $11.00 per share to purchasers
of common stock in this offering. Dilution is determined by subtracting pro
forma net tangible book value per share after this offering from the amount of
cash paid by a new investor for a share of common stock. The following table
illustrates such dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share............. $13.00
Net tangible book value per share at September 30, 1999... $(0.02)
Increase in pro forma net tangible book value per share
attributable to new investors.......................... 2.02
------
Pro forma net tangible book value per share after this
offering.................................................. 2.00
------
Dilution per share to new investors......................... $11.00
======
</TABLE>
The following table sets forth, as of September 30, 1999, on the pro forma
basis described above, the number of shares of common stock purchased from us,
the total consideration paid to us and the average price per share paid by the
existing stockholder and by new investors who purchase shares of common stock in
this offering, before deducting the estimated underwriting discounts and
commissions and offering expenses.
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
-------------------- --------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Existing
Stockholder(1)(2)........... 14,305,000 82.2% $ 20,000 0.1% $ 0.01
New Investors(2)............ 3,100,000 17.8 40,300,000 99.9 13.00
---------- ----- ----------- -----
Total............. 17,405,000 100.0% $40,320,000 100.0%
========== ===== =========== =====
</TABLE>
- -------------------------
(1) If the Underwriters' over-allotment option is exercised in full, sales in
this offering will reduce the number of shares of common stock held by the
existing stockholder to approximately 80.1% of the total shares of common
stock outstanding after the offering and will increase the number of shares
held by new investors to 3,565,000, or approximately 19.9% of the total
shares of common stock outstanding after the offering. See "Underwriting."
(2) The foregoing table excludes outstanding stock options to purchase an
aggregate of 1,376,500 shares of common stock at a weighted average exercise
price of $10.51 per share. In addition, upon completion of the spin-off,
stock options exercisable for shares of Daisytek common stock held by PFSweb
employees will be converted into stock options exercisable for shares of our
common stock. It is not possible to specify how many shares of our common
stock will be subject to such stock options, as it is not known how many
stock options to purchase Daisytek common stock held by PFSweb employees
will remain unexercised and outstanding upon completion of the spin-off. We
may also issue additional shares of common stock upon exercise of future
stock option grants or equity awards, which could also result in additional
dilution to then-existing stockholders.
19
<PAGE> 24
SELECTED COMBINED HISTORICAL AND PRO FORMA FINANCIAL DATA
HISTORICAL PRESENTATION
The selected combined historical statement of operations data and balance
sheet data for each of the fiscal years ended March 31, 1997 through 1999, have
been derived from our audited combined financial statements and should be read
in conjunction with those statements and notes included elsewhere in this
prospectus. The selected combined historical statement of operations data for
the fiscal years ended March 31, 1995 and 1996 and the six months ended
September 30, 1998 and 1999 and the selected combined historical balance sheet
data as of March 31, 1995 and 1996 and September 30, 1999 have been derived from
our unaudited combined financial statements, and include, in our opinion, all
normal, recurring adjustments necessary for a fair presentation of the financial
position at such dates and the results of operations for such respective
periods. The financial information herein may not necessarily reflect our
results of operations, financial position and cash flows in the future or what
our results of operations, financial position and cash flows would have been had
we been a separate, stand-alone entity during the periods presented.
PRO FORMA PRESENTATION
The pro forma financial data have been derived from our unaudited pro forma
combined financial statements which were prepared to illustrate the effects of
certain transactions and events and the application of the net offering
proceeds. The unaudited pro forma combined statement of operations data have
been prepared as if the transactions and events described below had occurred as
of the beginning of the respective periods presented. The unaudited pro forma
combined balance sheet data have been prepared as if these transactions and
events had occurred as of September 30, 1999. The unaudited pro forma combined
financial data do not purport to represent what our results of operations or
financial position would actually have been if this offering and the
transactions and events had in fact occurred on such dates or to project our
results of operations or financial position for any future date or period. For a
more complete discussion, this data should be read in conjunction with the
"Combined Financial Statements and Related Notes," the "Unaudited Condensed
Interim Combined Financial Statements and the Related Notes," the "Pro Forma
Combined Financial Statements and the Related Notes," and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included elsewhere in this prospectus.
The unaudited pro forma financial data gives effect to the following
transactions and events:
- the contribution from Daisytek of $20,000 for 14,305,000 shares of our
common stock;
- the reclassification of Daisytek's net equity investment as common stock
and additional paid-in capital; and
- the issuance of 3,100,000 shares of common stock in this offering,
assuming an initial public offering price of $13.00 per common share, and
the application of the estimated $35.0 million net proceeds to repay the
outstanding payable to Daisytek, reduce deferred offering costs and
increase cash. The pro forma adjustments reflect the reduction of
interest expense previously charged by Daisytek.
20
<PAGE> 25
HISTORICAL AND PRO FORMA FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
FISCAL YEARS ENDED MARCH 31, MARCH 31, 1999
--------------------------------------------- ----------------------
1995 1996 1997 1998 ACTUAL PRO FORMA
----------- ----------- ------- ------- -------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
COMBINED STATEMENT OF OPERATIONS DATA:
Revenues:
Product revenue............................ $ -- $ -- $16,543 $45,804 $ 93,702 $ 93,702
Service fee revenue........................ 65 111 1,034 3,539 7,547 7,547
------- ------- ------- ------- -------- --------
Total revenues........................... 65 111 17,577 49,343 101,249 101,249
------- ------- ------- ------- -------- --------
Costs of revenues:
Cost of product revenue.................... -- -- 15,768 43,392 88,335 88,335
Cost of service fee revenue................ 65 67 596 2,208 5,323 5,323
------- ------- ------- ------- -------- --------
Total costs of revenues.................. 65 67 16,364 45,600 93,658 93,658
------- ------- ------- ------- -------- --------
Gross profit................................. -- 44 1,213 3,743 7,591 7,591
Percent of revenues.......................... --% 39.6% 6.9% 7.6% 7.5% 7.5%
Selling, general and administrative
expenses................................... -- -- 1,074 3,705 6,711 6,711
------- ------- ------- ------- -------- --------
Income from operations....................... -- 44 139 38 880 880
Percent of revenues.......................... -- 39.6% 0.8% 0.1% 0.9% 0.9%
Interest (income) expense, net............... 41 53 77 143 374 (665)
------- ------- ------- ------- -------- --------
Income (loss) before income taxes............ (41) (9) 62 (105) 506 1,545
Provision (benefit) for income taxes......... (16) (2) 38 (30) 214 619
------- ------- ------- ------- -------- --------
Net income (loss)............................ $ (25) $ (7) $ 24 $ (75) $ 292 $ 926
======= ======= ======= ======= ======== ========
PER SHARE DATA:
Net income (loss) per share:
Basic and diluted(a)....................... $ (0.00) $ (0.00) $ 0.00 $(0.01) $ 0.02 $ 0.05
======= ======= ======= ======= ======== ========
Weighted average number of shares outstanding:
Basic and diluted(a)....................... 14,305 14,305 14,305 14,305 14,305 17,405
</TABLE>
- -------------------------
(a) On an historical basis, reported basic and diluted net income per share was
determined based on net income divided by the 14,305,000 shares outstanding
prior to this offering. For purposes of the net income per share
calculation, the shares outstanding prior to this offering are treated as
outstanding for all historical periods presented. Basic and diluted pro
forma net income per share are calculated based on common stock outstanding
of 17,405,000 shares upon completion of this offering. It does not include
up to 465,000 shares of common stock which the underwriters have the option
to exercise solely to cover over-allotments. If the underwriters exercise
their over-allotment option in full, basic and diluted pro forma net income
per share would be $0.05 for the fiscal year ended March 31, 1999 and basic
and diluted pro forma net loss per share would be ($0.01) for the six
months ended September 30, 1999. There were no potentially dilutive
securities outstanding during the periods presented.
21
<PAGE> 26
<TABLE>
<CAPTION>
SIX MONTHS SIX MONTHS ENDED
ENDED SEPTEMBER 30, 1999
SEPTEMBER 30, ---------------------
1998 ACTUAL PRO FORMA
------------- ------ ---------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<S> <C> <C> <C>
COMBINED STATEMENT OF OPERATIONS DATA (CONTINUED):
Revenues:
Product revenue....................................... $41,327 $55,778 $55,778
Service fee revenue................................... 2,761 7,004 7,004
------- ------- -------
Total revenues..................................... 44,088 62,782 62,782
------- ------- -------
Costs of revenues:
Cost of product revenue............................... 39,243 52,639 52,639
Cost of service fee revenue........................... 2,155 4,898 4,898
------- ------- -------
Total costs of revenues............................ 41,398 57,537 57,537
------- ------- -------
Gross profit............................................ 2,690 5,245 5,245
Percent of revenues..................................... 6.1% 8.4% 8.4%
Selling, general and administrative expenses............ 2,576 5,871 5,871
------- ------- -------
Income (loss) from operations........................... 114 (626) (626)
Percent of revenues..................................... 0.3% (1.0)% (1.0)%
Interest (income) expense, net.......................... 139 650 (416)
------- ------- -------
Loss before income taxes................................ (25) (1,276) (210)
Benefit for income taxes................................ (9) (503) (88)
------- ------- -------
Net loss................................................ $ (16) $ (773) $ (122)
======= ======= =======
PER SHARE DATA:
Net loss per share:
Basic and diluted(a).................................. $ (0.00) $ (0.05) $ (0.01)
======= ======= =======
Weighted average number of shares outstanding:
Basic and diluted(a).................................. 14,305 14,305 17,405
</TABLE>
<TABLE>
<CAPTION>
AS OF
AS OF MARCH 31, SEPTEMBER 30, 1999
----------------------------------------- -------------------
1995 1996 1997 1998 1999 ACTUAL PRO FORMA
---- ---- ------- ------- ------- ------- ---------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
COMBINED BALANCE SHEET DATA (IN THOUSANDS):
Working capital........................... $507 $579 $ 5,757 $ 1,344 $14,636 $ 1,161 $13,841
Total assets.............................. 524 591 15,614 20,911 69,057 29,988 42,668
Long-term obligations..................... 550 629 5,851 1,827 29,029 22,319 --
Shareholders' equity (deficit)............ (43) (49) (8) (155) 581 (238) 34,761
</TABLE>
22
<PAGE> 27
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion and analysis of our results of operations and
financial condition should be read in conjunction with the combined financial
statements and related notes thereto appearing elsewhere in this prospectus.
OVERVIEW
We are an international provider of transaction management services to both
traditional and e-commerce companies. We derive our revenues from a broad range
of services, including order management, customer care services, billing
services, information management and fulfillment and distribution services. Our
fulfillment and distribution services are conducted at our warehouses and
include picking, packing and shipping our clients' customer orders. We offer our
services as an integrated solution, which enables our clients to outsource their
complete transaction management needs to a single source and to focus on their
core competencies. We currently provide transaction management services to over
30 clients that operate in a range of vertical markets, including apparel,
computer products, printers, sporting goods and consumer electronics, among
others. During fiscal year 1999, IBM was our largest client and represented
approximately 93% of our total revenue. Within the past twelve months, we have
signed contracts with over 10 new clients, including Hewlett-Packard, Thomson
Consumer Electronics, Nokia, Global Sports Interactive and ISA International
plc. Collectively, these new clients represented approximately two percent of
our total revenue for the six month period ended September 30, 1999.
Our service fee revenue is typically charged on a percent of shipped
revenue basis or a per-transaction basis, such as a per-minute basis for call
center services and a per-item basis for fulfillment services. Additional fees
are billed for other services. We price our services based on a variety of
factors, including the depth and complexity of the services provided, the amount
of capital expenditures or systems customization required, the length of
contract and other factors. Many of our contracts with our clients involve
third-party vendors who provide additional services such as package delivery.
The costs we are charged by these third-party vendors for these services are
passed on to our clients (and, in many cases, our clients' customers) and are
not reflected in our revenue or expense. Historically, our services have also
included purchasing and reselling client product inventory. In these
arrangements, our product revenue was recognized at the time product was
shipped. During the quarter ended September 30, 1999, our primary client
agreement under which we previously purchased and sold inventory was
restructured to provide transaction management services only on a service fee
basis.
Our expenses are comprised of:
- on an historical basis, cost of product revenue, which consists of the
purchase price of product sold and net freight costs;
- cost of service fee revenue, which consists primarily of compensation and
related expenses for our customer care and fulfillment centers and other
fixed and variable expenses directly related to providing services under
the terms of fee based contracts, including certain occupancy and
information technology costs and depreciation and amortization expenses;
and
- selling, general and administrative expenses, which consist primarily of
compensation and related expenses for sales and marketing staff,
executive, management and administrative personnel and other overhead
costs, including certain occupancy and information technology costs and
depreciation and amortization expenses. In addition, on an historical
basis, certain direct contract costs related to our IBM master
distributor agreements have been reflected as selling and administrative
expenses.
23
<PAGE> 28
FUTURE FINANCIAL PRESENTATION
Our historical financial statements are only of limited use in making an
investment decision. This is because the financial presentation of our
operations in the future will be different from what they have been
historically. In this section we:
- explain how our historical financial statements reflect product revenue
and expenses arising from our sale of IBM products;
- describe the restructuring of our IBM agreements and its effect on our
future financial presentation;
- explain how our historical financial statements do not reflect our new
agreement with Daisytek, which will go into effect upon the completion of
this offering;
- describe the service fee revenue which will be generated by our new
agreements with IBM and Daisytek; and
- explain that because of these changes, our historical financial
statements may not provide a meaningful comparison to our future
financial statements.
In 1996, we entered into an agreement with the printer supplies division of
IBM. Under this agreement, we provided IBM with various transaction management
services, such as call center services and order fulfillment and distribution.
We also served as an IBM master distributor of printer supply products. Under
this master distributor arrangement, we purchased the printer supply products
from IBM and resold them to IBM customers. Following our initial agreement with
the printer supplies division, we entered into several similar agreements with
other divisions of IBM, both in the U.S. and Europe, and expanded our existing
agreements to include more product lines.
During the quarter ended September 30, 1999, we, Daisytek and IBM entered
into new agreements to conform to our current business model. Under these new
agreements, Daisytek will act as the master distributor of the IBM products and
we will continue to provide various transaction management services. As part of
this restructuring, we transferred to Daisytek the IBM product inventory which
we held as the master distributor, together with our customer accounts
receivable and our accounts payable owing to IBM in respect of the product
inventory. The purpose of the restructuring was to separate the master
distributor and transaction management responsibilities between ourselves and
Daisytek so that each could focus on its core competencies.
As a result of the restructuring of the IBM agreements, our historical
financial statements may not provide a meaningful comparison to our future
financial statements. This is because, as a master distributor under our prior
agreement, we recorded revenue as product revenue as we sold the product to IBM
customers. Similarly, our gross profit was based upon the difference between our
revenue from product sales and the cost of purchasing the product from IBM. In
the future, however, our revenue under the new IBM agreements will be service
fee revenue that will be payable by Daisytek and will be based upon a variable
percentage of Daisytek's gross profit arising from its IBM product sales.
As a result of this restructuring of our IBM agreements, our total revenues
arising under our new IBM agreements will be reduced, as compared to our total
revenues arising under our prior IBM agreements. However, our gross profit
margin as a percent of service fee revenue under our new IBM agreements is
anticipated to be significantly higher as compared to our gross profit margin as
a percent of product revenue under our prior IBM agreements.
In addition, upon completion of this offering, we will enter into a
transaction management services agreement with Daisytek. Under this agreement,
we will provide transaction management services for Daisytek's U.S. wholesale
consumable computer supplies business. We will receive service fee revenue based
upon a percentage of Daisytek's shipped product revenue. Consequently,
24
<PAGE> 29
our historical financial statements do not reflect the service fee revenue we
will receive from Daisytek under this new agreement.
Finally, upon completion of this offering, Daisytek will transfer to us
fixed assets and other assets which will be used in our business. We will pay to
Daisytek a portion of the net proceeds of this offering and assume capital and
operating lease obligations related to these assets. Consequently, our
historical financial statements do not reflect this transaction.
In order to show how we evaluate our business internally and how we will
present our financial statements in the future because of our new arrangements
with IBM and Daisytek, we have set forth below an adjusted presentation of our
total historical revenue and cost of revenue. This presentation shows,
retroactively, what our service fee revenue and cost of service fee revenue
would have been if:
- our new agreements with IBM and Daisytek had been in effect during the
periods presented; and
- our acquisition of the assets and liabilities that Daisytek will transfer
to us upon completion of this offering had occurred as of the beginning
of the respective periods presented.
<TABLE>
<CAPTION>
FISCAL YEAR SIX MONTHS
ENDED ENDED
MARCH 31, SEPTEMBER 30,
1999 1999
----------- -------------
(IN THOUSANDS)
(UNAUDITED)
<S> <C> <C>
Service fee revenue......................................... $31,510 $19,081
Cost of service fee revenue................................. 18,525 12,107
Service fee gross profit.................................... 12,985 6,974
Service fee gross profit margin............................. 41.2% 36.5%
</TABLE>
Based on this presentation, our largest clients for the 1999 fiscal year
would have been Daisytek (65.1%), IBM (13.5%) and Emtec (10.3%), and our largest
clients for the six months ended September 30, 1999 would have been Daisytek
(52.2%), IBM (13.4%) and Emtec (9.4%). In calculating these percentages, we have
considered IBM as our client under our new IBM agreements even though the
service fees arising under these agreements are paid by Daisytek.
This presentation does not reflect what our operating income or net income
would have been during the periods presented.
25
<PAGE> 30
RESULTS OF OPERATIONS
The following table sets forth certain historical financial information
from our audited and unaudited combined statements of operations expressed as a
percent of revenues.
<TABLE>
<CAPTION>
SIX MONTHS
FISCAL YEARS ENDED ENDED
MARCH 31, SEPTEMBER 30,
----------------------- --------------
1997 1998 1999 1998 1999
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Product revenue.................................... 94.1% 92.8% 92.5% 93.7% 88.8%
Service fee revenue........................... 5.9 7.2 7.5 6.3 11.2
----- ----- ----- ----- -----
Total revenues...................... 100.0 100.0 100.0 100.0 100.0
----- ----- ----- ----- -----
Cost of product revenue (as % of product
revenue).................................... 95.3 94.7 94.3 95.0 94.4
Cost of service fee revenue (as % of service
fee revenue)................................ 57.6 62.4 70.5 78.1 69.9
----- ----- ----- ----- -----
Total costs of revenues............. 93.1 92.4 92.5 93.9 91.6
----- ----- ----- ----- -----
Gross profit.................................. 6.9 7.6 7.5 6.1 8.4
Selling, general and administrative
expenses.................................... 6.1 7.5 6.6 5.8 9.4
----- ----- ----- ----- -----
Income (loss) from operations................. 0.8 0.1 0.9 0.3 (1.0)
Interest expense, net......................... 0.5 0.3 0.4 0.3 1.0
----- ----- ----- ----- -----
Income (loss) before income taxes............. 0.3 (0.2) 0.5 (0.0) (2.0)
Provision (benefit) for income taxes.......... 0.2 0.0 0.2 (0.0) (0.8)
----- ----- ----- ----- -----
Net income (loss)............................. 0.1% (0.2)% 0.3% (0.0)% (1.2)%
===== ===== ===== ===== =====
</TABLE>
26
<PAGE> 31
SIX MONTH PERIOD ENDED SEPTEMBER 30, 1999 COMPARED TO SIX MONTH PERIOD ENDED
SEPTEMBER 30, 1998
Product Revenue. Product revenue was $55.8 million for the six months
ended September 30, 1999 as compared to $41.3 million for the six months ended
September 30, 1998, an increase of $14.5 million or 35.0%. Product revenue
increased as a result of an increase of $15.3 million under new European IBM
distributor agreements and a decrease of $0.8 million in sales under our North
American IBM master distributor agreements. As stated above, during the quarter
ended September 30, 1999, we, Daisytek and IBM entered into new agreements
applicable to all of our IBM relationships. One of these agreements was
effective as of July 15, 1999, and all others are effective as of the end of
September 30, 1999. The contract effective as of July 15, 1999, had a negative
impact on our product revenue during the six month period ended September 30,
1999, as the activities performed under this contract since that date were
accounted for as service fee revenues as opposed to product revenue. As a result
of these new IBM contract arrangements, we expect no product revenue in future
periods.
Service Fee Revenue. Service fee revenue was $7.0 million during the six
months ended September 30, 1999 as compared to $2.8 million during the six
months ended September 30, 1998, an increase of $4.2 million or 153.7%. The
increase in service fee revenue was attributable to an increase in existing
contracts of $1.5 million and the addition of $2.8 million related to new
service contract relationships, including the restructured IBM agreements
referred to above, during the six months ended September 30, 1999. The
restructuring of all the IBM contracts, combined with our new transaction
management services agreement with Daisytek beginning upon completion of this
offering, should result in an increase in service fee revenues over prior
periods.
Cost of Product Revenue. Cost of product revenue was $52.6 million during
the six months ended September 30, 1999 as compared to $39.2 million during the
six months ended September 30, 1998, an increase of $13.4 million or 34.1%. Cost
of product revenue as a percent of product revenue was 94.4% during the six
months ended September 30, 1999 and 95.0% during the six months ended September
30, 1998. The resulting product gross profit margin was 5.6% during the six
months ended September 30, 1999 and 5.0% during the six months ended September
30, 1998. The increase in product gross profit margin was due to our European
IBM business, which had a higher gross profit margin than our domestic IBM
business, and differences in our customer and product mix. As a result of the
new IBM arrangements, we do not expect to incur any cost of product revenue in
future periods.
Cost of Service Fee Revenue. Cost of service fee revenue was $4.9 million
for the six months ended September 30, 1999 as compared to $2.2 million during
the six months ended September 30, 1998, an increase of $2.7 million or 127.3%.
The increase in cost of service fee revenue during the six months ended
September 30, 1999 was due to increased activity from growth in existing
contracts as well as new client relationships. The resulting service fee gross
profit margin was 30.1% during the six months ended September 30, 1999 and 21.9%
during the six months ended September 30, 1998. The increase in service fee
gross profit margin was due to certain initial incremental costs incurred to
implement several new contracts during the six months ended September 30, 1998.
Gross Profit. Gross profit was $5.2 million for the six months ended
September 30, 1999 or 8.4% of revenues as compared to $2.7 million or 6.1% of
revenues for the six months ended September 30, 1998. The increase in total
gross profit margin resulted primarily from the increase in service fee revenue
of 153.7%, which typically earn higher gross profit margins, compared to the
increase in product revenue of 35.0%. In the Future Financial Presentation data
above, we have provided, retroactively, what our service fee gross profit margin
would have been considering the impact of the new IBM and Daisytek agreements
and our acquisition of the assets and liabilities which Daisytek will transfer
to us upon completion of this offering. The gross profit margin for the
27
<PAGE> 32
six month period ended September 30, 1999, would have been 36.5%. Our service
fee gross profit margin in the future is targeted to be between 35-40%.
Selling, General and Administrative Expenses. SG&A expenses were $5.9
million for the six months ended September 30, 1999 or 9.4% of revenues as
compared to $2.6 million or 5.8% of revenues for the six months ended September
30, 1998. SG&A expenses increased primarily as a result of costs incurred to
support the higher sales volumes under both new and existing contracts.
Incremental investments in resources and technology to support our continued
growth also contributed to increased SG&A expenses. We anticipate that we will
continue to incur incremental costs as we make further SG&A investments in our
sales, marketing, and technology areas to support our growth strategies. We also
expect to incur incremental SG&A expenses as a result of operating as a
stand-alone public company. As a result of these expected incremental costs, and
as a result of the restructuring of the IBM agreements and the related reduction
in product revenue, SG&A expenses as a percentage of service fee revenue will be
higher in future periods.
Interest Expense, Net. Interest expense was $0.7 million for the six
months ended September 30, 1999 as compared to $0.1 million for the six months
ended September 30, 1998. Interest expense increased as a result of an increase
in the average payable to Daisytek to support working capital requirements
applicable primarily to our master distributor agreements and for capital
expenditures. The weighted average interest rate was 6.3% during the six months
ended September 30, 1999 and 7.0% during the six months ended September 30,
1998. As indicated in "Use of Proceeds", we plan to utilize the funds from this
offering to repay our intercompany payable balance to Daisytek and therefore
eliminate the related interest expense. Remaining cash will be utilized to
finance the transfer of certain assets from Daisytek, future capital
expenditures, general working capital needs and possible acquisitions. To the
extent that we have excess cash available after considering these items, we
expect to generate interest income in future periods.
Income Taxes. Our income tax benefit as a percentage of pretax loss was
39.4% for the six months ended September 30, 1999 and 36.0% for the six months
ended September 30, 1998. This difference resulted primarily from a change in
the ratio of pretax loss between our U.S. and foreign subsidiaries which are
taxed at different rates.
FISCAL YEAR ENDED MARCH 31, 1999 COMPARED TO FISCAL YEAR ENDED MARCH 31, 1998
Product Revenue. Product revenue was $93.7 million for fiscal 1999
compared to $45.8 million for fiscal 1998, an increase of $47.9 million or
104.6%. Product revenue increased as a result of an increase of $10.5 million
under new European IBM distributor agreements and an increase of $37.4 million
or 81.7% in sales under our North American IBM master distributor agreements.
Service Fee Revenue. Service fee revenue was $7.5 million during fiscal
1999 as compared to $3.5 million during fiscal 1998, an increase of $4.0 million
or 113.3%. The increase in service fee revenue was attributable to an increase
in existing contracts of $1.3 million or 37.1% and the addition of $2.7 million
related to new service contract relationships.
Cost of Product Revenue. Cost of product revenue was $88.3 million during
fiscal 1999 as compared to $43.4 million during fiscal 1998, an increase of
$44.9 million or 103.6%. Cost of product revenue as a percent of product revenue
was 94.3% for fiscal 1999 and 94.7% for fiscal 1998. The resulting product gross
profit margin was 5.7% for fiscal 1999 and 5.3% for fiscal 1998. The increase in
product gross profit margin was due to our European IBM business, which had a
higher gross profit margin than our domestic IBM business due to differences in
customer and product mix.
Cost of Service Fee Revenue. Cost of service fee revenue was $5.3 million
for fiscal 1999 compared to $2.2 million during fiscal 1998, an increase of $3.1
million or 141.1%. The increase in cost of service fee revenue during fiscal
1999 was due to growth in client orders processed during the period. The
resulting service fee gross profit margin was 29.5% during fiscal 1999 and 37.6%
during fiscal 1998. The decrease in service fee gross profit margin was due to
the addition of certain
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large contracts at lower gross profit margins and incremental costs related to
implementing several new contracts during fiscal 1999.
Gross Profit. Our gross profit was $7.6 million or 7.5% of revenues for
fiscal 1999 as compared to $3.7 million or 7.6% of revenues for fiscal 1998. In
the Future Financial Presentation data above, we have provided, retroactively,
what our service fee gross profit margin would have been considering the impact
of the new IBM and Daisytek agreements and our acquisition of the assets and
liabilities which Daisytek will transfer to us upon completion of this offering.
The gross profit margin for the year ended March 31, 1999 would have been 41.2%.
Selling, General and Administrative Expenses. SG&A expenses for fiscal
1999 were $6.7 million or 6.6% of revenues as compared to $3.7 million or 7.5%
of revenues for fiscal 1998. The increase in SG&A expenses for fiscal 1999 was a
result of costs incurred to support the growth in client orders processed under
both new and existing contracts. Incremental investments in resources and
technology to support our continued growth also contributed to increased SG&A
expenses.
Interest Expense, Net. Interest expense was $0.4 million during fiscal
1999 and $0.1 million during fiscal 1998. Interest expense increased as a result
of an increase in the average payable to Daisytek to support working capital
requirements applicable primarily to our master distributor agreements. The
weighted average interest rate was 6.7% during fiscal 1999 and 6.9% during
fiscal 1998.
Income Taxes. Our income tax expense as a percentage of pretax income was
42.3% for fiscal 1999 as compared to an income tax benefit as a percentage of
pretax loss of 28.6% for fiscal 1998. This difference resulted from a change in
the ratio of pretax income or loss between our U.S. and foreign subsidiaries
which are taxed at different rates, combined with certain nondeductible expenses
in fiscal 1998. See also Note 7 to the "Combined Financial Statements" included
elsewhere in this prospectus.
FISCAL YEAR ENDED MARCH 31, 1998 COMPARED TO FISCAL YEAR ENDED MARCH 31, 1997
Product Revenue. Product revenue was $45.8 million for fiscal 1998 as
compared to $16.5 million for fiscal 1997, an increase of $29.3 million or
176.9%. Product revenue increased during fiscal 1998 as a result of higher sales
volumes of products under our existing IBM master distributor agreements.
Service Fee Revenue. Service fee revenue was $3.5 million during fiscal
1998 as compared to $1.0 million during fiscal 1997, an increase of $2.5 million
or 242.3%. The increase in service fee revenue was due to growth in client
orders processed primarily under existing fee-based contracts.
Cost of Product Revenue. Cost of product revenue was $43.4 million during
fiscal 1998 as compared to $15.8 million during fiscal 1997, an increase of
$27.6 million or 175.2%. Cost of product revenue as a percent of product revenue
was 94.7% for fiscal 1998 and 95.3% for fiscal 1997. The resulting product gross
profit margin was 5.3% for fiscal 1998 and 4.7% for fiscal 1997. The increase in
product gross profit margin was related to changes in customer and product mix.
Cost of Service Fee Revenue. Cost of service fee revenue was $2.2 million
for fiscal 1998 as compared to $0.6 million for fiscal 1997, an increase of $1.6
million or 270.5%. The increase in cost of service fee revenue during fiscal
1998 was due to growth in client orders processed during the period. The
resulting service fee gross profit margin was 37.6% during fiscal 1998 and 42.4%
during fiscal 1997. The decrease in service fee gross profit margin was due to
the addition of certain large contracts at lower gross profit margins during the
last quarter of fiscal 1997, which impacted operating results for all of fiscal
1998.
Gross Profit. Our gross profit was $3.7 million or 7.6% of revenues for
fiscal 1998 as compared to $1.2 million or 6.9% of revenues for fiscal 1997. The
increase in our gross profit for fiscal 1998 was primarily the result of
increased product revenue. The increase in total gross profit margin
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resulted primarily from the increase in service fee revenue of 242.3%, which
typically earn higher gross profit margins, compared to the increase in product
revenue of 176.9%.
Selling, General and Administrative Expenses. SG&A expenses were $3.7
million for fiscal 1998 or 7.5% of revenues as compared to $1.1 million or 6.1%
of revenues for fiscal 1997. The increase in SG&A expenses for fiscal 1998 was
primarily the result of higher sales volumes under both new and existing
contracts. Incremental investments in resources and technology to support our
continued growth also contributed to increased SG&A expenses.
Interest Expense, Net. Interest expense was $0.1 million during each of
fiscal 1998 and fiscal 1997. Interest expense increased slightly as a result of
an increase in the average payable to Daisytek to support our working capital
requirements applicable primarily to its master distributor agreements. The
weighted average interest rate was 6.9% during fiscal 1998 and 6.1% during
fiscal 1997.
Income Taxes. Our income tax benefit as a percentage of pretax loss was
28.6% for fiscal 1998 as compared to income tax expense as a percentage of
pretax income of 61.3% for fiscal 1997. This difference resulted from a change
in the ratio of pretax income or loss between our U.S. and foreign subsidiaries
which are taxed at different rates, combined with certain nondeductible expenses
in fiscal 1998. See also Note 7 to the "Combined Financial Statements" included
elsewhere in this prospectus.
LIQUIDITY AND CAPITAL RESOURCES
As a subsidiary of Daisytek, we have historically funded our business
through intercompany borrowings from Daisytek. The net proceeds of this offering
will be used to repay our intercompany borrowings from Daisytek. We currently
believe that the net available proceeds from this offering and funds generated
from operations will satisfy our working capital and capital expenditure
requirements for the next twelve months. Because Daisytek will be prohibited
from advancing funds to us following the completion of this offering and we will
be prohibited from borrowing from Daisytek after the spinoff, we plan to seek
our own credit facility.
Working capital decreased to $1.2 million at September 30, 1999 from $14.6
million at March 31, 1999, and from $1.3 million at March 31, 1998. A
significant portion of our working capital needs has historically been related
to our master distributor agreements with IBM which required us to purchase and
resell the product inventory to IBM customers. Under our new agreements with
IBM, Daisytek will act as the master distributor (and be responsible for the
purchase and resale of the product inventory and retain the customer revenue),
and we will continue to perform most of the other transaction management
services we had provided previously. As part of these new IBM agreements, we
will receive service fees from Daisytek for the transaction management services
that we provide. In connection with the restructuring of our IBM agreements,
during the quarter ended September 30, 1999, we transferred to Daisytek the
IBM-related product inventory, customer accounts receivable and accounts payable
that we held under our prior agreements. In consideration of this transfer,
Daisytek paid to us the net book value of these assets and liabilities
(approximately $20 million). This offering is expected to generate $35.0 million
in net proceeds. A portion of the net proceeds from this offering will be used
to repay the intercompany payable balance to Daisytek ($22.3 million as of
September 30, 1999). As a result of these transactions, our historical working
capital requirements may not be indicative of our future needs.
Net cash used in financing activities was $6.7 million for the six months
ended September 30, 1999. This usage relates to the reduction in the
intercompany payable arising primarily from the transfer of the IBM related
working capital assets from us to Daisytek in conjunction with the new IBM
agreements, which was partially offset by capital expenditures and incremental
financing of one of our client's inventory. Net cash provided by financing
activities was $9.2 million for the six months ended September 30, 1998. Net
cash provided by financing activities was $27.7 million for
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fiscal 1999 and $5.2 million for fiscal 1997. Net cash used in financing
activities was $4.0 million in fiscal 1998, representing a repayment to
Daisytek. Additionally, during fiscal 1999, Daisytek made a capital contribution
of $0.5 million to its PFSweb Canadian subsidiary.
Cash flows provided by operating activities totaled $14.0 million during
the six months ended September 30, 1999. Cash flows used in operating activities
totaled $5.5 million during the six months ended September 30, 1998. For the six
months ended September 30, 1999, the net cash provided by operating activities
primarily reflected a reduction in accounts payable and accrued expenses of
$31.5 million, accounts receivable of $16.0 million and inventory of $29.9
million. These reductions primarily related to the transfer of the IBM related
working capital assets from us to Daisytek in conjunction with the new IBM
agreements. For the six months ended September 30, 1998, the net cash used in
operating activities was primarily due to an increase in inventory of $9.9
million and accounts receivable of $6.4 million, which were partially offset by
a reduction in accounts payable and accrued expenses of $10.7 million.
Net cash used in operating activities was $12.3 million for fiscal 1999 and
$5.2 million for fiscal 1997. Net cash provided by operating activities was $4.5
million for fiscal 1998. Working capital requirements increased in fiscal 1999
compared to fiscal 1998 primarily due to product revenue growth under our North
American IBM master distributor agreements. We also entered into new master
distributor agreements in December 1998 to provide services for IBM in Europe.
Our North American revenue growth, as well as the new European contracts,
resulted in significant increases in IBM contract related accounts receivable,
inventory and accounts payable.
Our principal use of funds for investing activities was capital
expenditures of $6.2 million for the first six months of fiscal 2000 as compared
to $0.5 million for the first six months of fiscal 1999. Capital expenditures
were $2.7 million for fiscal 1999, $0.3 million for fiscal 1998 and $0.1 million
for fiscal 1997. In addition, we have entered into a long-term contractual
agreement with one of our clients pursuant to which, as part of the services
that we provide, we finance certain of the client's inventory. This amount was
$12.4 million at September 30, 1999 and $12.1 million at March 31, 1999 (see
Note 2 of Notes to Combined Financial Statements). Capital expenditures have
consisted primarily of additions to upgrade our management information systems,
including our Internet-based customer tools, other methods of e-commerce and
general expansion of our facilities, both domestic and foreign. We expect to
incur significant capital expenditures in order to support new contracts and
anticipated future growth opportunities. We anticipate that our total investment
in upgrades and additions to facilities and information technology services for
fiscal 2000 will be approximately $13.0 to $15.0 million. This amount includes
the transfer to us of certain assets from Daisytek for approximately $5.7
million ($5.4 million in cash and the assumption of $0.3 million of capital
lease obligations) plus the assumption of certain lease obligations. The
increase in anticipated capital expenditures over fiscal 1999 relates primarily
to our asset purchase from Daisytek and capital expenditures applicable to our
new Belgium distribution facility, combined with expansion of our U.S. and
Canadian sales and distribution facilities. Some of these expenditures may be
financed through operating or capital leases.
We believe that international markets represent further opportunities for
growth. We may consider entering into forward exchange contracts in order to
hedge our net investment in our Canadian or European operations or in other
international countries in which we establish a presence, although no assurance
can be given that we will be able to do so on acceptable terms.
In the future, we may attempt to acquire other businesses to expand our
services or capabilities in connection with our efforts to grow our business. We
currently have no binding agreements to acquire any such businesses. Should we
be successful in acquiring other businesses, we may require additional
financing. Acquisitions involve certain risks and uncertainties. Therefore, we
can give no assurance with respect to whether we will be successful in
identifying businesses to acquire, whether we will be able to obtain financing
to complete an acquisition, or whether we will be successful in operating the
acquired business.
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PFSweb, along with several other Daisytek subsidiaries, has guaranteed one
of Daisytek's unsecured revolving line of credit in the maximum principal amount
of $105 million ($55 million outstanding as of September 30, 1999). This
guaranty will be released upon completion of this offering and the repayment of
our intercompany payable to Daisytek.
YEAR 2000 ISSUE
We utilize a significant number of computer software programs and
information systems in our operations ("IT systems"). The mission-critical IT
systems include our operating, Web hosting, accounting and telecommunications
systems, such as IT software applications that allow us to maintain inventory
and customer information and to communicate with our suppliers, clients and
customers. We also make use of a variety of machinery and equipment in our
business which are operated by or reliant upon non-information technology
systems ("non-IT systems"), such as equipment or mechanical systems which
contain embedded technology such as micro-controllers. To the extent that the
source code of the software applications of these IT systems or the embedded
technologies of these non-IT systems are unable to appropriately interpret and
process the upcoming calendar year 2000, some level of modification, or possible
replacement of such applications, would be necessary for the proper continuous
performance of these systems. Without such modification or replacement, the
normal course of our business could be disrupted or otherwise adversely
impacted. This potential problem is commonly referred to as the year 2000
compliance issue ("Y2K").
In fiscal 1997, Daisytek began to address Y2K. Daisytek has formed a Y2K
task force under its Chief Information Officer to coordinate and implement
measures designed to prevent disruption in its business operations, including
PFSweb, related to Y2K. Daisytek and PFSweb have successfully completed the
remediation of their mission-critical IT applications software and are scheduled
to complete remediation of their non-mission critical applications software
during November 1999. Daisytek and PFSweb are assessing the effect of Y2K on
their non-IT systems and intend to modify or replace non-IT systems as necessary
to insure Y2K readiness during November 1999. We believe that we have completed
approximately 95% of the initiatives that we believe are necessary to fully
address potential Y2K issues relating to our systems and operations. The
projects comprising the remaining 5% of the initiatives are in process and
expected to be completed by December 15, 1999. We believe that other IT projects
not related to the Y2K issue have not been delayed or negatively affected by the
initiatives addressing the Y2K issue. The following table represents our
schedule and status of our Y2K initiatives based upon our current estimates and
information provided to us by third parties:
<TABLE>
<CAPTION>
YEAR 2000 INITIATIVE TIME FRAME % COMPLETE
- -------------------- ---------- ----------
<S> <C> <C>
Initial IT systems identification and assessment............ 4/97 - 6/97 100%
Remediation and testing regarding core distribution
systems................................................... 7/97 - 11/98 100%
Remediation and testing regarding purchased software
systems................................................... 7/97 - 10/99 100%
Upgrades to telecommunications systems...................... 9/97 - 4/99 100%
Desktop systems identification and remediation.............. 7/97 - 11/99 95%
Remediation and testing for automated warehouse equipment
systems................................................... 7/99 - 12/99 80%
Service provider assessment................................. 1/99 - 8/99 100%
</TABLE>
We have initiated communications with our clients to determine the extent
to which our revenues may be vulnerable due to our clients' failure to
re-mediate Y2K and not be able to conduct business with us. We are satisfied
that our major clients are either appropriately prepared for the Y2K issue or
our engagement with them will not be adversely affected by the Y2K issue.
However, there can be no guarantee that the systems of our clients, will be
timely or properly converted, or that a failure to convert by another company,
or a conversion that is incompatible with our systems, would not have a material
adverse effect on our business.
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We conduct electronic data interchange (EDI) with some of our clients.
Approximately half of the clients that we conduct EDI with have converted their
EDI transaction sets to Y2K compliant versions. We believe that we will be able
to conduct business with all of our partners whether they convert to Y2K
compliant versions or not. We believe that the EDI transactions that we use with
our clients are not significantly dependent on Y2K compliance and that we will
be able to accept transactions as well as send transactions to clients whether
they are compliant or not.
We utilize a significant amount of automation technology in our
distribution centers. This year, we undertook an upgrade project to strengthen
the reliability of certain components of the automation network in our Memphis
distribution facility. We expect this upgrade to be completed by December 15,
1999. This project will also make this network Y2K compliant. All of our other
distribution automation has been certified as Y2K compliant by our service
providers.
We, in conjunction with Daisytek, have initiated formal communications with
our significant service providers to determine the extent to which we are
vulnerable to those third parties' failure to remediate Y2K. However, there can
be no guarantee that the systems of our service providers, on which our
operations rely, will be timely converted, or that a failure to convert by
another company, or a conversion that is incompatible with our operations, would
not have a material adverse effect on our business. We are developing
contingency plans to address the risks created by third parties' failure to
re-mediate Y2K. These plans include procuring alternative sources of services
such as telecommunications and transportation when we are able to conclude that
an existing supplier of services will not be Y2K ready. We are scheduled to
complete these contingency plans during November 1999.
The expenses incurred by Daisytek and its subsidiaries (including PFSweb)
related to Y2K was approximately $0.5 million during fiscal year 1999 and $0.2
million during the six months ended September 30, 1999. In total, Daisytek's
assessment and remediation of Y2K has a budget of approximately $0.8 million,
which includes both external costs, such as outside consultants, software and
hardware applications, as well as internal costs, primarily payroll related,
which are not reported separately.
Under the most reasonably likely worst case scenario, we do not anticipate
more than isolated, temporary disruptions of our operations caused by Y2K
failures affecting either our operations or those of our major clients. We
expect that our technically trained personnel, working in cooperation with major
clients and key service providers, should be able to address Y2K system issues
that may arise. To the extent that our systems or those of our key providers are
unable to provide services due to Y2K issues, we believe that we may have to use
one or more of our contingency plans that would, in the short-term, involve
numerous operational inconveniences and inefficiencies that would increase costs
and divert management's time and attention from its ordinary business
activities. Many risks, however, such as the failure to perform by public
utilities, telecommunications providers, and financial institutions, and the
impact of the Y2K issue on the economy as a whole, are outside our control and
could adversely affect the company and our ability to conduct business. While we
believe that we have made a significant effort to address all anticipated risks
within our control, this is an event without precedent; consequently, there can
be no assurance that the Y2K issue will not have a material adverse impact on
our financial condition, operating results, or business.
There can be no assurance that Y2K remediation by PFSweb, in conjunction
with Daisytek, or third parties will be properly and timely completed and
failure to do so could have a material adverse effect on PFSweb's financial
condition. We cannot predict the actual effects of Y2K, which depend on numerous
uncertainties, such as whether major third parties address this issue properly
and timely and whether broad-based or systemic economic failures may occur. We
are currently unaware of any events, trends, or conditions regarding this issue
that may have a material effect on our results of operations, liquidity, and
financial position. If Y2K is not resolved by January 1, 2000, our results of
operations or financial condition could be materially adversely affected.
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INVENTORY MANAGEMENT
Prior to September 30, 1999, our agreements with IBM were structured as
master distributor agreements. The transaction management services we provided
for IBM under these agreements included purchasing and reselling IBM product
inventory to IBM customers. During the quarter ended September 30, 1999, we have
restructured our agreements with IBM so that we will no longer be purchasing or
reselling the IBM product inventory. In addition, we have transferred to
Daisytek the IBM-related customer accounts receivables, inventory and accounts
payable.
SEASONALITY
The seasonality of our business is dependent upon the seasonality of our
clients' business and their sale of their products. Accordingly, our management
must rely upon the projections of our clients in assessing quarterly
variability. We believe that as our business grows with consumer product
clients, our business activity will be more significant in the quarter ended
December 31.
We believe that results of operations for a quarterly period may not be
indicative of the results for any other quarter or for the full year.
INFLATION
Management believes that inflation has not had a material effect on our
operations.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." SFAS No. 133 requires that an entity
recognize all derivative financial instruments as either assets or liabilities
in the statement of financial position and measure those instruments at fair
value. If certain conditions are met, a derivative may be used to hedge certain
types of transactions, including foreign currency exposures of a net investment
in a foreign operation. Our foreign currency exposure has been primarily related
to our Canadian operations. Beginning in the year ended March 31, 1999, the
foreign currency risks of PFSweb were considered in Daisytek's corporate risk
management program, which included entering into certain forward currency
exchange contracts. We did not enter into any such contracts on our own. SFAS
No. 133 requires gains or losses on derivatives and hedging instruments to be
recorded in other comprehensive income as a part of the cumulative translation
adjustment. We are currently evaluating the provisions of SFAS No. 133 and its
effect on the accounting treatment of these financial instruments. SFAS No. 133
is effective for fiscal years beginning after June 15, 2000, with initial
application as of the beginning of an entity's fiscal quarter. Early adoption of
the standard is allowed; however, the statement cannot be applied retroactively
to financial statements of prior periods.
QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
We are subject to market risk associated with changes in interest rates and
foreign currency exchange rates. Interest rate exposure is primarily related to
our payable to Daisytek, which amounted to $22.3 million at September 30, 1999.
Our effective rate is equal to Daisytek's effective rate on its revolving lines
of credit. The interest rates on these revolving lines of credit float with the
market. A 50 basis point movement in interest rates would result in an
approximately $111,500 annualized increase or decrease in interest expense based
on the outstanding balance of our payable to Daisytek at September 30, 1999. A
portion of the net proceeds from this offering will be used to repay our payable
due to Daisytek. Following our spin-off from Daisytek, we may manage the
exposure to interest rate risk through the use of derivative instruments
designed to manage risk and minimize interest expense.
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We are subject to market risk associated with changes in foreign currency
exchange rates. In order to manage these risks, beginning in the year ended
March 31, 1999, our risks were considered in Daisytek's corporate risk
management program, which included entering into certain forward currency
exchange contracts. We did not enter into any such contracts on our own.
Currently, our foreign currency exchange rate risk is primarily limited to
Canadian dollars. In the future, we believe our foreign currency exchange risk
will also include other currencies applicable to certain of our international
operations, including the Euro. In order to mitigate foreign currency rate risk,
we will consider entering into forward currency exchange contracts to hedge our
net investment and long-term intercompany payable balances.
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BUSINESS
PFSweb is an international provider of transaction management services to
both traditional and e-commerce companies. Our integrated set of transaction
management services enables our clients to focus on their core business,
products and services instead of making substantial investments in necessary
transaction management systems, facilities and personnel. We offer a broad range
of services such as:
- order management, including handling the complete shopping check-out
process and on-line order management;
- customer care services, including customer care centers integrating
voice, e-mail, data and Internet chat communications;
- billing services, including secure on-line credit card processing,
invoicing, credit management and collection;
- information management, including real-time data interfaces, data
exchange services and data mining; and
- distribution services, including inventory management, product
warehousing, order picking and packing, transportation management and
product return administration.
We enable our clients to implement their e-commerce strategies and
introduce new products and business programs by providing complete transaction
management services, which are seamlessly integrated with our clients' systems
and transparent to our clients' customers. Our ability to integrate a broad
range of services makes it easier for our clients to outsource these functions
to us and provides a faster time to market for their e-commerce business.
INDUSTRY OVERVIEW
Businesses today operate in an environment of rapid technological
advancements, increasing competition and continuous pressure to improve
operating efficiency. In response to these developments, two significant trends
have emerged. The first is the accelerating use of the Internet to conduct
e-commerce in both business-to-business and business-to-consumer applications.
The second is the strategic decision of a growing number of companies, in a
variety of industries, to outsource one or more business functions that are not
within their core business competencies.
E-COMMERCE TREND
As the Internet has become an increasingly important communications medium,
businesses and consumers alike have begun to use the Internet to buy and sell
goods and services. According to International Data Corporation, or IDC, the
number of users who make purchases over the Web will jump from nearly 31 million
in 1998 to more than 182 million in 2003 and the amount of worldwide
business-to-business and business-to-consumer commerce conducted over the Web
will increase from approximately $50 billion in 1998 to approximately $1.3
trillion in 2003.
To achieve the full potential of Internet commerce, Forrester Research
indicates, collaboration between businesses and government agencies will be
essential. They estimate that global Internet commerce sales, including business
to consumer, consumer to consumer, business to business, and business to
government, will reach $3.2 trillion in 2003 if this collaboration occurs and
only $1.8 trillion if business and (globally) governments cannot work together.
Forrester Research predicts that in the United States alone, electronic commerce
(consumer and business-to-business), will grow from $51 billion in 1998 to near
$1.4 trillion in 2003.
For the manufacturer, e-commerce creates multiple opportunities. The first
is the opportunity to sell directly to the end-user customer, bypassing the
traditional model of selling to wholesalers and distributors who then resell to
mass merchants and other retailers. By selling directly to the end-user
customer, the manufacturer can retain a portion of its product revenue which
otherwise
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would have been paid to middlemen in the traditional distribution channel.
Direct sales can also provide the manufacturer with valuable end-user customer
information, including buying patterns, feature and function preferences and
customer support requirements. This information can be used by the manufacturer
to design better products, tailor production schedules to meet projected demand
and improve overall customer satisfaction. Another opportunity is to use
e-commerce to facilitate business-to-business transactions and improve operating
efficiencies. Business-to-business e-commerce has the potential to significantly
reduce time consuming paperwork and manual procedures, which can eliminate
errors and reduce investments in working capital.
For the traditional retailer, e-commerce offers the opportunity to attract
new customers and introduce new merchandise while avoiding substantial
investment in physical retail locations. At the same time, consumer preferences
and customer data can be compiled and analyzed to spot trends and demographic
shifts.
The development of e-commerce is also giving rise to the "virtual company",
a business model which focuses its energies entirely on creative design and
sales and marketing by contracting out all other necessary business functions to
outsiders. The benefits of e-commerce are leading to rapid growth in the number
of Internet commerce sites as well as the rapid development and deployment of
new technologies.
To succeed on-line, companies need an array of capabilities to support
their on-line business. Designing an attractive Web page is only the beginning.
In order to retain and satisfy their on-line customers, businesses must be able
to:
- accept and process customer orders 24 hours a day, seven days a week;
- develop an operating and technology infrastructure that can be expanded
as volumes increase;
- administer, on a secure basis, credit card payments and collections;
- calculate applicable sales tax for numerous taxing authorities and
various product types;
- quickly and courteously respond to customer inquiries by e-mail, phone or
fax;
- pick, pack and ship customer orders promptly and accurately; and
- process product returns and customer refunds.
Traditional manufacturers and retailers entering the e-commerce arena must
be able to satisfy the expanding needs of on-line customers, which differ from
their traditional commerce customers. The efficiency and quality of the on-line
shopping experience from accessing product information, ordering and paying for
the product to receiving the product and, if necessary, returning the product,
are critical elements in successfully implementing e-commerce initiatives.
These challenges are particularly difficult for the traditional
manufacturer whose distribution infrastructure is designed for large pallet
sized orders to regional retailer distribution centers, and is not generally
equipped to handle high-volume package distribution to individual customers.
Similarly, retailers must ensure that their electronic shopping customer is not
disappointed by experiencing product distribution problems and delays. Virtual
companies, as well, are dependent upon an efficient order processing and
distribution system to deliver their products to customers.
Refer to Note 9 of the Combined Financial Statements for revenues and
long-lived assets of PFSweb by geographic area.
OUTSOURCING TREND
In response to growing competitive pressures and technological innovations,
we believe many companies, both large and small, are focusing their critical
resources on the core competencies of their business and utilizing third parties
to perform non-core business functions. For example, many large companies are
turning to third parties to rationalize their cost structure and to deploy
under-
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utilized assets for new business opportunities while many small companies are
utilizing third party outsourcing to accelerate their business plans in a
cost-effective manner. Outsourcing provides many key benefits, including the
ability to:
- capitalize on skills, expertise and technology infrastructure that would
otherwise be unavailable or expensive given the scale of the business;
- reduce capital and personnel investments and convert fixed investments to
variable costs;
- increase flexibility to meet changing business conditions and demand for
products and services;
- enhance customer satisfaction and gain competitive advantage;
- improve operating performance and efficiency; and
- rapidly enter new business markets or geographic areas
As a result, the market for outsourcing services has experienced significant
growth. IDC expects that worldwide spending on outsourcing services will grow
from nearly $100 billion in 1998 to more than $151 billion in 2003.
Typically, outsourcing service providers are focused on a single function,
such as information technology, call center management, credit card processing,
warehousing or package delivery. This focus creates several challenges for
companies looking to outsource more than one of these functions, including the
need to manage multiple outsourcing service providers, sharing information with
service providers and integrating that information into their internal systems.
Additionally, the delivery of these multiple services must be transparent to the
customer and enable the client to maintain brand recognition and customer
loyalty. Further, traditional commerce outsourcers are frequently providers of
domestic-only solutions versus the global solutions that we can provide.
THE PFSWEB SOLUTION
We act as a virtual infrastructure for our clients, which helps them
enhance their traditional commerce operations and meet the operational
challenges associated with the deployment of their e-commerce initiatives. We
believe we offer a unique comprehensive integrated solution which handles the
lifecycle of the transaction "from the click of a mouse, to the knock at the
house" (SM). This solution enables our clients to focus on their core business,
products and services while at the same time quickly and efficiently
implementing traditional and e-commerce business initiatives. By utilizing our
services, our clients are able to:
Quickly Capitalize on E-commerce Market Opportunities. Our services enable
our clients to rapidly implement their e-commerce strategies and take advantage
of e-commerce opportunities without lengthy start-up and integration efforts.
Our services allow our clients to deliver consistent quality of service as
transaction volumes grow and to handle daily and seasonal peak periods. Through
our international locations and capabilities, we enable our clients to use the
broad reach of the Internet and e-commerce to sell their products almost
anywhere in the world.
Improve the Customer Experience. We enable our clients to provide their
customers with a positive buying experience thereby maintaining and promoting
brand loyalty. Through our use of advanced technology, we can respond directly
to customer inquiries by e-mail, voice or data communication and assist them
with on-line ordering and product information. We believe we offer our clients a
"world class" level of service, including 24 hour, seven day a week customer
care service centers and nearly 100% order accuracy.
Minimize Investment and Improve Operating Efficiencies. We provide our
clients with access to a wide array of services that cover a broad spectrum of
e-commerce transaction management issues, eliminating their need to expend
management time and resources to coordinate these services from different
providers. By utilizing our services, our clients can capitalize on our
economies of scale and expertise to grow their e-commerce business without
incurring the substantial fixed costs
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necessary to create and maintain their own transaction management
infrastructure. Our clients also have the flexibility to purchase any or all of
our offered services according to their transaction volume and existing
transaction management infrastructure so that they do not have to invest scarce
capital resources as their business grows.
Access a Sophisticated Technology Infrastructure. We provide our clients
with ready access to a sophisticated technology infrastructure, which is
designed to interface seamlessly with their systems. We provide our clients with
vital product and customer information which can be immediately available to
them on their own systems for use in data mining, analyzing sales and marketing
trends, monitoring inventory levels and performing other transaction management
functions.
THE PFSWEB STRATEGY
Our objective is to grow rapidly by being an international provider of
business-to-business and business-to-consumer transaction management services
for both traditional and e-commerce businesses. The key elements of our business
strategy are to:
Target Clients with Major Brand Names. We intend to aggressively expand our
business by targeting brand names who are seeking to enter the e-commerce
marketplace or introduce new products or business programs. We believe that the
electronic commerce marketplace will be led by companies with major brand names
and our focus on these companies will provide us with meaningful opportunities
to grow along with our clients' e-commerce initiatives.
Expand Existing Client Relationships. By providing superior operating
results, we believe we can expand relationships with existing clients to serve
additional products and business segments and to provide additional services.
Our objective is to integrate ourselves as our clients' "virtual infrastructure"
so that we become a critical component of their transaction management process
across the enterprise. Based upon our clients' needs, we plan to introduce new
services to solve e-commerce transaction processing problems as they emerge. We
also intend to continue our commitment to invest in state-of-the-art technology,
equipment and systems to provide new, high-quality, innovative services to our
existing clients and to attract new clients.
Promote Our PFSweb Brand. We intend to build PFSweb brand awareness by
expanding the number of satisfied clients, increasing our advertising in trade
journals and other print media and by further participation in trade shows and
similar expositions. We also intend to increase our Internet advertising and
search engine presence.
Seek Strategic Alliances and Acquisitions. We intend to pursue strategic
alliances with Web site designers, Web hosting services, e-commerce software
companies and other providers of Internet related services to assist in
developing relationships with major brand names that are entering the e-commerce
marketplace. We may also consider acquisitions of synergistic e-commerce
businesses in order to offer a complete Internet implementation solution to
clients looking to introduce the sale of their products over the Internet.
Expand Our International Presence. We intend to expand the availability of
our services throughout the world so that we can enhance our international
e-commerce transaction processing solutions. For example, in response to market
opportunities, we intend to expand our multi-lingual call center services and
foreign currency order processing.
PFSWEB SERVICES
We offer a wide range of transaction management services that are tailored
to our clients' specific needs to enable them to quickly and efficiently
implement their e-commerce and traditional business initiatives. Our services
include:
Order Management. Our order management services include handling the
complete shopping cart check-out process for Internet orders as well as phone,
fax, e-mail, mail and other order
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receipt methods. Our systems provide the ability for both our clients and their
customers to track the status of orders at any time. Our services are
transparent to our clients' customers and are seamlessly integrated with our
clients' internal systems and Web sites. By synchronizing our order management
technology with our clients' internal systems and Web sites, we can capture and
provide critical customer information, including:
- statistical measurements critical to creating a quality customer
experience, including real-time order status, order exceptions, back
order tracking, the ratio of customer inquiries to purchases, average
order sizes and order response time;
- detailed marketing information about what was sold and to whom it was
sold, including by location and preference; and
- Web traffic reporting of the number of visits ("hits") received, what
areas of the Web site were visited, and what customers asked for on the
Web site.
Customer Care Services. We believe that an important feature of e-commerce
is the ability of the customer to talk to a live customer service
representative. Our experience is that about 81 percent of consumers tell us
that they visited the Web location for information, but only 22 percent of those
consumers chose to order in that manner. Our customer care services utilize
features that integrate voice, e-mail, data and Internet chat communications to
respond to and handle customer inquiries. We currently answer over 10,000
customer calls per day with 95% answered in under 30 seconds, with an average
speed of answer of 12 seconds and less than 1% of calls abandoned. Our customer
care representatives answer questions in our clients' name regarding orders,
shipping, billing, returns and product information as well as a variety of other
questions. Our customer care center automatically identifies each customer
request and routes it to the available customer care representative who is
specially trained in the client's business and products. Our customer care
centers are designed so that our customer care representatives can handle many
different clients and products, thereby creating economy of scale benefits for
our clients. Our advanced technology also enables our representatives to inform
customers of other products and sales opportunities for our clients.
Billing Services. We offer secure credit card processing for our clients,
both directly on-line from their Web site as well as through our customer care
center. Our credit card processing services offer real-time confirmation of
credit card authorization while the customer is in the shopping-cart checkout
process or talking to a customer care representative. We are able to calculate
sales tax, if applicable, for numerous taxing authorities and on a variety of
products. We provide customized computer generated invoices in our clients'
names so that our services remain transparent to the customer. We also assist
our clients in business-to-business accounts receivable management and
collection in accordance with their procedures and guidelines.
Information Management. We have the ability to communicate with and
transfer information to and from our clients through a wide variety of
technologies, including real-time data interfaces, file transferring and
electronic data interchange. Our systems are designed to capture, store and
electronically forward to our clients critical information regarding customer
inquiries and orders, product shipments, inventory levels, product returns and
other information. We maintain for our clients detailed product master files
that can be seamlessly integrated with their Web sites. Our systems are capable
of providing our clients with customer and order information for use in
analyzing sales and marketing trends and introducing new products. We also offer
customized reports or data analyses based upon specific client needs to assist
them in their budgeting and business decision process.
Distribution Services. An integral part of our transaction management
services is the warehousing and distribution of inventory owned by our clients.
We currently have over one million square feet of warehouse space to store and
process our clients' inventory. We receive client inventory in our distribution
center, verify shipment accuracy, unpack, inspect for damage
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and generally stock for sale the same day. On behalf of our clients, we pick,
pack and ship their customer orders and can provide customized packaging,
inserts and promotional literature for distribution with customer orders. Based
upon our clients' needs, we are able to take advantage of a variety of shipping
and delivery options, including next day service. Our extensive use of advanced
technology and equipment in our distribution centers enable us to generally
maintain an order accuracy rate of nearly 100% and, similarly, ship nearly 100%
of in-stock orders the same day. In addition, an increasingly important function
that we provide for our clients is product return administration. We offer a
wide array of product return services for our clients, including issuing return
authorizations, receipt of product, crediting credit card accounts, and
disposition of returned product.
During the fiscal quarter ended March 31, 1999, we warehoused, managed and
fulfilled over $450 million (on an annualized basis) in client merchandise and
transactions. This does not represent our revenue, but rather the revenue of our
clients for whom we performed transaction management services. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
CLIENTS AND MARKETING
Our target clients include traditional manufacturers of brand name products
looking to quickly and efficiently implement e-commerce initiatives or introduce
new products or programs, without the burden of modifying or expanding their
order processing and distribution infrastructure. We also target retailers
seeking to open Web sites to expand their sales without opening new brick and
mortar stores and distributors seeking to reduce costs. Our services are
available for a variety of industries, including:
- MANUFACTURERS such as IBM (printer and media supplies), Emtec (formerly
BASF Magnetics) (data media and audio visual products), Tektronix
(printers and printer supplies), Thomson Consumer Electronics
(televisions and consumer electronics), Hewlett-Packard (computer
networking equipment) and Nokia (cell phone accessories);
- RETAILERS such as American Eagle Outfitters (fashion apparel) and Global
Sports Interactive (a sporting goods distributor for SportsAuthority.com,
AthletesFoot.com, MCSports.com, Sportchalet.com, Sportsandrec.com and
other retailers);
- DISTRIBUTORS such as Daisytek (consumable computer supplies), ISA Ltd.
(computer and office supplies in Western Europe); and
- INTERNET COMMERCE SITES such as RCA.com (television sets and consumer
electronics), Lyrazone.com (MP3 players), NokiaUSA.com (cell phone
accessories), BargainBid.com (on-line auction) and YardMart.com (lawn and
garden products).
During the six month period ended September 30, 1999, we also provided
services for Encad, Inc., Apple Computer (Apple Supplies Express) and Exabyte
Corporation (although this represented collectively approximately 1% of our
total revenue for such period).
We reach these clients through a direct sales force, telemarketing, trade
shows, trade journal advertising, our Web site and direct mail programs. We also
pursue strategic marketing alliances with Web design firms and e-commerce
consultants to provide referrals and customer leads.
Our direct sales force is comprised of dedicated sales professionals whose
compensation is tied to their ability to expand our relationships with existing
clients and attract new clients. We also employ highly trained implementation
managers whose responsibilities include the oversight and supervision of client
projects and maintaining high levels of client satisfaction.
All of our product revenue for fiscal 1999 was generated by sales of
product purchased under master distributor agreements with IBM. On an historical
basis, Daisytek accounted for 13% of our
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total product revenues in fiscal 1999. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Future Financial
Performance."
TECHNOLOGY
We maintain advanced management information systems and have automated most
key business functions using on-line, real time systems. These systems enable us
to provide our clients with information concerning sales, inventory levels,
customer payments and other operations that are essential for our clients to
efficiently manage their electronic commerce business programs. Our systems are
designed to scale rapidly to handle the transaction processing demands of our
clients.
We employ technology from a selected group of partners. For example, we use
IBM AS/400 and Netfinity servers to run both Web site functions as well as order
management and distribution functions, and we use Lucent Technologies for
telephone switch and call center management functions. We also use Lucent
Technologies for our Web enabled customer care center to interact with customers
with voice, e-mail or chat and to communicate with the customer by sharing Web
pages between the customer and our customer service representative. The ability
to process voice, data and video synchronously on the same line is becoming very
effective. We have just begun to implement these technologies in our call
centers. We have seen our clients interested in using this technology to allow
shoppers the ability to consult with known experts prior to purchasing. Our
sophisticated computer-telephony integration has been accomplished by combining
systems software from IBM and Lucent Technologies together with our own
application development. We use AT&T for our private enterprise network and long
distance carrier. We use J.D. Edwards as the software provider for the primary
applications that we use in our operational areas and financial areas. We use
Rapistan/Demag for our warehouse management, automated conveyor and "pick-to-
light" (inventory retrieval) systems and Telxor for our warehouse radio
frequency (RF) applications.
We have developed proprietary technology that is specifically targeted at
quickly integrating and synchronizing our systems with those of our clients with
a high degree of accuracy and reliability. We can track information sent to us
by the client as it moves through our systems in the same manner a package would
be tracked by a carrier throughout the delivery process. Our systems enable us
to trace at a detailed level what information was received, when it was
received, any errors or special handling that had to take place to process it
and what was sent back to the client. We have also developed proprietary
electronic interfaces that we provide to the client or their selected Web
developer to easily integrate their Web site with our systems. These tools allow
for efficient customized integration with our client and powerful real-time Web
site transaction processing. The implementation of these systems allows us to
offer an advanced suite of electronic commerce tools to our clients so that we
can communicate with their computer systems and automatically process, send and
receive orders, customer data and other information. We have not applied for
copyright or patent protection for our proprietary technology, although we may
do so in the future.
We have also invested in advanced telecommunications, computer telephony,
electronic mail and messaging, automated fax technology, barcode scanning,
wireless technology, fiber optic network communications and automated inventory
management systems. We have also developed and utilize telecommunications
technology that provides for automatic customer call recognition and customer
profile recall for inbound customer service representatives.
Our systems development team consists of over 35 information technology
professionals whose primary responsibility is directed at implementing custom
solutions for new clients and maintaining existing client relationships. Our
development team can also produce proprietary systems infrastructure to expand
our capabilities in circumstances where we cannot purchase standard solutions
from commercial providers. We also utilize temporary resources when needed for
additional capacity.
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Our information technology operations and infrastructure are built on the
premise of reliability and scalability. We maintain diesel generators and
uninterruptable power supply equipment to provide constant availability to
computer rooms, call centers and warehouses. Multiple Internet service providers
and redundant Web servers provide for a high degree of availability to Web sites
that interface with our systems. Capacity planning and upgrading is performed
regularly to allow for quick implementation of new clients and avoid
time-consuming infrastructure upgrades that could slow growth rates. We also
have a disaster recovery plan for our information systems and maintain a "hot
site" under contract with a major provider.
COMPETITION
Many companies offer, on an individual basis, one or more of the same
services we do, and we face competition from many different sources depending
upon the type and range of services requested by a potential client. Our
competitors include vertical outsourcers, which are companies that offer a
single function, such as call centers, public warehouses or credit card
processors, and many of these companies have greater capabilities than we do for
the function they provide. We also compete against transportation logistics
providers who offer product management functions as an ancillary service to
their primary transportation services. In many instances, our competition is the
in-house operations of our potential clients themselves. The in-house operations
departments of potential clients often believe that they can perform the same
services we do, while others are reluctant to outsource business functions which
involve direct customer contact. We cannot be certain that we will be able to
compete successfully against these or other competitors in the future.
Although many of our competitors can offer one or more of our services, we
believe our primary competitive advantage is our ability to offer a wide array
of services that cover a broad spectrum of electronic commerce transaction
management functions, including order processing and shipment, credit card
payment and customer service, thereby eliminating any need for our clients to
coordinate these services from different providers. We believe we are unique in
offering our clients a "virtual infrastructure" to handle all of their order
processing, customer care service, billing, information management and product
warehousing and distribution needs.
We also compete on the basis of certain additional factors, including:
- operating performance and reliability;
- ease of implementation and integration; and
- price.
We believe that we presently compete favorably with respect to each of
these factors. However, the market for our services is becoming more competitive
and still evolving, and we may not be able to compete successfully against
current and future competitors.
FACILITIES
In the U.S., we operate a nearly one million square foot central
distribution complex in Memphis, Tennessee. This complex is located
approximately four miles from the Memphis International Airport, where both
Federal Express and United Parcel Service operate large hub facilities. This
complex contains computerized sorting equipment, powered material handling
equipment, scanning and bar-coding systems and automated conveyors, in-line
scales and digital cameras to photograph shipment contents for automatic
accuracy checking. Our Memphis facility was recently showcased as the
Distribution Center of the Month by a leading trade journal for the distribution
and material handling industry.
Our receiving and material handling system in our Memphis distribution
complex includes several advanced technology enhancements, including radio
frequency technology in product
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receiving processing to ensure accuracy, an automated package routing system and
a "pick to light" paperless order picking system. Our advanced distribution
systems provide us with the capability to currently warehouse an extensive
number of stock keeping units (SKUs) for our clients ranging from high-end laser
printers to wide-leg blue jeans, while at the same time retaining the ability to
pick, pack and ship single SKUs to individual customers in fulfillment of
customer orders.
We recently opened a new 150,000 square foot distribution center in Liege,
Belgium, which has many of the same advanced distribution systems and equipment
as in our Memphis complex.
In order to provide operations in international locations, our transitional
agreement with Daisytek will provide for our use of its regional customer
service, warehouse and distribution facilities in Toronto and Vancouver, Canada;
Mexico City, Mexico; Sydney, Australia; Singapore; and Miami, Florida, to
service the Latin American market. We presently plan to establish our own
customer service and warehouse and distribution facility in Toronto.
We operate customer service centers in Memphis, Tennessee; Plano, Texas;
Toronto, Canada; and Maastricht, The Netherlands. Our call center technology
permits the automatic routing of calls to available customer service
representatives in several of our call centers.
All of our facilities are leased and the material lease agreements contain
one or more renewal options.
PERSONNEL AND TRAINING
Our success in recruiting, hiring and training large numbers of skilled
employees and obtaining large numbers of hourly employees during peak periods
for distribution and call center operations is critical to our ability to
provide high quality distribution and support services. Call center
representatives and distribution personnel receive feedback on their performance
on a regular basis and, as appropriate, are recognized for superior performance
or given additional training. Generally, our clients provide specific product
training for our customer service representatives and, in certain instances,
on-site client personnel to provide specific technical support. To maintain good
employee relations and to minimize employee turnover, we offer competitive pay,
hire primarily full-time employees who are eligible to receive a full range of
employee benefits, and provide employees with clear, visible career paths.
As of October 15, 1999, we had 411 employees. We currently anticipate that,
upon completion of this offering, approximately 262 Daisytek employees will be
transferred to us. We are not a party to any collective bargaining agreements,
and we have never suffered an interruption of business as a result of a labor
dispute. We consider our relationship with our employees to be good.
REGULATION
Our business may be affected by current and future governmental regulation.
For example, the Internet Tax Freedom Act bars state and local governments from
imposing taxes on Internet access or that would subject buyers and sellers of
electronic commerce to taxation in multiple states. This act is in effect
through October 2000. When the act expires or if the act is repealed, Internet
access and sales across the Internet may be subject to additional taxation by
state and local governments, thereby discouraging purchases over the Internet
and adversely affecting the market for our services.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
Set forth below are the names and positions of our executive officers and
directors. We currently expect to appoint additional directors following the
spin-off.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Mark C. Layton....................................... 40 Chairman of the Board, President and
Chief Executive Officer
Christopher Yates.................................... 44 Executive Vice President, Chief Sales and
Marketing Officer and Director
Steven S. Graham..................................... 47 Executive Vice President, Chief
Information Officer
Thomas J. Madden..................................... 38 Executive Vice President, Treasurer,
Chief Financial and Accounting Officer
C. Clifford Defee.................................... 40 Vice President -- Operations and Client
Solutions, Chief Operating Officer
Martin L. Anderson................................... 34 Vice President -- Customer Satisfaction
Lindsley D. Medlin Jr. .............................. 35 Vice President, Managing Director (PFS
Europe)
Scott R. Talley...................................... 35 Vice President -- International
Distribution
Harvey H. Achatz..................................... 58 Vice President -- Administration and
Secretary
James R. Powell...................................... 38 Director
Timothy M. Murray.................................... 47 Director
Peter P. J. Vikanis.................................. 48 Director
James F. Reilly...................................... 40 Director
</TABLE>
Mark C. Layton, has served as Chairman of the Board, President and Chief
Executive Officer of PFSweb since its inception. Mr. Layton also serves as
President, Chief Executive Officer and Chief Operating Officer of Daisytek,
positions he has held since 1997, and as a Director, a position he has held
since 1988. Mr. Layton was recently appointed as Chairman of the Board of
Daisytek. Mr. Layton served as President, Chief Operating Officer and Chief
Financial Officer of Daisytek from 1993 to April 1997, as Executive Vice
President from 1990 to 1993 and as Vice President -- Operations from 1988 to
1990. Prior to joining Daisytek, Mr. Layton served as a management consultant
with Arthur Andersen & Co., S.C. for six years through 1988 specializing in
wholesale and retail distribution and technology. Mr. Layton also serves as a
Director of ISA International plc ("ISA"), a distributor of computer supplies in
Western Europe, and uBid, Inc., an Internet auction company.
Christopher Yates has served as Executive Vice President, Chief Sales and
Marketing Officer and Director of PFSweb since its inception. Mr. Yates also
serves as Senior Vice President -- Business Development of Daisytek, a position
he has held since 1996, with primary responsibility for PFS. Mr. Yates also
serves as a Director of Daisytek, a position he has held since 1995. Mr. Yates
served as Vice President -- Business Development of Daisytek from November 1995
to February 1996, as Vice President -- Marketing from January 1994 to November
1995, as Vice President -- Sales from 1988 to 1994 and in various other sales
capacities for Daisytek since 1982.
Steven S. Graham has served as Executive Vice President and Chief
Information Officer of PFSweb since its inception. Mr. Graham also serves as
Senior Vice President of Information Technologies and Chief Information Officer
of Daisytek, a position he has held since 1996. Prior to joining Daisytek, Mr.
Graham was employed by Ingram Micro, a major microcomputer distributor. Mr.
Graham has over 26 years of experience in the information-technology field.
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Thomas J. Madden has served as Executive Vice President, Treasurer, Chief
Financial Officer and Chief Accounting Officer of PFSweb since its inception.
Mr. Madden also serves as Chief Financial Officer of Daisytek, a position he has
held since July 1997 and serves as Vice President -- Finance, Treasurer and as
Chief Accounting Officer of Daisytek, positions he has held since November 1994,
March 1994 and 1992, respectively. From 1992 to 1994 he also served as
Controller of Daisytek. From 1983 to 1992, Mr. Madden served in various
capacities with Arthur Andersen & Co., S.C., including financial consulting and
audit manager.
C. Clifford Defee has served as Vice President -- Operations and Client
Solutions and Chief Operating Officer of PFSweb since its inception. Mr. Defee
also serves as Vice President -- Operations of PFS, a position he has held since
January 1997. From 1984 to 1997, Mr. Defee served as a management consultant
with Andersen Consulting, LLP specializing in retail distribution.
Martin L. Anderson has served as Vice President -- Customer Satisfaction of
PFSweb since its inception. Mr. Anderson also serves as Vice President -- Call
Center Operations of PFS, a position he has held since March 1998, and has
served in various other capacities for Daisytek since 1990.
Lindsley D. Medlin Jr. has served as Vice President and Managing Director
(PFS Europe) of PFSweb since its inception. Mr. Medlin also serves as Director
and Managing Director of PFS Europe, a position he has held since December 1998,
and has served in various other capacities for Daisytek since 1988.
Scott R. Talley has served as Vice President -- International Distribution
for PFSweb since its inception. Mr. Talley also serves as Vice
President -- Distribution of PFS, a position he has held since April 1999, and
has served in various other capacities for Daisytek since 1991.
Harvey H. Achatz has served as Vice President -- Administration and
Secretary of PFSweb since its inception. Mr. Achatz also serves as Vice
President -- Administration and Secretary of Daisytek, positions he has held
since 1993 and 1984, respectively, and served as Vice President -- Finance from
1985 to 1993, as Controller from 1981 to 1985 and as a Director from 1984 to
1990.
James R. Powell has served as a Director of PFSweb since its inception. Mr.
Powell also serves as a Director and Senior Vice President -- Sales and
Marketing of Daisytek, a position he has held since 1996. Mr. Powell has served
as Vice President -- Sales of Daisytek from 1992 to 1996 and in various other
sales capacities from 1988 to 1992. Prior to joining Daisytek, Mr. Powell was
engaged in various sales and marketing activities. Mr. Powell is a non-employee
director.
Timothy M. Murray has served as a Director of PFSweb since its inception.
Mr. Murray also serves as a Director of Daisytek, a position he has held since
1991. Mr. Murray is a Principal of William Blair & Company, L.L.C., an
investment banking firm he joined in 1979. Mr. Murray is also a director of MedE
America Corporation, a healthcare transaction processor, and several privately
held corporations. Mr. Murray is a non-employee Director.
Peter P. J. Vikanis has served as a Director of PFSweb since its inception.
Mr. Vikanis also serves as a Director of Daisytek, a position he has held since
1996. Mr. Vikanis served as Chief Operating Officer of ISA from 1991 to 1995, as
a director of ISA from 1979 to 1995, and also served in various management
capacities at ISA from 1971 to 1991. Mr. Vikanis presently serves as a
non-Executive Director of ISA. Mr. Vikanis is a non-employee Director.
James F. Reilly has served as a Director of PFSweb since its inception. Mr.
Reilly also serves as a Director of Daisytek, a position he has held since
October 1998. Mr. Reilly is a Managing Director of Hambrecht & Quist LLC . Mr.
Reilly was previously a Managing Director in the Technology Group of Warburg
Dillon Read, the global investment banking division of UBS AG. Mr. Reilly was
associated with Warburg Dillon Read or one of its predecessor companies from
1983 to 1999 and specialized in corporate finance advisory work for a broad
range of technology companies, including distribution companies. Mr. Reilly is a
non-employee Director.
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Each officer serves at the discretion of the board of directors. There are
no family relationships among any of our directors and executive officers.
We currently expect that, upon completion of the spin-off, our executive
officers will no longer serve as officers of Daisytek, although we currently
expect that Messrs. Layton and Yates will remain as directors of Daisytek.
BOARD STRUCTURE AND COMMITTEES
Our Board is divided into three classes serving staggered terms. After an
initial transition period, directors in each class will be elected to serve for
three-year terms and until their successors are elected and qualified. Each
year, the directors of one class will stand for election as their terms of
office expire. Presently, Messrs. Reilly and Vikanis are designated as Class I
directors, with their terms of office expiring in 2000; Messrs. Powell and Yates
are designated as Class II directors, with their terms of office expiring in
2001; and Messrs. Murray and Layton are designated as Class III directors, with
their terms of office expiring in 2002. We presently expect that, prior to or
following the spin-off, our Board may appoint as Class II or Class III directors
one or more additional outside directors who are not employed by Daisytek.
We have two standing committees: an Audit Committee and a Compensation
Committee. Messrs. Murray and Vikanis have been appointed as the initial members
of the Audit Committee, and Messrs. Reilly and Murray have been appointed as the
initial members of the Compensation Committee. As additional persons join our
Board following the spin-off, it is possible that membership on some of these
committees may be modified.
The Audit Committee will select the independent public accountants to audit
our annual financial statements and will establish the scope and oversee the
annual audit. The Compensation Committee will determine the compensation for
employee directors and, after receiving and considering the recommendation of
our Chief Executive Officer and the President, all officers of the company and
any other employee that the Compensation Committee may designate from time to
time and will approve and administer employee stock option and incentive plans.
Our Board may establish other committees from time to time to facilitate the
management of the business and affairs of our company.
NON-EMPLOYEE DIRECTOR COMPENSATION; STOCK OPTION AND RETAINER PLAN
Each non-employee director receives an annual director's fee of $20,000 for
each year in which he or she serves as a director. Non-employee directors do not
receive additional Board or Committee meeting fees.
We have also adopted a Non-Employee Director Stock Option and Retainer Plan
to help attract and retain non-employee directors. There are 250,000 shares of
our common stock reserved for issuance under the Plan. The Plan is administered
by our Board of Directors or a committee appointed by the Board. Under the Plan,
following the completion of the spin-off and subject to certain conditions, each
non-employee director may elect to receive payment of his or her director's fees
in shares of common stock in lieu of cash. In addition, each non-employee
director received, as of the date of the adoption of the Plan, an option to
purchase 35,000 shares of common stock with an exercise price of $10.45 per
share. The Plan also provides for the future issuance to each non-employee
director of options to purchase 10,000 shares of common stock as of the date of
each annual meeting of stockholders.
All options issued under the Plan are non-qualified options for federal
income tax purposes and have an exercise price equal to the fair market value of
a share of common stock as of the date of grant. All options have a ten year
term and are subject to a one year vesting schedule, except that any options
issued prior to the effective date of the spin-off, including the initial option
grant, have no vesting for three years, subject to acceleration, in part, upon
completion of the spin-off.
47
<PAGE> 52
Generally, unless the Plan administrator otherwise provides, options are
non-transferable other than by will or the laws of descent and distribution. At
the time of any merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, or other change in the corporate structure or
capitalization affecting our common stock, the Plan administrator will make
appropriate adjustments to the exercise price, number and kind of shares to be
issued under the Plan and any outstanding options. Unless terminated earlier,
the Plan will terminate ten years from its adoption, and no stock options will
be granted after the Plan terminates. Our board of directors has the authority
to amend, modify, suspend or terminate the Plan at any time.
Directors who are also employees of PFSweb receive no remuneration for
serving as directors or committee members.
STOCK OWNERSHIP OF DIRECTORS AND EXECUTIVE OFFICERS
All of our stock is currently owned by Daisytek, and, thus, none of our
officers or directors own any of our common stock. To the extent any of our
directors and officers own shares of Daisytek common stock at the time of the
spin-off, they will participate in the spin-off on the same terms as other
holders of Daisytek common stock. We have adopted the stock option plans
described in this prospectus and certain of our officers and directors hold
options to purchase shares of our common stock.
The following table sets forth the number of shares of Daisytek common
stock beneficially owned on October 15, 1999 by each director and executive
officer and all directors and executive officers of PFSweb as a group.
Applicable percentage ownership is based on 17,173,452 shares of Daisytek common
stock outstanding on October 15, 1999.
Beneficial ownership is determined in accordance with the rules and
regulations of the Securities and Exchange Commission. In computing the number
of shares beneficially owned by a person and the percentage ownership of that
person, shares of common stock subject to options held by that person that are
currently exercisable or exercisable within 60 days of October 15, 1999 are
deemed outstanding. These shares, however, are not deemed outstanding for the
purposes of computing the percentage ownership of any other person. Except as
indicated in the footnotes to this table and pursuant to applicable community
property laws, each stockholder named in the table has sole voting and
investment power with respect to the shares set forth opposite such
stockholder's name. Except as otherwise noted, the individual director or
executive officer or their family members had sole voting and investment power
with respect to such securities.
<TABLE>
<CAPTION>
PERCENT OF
NUMBER OF OUTSTANDING
NAME SHARES OF DAISYTEK DAISYTEK SHARES
---- ------------------ ---------------
<S> <C> <C>
Mark C. Layton(1)...................................... 333,038 1.9%
Christopher Yates(2)................................... 89,951 *
Steven S. Graham(3).................................... 38,445 *
Thomas J. Madden(4).................................... 88,154 *
C. Clifford Defee(5)................................... 6,121 *
James R. Powell(6)..................................... 37,620 *
Timothy M. Murray(7)................................... 83,401 *
Peter P.J. Vikanis(8).................................. 9,722 *
James F. Reilly........................................ 7,111 *
Martin L. Anderson(9).................................. 17,130 *
Lindsley D. Medlin Jr.(10)............................. 36,700 *
Scott R. Talley(11).................................... 9,163 *
Harvey H. Achatz(12)................................... 64,427 *
--------- -----
All directors and executive officers as a group (13
persons)(13)......................................... 820,983 4.7%
</TABLE>
48
<PAGE> 53
- -------------------------
* Represents less than 1%
(1) Includes outstanding options to purchase 116,864 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 465,686 shares of common stock, which are not vested or
exercisable.
(2) Includes outstanding options to purchase 88,951 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 258,093 shares of common stock, which are not vested or
exercisable.
(3) Includes outstanding options to purchase 35,445 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 210,857 shares of common stock, which are not vested or
exercisable.
(4) Includes outstanding options to purchase 64,978 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 210,758 shares of common stock, which are not vested or
exercisable.
(5) Includes outstanding options to purchase 6,121 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 111,118 shares of common stock, which are not vested or
exercisable.
(6) Includes outstanding options to purchase 37,620 shares of common stock,
which are fully vested and exercisable. Does not include outstanding options
to purchase 362,213 shares of common stock, which are not vested or
exercisable.
(7) Includes outstanding options to purchase 2,690 shares of common stock, which
are fully vested and exercisable. Does not include outstanding options to
purchase 4,788 shares of common stock, which are not vested or exercisable.
(8) Includes outstanding options to purchase 2,690 shares of common stock, which
are fully vested and exercisable. Does not include outstanding options to
purchase 4,788 shares of common stock, which are not vested or exercisable.
(9) Includes outstanding options to purchase 16,380 shares of common stock,
which are fully vested and exercisable. Does not include outstanding options
to purchase 87,267 shares of common stock, which are not vested or
exercisable.
(10) Includes outstanding options to purchase 27,887 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 82,663 shares of common stock, which are not vested or
exercisable.
(11) Includes outstanding options to purchase 9,163 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 73,125 shares of common stock, which are not vested or
exercisable.
(12) Includes outstanding options to purchase 8,649 shares of common stock,
which are fully vested and exercisable. Does not include outstanding
options to purchase 11,215 shares of common stock, which are not vested or
exercisable.
(13) Includes outstanding options to purchase an aggregate of 417,438 shares of
common stock, which are fully vested and exercisable. Does not include
outstanding options to purchase an aggregate of 1,882,571 shares of common
stock, which are not vested or exercisable.
49
<PAGE> 54
EXECUTIVE COMPENSATION
The following table sets forth certain compensation information for the
chief executive officer and the four other executive officers of PFSweb who,
based on salary and bonus compensation from Daisytek and its subsidiaries, were
the most highly compensated officers of PFSweb for fiscal year 1999. All
information set forth in this table reflects compensation earned by such
individuals for services with Daisytek and its subsidiaries for fiscal 1999.
These individuals and Daisytek have entered into severance agreements with
respect to their employment by Daisytek. Under these agreements, upon a change
in control of Daisytek, the vesting schedule for all Daisytek stock options then
held by such individuals will be accelerated. In addition, upon termination of
employment (other than for cause) these individuals will be entitled to a
severance payment equal to twice their then total compensation.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
AWARDS
------------
NUMBER OF
ANNUAL COMPENSATION SECURITIES
NAME AND POSITION WITH -------------------------- UNDERLYING ALL OTHER
DAISYTEK YEAR SALARY BONUS OPTIONS COMPENSATION(1)
- ---------------------- ---- -------- -------- ------------ ---------------
<S> <C> <C> <C> <C> <C>
Mark C. Layton................ 1999 $337,819 $175,160 412,080 $18,063
President, Chief Executive 1998 319,599 269,196 122,836 9,731
and Operating Officer 1997 299,013 222,900 69,832 8,458
Christopher Yates............. 1999 263,361 57,803 222,026 9,534
Senior Vice President -- 1998 248,454 88,835 84,742 6,088
Business Development 1997 232,200 73,557 41,120 5,004
Steven S. Graham.............. 1999 200,950 57,803 186,302 9,489
Senior Vice President -- 1998 189,491 88,835 60,000 37,829
Information Technologies 1997 78,268 32,439 50,000 5,610
and Chief Information
Officer
Thomas J. Madden.............. 1999 124,000 35,032 185,980 5,638
Vice President -- Finance, 1998 124,000 53,839 60,350 5,569
Chief Financial and 1997 118,000 22,900 33,174 4,618
Accounting Officer
C. Clifford Defee............. 1999 175,926 -- 110,139 344
Vice President -- PFS 1998 146,091 -- 8,000 165
</TABLE>
- -------------------------
(1) Represents compensation in respect of one or more of the following: personal
use of automobiles; life insurance premiums paid for the benefit of the
named executive officer; tax return preparation services; personal travel
expenses and relocation costs.
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<PAGE> 55
GRANT OF DAISYTEK STOCK OPTIONS IN FISCAL 1999
The following table sets forth information with respect to grants of stock
options to purchase shares of Daisytek common stock during fiscal 1999 to the
named executive officers reflected in the Summary Compensation Table. Unless
exercised prior thereto, the options to purchase Daisytek common stock reflected
below will be replaced with options to purchase PFSweb common stock in
connection with the completion of the spin-off. See "Substitute Stock Options."
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
------------------------------------------------ POTENTIAL REALIZABLE
% OF TOTAL VALUE AT ASSUMED
NUMBER OF OPTIONS ANNUAL RATES OF STOCK
SECURITIES GRANTED TO PRICE APPRECIATION FOR
UNDERLYING EMPLOYEES EXERCISE OPTION TERMS(2)
OPTIONS IN FISCAL PRICE PER EXPIRATION -------------------------
NAME GRANTED YEAR SHARE DATE(1) 5% 10%
- ---- ---------- ---------- --------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Mark C. Layton....... 52,080 1.9% $22.88 6-18-08 $ 749,221 $1,898,673
360,000 13.0 12.88 12-15-08 2,914,927 7,386,996
Christopher Yates.... 42,026 1.5 22.88 6-18-08 604,585 1,532,136
180,000 6.5 12.88 12-15-08 1,457,463 3,693,498
Steven S. Graham..... 36,302 1.3 22.88 6-18-08 522,239 1,323,457
150,000 5.4 12.88 12-15-08 1,214,553 3,077,915
Thomas J. Madden..... 35,980 1.3 22.88 6-18-08 517,607 1,311,718
150,000 5.4 12.88 12-15-08 1,214,553 3,077,915
C. Clifford Defee.... 20,139 0.7 22.88 6-18-08 289,719 734,205
90,000 3.2 12.88 12-15-08 728,732 1,846,749
</TABLE>
- -------------------------
(1) Options expiring in June 2008 are subject to a three year cumulative vesting
and options expiring in December 2008 are subject to a four or five year
cumulative vesting schedule.
(2) These are hypothetical values using assumed annual rates of stock price
appreciation as prescribed by the rules of the SEC.
EXERCISES OF DAISYTEK STOCK OPTIONS AND FISCAL YEAR-END OPTION VALUES
The following table shows aggregate exercises of options to purchase
Daisytek common stock in fiscal 1999 by the executive officers named in the
Summary Compensation Table above. Unless exercised prior thereto, the
unexercised options reflected below will be replaced with options to purchase
PFSweb common stock in connection with the completion of the spin-off. See
"Substitute Stock Options."
<TABLE>
<CAPTION>
NUMBER OF
SECURITIES UNDERLYING VALUE OF UNEXERCISED
NUMBER OF UNEXERCISED OPTIONS IN-THE-MONEY OPTIONS
SHARES AT FISCAL YEAR END AT FISCAL YEAR END(1)
ACQUIRED ON VALUE --------------------------- ---------------------------
NAME EXERCISE RECEIVED(2) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Mark C. Layton........... -- -- 66,060 516,490 $403,491 $1,780,691
Christopher Yates........ -- -- 52,987 294,057 329,330 972,128
Steven S. Graham......... -- -- 9,000 237,302 37,125 772,875
Thomas J. Madden......... 20,726 $440,285 38,458 237,278 239,506 774,104
C. Clifford Defee........ 900 11,700 300 116,939 1,238 365,550
</TABLE>
- -------------------------
(1) Calculated by determining the difference between $16 5/8 (the last sale
price of the Daisytek common stock on March 31, 1999 as reported by the
Nasdaq National Market) and the exercise price of the shares of Daisytek
common stock underlying the options.
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<PAGE> 56
(2) Calculated by determining the difference between the last sale price of the
Daisytek common stock on the date of exercise as reported by the Nasdaq
National Market and the exercise price.
PFSWEB STOCK OPTION AND INCENTIVE PLANS
We have adopted, with the approval of Daisytek in its capacity as the sole
stockholder of PFSweb, the PFSweb Employee Stock Option Plan and the PFSweb
Annual Incentive Plan. These plans will be administered by the Compensation
Committee.
Employee Stock Option Plan
The Employee Stock Option Plan provides for the grant of stock options to
all officers and full-time employees of PFSweb who are eligible to participate.
The purpose of the Plan is to further our growth, development and financial
success by providing incentives to our officers and employees by assisting them
to become owners of our common stock. An aggregate of 5,750,000 shares of common
stock are reserved for issuance to employees under the Plan, which includes
substitute stock options which will be issued in replacement of outstanding
Daisytek stock options. See "Substitute Stock Options."
The Plan is administered by a committee of the Board of Directors (the
"Stock Option Committee"). The Stock Option Committee consists of two or more
Directors, appointed by and holding office at the pleasure of the Board of
Directors. The Board may, and currently intends, to limit the members of the
Stock Option Committee to Directors who are both "non-employee directors", as
defined in Rule 16b-3 under the Securities Exchange Act of 1934, and "outside
directors", as defined in Section 162(m) of the Internal Revenue Code. The Stock
Option Committee has complete authority and discretion to determine from among
eligible persons those to whom options will be granted and the number and terms
of such options. The Board has authorized the Compensation Committee to serve as
the Stock Option Committee.
The Plan provides for the granting of both incentive stock options and
non-qualified stock options under the Code. The exercise price of options
granted under the Plan may not be less than 100% of the fair market value on the
date of the grant, except that incentive stock options granted to individuals
owning more than ten percent of the total combined voting power of PFSweb may
not have an exercise price less than 110% of the fair market value on the date
of grant. The Plan gives the Stock Option Committee complete discretion as to
the times at which the options are exercisable, provided that such options must
expire no later than ten years from the date of grant.
Options are exercisable at such times and in such installments (which may
be cumulative) as the Stock Option Committee may provide in the terms of each
individual option. Generally, options granted under the Plan are expected to be
subject to multi-year cumulative vesting schedules as shall be determined by the
Stock Option Committee, in its discretion.
The Plan permits the Stock Option Committee to authorize and approve the
issuance of immediately exercisable options to purchase restricted stock subject
to restrictions on transfer and forfeiture, and, subject to such terms and
conditions as the Stock Option Committee shall determine in its sole discretion,
the acceptance of promissory notes and/or shares of our common stock (whether
issued upon exercise of outstanding options or otherwise) in payment of the
option exercise price (or applicable taxes arising in connection therewith).
Generally, options issued under the Plan are non-transferable other than by will
or the laws of descent and distribution, except that the Stock Option Committee
may approve the transferability of non-qualified options to family members and
family trusts of option holders or other transferees.
At the time of any merger, consolidation, reorganization, recapitalization,
stock dividend, stock split, or other change in the corporate structure or
capitalization affecting our common stock, the Stock Option Committee will make
appropriate adjustments to the exercise price, number and kind
52
<PAGE> 57
of shares to be issued under the Plan and any outstanding options. Unless
terminated earlier, the Plan will terminate ten years from its adoption, and no
stock options will be granted after the Plan terminates. Our board of directors
or the Stock Option Committee has the authority to amend, modify, suspend or
terminate the Plan at any time, subject to any requirement of stockholder
approval under the Code or other applicable law.
There are currently an aggregate of 1,201,500 options outstanding under the
Employee Stock Option Plan that are held by an aggregate of 193 officers and
employees. All of these options have a weighted average exercise price of $10.52
per share and are subject to a three year vesting schedule, under which no
options vest for three years, subject to acceleration, in part, upon completion
of the spin-off. The following table sets forth information with respect to
grants of stock options under the Employee Stock Option Plan to the named
executive officers reflected in the Summary Compensation Table.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS POTENTIAL REALIZABLE
------------------------------------------------ VALUE AT ASSUMED
% OF TOTAL ANNUAL RATES OF
NUMBER OF OPTIONS STOCK PRICE
SECURITIES GRANTED TO APPRECIATION
UNDERLYING EMPLOYEES EXERCISE FOR OPTION TERMS(1)
OPTIONS IN FISCAL PRICE PER EXPIRATION ---------------------
NAME GRANTED YEAR SHARE DATE 5% 10%
- ---- ---------- ---------- --------- ---------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
Mark C. Layton....... 90,000 7.5% $10.45 7-1-09 $591,475 $1,498,915
Christopher Yates.... 85,000 7.1 10.45 7-1-09 558,616 1,415,642
Steven S. Graham..... 75,000 6.2 10.45 7-1-09 492,896 1,249,096
Thomas J. Madden..... 85,000 7.1 10.45 7-1-09 558,616 1,415,642
C. Clifford Defee.... 80,000 6.7 10.45 7-1-09 525,756 1,332,369
</TABLE>
- -------------------------
(1) These are hypothetical values using assumed annual rates of stock price
appreciation as prescribed by the rules of the SEC.
Substitute Stock Options
In connection with the completion of the spin-off, all Daisytek stock
options held by Daisytek employees who are transferred to PFSweb will be
replaced with options to acquire a number of shares of our common stock equal to
the number of shares of Daisytek common stock subject to such Daisytek stock
option as of the date of the completion of the spin-off, multiplied by the Ratio
described below, rounded down to the nearest whole share. The per share exercise
price of such replaced stock option will equal the per share exercise price of
such Daisytek stock option divided by the Ratio.
The "Ratio" means the amount determined by dividing:
- the average of the daily high and low per share prices of the Daisytek
common stock, as reported in The Wall Street Journal, during the three
trading days ending on the record date established by the Daisytek Board
of Directors for the spin-off; by
- the average of the daily high and low per share prices of the PFSweb
common stock, as reported by The Wall Street Journal, for the three
trading days commencing on the day after such record date.
Substantially all of the other terms and conditions of each substitute
stock option, including the time or times when, and the manner in which, each
option will be exercisable, the duration of the exercise period, the permitted
method of exercise, settlement and payment, the rules that will apply in the
event of the termination of employment of the employee, the events, if any, that
may give rise to an employee's right to accelerate the vesting or the time or
exercise thereof and the vesting provisions, will be the same as those of the
replaced Daisytek stock option.
53
<PAGE> 58
It is not possible at this time to specify how many shares of our common
stock will be subject to substitute stock options in replacement of Daisytek
stock options. We expect that some Daisytek stock options may be exercised, some
will vest and other Daisytek stock options could be terminated, prior to the
date of the completion of the spin-off. In addition, the Ratio will not be known
until the time of the spin-off. Our stockholders, are, however, likely to
experience some dilutive impact from the above-described adjustments.
Annual Incentive Plan
Officers and certain other key employees of PFSweb will be eligible to
participate in the Annual Incentive Plan. The Compensation Committee may
delegate authority to the PFSweb Board to determine individual awards to key
employees who are not officers of PFSweb. The Plan provides for the opportunity
to grant cash awards based upon the achievement of certain target levels of
performance.
Under the Plan, at the beginning of each year, the Compensation Committee
is authorized, but not required, to establish a targeted performance level at
which a target performance award may be earned, with a threshold or minimum
performance level below which no award will be paid, and a maximum level beyond
which no additional amounts will be paid, and to establish the corresponding
minimum and maximum awards. In determining the performance criteria applicable
to any grant of awards, the Compensation Committee may use one or more business
criteria it deems appropriate. The Plan is discretionary, and the Compensation
Committee or the Board may elect not to grant any awards in any year.
The percentage of each target performance award which will become a final
award and be paid to the employee will be determined by the Compensation
Committee on the basis of the performance goals established and the related
performance achieved, as well as the employee's individual performance during
the period. Final awards actually paid to an employee may be less than or
greater than 100% of the target award. Final awards may be subject to a vesting
schedule established by the Compensation Committee. The Compensation Committee
may delegate authority to the PFSweb Board to determine individual final awards
for employees who are not officers or key employees, subject to a maximum amount
approved by the Compensation Committee.
Subject to certain exceptions, the Compensation Committee generally has the
power and authority to amend, modify, suspend or terminate the Plan.
No awards have been granted under the Plan, nor has the Compensation
Committee established any targeted performance levels for 1999 or for any year
thereafter.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION.
The members of our Compensation Committee are Messrs. Reilly and Murray,
who also serve as the members of the Compensation Committee of Daisytek.
CERTAIN TRANSACTIONS
The separation of PFSweb from Daisytek will be effected pursuant to a
Master Separation Agreement and other ancillary agreements that will govern
various interim and ongoing relationships between us and Daisytek. These
agreements relate to this offering and the spin-off, our provision of
transaction management services to Daisytek, tax matters and the provision of
certain interim services. These agreements also require us to cooperate with
Daisytek to complete the spin-off and provide for registration rights for
Daisytek in the event the spin-off is not completed or is completed without
Daisytek divesting itself of all of its PFSweb common stock.
All of our agreements with Daisytek were made in the context of a
parent-subsidiary relationship and were negotiated in the overall context of our
spin-off from Daisytek. Although we
54
<PAGE> 59
generally believe that the terms of these agreements are consistent with fair
market values, we cannot assure you that the prices charged to us, or by us,
under these agreements are not higher or lower than the prices that may be
charged by, or to, unaffiliated third parties for similar services.
We have set forth below a summary description of the Master Separation
Agreement and certain of the ancillary agreements. This description, which
summarizes the material terms of such agreements, is not complete. You should
read the full text of these agreements, which have been filed with the SEC as
exhibits to the registration statement of which this prospectus is a part.
MASTER SEPARATION AGREEMENT
The Master Separation Agreement sets forth our agreements with Daisytek
with respect to the principal corporate transactions required to effect the
transfers of assets and assumptions of liabilities necessary to separate our
company from Daisytek and certain other agreements governing our relationship
thereafter.
Transfer of Assets and Liabilities. Upon completion of this offering,
Daisytek will transfer to us assets, including all fixed assets in the Memphis
distribution facility as well as certain assets associated with providing
information technology services and the stock of several subsidiaries of
Daisytek representing the business operations of PFSweb, and we will transfer to
Daisytek $5.4 million in cash and assume $0.3 million of capital lease
obligations, as well as the operating lease obligations related to these assets.
We will also repay to Daisytek, from the net proceeds of this offering, the then
outstanding balance of our payable to Daisytek ($22.3 million at September 30,
1999). Daisytek is not making any representation or warranty with respect to any
asset being transferred to us.
Indemnification. We have agreed to indemnify Daisytek against any losses,
claims, damages or liabilities arising from the liabilities transferred to us
and the conduct of our business after the completion of this offering. Daisytek
has agreed to retain and indemnify us against any losses, claims, damages or
liabilities arising from the conduct of our business prior to the completion of
this offering.
INITIAL PUBLIC OFFERING AND DISTRIBUTION AGREEMENT
General. We will enter into an Initial Public Offering and Distribution
Agreement with Daisytek which governs our respective rights and duties with
respect to this offering and the spin-off, and sets forth certain covenants to
which we will be bound for various periods following the offering and the
spin-off. Although Daisytek has announced that it plans to complete the
spin-off, and we have agreed to cooperate with Daisytek to complete the
spin-off, there are various conditions to the completion of the spin-off.
Consequently, we cannot assure you as to whether or when the spin-off will
occur.
The Spin-off. The completion of the spin-off is subject to the
satisfaction, or waiver by Daisytek in its sole discretion, of various
conditions, including the following:
- Receipt by Daisytek of a ruling by the Internal Revenue Service that,
among certain other tax consequences of the transaction, the spin-off
will qualify as a tax-free distribution for federal income tax purposes
and will not result in the recognition of taxable gain or loss for
federal income tax purposes to Daisytek or its shareholders. Daisytek
presently intends to submit its ruling request to the IRS prior to the
completion of this offering, and it generally takes four to six months to
receive a ruling from the IRS. Whether a favorable ruling will be issued
depends on a number of determinations that are based on the particular
facts and circumstances of Daisytek and our company. Although we believe
that these determinations will be made favorably to Daisytek, there is no
guarantee that Daisytek will receive a favorable ruling. If within one
year following completion of this offering, Daisytek has not
55
<PAGE> 60
received a favorable ruling, Daisytek may, in its sole and absolute
discretion, determine to proceed instead on the basis of an opinion from
its professional advisor, in form and substance reasonably satisfactory
to it, as to the qualification of the transaction for tax-free treatment.
- Obtaining any material consents necessary to consummate the spin-off
which shall be in full force and effect.
- No court orders, injunctions, decrees, regulations or other legal
restraint prohibiting or restricting the completion of the spin-off shall
exist.
- No events or developments shall have occurred subsequent to the closing
of this offering that, in the sole judgement of Daisytek, would result in
the spin-off having a materially adverse effect on Daisytek, PFSweb, or
their shareholders.
We have agreed to cooperate with Daisytek to accomplish the spin-off and,
at Daisytek's direction, promptly take all actions necessary or desirable to
effect the spin-off. In the event that any of these conditions are not
satisfied, or waived by Daisytek in its sole discretion, Daisytek's rights and
our obligations under the Registration Rights Agreement described below will
become immediately effective.
Substitute Stock Options. In connection with the completion of the
spin-off, all Daisytek stock options held by Daisytek employees who are
transferred to PFSweb will be replaced with options to acquire shares of our
common stock. See "Substitute Stock Options."
Preservation of the Tax-free Status of the Spin-off. Daisytek intends for
the spin-off to qualify as a tax-free distribution under Section 355 of the Code
to Daisytek and its stockholders. Daisytek intends to seek a private letter
ruling (the "IRS Ruling") from the Internal Revenue Service or, in the absence
of a favorable IRS Ruling, an opinion from its professional tax adviser (the
"Tax Opinion") to such effect. In either case, we will be required to make
certain representations and warranties regarding our company and our business
and Daisytek will be required to make certain representations and warranties
regarding it and its business. We have also agreed to certain covenants that are
intended to preserve the tax-free status of the spin-off. We may take any action
otherwise prohibited by these covenants only if Daisytek has determined, in its
sole and absolute discretion, that such action would not jeopardize the tax-free
status of the spin-off. These covenants include:
- Stock Issuance. Prior to the completion of the spin-off, we have agreed
not to issue shares of our capital stock in an amount that would result
in Daisytek owning less than 80% of the total combined voting power of
all outstanding shares of our voting stock and/or less than 80% of any
other class and/or series of PFSweb capital stock (or otherwise cause
Daisytek not to be in control of PFSweb immediately prior to the
spin-off, within the meaning of Section 368(c) of the Code). This
covenant will not prohibit us from issuing stock options to our employees
or outside directors so long as such options will not vest or be
exercisable prior to the effective date of the spin-off.
- Certain Acquisition Transactions. Until two years after the completion of
the spin-off, we have agreed not to enter into or permit any transaction
or series of transactions that would result in a person or persons
acquiring or having the right to acquire shares of our capital stock that
would comprise 50% or more of either the value of all outstanding shares
of our capital stock or the total combined voting power of our
outstanding voting stock.
- Continuation of Active Trade or Business. Until two years after the
completion of the spin-off, we have agreed to continue to conduct the
active trade or business (within the meaning of
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Section 355 of the Code) of our company as we conducted it immediately
prior to the completion of the spin-off. During such time, we have agreed
not to:
- liquidate, dispose of or otherwise discontinue the conduct of any
substantial portion of our active trade or business; or
- dispose of any business or assets that would cause our company to be
operated in a manner inconsistent in any material respect with the
business purposes for the spin-off as described in our
representations made in connection with Daisytek's request for the
IRS Ruling or Tax Opinion.
- Continuity of Business. Until two years after the completion of the
spin-off, we have agreed that we will not voluntarily dissolve or
liquidate; and, except in the ordinary course of business, neither we nor
any of our direct or indirect subsidiaries will sell, transfer, or
otherwise dispose of or agree to dispose of assets (including any shares
of capital stock of our subsidiaries) that, in the aggregate, constitute
more than 60% of our assets.
- Discharge of Intracompany Debt. Prior to the first date on which Daisytek
distributes any PFSweb common stock in connection with the spin-off, we
have agreed to fully discharge and satisfy all debt that we owe Daisytek
(for such purpose, debt does not include payables arising in the ordinary
course of business). Until two years after the completion of the spin-
off, we will not be able to have any such indebtedness with Daisytek.
These covenants will not prohibit us from implementing or complying with
any transaction permitted by an IRS ruling or a tax opinion. In the event that
Daisytek notifies us that it no longer intends to proceed with or complete the
spin-off and Daisytek has not yet distributed any of its PFSweb common stock,
these covenants to preserve the tax-free status of the spin-off will terminate.
Other Covenants Regarding Tax Treatment of the Transactions. Daisytek
intends the transfer of assets and liabilities from Daisytek to our company as
provided by the master separation agreement (the "Contribution") to qualify as a
reorganization under Section 368(a)(1)(D) of the Code (a "D Reorganization").
Until two years after the completion of the spin-off, we have agreed not to
take, or permit any of our subsidiaries to take, any actions or enter into any
transaction or series of transactions that would be reasonably likely to
jeopardize the tax-free status of the spin-off or the qualification of the
Contribution as a D Reorganization, including any action or transaction that
would be reasonably likely to be inconsistent with any representation made in
connection with Daisytek's request for the IRS Ruling or Tax Opinion. We have
also agreed to take any reasonable actions necessary for the Contribution and
the spin-off to qualify as a D Reorganization. We may take any action that would
otherwise violate this covenant only if Daisytek determines, in its sole and
absolute discretion, that such action or transaction would not jeopardize the
tax-free status of the spin-off or the qualification of the Contribution as a D
Reorganization.
Cooperation on Tax Matters. We and Daisytek have agreed to various
procedures with respect to the tax-related covenants described above, and we are
required to notify Daisytek if we desire to take any action prohibited by these
covenants. Upon such notification, if Daisytek determines that such action might
jeopardize the tax-free status of the spin-off or the qualification of the
Contribution as a D Reorganization, Daisytek will either use all commercially
reasonable efforts to obtain a private letter ruling from the IRS or a tax
opinion that would permit us to take the desired action or provide all
reasonable cooperation to us in connection with our obtaining such an IRS ruling
or tax opinion. In either case, Daisytek has agreed to bear the reasonable costs
and expenses of obtaining the IRS ruling or tax opinion, unless it is determined
that our proposed action will jeopardize the tax-free status of the spin-off or
the qualification of the Contribution as a D Reorganization, in which event we
will be responsible for such costs and expenses.
Indemnification for Tax Liabilities. We have generally agreed to indemnify
Daisytek and its affiliates against any and all tax-related losses incurred by
Daisytek in connection with any proposed
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tax assessment or tax controversy with respect to the spin-off or the
Contribution to the extent caused by any breach by us of any of our
representations, warranties or covenants. If we cause the spin-off to not
qualify as a tax-free distribution, Daisytek would incur federal income tax
(which currently would be imposed at a 35% rate), and possibly state income
taxes on the gain inherent in the shares distributed, which would be based upon
the market value of the shares of PFSweb at the time of the spin-off. This
indemnification does not apply to actions that Daisytek permits us to take as a
result of a determination under the tax-related covenants as described above.
Similarly, Daisytek has agreed to indemnify us and our affiliates against any
and all tax-related losses incurred by us in connection with any proposed tax
assessment or tax controversy with respect to the spin-off or the Contribution
to the extent caused by any breach by Daisytek of any of its representations,
warranties or covenants.
Other covenants. After the offering, Daisytek will continue to own a
significant portion of our common stock. As a result, Daisytek will continue to
include us as a "subsidiary" for various financial reporting, accounting and
other purposes. Accordingly, for so long as Daisytek continues to own at least
50% of our outstanding common stock, we have agreed that:
- we will not, without Daisytek's prior written consent (which it may
withhold in its sole and absolute discretion), take any action which has
the effect of limiting Daisytek's ability to freely sell, pledge or
otherwise dispose of shares of our common stock or limiting the legal
rights of or denying any benefit to Daisytek as a stockholder in a manner
not applicable to stockholders generally;
- we will not, without Daisytek's prior written consent (which it may
withhold in its sole and absolute discretion), issue any shares of common
stock or any rights, warrants or options to acquire our common stock, if,
after giving effect to such issuance, Daisytek would own less than 50% of
the then outstanding shares of our common stock, except that this will
not restrict us from issuing options that will not vest or become
exercisable prior to the effective date of the spin-off; and
- to the extent that Daisytek is a party to, or enters into, any agreements
that provide that certain actions of Daisytek's subsidiaries may result
in Daisytek being in breach or default under such agreements (and we have
been advised of the existence of such agreements), we will not take any
actions that may result in Daisytek being in breach or default under any
such agreement.
Financial Information. We have agreed that, for so long as Daisytek is
required to consolidate our results of operations and financial position or
account for its investment in our company, we will provide Daisytek certain
financial information regarding our company and our subsidiaries, including
copies of all quarterly and annual financial information and other reports and
documents we intend to file with the SEC prior to such filings (as well as final
copies upon filing) and copies of our budgets and financial projections (as well
as the opportunity to meet with our management to discuss such budgets and
projections). We have also agreed to consult with Daisytek regarding the timing
and content of earnings releases and cooperate fully (and cause our accountants
to cooperate fully) with Daisytek in connection with any of its public filings.
This covenant is subject to appropriate confidentiality provisions to protect
the confidentiality commitments we have made to our customers.
Auditors and Audits; Annual Statements and Accounting. We have agreed that,
for so long as Daisytek is required to consolidate our results of operations and
financial position or account for its investment in our company, we will not
change our auditors (which currently are the same auditors as those retained by
Daisytek) without Daisytek's prior written consent (which will not be
unreasonably withheld) and will use our best efforts to enable our auditors to
complete their audit of our financial statements so that they will date their
opinion the same date that they date their opinion on Daisytek's financial
statements. We have also agreed to provide to Daisytek and its auditors all
information required for Daisytek to meet its schedule for the filing and
distribution of
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its financial statements and to make available to Daisytek and its auditors all
work papers related to the annual audit of our company as well as access to the
personnel who perform the annual audit and our and our subsidiaries' books and
records so that Daisytek and its auditors may conduct reasonable audits relating
to our financial statements. We have also agreed to adhere to certain specified
accounting standards and to notify and consult with Daisytek regarding any
changes to our accounting principles and make any changes to our accounting
estimates and principles requested by Daisytek.
Indemnification. We have generally agreed to indemnify Daisytek and its
affiliates against all liabilities arising out of any material untrue statements
and omissions in this prospectus and the registration statement of which it is a
part and in any and all registration statements, information statements and/or
other documents filed with the SEC in connection with the spin-off or otherwise.
However, our indemnification of Daisytek does not apply to information relating
to Daisytek. Daisytek has agreed to indemnify us for this information.
Expenses. In general, we have agreed to pay all costs and expenses relating
to this offering, including the underwriting discounts and commissions, and
Daisytek has agreed to pay all costs and expenses relating to the spin-off.
REGISTRATION RIGHTS AGREEMENT
In the event the spin-off is not completed and Daisytek does not divest
itself of all of its shares of PFSweb common stock, Daisytek could not freely
sell all of such shares without registration under the Securities Act.
Accordingly, we will enter into a registration rights agreement with Daisytek to
provide it with certain registration rights relating to the shares of our common
stock which it holds. These registration rights generally become effective at
such time as Daisytek informs us that it no longer intends to or complete the
spin-off.
Shares Covered. The registration rights agreement covers those shares of
our common stock that are held by Daisytek immediately following this offering
and continue to be held by Daisytek on the date on which Daisytek notifies us
that it no longer intends to complete the spin-off.
Demand Registrations. Daisytek may request registration (each, a "Demand
Registration") under the Securities Act of all or any portion of our shares
covered by the registration rights agreement and we will be obligated to
register such shares as requested by Daisytek. There is no limit to the number
of Demand Registrations that Daisytek may request, except that the number of
shares to be registered must have an aggregate expected offering price of at
least $10 million.
Terms of Each Offering. Daisytek will designate the terms of each offering
effected pursuant to a Demand Registration, which may take any form, including
an underwritten public offering, a shelf registration, or a registration in
connection with an exchange offer or other distribution.
Timing of Demand Registrations. We are not required to undertake a Demand
Registration within 90 days of the effective date of a previous Demand
Registration, other than a Demand Registration that was effected as a shelf
registration. Also, we have the right to postpone the filing or effectiveness of
any Demand Registration for up to 90 days if in the reasonable judgment of our
counsel such registration would reasonably be expected to have a material
adverse effect on any of our existing proposals or plans to engage in certain
material transactions; provided, however, that we may exercise this right only
once in any 12-month period.
Priority on Demand Registrations. We and other parties can participate in
any Demand Registration only if all of the securities Daisytek proposes to
include in such registration are so included.
Piggyback Registrations. The registration rights agreement also provides
for "piggyback" registration rights for Daisytek. Whenever we propose to
register any of our securities under the Securities Act for ourselves or others,
subject to certain customary exceptions, we must provide
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prompt notice to Daisytek and include in such registration all shares of our
stock which Daisytek requests to be included (each, a "Piggyback Registration").
Priority on Piggyback Registrations. If a Piggyback Registration is being
made on our behalf and the underwriters advise us that a reduction in the number
of shares to be sold is necessary, we must include in such registration: first,
the securities we propose to offer; second, the securities requested to be
included by Daisytek; and third, any other securities requested to be included
in such registration. If a Piggyback Registration is being made on behalf of
other holders of our securities and the underwriters advise us that a reduction
in the number of shares to be sold is necessary, we must include in such
registration: first, the securities requested to be included therein by the
holders requesting such registration and the securities requested to be included
therein by Daisytek, pro rata among such holders and Daisytek on the basis of
the number of securities owned by each such holder; and second, any other
securities requested to be included in such registration.
Registration Procedures and Expenses. The registration rights agreement
sets forth various registration procedures, including a covenant by us to make
available our senior management for road show presentations. All registration
expenses incurred in connection with the registration rights agreement,
including all filing fees, fees and expenses of compliance with securities
and/or blue sky laws, financial printing expenses, fees and disbursements of
custodians, transfer agents, exchange agents and/or information agents, and fees
and disbursements of counsel and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other persons retained by
us will be paid by us. In addition, we must reimburse Daisytek for the fees and
disbursements of its outside counsel as well as out-of-pocket expenses incurred
in connection with any such registration.
Indemnification. The registration rights agreement contains indemnification
and contribution provisions by us for the benefit of Daisytek and any
underwriters and by Daisytek for the benefit of us and any underwriters with
respect to information provided by Daisytek.
Transfer. Daisytek may transfer shares covered by the registration rights
agreement and the holders of such transferred shares will be entitled to the
benefits of the registration rights agreement; provided that each such
transferee agrees to be bound by the terms of the registration rights agreement.
Duration. The registration rights under the registration rights agreement
will remain in effect with respect to any shares of our common stock until:
- such shares have been sold pursuant to an effective registration
statement under the Securities Act;
- such shares have been sold to the public pursuant to Rule 144 under the
Securities Act (or any successor provision);
- such shares have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been
delivered by the company and subsequent public distribution of them shall
not require registration of them under the Securities Act or any similar
state law;
- such shares have ceased to be outstanding; or
- in the case of shares held by a transferee of Daisytek, when such shares
become eligible for sale pursuant to Rule 144(k) under the Securities Act
(or any successor provision).
TAX MATTERS
We will enter into a tax indemnification and allocation agreement with
Daisytek to govern the allocation of tax liabilities and to set forth agreements
with respect to certain other tax matters.
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Generally, under the Code, we will cease to be a member of the Daisytek
consolidated group upon the completion of the spin-off or if Daisytek owns less
than 80% of our outstanding capital stock.
Daisytek generally will pay all taxes attributable to PFSweb and its
subsidiaries for tax periods or portions thereof ending on or before the
effective date of this offering, except to the extent of any accruals therefor
on the books and records of PFSweb or its subsidiaries for such taxes under
generally accepted accounting principles. Thereafter, for tax periods or
portions thereof during which we are a member of the Daisytek consolidated,
combined or unitary group, we will be apportioned our share of the group's
income tax liability based on our taxable income determined separately from
Daisytek's taxable income, and we will pay our calculated taxes to Daisytek,
which will then file a consolidated, combined or unitary return with the
appropriate tax authorities. There may be certain U.S. state or local
jurisdictions in which we will file separate income tax returns, not combined or
consolidated with Daisytek, for such tax periods. In that circumstance, we would
file a tax return with the appropriate tax authorities, and pay all taxes
directly to the tax authority. We will be compensated for tax benefits generated
by our company before tax deconsolidation and used by the Daisytek consolidated
group. We will prepare and file all tax returns, and pay all income taxes due
with respect to all tax returns required to be filed by us for all tax periods
after we cease to be a member of the Daisytek consolidated, combined or unitary
group.
Daisytek is responsible for most U.S. tax adjustments related to PFSweb for
all periods or portions thereof ending on or before the effective date of the
offering. In addition, we and Daisytek have agreed to cooperate in any tax
audits, litigation or appeals that involve, directly or indirectly, periods
prior to the time that we cease to be a member of the Daisytek consolidated
group. We and Daisytek have agreed to indemnify each other for tax liabilities
resulting from the failure to cooperate in such audits, litigation or appeals,
and for any tax liability resulting from the failure to maintain adequate
records.
Notwithstanding the tax allocation agreement, for all periods in which
Daisytek owns or owned 80% or more of our capital stock, we are included in
Daisytek's consolidated group for federal income tax purposes. If Daisytek or
other members of the consolidated group fail to make any federal income tax
payments, we would be liable for the shortfall since each member of a
consolidated group is liable for the group's entire tax obligation.
Under the tax indemnification and allocation agreement, Daisytek has agreed
to indemnify us against any taxes resulting from the failure of the spin-off to
qualify for tax-free treatment, except that we will be liable for, and will
indemnify Daisytek against, any taxes resulting from the failure of the spin-off
to qualify for tax-free treatment if it is the result of our engaging in a
"Prohibited Action" or the occurrence of a "Disqualifying Event." Any tax
liability arising from the spinoff would only arise after the spinoff occurred
and neither we nor Daisytek have the option to rescind the spinoff if tax
liability results.
A "Prohibited Action" is defined as:
- if we take any action which is inconsistent with the tax treatment
of the spin-off as contemplated in the IRS Ruling or the Tax Option;
or
- if, prior to the spin-off, we issue shares of stock or take any
other action that would result in our not being controlled by
Daisytek within the meaning of Section 368(c) of the Code.
A "Disqualifying Event" includes any event involving the direct or
indirect acquisition of the shares of our capital stock after the spin-off
which has the effect of disqualifying the spin-off from tax-free treatment,
whether or not the event is the result of our direct action or within our
control.
TRANSACTION MANAGEMENT SERVICES AGREEMENT
We will enter into a transaction management services agreement with
Daisytek which will set forth the transaction management services that we will
provide for Daisytek in connection with its
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U.S. wholesale consumable supplies business. Under this agreement, we will
provide a wide range of transaction management services, including order
fulfillment and distribution, product warehousing, inbound call center services,
product return administration and other services.
The agreement has an initial term of five years from the completion of this
offering, although either party has the right to terminate the agreement at any
time, without cause. If Daisytek terminates the agreement without cause,
Daisytek must provide us with at least 180 days' prior notice and pay us a
termination fee. The termination fee is based upon the net value of the assets
being transferred to us by Daisytek which are primarily used in servicing the
Daisytek business. The termination fee declines over the five year term of the
agreement. If we terminate the agreement without cause, we must provide Daisytek
with at least 365 days' prior notice and Daisytek does not have to pay any
termination fee. In addition, if there is a change in control of Daisytek, we
may terminate the agreement upon 90 days' prior notice and Daisytek does not
have to pay the termination fee. During the term of this agreement, Daisytek
will pay us service fees based upon a percent of shipped revenue. We and
Daisytek have agreed that these fees are based upon certain assumptions
regarding the nature, cost and scope of the services we will be providing under
the agreement. If these assumptions should prove to be materially incorrect, we
and Daisytek have agreed to negotiate in good faith an adjustment to the fees
payable to us under the agreement.
During the term of the agreement, we have agreed not to engage, on our own
behalf, in the business of selling or distributing, on a wholesale basis, any
Daisytek products. This will not restrict us, however, from providing
transaction management services to third parties who may be engaged in the
business of selling or distributing, on a wholesale basis, the same or competing
products.
As part of the restructuring of our arrangements with IBM, we have also
entered into transaction management agreements with Daisytek to provide
transaction management services, on a worldwide basis, in connection with their
distribution of various IBM products. Under these agreements, we will receive
service fees based upon a variable percent of Daisytek's gross profit arising
from its IBM product sales. These agreements are coterminous with our IBM
agreements which, generally, have terms of one to two years, although IBM may
terminate these agreements at any time.
TRANSITION SERVICES AGREEMENT
Upon completion of this offering, we will enter into a transition services
agreement with Daisytek. Under this agreement, Daisytek will provide us with
various services relating to employee payroll and benefits, use of facilities,
certain management information systems and other administrative services.
Daisytek will provide us with these services until the completion of the
spin-off (the "Transition Period"), except that, with respect to any particular
service, we may, upon notice to Daisytek, either terminate the Transition Period
as of an earlier date or extend the Transition Period for up to one year from
the completion of this offering.
The agreement requires us to use all commercially reasonable efforts to
obtain these transition services from a source other than Daisytek prior to the
conclusion of the Transition Period. If, however, we cannot obtain any
transition service from a source other than Daisytek and the transition service
is necessary for us to continue to operate our business, then, we may require
Daisytek to continue to provide the transition service for an additional period
not to exceed six months.
Generally, we will pay Daisytek for these transition services an amount
equal to the cost historically allocated by Daisytek to our business, adjusted
to reflect any changes in the nature, cost or level of the services so provided.
If we require Daisytek to provide us with any transition service after the
expiration of the Transition Period, we will pay Daisytek the fair market value
of these services.
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PRINCIPAL STOCKHOLDER
Prior to this offering, all of the outstanding shares of our common stock
are owned by Daisytek. After this offering, Daisytek will own approximately
82.2% (or approximately 80.1% if the underwriters exercise their over-allotment
option in full) of our outstanding common stock. Except for Daisytek, we are not
aware of any person or group that will beneficially own more than 5% of the
outstanding shares of our common stock following this offering. Daisytek's
principal executive offices are located at 500 North Central Expressway, Plano,
Texas 75074.
At this time, it is not possible to predict who our 5% or more beneficial
owners will be at the time of our spinoff from Daisytek (which is anticipated to
be in mid-2000) since that will depend upon:
- who owns 5% or more of our stock at that time;
- who owns 5% or more of the Daisytek stock at that time; and
- the number of outstanding shares of each company at the time (which will
be used to determine the distribution ratio for purposes of issuing
PFSweb shares to Daisytek stockholders as of the record date for the
distribution).
Nevertheless, assuming the spin-off occurred concurrently with completion
of this offering, and based upon the information known to Daisytek regarding
persons who beneficially own 5% or more of its common stock, the following table
sets forth those persons who would own 5% or more of the PFSweb common stock as
a result of the spinoff.
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF
OF BENEFICIAL OWNER(1) SHARES(2) PERCENT(2)
---------------------- --------- -----------
<S> <C> <C>
David A. Heap(3)............................................ 1,881,807 10.8
500 North Central Expressway
Plano, Texas 75074
Robert Fleming Inc.(4)...................................... 1,102,648 6.3
320 Park Avenue, 11th and 12th Floors
New York, New York 11002
</TABLE>
- ---------------
(1) Beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act
of 1934.
(2) Based upon 17,405,000 shares of PFSweb common stock outstanding and
17,173,452 shares of Daisytek common stock outstanding.
(3) Includes outstanding options to purchase 126,152 shares of Daisytek's Common
Stock, which are fully vested and exercisable, but does not include 1,499
shares held by Mr. Heap's spouse as custodian for minor children as to which
beneficial ownership is disclaimed, or options to purchase shares of
Daisytek's Common Stock which are not vested or exercisable.
(4) Based upon a Schedule 13G/A dated February 10, 1999 filed by Robert Fleming
Inc. reporting beneficial ownership and shared voting and dispositive power
as of December 31, 1998.
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DESCRIPTION OF CAPITAL STOCK
Under our Amended and Restated Certificate of Incorporation, our authorized
capital stock consists of 41,000,000 shares, of which 40,000,000 shares are
common stock, $0.001 par value per share, and 1,000,000 shares are preferred
stock, par value $1.00 per share. Immediately following this offering,
17,405,000 shares of common stock, or 17,870,000 shares if the underwriters
exercise their over-allotment option in full, will be outstanding. The following
description of our capital stock is not complete and is qualified in its
entirety by our Amended and Restated Certificate of Incorporation and Bylaws,
both of which are included as exhibits to the registration statement of which
this prospectus forms a part.
COMMON STOCK
Holders of common stock will be entitled to one vote per share with respect
to each matter presented to our stockholders on which the holders of common
stock are entitled to vote. Except as may be provided in connection with any
preferred stock in a certificate of designation filed pursuant to the Delaware
General Corporation Law ("DGCL"), or as may otherwise be required by law or the
Amended and Restated Certificate of Incorporation, the common stock will be the
only capital stock of PFSweb entitled to vote in the election of directors and
on all other matters presented to the stockholders of PFSweb; provided that
holders of common stock, as such, will not be entitled to vote on any matter
that solely relates to the terms of any outstanding series of preferred stock or
the number of shares of such series and does not affect the number of authorized
shares of preferred stock or the powers, privileges and rights pertaining to the
common stock. The common stock will not have cumulative voting rights.
Subject to the prior rights of holders of preferred stock, if any, holders
of common stock are entitled to receive such dividends as may be lawfully
declared from time to time by the Board of Directors of PFSweb. Upon any
liquidation, dissolution or winding up of PFSweb, whether voluntary or
involuntary, holders of common stock will be entitled to receive such assets as
are available for distribution to stockholders after there shall have been paid
or set apart for payment the full amounts necessary to satisfy any preferential
or participating rights to which the holders of each outstanding series of
preferred stock are entitled by the express terms of such series.
The outstanding shares of our common stock are, and the shares of common
stock being offered hereby will be, upon payment therefor, validly issued, fully
paid and nonassessable. The common stock sold in this offering will not have any
preemptive, subscription or conversion rights. Additional shares of authorized
common stock may be issued, as determined by the PFSweb Board from time to time,
without stockholder approval, except as may be required by applicable law or
stock exchange requirements.
PREFERRED STOCK
Our Board is empowered, without approval of the stockholders, to cause
shares of preferred stock to be issued from time to time in one or more series,
with the numbers of shares of each series and the designation, powers,
privileges, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof as fixed by our Board.
Among the specific matters that may be determined by the Board are:
- the designation of each series;
- the number of shares of each series;
- the rate of dividends, if any;
- whether dividends, if any, shall be cumulative or non-cumulative;
- the terms of redemption, if any;
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- the amount payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of PFSweb;
- rights and terms of conversion or exchange, if any;
- restrictions on the issuance of shares of the same series or any other
series, if any; and
- voting rights, if any.
Although no shares of preferred stock are currently outstanding and we have
no current plans to issue preferred stock, the issuance of shares of preferred
stock, or the issuance of rights to purchase such shares, could be used to
discourage an unsolicited acquisition proposal. For example, a business
combination could be impeded by the issuance of a series of preferred stock
containing class voting rights that would enable the holder or holders of such
series to block any such transaction. Alternatively, a business combination
could be facilitated by the issuance of a series of preferred stock having
sufficient voting rights to provide a required percentage vote of the
stockholders. In addition, under certain circumstances, the issuance of
preferred stock could adversely affect the voting power and other rights of the
holders of the common stock. Although PFSweb's Board is required to make any
determination to issue any such stock based on its judgment as to the best
interests of the stockholders of PFSweb, it could act in a manner that would
discourage an acquisition attempt or other transaction that some, or a majority,
of the stockholders might believe to be in their best interests or in which
stockholders might receive a premium for their stock over prevailing market
prices of such stock. PFSweb's Board does not at present intend to seek
stockholder approval prior to any issuance of currently authorized stock, unless
otherwise required by law or applicable stock exchange requirements.
LIMITATION ON LIABILITY OF DIRECTORS
Our Amended and Restated Certificate of Incorporation provides, as
authorized by Section 102(b)(7) of the DGCL, that a director of PFSweb will not
be personally liable to PFSweb or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability imposed by law (as
in effect from time to time):
- for any breach of the director's duty of loyalty to PFSweb or its
stockholders;
- for any act or omission not in good faith or which involved intentional
misconduct or a knowing violation of law;
- for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the DGCL; or
- for any transaction from which the director derived an improper personal
benefit.
The inclusion of this provision in the Amended and Restated Certificate of
Incorporation may have the effect of reducing the likelihood of derivative
litigation against directors, and may discourage or deter stockholders or
management from bringing a lawsuit against directors for breach of their duty of
care, even though such an action, if successful, might otherwise have benefited
PFSweb and its stockholders.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
PFSweb is a Delaware corporation and subject to Section 203 of the DGCL.
Generally, Section 203 prohibits a publicly held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the time such stockholder became an interested
stockholder unless certain conditions are satisfied. Thus, it may
65
<PAGE> 70
make acquisition of control of our company more difficult. The prohibitions in
Section 203 of the DGCL do not apply if:
- prior to the time the stockholder became an interested stockholder, the
board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming
an interested stockholder;
- upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced; or
- at or subsequent to the time the stockholder became an interested
stockholder, the business combination is approved by the board of
directors and authorized by the affirmative vote of at least 66 2/3% of
the outstanding voting stock that is not owned by the interested
stockholder.
Under Section 203 of the DGCL, a "business combination" includes:
- any merger or consolidation of the corporation with the interested
stockholder;
- any sale, lease, exchange or other disposition, except proportionately as
a stockholder of such corporation, to or with the interested stockholder
of assets of the corporation having an aggregate market value equal to
10% or more of either the aggregate market value of all the assets of the
corporation or the aggregate market value of all the outstanding stock of
the corporation;
- certain transactions resulting in the issuance or transfer by the
corporation of stock of the corporation to the interested stockholder;
- certain transactions involving the corporation which have the effect of
increasing the proportionate share of the stock of any class or series of
the corporation which is owned by the interested stockholder; or
- certain transactions in which the interested stockholder receives
financial benefits provided by the corporation.
Under Section 203 of the DGCL, an "interested stockholder" generally is:
- any person that owns 15% or more of the outstanding voting stock of the
corporation;
- any person that is an affiliate or associate of the corporation and was
the owner of 15% or more of the outstanding voting stock of the
corporation at any time within the three-year period prior to the date on
which it is sought to be determined whether such person is an interested
stockholder; and
- the affiliates or associates of any such person.
Because Daisytek owned more than 15% of our voting stock before we became a
public company in this offering, Section 203 of the DGCL by its terms is
currently not applicable to business combinations with us even though Daisytek
owns 15% or more of our outstanding stock. If any other person acquires 15% or
more of our outstanding stock, such person will be subject to the provisions of
Section 203 of the DGCL.
CERTAIN PROVISIONS OF OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AND
BYLAWS
Our Amended and Restated Certificate of Incorporation and Bylaws contain
provisions governing various methods and procedures to be followed in connection
with stockholder actions. These provisions include a requirement that advance
notice be delivered to PFSweb of any business to be brought by a stockholder
before an annual or special meeting of stockholders and for certain procedures
to be followed by stockholders in nominating persons for election to the PFSweb
Board. Generally, only such business may be conducted at a special meeting of
stockholders as is set forth in the notice for such meeting.
66
<PAGE> 71
Our Amended and Restated Certificate of Incorporation provides that, except
as may be provided in connection with the issuance of any series of preferred
stock, the number of directors shall be fixed from time to time pursuant to a
resolution adopted by our Board of Directors. Our Amended and Restated
Certificate of Incorporation provides for a classified Board of Directors,
consisting of three classes as nearly equal in size as practicable. Each class
holds office until the third annual stockholders' meeting for election of
directors following the most recent election of such class, except that the
initial terms of the three classes expire in 2000, 2001 and 2002, respectively.
LISTING
Application has been made for quotation of our common stock on the Nasdaq
National Market under the symbol "PFSW."
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is ChaseMellon
Shareholder Services, LLC. Its address is 85 Challenger Road, Ridgefield Park,
New Jersey 07660.
SHARES ELIGIBLE FOR FUTURE SALE
GENERAL
The 3,100,000 shares of our common stock sold in this offering, or
3,565,000 shares if the underwriters exercise their over-allotment option in
full, will be freely tradable without restriction under the Securities Act,
except for any such shares which may be acquired by an "affiliate" of PFSweb (an
"Affiliate") as that term is defined in Rule 144 promulgated under the
Securities Act, which shares will remain subject to the resale limitations of
Rule 144.
The 14,305,000 shares of our common stock that will continue to be held by
Daisytek after this offering constitute "restricted securities" within the
meaning of Rule 144, and will be eligible for sale by Daisytek in the open
market after this offering, subject to certain contractual lockup provisions and
the applicable requirements of Rule 144, both of which are described below.
PFSweb has granted certain registration rights to Daisytek. See "-- Registration
Rights."
Generally, Rule 144 provides that a person who has beneficially owned
"restricted" shares for at least one year will be entitled to sell on the open
market in brokers' transactions within any three month period a number of shares
that does not exceed the greater of:
- 1% of the then outstanding shares of common stock; and
- the average weekly trading volume in the common stock on the open market
during the four calendar weeks preceding such sale.
Sales under Rule 144 are also subject to certain post-sale notice
requirements and the availability of current public information about PFSweb.
In the event that any person other than Daisytek who is deemed to be an
Affiliate purchases shares of our common stock pursuant to this offering or
acquires shares of our common stock pursuant to an employee benefit plan of
PFSweb, the shares held by such person are required under Rule 144 to be sold in
brokers' transactions, subject to the volume limitations described above. Shares
properly sold in reliance upon Rule 144 to persons who are not Affiliates are
thereafter freely tradable without restriction.
Sales of substantial amounts of our common stock in the open market, or the
availability of such shares for sale, could adversely affect the price of our
common stock. Daisytek has announced that it plans to complete its spin-off of
PFSweb by distributing all of the shares of PFSweb common
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<PAGE> 72
stock that it owns to the holders of Daisytek's common stock. Any shares
distributed by Daisytek will be eligible for immediate resale in the public
market without restrictions by persons other than Affiliates of PFSweb.
Affiliates of PFSweb would be subject to the restrictions of Rule 144 described
above other than the one-year holding period requirement.
Each of PFSweb, Daisytek and the directors and executive officers of PFSweb
and Daisytek have agreed that, without the prior written consent of Hambrecht &
Quist on behalf of the underwriters, they will not, during the period ending 180
days after the date of this prospectus, sell or otherwise dispose of any shares
of our common stock, subject to certain exceptions. The spin-off is specifically
not exempted from this agreement. See "Underwriters."
An aggregate of 6,000,000 shares of our common stock are reserved for
issuance under our stock option plans. We intend to file a registration
statement on Form S-8 covering the issuance of shares of our common stock
pursuant to these plans. Accordingly, the shares issued pursuant to these stock
option plans will be freely tradable, subject to the restrictions on resale by
Affiliates under Rule 144.
REGISTRATION RIGHTS OF DAISYTEK
Pursuant to the Registration Rights Agreement we will enter into with
Daisytek, at any time after Daisytek informs us that it no longer intends to
complete the spin-off or that the spin-off was completed without Daisytek
divesting itself of 100% of our common stock that it held, Daisytek may require
us to register under the Securities Act all or any portion of our common stock
that it holds. Any of Daisytek's shares of our common stock registered pursuant
to the Registration Rights Agreement would be eligible for immediate resale in
the public market without restrictions by persons other than Affiliates of
PFSweb. For more information regarding the Registration Rights Agreement, see
"Registration Rights Agreement."
Any sales of substantial amounts of our common stock in the public market,
or the perception that such sales might occur (whether as a result of the
spin-off, Daisytek's registration rights or otherwise), could have a material
adverse effect on the market price of our common stock. See "Risk Factors."
UNDERWRITING
PFSweb has entered into an underwriting agreement with the underwriters
named below. Hambrecht & Quist LLC, Dain Rauscher Wessels, a division of Dain
Rauscher Incorporated, and Jefferies & Company, Inc. are acting as
representatives of the underwriters.
The underwriting agreement provides for the purchase of a specific number
of shares of common stock by each of the underwriters. The underwriters'
obligations are several, which means that each underwriter is required to
purchase a specified number of shares, but is not responsible for the commitment
of any other underwriter to purchase shares. Subject to the terms and conditions
of the underwriting agreement, each underwriter has severally agreed to purchase
the number of shares of common stock set forth opposite its name below.
<TABLE>
<CAPTION>
NUMBER
UNDERWRITERS OF SHARES
- ------------ ---------
<S> <C>
Hambrecht & Quist LLC.......................................
Dain Rauscher Wessels.......................................
Jefferies & Company, Inc. ..................................
Total.......................................................
</TABLE>
This is a firm commitment underwriting. This means that the underwriters
have agreed to purchase all of the shares offered by this prospectus, other than
those covered by the over-allotment option described below, if any are
purchased. Under the underwriting agreement, if an
68
<PAGE> 73
underwriter defaults in its commitment to purchase shares, the commitments of
non-defaulting underwriters may be increased or the underwriting agreement may
be terminated, depending on the circumstances. We have agreed to indemnify the
underwriters against certain civil liabilities under the Securities Act, or to
contribute to payments the underwriters may be required to make in respect of
such liabilities.
The representatives have advised PFSweb that the underwriters propose to
offer the shares directly to the public at the public offering price that
appears on the cover page of this prospectus. In addition, the representatives
may offer some of the shares to certain securities dealers at such price less a
concession of $ per share. The underwriters may also allow to dealers, and
such dealers may reallow, a concession not in excess of $ per share to
certain other dealers. After the shares are released for sale to the public, the
representatives may change the offering price and other selling terms at various
times.
The underwriters have informed PFSweb that the underwriters will not allow
discretionary account sales of the shares of common stock offered by this
prospectus.
PFSweb has granted the underwriters an over-allotment option. This option,
which is exercisable for up to 30 days after the date of this prospectus,
permits the underwriters to purchase a maximum of 465,000 additional shares from
PFSweb to cover over-allotments. If the underwriters exercise all or part of
this option, they will purchase shares covered by the option at the public
offering price that appears on the cover page of this prospectus, less the
underwriting discount. If this option is exercised in full, the total price to
public will be $46.3 million and the net proceeds to PFSweb will be
approximately $40.6 million. The underwriters have severally agreed that, to the
extent the over-allotment option is exercised, they will each purchase a number
of additional shares proportionate to the underwriter's initial amount reflected
in the above table.
The following table provides information regarding the amount of the
discount to be paid to the underwriters by PFSweb. Such amount is shown assuming
both no exercise and full exercise of the underwriters' option to purchase
additional shares.
<TABLE>
<CAPTION>
PAID BY PFSWEB
---------------------------
NO EXERCISE FULL EXERCISE
----------- -------------
<S> <C> <C>
Per Share.......................................... $ $
Total.............................................. $ $
</TABLE>
PFSweb estimates that the total expenses of the offering, excluding the
underwriting discount, will be approximately $2.5 million.
We and Daisytek have, jointly and severally, agreed to indemnify each
underwriter against all liabilities to which they may become subject under the
federal securities laws or other law (including reimbursement of expenses)
arising out of:
- any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (including the Prospectus) or the
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements not misleading, except
that there is no indemnification for specific information furnished by
the underwriters; and
- the directed share program under which the underwriters have reserved for
sale up to 217,000 shares for officers, directors, employees and
associates of Daisytek and PFSweb.
This includes contribution to any payments which may be made by the underwriters
in the event that indemnification is not available.
PFSweb, its executive officers and directors, and Daisytek have agreed to a
180-day lock up with respect to 14,305,000 shares of common stock that they
beneficially own, including securities
69
<PAGE> 74
that are convertible into shares of common stock and securities that are
exchangeable or exercisable for shares of common stock. This means that, subject
to certain exceptions, for a period of 180 days following the date of this
prospectus, PFSweb, Daisytek and such persons may not offer, sell, pledge or
otherwise dispose of PFSweb securities without the prior written consent of
Hambrecht & Quist.
The underwriters have reserved for sale up to 217,000 shares for employees,
directors and certain other persons associated with PFSweb. These reserved
shares will be sold at the public offering price that appears on the cover of
this prospectus. The number of shares available for sale to the general public
in the offering will be reduced to the extent reserved shares are purchased by
these persons. The underwriters will offer to the general public, on the same
terms as other shares offered by this prospectus, any reserved shares that are
not purchased by these persons.
Prior to this offering, there has been no public market for the common
stock. Consequently, the offering price for the common stock has been determined
by negotiations between PFSweb and the underwriters and is not necessarily
related to PFSweb's asset value, net worth or other established criteria of
value. The factors considered in such negotiations, in addition to prevailing
market conditions, included the history of and prospects for the industry in
which PFSweb competes, an assessment of PFSweb's management, PFSweb's prospects,
its capital structure, prevailing market conditions, its results of operations
in recent periods and certain other factors as were deemed relevant.
Rules of the SEC may limit the ability of the underwriters to bid for or
purchase shares before the distribution of the shares is completed. However, the
underwriters may engage in the following activities in accordance with the
rules:
- Stabilizing transactions. The representatives may make bids or purchases
for the purpose of pegging, fixing or maintaining the price of the
shares, so long as stabilizing bids do not exceed a specified maximum.
- Over-allotments and syndicate covering transactions. The underwriters may
create a short position in the shares by selling more shares than are set
forth on the cover page of this prospectus. If a short position is
created in connection with the offering, the representatives may engage
in syndicate covering transactions by purchasing shares in the open
market. The representatives may also elect to reduce any short position
by exercising all or part of the over-allotment option.
- Penalty bids. If the representatives purchase shares in the open market
in a stabilizing transaction or syndicate covering transaction, they may
reclaim a selling concession from the underwriters and selling group
members who sold those shares as part of this offering.
Stabilization and syndicate covering transactions may cause the price of
the shares to be higher than it would be in the absence of such transactions.
The imposition of a penalty bid might also have an effect on the price of the
shares if it discourages resales of the shares.
Neither PFSweb nor the underwriters makes any representation or prediction
as to the effect that the transactions described above may have on the price of
the shares. These transactions may occur on the Nasdaq National Market or
otherwise. If such transactions are commenced, they may be discontinued without
notice at any time.
One or more members of the underwriting selling group, may make copies of
the preliminary prospectus available over the Internet to certain customers
through its or their Web sites. The representatives expect to allocate a limited
number of shares to such member or members of the selling group for sale to
brokerage account holders.
James F. Reilly, a director of PFSweb, is a Managing Director, of Hambrecht
& Quist LLC.
70
<PAGE> 75
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for
PFSweb by Wolff & Samson P.A., Roseland, New Jersey. An attorney of such firm is
the holder of an option to purchase 35,000 shares of common stock of PFSweb.
Legal matters in connection with this offering will be passed upon for the
underwriters by Gibson, Dunn & Crutcher LLP, New York, New York.
EXPERTS
The financial statements and schedule included in this prospectus and
elsewhere in the registration statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission, Washington, D.C.
20549, a Registration Statement on Form S-1 under the Securities Act of 1933, as
amended, with respect to the Common Stock offered hereby. This prospectus does
not contain all of the information set forth in the Registration Statement and
the exhibits and schedules thereto. Items are omitted in accordance with the
rules and regulations of the Commission. For further information with respect to
PFSweb and our common stock offered hereby, reference is made to the
Registration Statement and the exhibits and schedules filed as a part thereof.
Statements contained in this prospectus as to the contents of any contract or
any other document referred to are not necessarily complete, and, in each
instance, if such contract or document is filed as an exhibit, reference is made
to the copy of such contract or document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such reference
to such exhibit. The Registration Statement, including exhibits and schedules
thereto, may be inspected without charge at the public reference facilities
maintained by the Commission in Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's regional offices located at the North
Western Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661 and Seven World Trade Center, 13th Floor, New York, NY 10048, and copies
of all or any part thereof may be obtained from such office after payment of
fees prescribed by the Commission. The Commission maintains a Web site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission.
As a result of this offering, we will become subject to the full
informational requirements of the Securities Exchange Act of 1934, as amended.
We will fulfill our obligations with respect to such requirements by filing
periodic reports and other information with the SEC. We intend to furnish our
shareholders with annual reports containing consolidated financial statements
certified by an independent public accounting firm. We also maintain an Internet
site at http://www.pfsweb.com. Our website and the information contained therein
or connected thereto shall not be deemed to be incorporated into this prospectus
or the registration statement of which it forms a part.
71
<PAGE> 76
INDEX TO FINANCIALS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants.................... F-2
Combined Balance Sheets..................................... F-3
Combined Statements of Operations........................... F-4
Combined Statements of Shareholder's Equity................. F-5
Combined Statements of Cash Flows........................... F-6
Notes to Combined Financial Statements...................... F-7
Interim Condensed Combined Balance Sheets (unaudited)....... F-16
Interim Condensed Combined Statements of Operations
(unaudited)............................................... F-17
Interim Condensed Combined Statements of Cash Flows
(unaudited)............................................... F-18
Notes to Unaudited Interim Condensed Combined Financial
Statements................................................ F-19
Pro Forma Combined Balance Sheets (unaudited)............... F-22
Pro Forma Combined Statements of Operations (unaudited)..... F-23
Notes to Pro Forma Combined Financial Statements
(unaudited)............................................... F-25
</TABLE>
F-1
<PAGE> 77
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Daisytek International Corporation and PFSweb, Inc.:
We have audited the accompanying combined balance sheets of PFSweb
(representing the business operations of certain subsidiaries of Daisytek
International Corporation -- see Note 1) as of March 31, 1999 and 1998, and the
related combined statements of operations, shareholder's equity and cash flows
for each of the three years in the period ended March 31, 1999. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of PFSweb as of March 31, 1999
and 1998, and the results of its operations and its cash flows for each of the
three years in the period ended March 31, 1999, in conformity with generally
accepted accounting principles.
ARTHUR ANDERSEN LLP
Dallas, Texas,
September 22, 1999 (except with respect to the
matters discussed in Note 10, as to which the
date is October 29, 1999)
F-2
<PAGE> 78
PFSWEB
COMBINED BALANCE SHEETS
(IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
MARCH 31,
-----------------
1998 1999
------- -------
<S> <C> <C>
CURRENT ASSETS:
Cash...................................................... $ 113 $ 587
Accounts receivable, net of allowance for doubtful
accounts of $318 and $635 at March 31, 1998 and 1999,
respectively........................................... 8,946 22,190
Inventories, net.......................................... 11,263 29,856
Prepaid expenses and other current assets................. -- 997
Deferred tax asset........................................ 261 453
------- -------
Total current assets.............................. 20,583 54,083
------- -------
PROPERTY AND EQUIPMENT, at cost:
Furniture, fixtures and equipment......................... 393 3,009
Leasehold improvements.................................... 2 32
------- -------
395 3,041
Less -- Accumulated depreciation and amortization........... (67) (330)
------- -------
Net property and equipment........................ 328 2,711
OTHER ASSETS................................................ -- 12,263
------- -------
Total assets...................................... $20,911 $69,057
======= =======
LIABILITIES AND SHAREHOLDER'S EQUITY
CURRENT LIABILITIES:
Trade accounts payable.................................... $18,725 $38,329
Accrued expenses.......................................... 514 1,118
------- -------
Total current liabilities......................... 19,239 39,447
------- -------
PAYABLE TO DAISYTEK......................................... 1,827 29,029
------- -------
COMMITMENTS AND CONTINGENCIES (Notes 4, 8 and 10)
SHAREHOLDER'S EQUITY:
Daisytek's net equity investment.......................... (100) 712
Accumulated other comprehensive loss...................... (55) (131)
------- -------
Total shareholder's equity........................ (155) 581
------- -------
Total liabilities and shareholder's equity........ $20,911 $69,057
======= =======
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-3
<PAGE> 79
PFSWEB
COMBINED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEARS ENDED MARCH 31,
----------------------------
1997 1998 1999
------- ------- --------
<S> <C> <C> <C>
REVENUES:
Product revenue........................................... $16,543 $45,804 $ 93,702
Service fee revenue....................................... 1,034 3,539 7,547
------- ------- --------
Total revenues.................................... 17,577 49,343 101,249
------- ------- --------
COSTS OF REVENUES:
Cost of product revenue................................... 15,768 43,392 88,335
Cost of service fee revenue............................... 596 2,208 5,323
------- ------- --------
Total costs of revenues........................... 16,364 45,600 93,658
------- ------- --------
Gross profit...................................... 1,213 3,743 7,591
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES................ 1,074 3,705 6,711
------- ------- --------
Income from operations............................ 139 38 880
INTEREST EXPENSE, net....................................... 77 143 374
------- ------- --------
Income (loss) before income taxes................. 62 (105) 506
PROVISION (BENEFIT) FOR INCOME TAXES........................ 38 (30) 214
------- ------- --------
NET INCOME (LOSS)........................................... $ 24 $ (75) $ 292
======= ======= ========
NET INCOME (LOSS) PER SHARE:
Basic and diluted......................................... $ 0.00 $ (0.01) $ 0.02
======= ======= ========
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING:
Basic and diluted......................................... 14,305 14,305 14,305
======= ======= ========
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-4
<PAGE> 80
PFSWEB
COMBINED STATEMENTS OF SHAREHOLDER'S EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
ACCUMULATED
DAISYTEK'S OTHER TOTAL
NET EQUITY COMPREHENSIVE SHAREHOLDER'S COMPREHENSIVE
INVESTMENT INCOME (LOSS) EQUITY INCOME (LOSS)
---------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
BALANCE, March 31, 1996............ $ (49) $ -- $ (49)
Net income....................... 24 -- 24 $ 24
Other comprehensive income --
foreign currency translation
adjustment.................... -- 17 17 17
----- ----- ----- -----
Comprehensive income............. $ 41
=====
BALANCE, March 31, 1997............ (25) 17 (8)
Net loss......................... (75) -- (75) $ (75)
Other comprehensive loss --
foreign currency translation
adjustment.................... -- (72) (72) (72)
----- ----- ----- -----
Comprehensive loss............... $(147)
=====
BALANCE, March 31, 1998............ (100) (55) (155)
Net income....................... 292 -- 292 $ 292
Contributed capital.............. 520 -- 520
Other comprehensive loss --
foreign currency translation
adjustment.................... -- (76) (76) (76)
----- ----- ----- -----
Comprehensive income............. $ 216
=====
BALANCE, March 31, 1999............ $ 712 $(131) $ 581
===== ===== =====
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-5
<PAGE> 81
PFSWEB
COMBINED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL YEARS ENDED MARCH 31,
-----------------------------
1997 1998 1999
-------- ------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)......................................... $ 24 $ (75) $ 292
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Depreciation and amortization........................ 3 63 275
Provision for doubtful accounts...................... 122 299 344
Deferred income tax benefit.......................... (41) (222) (192)
Changes in operating assets and liabilities:
Accounts receivable............................... (5,150) (3,640) (13,615)
Inventories, net.................................. (9,864) (1,413) (18,630)
Prepaid expenses and other current assets......... -- -- (1,001)
Trade accounts payable and accrued expenses....... 9,753 9,487 20,231
-------- ------- --------
Net cash provided by (used in) operating activities.... (5,153) 4,499 (12,296)
-------- ------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment....................... (100) (294) (2,658)
Increase in other assets.................................. -- -- (12,264)
-------- ------- --------
Net cash used in investing activities.................. (100) (294) (14,922)
-------- ------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Capital contribution...................................... -- -- 520
Increase (decrease) in payable to Daisytek................ 5,232 (4,034) 27,202
-------- ------- --------
Net cash provided by (used in) financing activities.... 5,232 (4,034) 27,722
-------- ------- --------
EFFECT OF EXCHANGE RATES ON CASH............................ 25 (62) (30)
-------- ------- --------
NET INCREASE IN CASH........................................ 4 109 474
CASH, beginning of period................................... -- 4 113
-------- ------- --------
CASH, end of period......................................... $ 4 $ 113 $ 587
======== ======= ========
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-6
<PAGE> 82
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS
1. OVERVIEW AND BASIS OF PRESENTATION:
PFSweb (the "Company") reflects the business operations of certain
wholly-owned subsidiaries of Daisytek International Corporation ("Daisytek").
PFSweb's business unit was formed in 1991 and expanded in 1996 under the name
"Priority Fulfillment Services." The Company is currently wholly-owned by
Daisytek. Accordingly, Daisytek exerts substantial influence over, and has the
ability to direct all operations of, the Company. The Company is an
international provider of transaction management services to both traditional
and e-commerce companies and sells products and services primarily in the United
States, Canada and Europe. The Company offers such services as order management,
customer care, billing, credit management and collection, information
management, and distribution. The Company provides its services under fee-based
contracts (where service fee revenue is based on either the sales value of the
products or service activity volume) and under master distributor agreements
(where the Company takes title to and resells the product).
In June 1999, Daisytek created a separate wholly-owned subsidiary named
PFSweb, Inc., a Delaware corporation, to become a holding Company for PFSweb
upon completion of an initial public offering (the "Offering"). Daisytek has
contributed $20,000 for 14,305,000 shares of PFSweb, Inc. Simultaneous with the
effective date of this Offering, the assets, liabilities and equity which
currently comprise PFSweb will be contributed to PFSweb, Inc. No separate
financial statements of PFSweb, Inc. have been provided because it is a holding
company and they only reflect cash and equity of $20,000.
Daisytek plans to divest PFSweb, Inc. in two stages. The first stage
involves the sale and issuance of common stock of PFSweb, Inc. in this Offering.
The second stage, planned to occur in the year 2000, involves Daisytek
distributing to holders of its common stock all of its interest in PFSweb, Inc.
through a spin-off transaction in which the shares of PFSweb, Inc. would be
distributed to Daisytek common stockholders on a pro-rata basis. Daisytek,
however, is not obligated to effect the spin-off through the distribution of its
interest and the Company cannot provide assurance as to whether or when it will
occur.
The accompanying combined financial statements are presented on a carve-out
basis and reflect the combined historical results of operations, financial
position and cash flows of the Company. For all periods presented, certain
expenses reflected in the combined financial statements include an allocation of
certain Daisytek corporate expenses and infrastructure costs (see Note 6).
Management believes that the methods used to allocate expenses are reasonable,
although the cost of services could be higher if obtained from other sources. In
addition, certain service fee revenue and cost of service fee revenue have been
reflected by PFSweb for services subcontracted to PFSweb by Daisytek. The
service fee revenue, cost of service fee revenue and allocated expenses have
been reflected on bases that Daisytek and PFSweb consider to be a reasonable
reflection of the services provided and revenue earned by PFSweb and the
utilization of services provided by Daisytek and the benefit received by PFSweb.
The financial information included herein may not reflect the combined financial
position, operating results, changes in Daisytek's net investment and cash flows
of PFSweb in the future or what it would have been had PFSweb been a separate,
stand-alone entity during the periods presented.
2. SIGNIFICANT ACCOUNTING POLICIES:
PRINCIPLES OF COMBINATION
The combined financial statements include the accounts and the historical
results of operations and cash flows of PFSweb during each respective period.
All significant PFSweb intercompany accounts and transactions have been
eliminated.
F-7
<PAGE> 83
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
USE OF ESTIMATES
The preparation of combined financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities,
disclosure of contingent assets and liabilities, and the reported amounts of
revenues and expenses. The allocation of certain expenses (see Notes 1 and 6) in
these financial statements required management estimates and assumptions. Actual
results could differ from those estimates.
REVENUE RECOGNITION
The Company recognizes product revenue upon shipment of product to
customers and provides for estimated returns and allowances. The Company's
service fee revenues are recognized at the time the service is provided to its
client. Certain contracts involve third-party vendors who provide services such
as package delivery. The costs incurred by the Company related to such
third-party services are passed on to clients and are not reflected in revenue
or expense.
COSTS OF REVENUES
The Company recognizes cost of product revenue upon shipment of product to
customers. The Company's cost of service fee revenue is recognized as incurred
and represents costs incurred to provide services under fee-based contracts,
including salaries, shipping, supplies, and facility costs.
CONCENTRATION OF BUSINESS AND CREDIT RISK
All of the Company's product revenue for the fiscal years ended March 31,
1997, 1998 and 1999, was generated by sales of product purchased under master
distributor agreements with one supplier. Sales to Daisytek accounted for
approximately 44%, 22% and 13% of the Company's revenue for the fiscal years
ended March 31, 1997, 1998 and 1999, respectively. No other client accounted for
10% or more of the Company's revenue during such periods. As of March 31, 1998
and 1999, one customer accounted for approximately 39% and 23% of accounts
receivable, respectively.
CASH AND CASH EQUIVALENTS
Cash equivalents are defined as short-term highly liquid investments with
original maturities of three months or less.
ACCOUNTS RECEIVABLE
Accounts receivable include outstanding trade accounts receivables as well
as certain unbilled amounts owed to PFSweb by clients in accordance with
contracts. The amount of unbilled receivables at March 31, 1998 and 1999 was
approximately $726,000 and $2,709,000, respectively.
INVENTORIES
Inventories (merchandise held for resale, all of which are finished goods)
are stated at the lower of weighted average cost or market.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost and are depreciated using the
straight-line method over the estimated useful lives of the respective assets
which range from three to ten years.
F-8
<PAGE> 84
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The Company periodically evaluates whether events or circumstances have
occurred that indicate that long-lived assets may not be recoverable or that the
remaining useful life may warrant revision. When such events or circumstances
are present, the Company assesses the recoverability of long-lived assets by
determining whether the carrying value will be recovered through the expected
undiscounted future cash flows. In the event the sum of the expected
undiscounted future cash flows resulting from the use of the asset is less than
the carrying value of the asset, an impairment loss equal to the excess of the
asset's carrying value over its fair value is recorded. To date, no such
impairment has been recognized.
OTHER ASSETS
Other assets includes approximately $12.1 million related to a non-current
receivable from a client of the Company. During fiscal 1999, the Company entered
into a long-term contractual agreement whereby the Company finances certain
inventory owned by the client. The Company warehouses this client inventory and
distributes it upon the sale to third parties by the client, who controls the
disposition of this inventory. The Company has the contractual right to collect
the receivable in full at the conclusion of the contract. In addition to service
fees, the Company charges the client an asset management fee, a portion of which
results in interest income.
FOREIGN CURRENCY TRANSLATION AND TRANSACTIONS
For the Company's Canadian operations, the local currency is the functional
currency. All assets and liabilities are translated at exchange rates in effect
at the end of the period, and income and expense items are translated at the
average exchange rates for the period. Translation adjustments are reported as a
separate component of shareholder's equity.
For the Company's European operations, the U.S. dollar is the functional
currency. Monetary assets and liabilities are translated at the rates of
exchange on the balance sheet date and certain assets (notably inventory, and
property and equipment) are translated at historical rates. Income and expense
items are translated at average rates of exchange for the period except for
those items of expense, which relate to assets, which are translated at
historical rates. The gains and losses from foreign currency transactions and
translation related to these subsidiaries are included in net income and have
not been material.
INCOME TAXES
In accordance with Statement of Financial Accounting Standards ("SFAS") No.
109 "Accounting for Income Taxes", deferred taxes reflect the impact of
temporary differences between the amount of assets and liabilities for financial
reporting purposes and such amounts as measured by tax laws and regulations.
These differences relate primarily to provisions for doubtful accounts, reserves
for inventory, book versus tax depreciation differences, and certain accrued
expenses deducted for book purposes but not yet deductible for tax purposes.
(See Note 7.)
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company estimates fair value based on market information and
appropriate valuation methodologies. Fair value is the amount at which the
instrument could be exchanged in a current transaction between willing parties,
other than in a forced sale or liquidation. The fair values of all financial
instruments approximate their carrying amounts in the accompanying combined
balance sheets.
F-9
<PAGE> 85
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
NET INCOME (LOSS) PER COMMON SHARE
The Company computed net income (loss) per share in accordance with SFAS
No. 128 "Earnings Per Share." Basic and diluted net income (loss) per share
attributable to PFSweb was determined based on net income (loss) divided by the
14,305,000 shares of PFSweb, Inc. (see Note 1) outstanding prior to this
Offering. For purposes of the net income (loss) per share calculation, the
shares outstanding prior to this Offering are treated as outstanding for all
periods presented. There were no potentially dilutive securities outstanding of
PFSweb, Inc. during the periods presented.
ADOPTION OF NEW ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133
requires that an entity recognize all derivative financial instruments as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. If certain conditions are met, a derivative may be
used to hedge certain types of transactions, including foreign currency
exposures of a net investment in a foreign operation. SFAS No. 133 is effective
for fiscal years beginning after June 15, 2000, with initial application as of
the beginning of an entity's fiscal quarter. SFAS No. 133 is not expected to
have a significant effect on the financial condition or operations of the
Company.
CASH PAID DURING YEAR
The Company made payments for interest of approximately $0, $0, and
$16,000, and income taxes of approximately $0, $139,000, $269,000 during the
fiscal years ended March 31, 1997, 1998 and 1999, respectively (see Notes 3 and
7). Unpaid taxes payable and intercompany accrued interest are included in the
payable to Daisytek.
3. PAYABLE TO DAISYTEK:
Funds advanced by Daisytek to fund the Company's working capital
requirements and certain investment activities have been reflected as an
intercompany payable. This intercompany payable will be repaid by the Company
upon the closing of the Offering. Interest expense charged by Daisytek was based
on its weighted average interest rates of 6.1%, 6.9%, and 6.7% and approximated
$279,000, $497,000, and $1,039,000 for the fiscal years ended March 31, 1997,
1998 and 1999, respectively.
Daisytek is not required to provide PFSweb with funding in the future and
PFSweb will be restricted from borrowing from Daisytek following the spin-off.
4. GUARANTEE OF DAISYTEK DEBT
PFSweb, along with several other Daisytek subsidiaries, has guaranteed an
unsecured revolving line of credit with commercial banks of Daisytek (the
"Facility"). As of March 31, 1999, Daisytek had borrowed $29.8 million and has a
maximum borrowing availability of $85.0 million under the Facility, leaving
approximately $55.2 million available under the Facility. The Facility, and
PFSweb's guarantee thereon, expires on December 31, 2000 (See Note 10).
5. STOCK OPTIONS:
Certain of the Company's employees, and individuals that are expected to
become Company employees upon this Offering and/or spin-off transaction
described in Note 1, have been granted Daisytek stock options under Daisytek's
stock option compensation plans (the "Plans"). The
F-10
<PAGE> 86
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
purpose of the Plans is to benefit and advance the interests of Daisytek by
rewarding officers and certain key employees for their contributions to the
financial success of Daisytek and thereby motivating them to continue to make
such contributions in the future. The Plans provide for fixed grants of both
incentive stock options and nonqualified stock options. The stock options
generally vest over a three to five year period from the date of grant and
expire 10 years after the date of grant.
The Company has adopted the disclosure-only provisions of SFAS 123,
"Accounting for Stock-Based Compensation." In accordance with the provisions of
SFAS 123, the Company applies Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" and related interpretations in
accounting for the Plans and accordingly, does not recognize compensation
expense for its stock option plans because Daisytek typically does not issue
options at exercise prices below the market value at date of grant. Had
compensation expense for Daisytek's stock option plans applicable to the
Company's employees been determined based upon the fair value at the grant date
for awards consistent with the methodology prescribed by SFAS 123, the Company's
combined pretax income would have decreased by $943,000, $787,000 and $2,531,000
in fiscal years ended March 31, 1997, 1998 and 1999, respectively. These pro
forma effects may not be representative of expense in future periods since the
estimated fair value of stock options on the date of grant is amortized to
expense over the vesting period. Additional options may be granted in future
years. Options issued prior to April 1, 1995 were excluded from the computation.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option-pricing model with the following assumptions used for
grants in fiscal year 1997: no dividends, expected volatility ranging between
39.25% and 39.50%; risk-free interest rate ranging between 5.9% and 6.6%; and
expected life of 6 years. The following assumptions were used for grants during
the fiscal year 1998: no dividends, expected volatility ranging between 40.97%
and 41.40%; risk-free interest rate ranging between 5.6% and 6.8%; and expected
life of 6 years. The following assumptions were used for grants during the
fiscal year 1999: no dividends, expected volatility ranging between 41.42% and
47.92%; risk-free interest rate ranging between 4.6% and 5.5%; and expected life
of 6 years.
The following table summarizes stock option activity under various Daisytek
plans as it relates to PFSweb employees:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
SHARES PRICE PER SHARE EXERCISE PRICE
--------- --------------- ----------------
<S> <C> <C> <C>
Outstanding, March 31, 1996....................... 561,470 $ 0.64 - $ 9.75 $ 4.88
Granted......................................... 275,266 $15.50 - $16.25 $16.11
Exercised....................................... (34,052) $ 2.65 - $ 9.75 $ 5.16
Canceled........................................ -- $ -- - $ -- $ --
---------
Outstanding, March 31, 1997....................... 802,684 $ 0.64 - $16.25 $ 8.72
Granted......................................... 570,370 $12.50 - $19.63 $12.87
Exercised....................................... (252,436) $ 0.64 - $ 9.75 $ 2.47
Canceled........................................ (296,442) $ 9.75 - $16.25 $15.80
---------
Outstanding, March 31, 1998....................... 824,176 $ 0.64 - $19.63 $10.96
Granted......................................... 1,807,886 $12.88 - $22.88 $15.13
Exercised....................................... (108,832) $ 0.64 - $12.50 $ 3.41
Canceled........................................ (146,739) $ 9.75 - $22.88 $16.05
---------
Outstanding, March 31, 1999....................... 2,376,491 $ 2.65 - $22.88 $14.16
=========
</TABLE>
F-11
<PAGE> 87
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The weighted average fair values of options granted during each of the
years ended March 31, 1997, 1998 and 1999, were $8.03, $7.05 and $7.68,
respectively. As of March 31, 1997, 1998 and 1999, 358,982, 183,956 and 243,747,
respectively, of options outstanding were exercisable. The weighted average
exercise price of exercisable options outstanding at March 31, 1997, 1998 and
1999, were $2.56, $5.74 and $10.44, respectively. The remaining options will
become exercisable over the next three to five years based on vesting
percentages.
The following table summarizes information concerning currently outstanding
and exercisable Daisytek stock options issued to PFSweb employees at March 31,
1999:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING
- ---------------------------------------------------------------------- OPTIONS EXERCISABLE
WEIGHTED ----------------------------------
AVERAGE WEIGHTED WEIGHTED
RANGE OF OUTSTANDING AS OF REMAINING AVERAGE EXERCISABLE AS OF AVERAGE
EXERCISE PRICES MARCH 31, 1999 CONTRACTUAL LIFE EXERCISE PRICE MARCH 31, 1999 EXERCISE PRICE
- --------------- ----------------- ---------------- -------------- ----------------- --------------
<S> <C> <C> <C> <C> <C>
$ 2.65 5,613 3.0 $ 2.65 5,613 $ 2.65
$ 9.75 - $14.06 1,963,631 8.7 $12.52 237,884 $10.62
$15.50 - $22.88 407,247 9.3 $22.22 250 $16.25
</TABLE>
6. TRANSACTIONS WITH DAISYTEK AND OTHER RELATED PARTIES:
The Company's product revenue from sales to Daisytek was $7.5 million,
$10.7 million, and $12.4 million in 1997, 1998, and 1999, respectively.
The Company's costs and expenses include allocations from Daisytek for
certain general administrative services including information technology,
financial, treasury, legal, insurance and other corporate functions as well as
certain costs of operations including facility charges. These allocations have
been estimated on bases that Daisytek and the Company consider to be a
reasonable reflection of the utilization of services provided or the benefit
received by the Company. The methods used for allocation of expenses from
Daisytek were either (i) percentage of: revenue, shipped orders, or number of
employees, or (ii) management's best estimate. However, these allocations of
costs and expenses do not necessarily indicate the costs and expenses that would
have been or will be incurred by the Company on a stand-alone basis. Management
estimates that incremental selling, general and administrative expenses
associated with PFSweb operating as a stand-alone publicly traded company,
including executive management, overhead and public company costs, insurance and
risk management costs, and other costs would have been approximately $2.0 to
$2.2 million for each of the fiscal years 1997, 1998 and 1999.
In addition, included in the combined financial statements are service fee
revenue and cost of service fee revenue which have been reflected by PFSweb for
certain services subcontracted to PFSweb by Daisytek under Daisytek's
contractual agreements. Service fee revenue applicable to these contracts were
$230,000, $467,000 and $804,000 in 1997, 1998, and 1999, respectively.
In May 1999, the Company entered into an agreement to provide services to a
certain company. An executive officer and a director of PFSweb serve on the
Board of Directors of this company.
7. INCOME TAXES:
The Company's operations have been included in consolidated income tax
returns filed by Daisytek. If Daisytek or other members of the consolidated
group fail to make tax payments required by law, PFSweb would be liable for any
shortfall. The provision for income taxes reflected in the combined statements
of operations and the deferred tax assets reflected in the combined
F-12
<PAGE> 88
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
balance sheets have been prepared as computed on a separate return basis. The
current income tax liabilities for the periods presented have been included in
the payable to Daisytek.
A reconciliation of the difference between the expected income tax
provision at the U.S. federal statutory corporate tax rate of 34%, and the
Company's effective tax rate is as follows (in thousands):
<TABLE>
<CAPTION>
FISCAL YEARS ENDED
MARCH 31,
------------------
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Provision (benefit) computed at statutory rate.............. $21 $(36) $172
Impact of foreign taxation at different rate................ 1 6 16
State income taxes, net of federal tax impact............... 6 (4) 21
Expenses not deductible for tax purposes.................... 8 5 11
Other....................................................... 2 (1) (6)
--- ---- ----
Provision (benefit) for income taxes...................... $38 $(30) $214
=== ==== ====
</TABLE>
The consolidated income (loss) before taxes, by domestic and foreign
entities, is as follows (in thousands):
<TABLE>
<CAPTION>
FISCAL YEARS ENDED
MARCH 31,
-------------------
1997 1998 1999
---- ----- ----
<S> <C> <C> <C>
Domestic.................................................... $ 51 $(155) $255
Foreign..................................................... 11 50 251
---- ----- ----
Total............................................. $ 62 $(105) $506
==== ===== ====
</TABLE>
The provision (benefit) for income taxes is summarized as follows (in
thousands):
<TABLE>
<CAPTION>
FISCAL YEARS ENDED
MARCH 31,
--------------------
1997 1998 1999
---- ----- -----
<S> <C> <C> <C>
Current
Domestic.................................................. $ 58 $ 160 $ 268
State..................................................... 8 9 33
Foreign................................................... 13 23 105
---- ----- -----
Total current..................................... 79 192 406
Deferred
Domestic.................................................. (41) (208) (175)
State..................................................... -- (14) (17)
---- ----- -----
Total deferred......................................... (41) (222) (192)
---- ----- -----
Total............................................. $ 38 $ (30) $ 214
==== ===== =====
</TABLE>
F-13
<PAGE> 89
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The components of the deferred tax asset (liability) as of March 31, 1998
and 1999 are as follows (in thousands):
<TABLE>
<CAPTION>
MARCH 31,
-----------
1998 1999
---- ----
<S> <C> <C>
Deferred tax asset:
Allowance for doubtful accounts........................... $108 $216
Inventory................................................. 49 70
Other..................................................... 106 205
---- ----
Total deferred tax asset.......................... 263 491
---- ----
Deferred tax liability:
Property and equipment.................................... (2) (38)
---- ----
Total deferred liability.......................... (2) (38)
---- ----
Deferred tax asset, net..................................... $261 $453
==== ====
</TABLE>
8. COMMITMENTS AND CONTINGENCIES:
The Company leases facilities, and warehouse, office, transportation and
other equipment under operating leases expiring in various years through fiscal
year 2009. In most cases, management expects that, in the normal course of
business, leases will be renewed or replaced by other leases. Minimum future
annual rental payments under non-cancelable operating leases having original
terms in excess of one year are as follows (in thousands):
<TABLE>
<S> <C>
2000...................................................... $ 1,254
2001...................................................... 1,896
2002...................................................... 1,896
2003...................................................... 1,896
2004...................................................... 1,846
Thereafter................................................ 2,250
-------
Total........................................... $11,038
=======
</TABLE>
Total rental expense under operating leases approximated $38,000, $357,000
and $805,000 for the fiscal years ended March 31, 1997, 1998 and 1999,
respectively. As discussed in Note 10, the Company expects to enter into a
master separation agreement with Daisytek upon the successful completion of this
Offering which will result in additional operating lease obligations.
The Company is involved in certain litigation arising in the ordinary
course of business. Management believes that such litigation will be resolved
without material effect on the Company's financial position or results of
operations.
9. SEGMENT AND GEOGRAPHIC INFORMATION:
The Company operates one reportable segment as an international provider of
transaction management services to both traditional and e-commerce companies.
Geographic areas in which the Company operates include the United States, Europe
(Belgium, Germany and The Netherlands) and Canada.
F-14
<PAGE> 90
PFSWEB
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The following is geographic information by area. Transfers between
geographic areas were immaterial.
<TABLE>
<CAPTION>
YEAR ENDED OR AT MARCH 31
----------------------------
1997 1998 1999
------- ------- --------
<S> <C> <C> <C>
Revenues:
United States........................................ $16,540 $45,729 $ 85,746
Europe............................................... -- -- 10,456
Canada............................................... 1,037 3,614 5,047
------- ------- --------
$17,577 $49,343 $101,249
======= ======= ========
Long-lived assets:
United States........................................ $ 318 $ 14,449
Europe............................................... -- 373
Canada............................................... 10 152
------- --------
$ 328 $ 14,974
======= ========
</TABLE>
10. SUBSEQUENT EVENTS:
On August 31, 1999, the Company entered into a lease for an approximately
442,000 square foot distribution facility in Memphis, Tennessee. The five year
lease, with monthly lease payments totaling $109,000, expires on August 31, 2004
and contains a renewal option for four years.
PFSweb, Inc. has authorized 6,000,000 shares of common stock for issuance
under its 1999 stock option plans (the "Option Plans"). The Option Plans, which
are currently administered by the Compensation Committee of the Board of
Directors of PFSweb, Inc., provide for the granting of incentive awards in the
form of stock options to directors, executive management, key employees, and
outside consultants of PFSweb, Inc. and its subsidiaries. The right to purchase
shares under the stock option agreements typically vest over a three year
period. Stock options must be exercised within 10 years from the date of grant.
Stock options are generally issued at fair market value. In July 1999, PFSweb,
Inc. issued options to purchase 1,344,250 common shares at $10.45. In August
1999, PFSweb, Inc. issued options to purchase 32,250 common shares at $13.00.
All of these options are subject to a three year vesting schedule, under which
no options vest for three years, subject to acceleration, in part, upon
completion of the spin-off of PFSweb, Inc. from Daisytek.
On September 21, 1999, Daisytek announced its plans to file this Offering.
In conjunction with the successful completion of this Offering, PFSweb, Inc. has
stated its intention to enter into agreements with Daisytek, including a tax
sharing agreement, a transaction management services agreement, transition
services agreement and a master separation agreement which are expected to have
a significant impact on the financial position and results of operations of
PFSweb, Inc.
On October 29, 1999, Daisytek amended the Facility, effective November 1,
1999, to increase the maximum borrowing availability to $105 million. This
amendment also provides for the release of PFSweb, Inc. and its subsidiaries as
guarantors of the Facility upon (i) the effective date of the Offering of the
shares of common stock of PFSweb, Inc. and (ii) the payment from PFSweb, Inc. to
Daisytek in settlement of the outstanding payable to Daisytek. Additionally,
this amendment also prohibits Daisytek from advancing funds to PFSweb, Inc.
following the completion of this Offering.
During the quarter ended September 30, 1999 and in connection with the
restructuring of certain IBM master distribution agreements, the Company
transferred to Daisytek certain related product inventory, accounts receivable
and accounts payable that it held under its prior agreements. In consideration
of this transfer, the Company received the net book value of these assets and
liabilities and reduced its payable to Daisytek by a corresponding amount.
F-15
<PAGE> 91
PFSWEB
INTERIM CONDENSED COMBINED BALANCE SHEETS
(IN THOUSANDS)
ASSETS
<TABLE>
<CAPTION>
MARCH 31, SEPTEMBER 30,
1999 1999
--------- -------------
(UNAUDITED)
<S> <C> <C>
CURRENT ASSETS:
Cash...................................................... $ 587 $ 1,247
Accounts receivable, net of allowance for doubtful
accounts of $635 and $587 at March 31, 1999 and
September 30, 1999, respectively....................... 22,190 6,029
Inventories, net.......................................... 29,856 --
Prepaid expenses and other current assets................. 997 1,410
Deferred tax asset........................................ 453 382
------- -------
Total current assets.............................. 54,083 9,068
------- -------
PROPERTY AND EQUIPMENT, at cost:
Furniture, fixtures and equipment......................... 3,009 6,522
Leasehold improvements.................................... 32 2,671
------- -------
3,041 9,193
Less -- Accumulated depreciation and amortization......... (330) (861)
------- -------
Net property and equipment........................ 2,711 8,332
OTHER ASSETS................................................ 12,263 12,588
------- -------
Total assets...................................... $69,057 $29,988
======= =======
LIABILITIES AND SHAREHOLDER'S EQUITY
CURRENT LIABILITIES:
Trade accounts payable.................................... $38,329 $ 6,494
Accrued expenses.......................................... 1,118 1,413
------- -------
Total current liabilities......................... 39,447 7,907
------- -------
PAYABLE TO DAISYTEK......................................... 29,029 22,319
------- -------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDER'S EQUITY:
Daisytek's net equity investment.......................... 712 (61)
Accumulated other comprehensive loss...................... (131) (177)
------- -------
Total shareholder's equity (deficit).............. 581 (238)
------- -------
Total liabilities and shareholder's equity........ $69,057 $29,988
======= =======
</TABLE>
The accompanying notes are an integral part of these unaudited interim
condensed combined statements.
F-16
<PAGE> 92
PFSWEB
INTERIM CONDENSED COMBINED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
SEPTEMBER 30,
-----------------
1998 1999
------- -------
<S> <C> <C>
REVENUES:
Product revenue........................................... $41,327 $55,778
Service fee revenue....................................... 2,761 7,004
------- -------
Total revenues.................................... 44,088 62,782
------- -------
COSTS OF REVENUES:
Cost of product revenue................................... 39,243 52,639
Cost of service fee revenue............................... 2,155 4,898
------- -------
Total costs of revenues........................... 41,398 57,537
------- -------
Gross profit...................................... 2,690 5,245
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES................ 2,576 5,871
------- -------
Income (loss) from operations..................... 114 (626)
INTEREST EXPENSE, net....................................... 139 650
------- -------
Loss before income taxes.......................... (25) (1,276)
BENEFIT FOR INCOME TAXES.................................... (9) (503)
------- -------
NET LOSS.................................................... $ (16) $ (773)
======= =======
NET LOSS PER SHARE:
Basic and diluted......................................... $ (0.00) $ (0.05)
======= =======
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING:
Basic and diluted......................................... 14,305 14,305
======= =======
</TABLE>
The accompanying notes are an integral part of these unaudited interim
condensed combined statements.
F-17
<PAGE> 93
PFSWEB
INTERIM CONDENSED COMBINED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
SEPTEMBER 30,
-------------------
1998 1999
------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.................................................. $ (16) $ (773)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization.......................... 88 634
Provision for doubtful accounts........................ 152 147
Deferred income tax benefit............................ (97) 71
Changes in operating assets and liabilities:
Accounts receivable.................................. (6,406) 16,022
Inventories, net..................................... (9,925) 29,864
Prepaid expenses and other current assets............ -- (413)
Trade accounts payable and accrued expenses.......... 10,739 (31,547)
------- --------
Net cash provided by (used in) operating
activities....................................... (5,465) 14,005
------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment....................... (465) (6,232)
Increase in other assets.................................. (3,302) (344)
------- --------
Net cash used in investing activities............. (3,767) (6,576)
------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase (decrease) in payable to Daisytek, net........... 9,171 (6,710)
------- --------
Net cash provided by (used in) financing
activities....................................... 9,171 (6,710)
------- --------
EFFECT OF EXCHANGE RATES ON CASH............................ (16) (59)
------- --------
NET (DECREASE) INCREASE IN CASH............................. (77) 660
CASH, beginning of period................................... 113 587
------- --------
CASH, end of period......................................... $ 36 $ 1,247
======= ========
</TABLE>
The accompanying notes are an integral part of these unaudited interim
condensed combined statements.
F-18
<PAGE> 94
PFSWEB
NOTES TO UNAUDITED INTERIM
CONDENSED COMBINED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION:
PFSweb (the "Company") reflects the business operations of certain
wholly-owned subsidiaries of Daisytek International Corporation ("Daisytek").
PFSweb's business unit was formed in 1991 and expanded in 1996 under the name
"Priority Fulfillment Services." The Company is currently wholly-owned by
Daisytek. Accordingly, Daisytek exerts substantial influence over, and has the
ability to direct all operations of, the Company. The Company is an
international provider of transaction management services to both traditional
and e-commerce companies and sells products and services primarily in the United
States, Canada and Europe. The Company offers such services as order management,
customer care, billing, credit management and collection, information
management, and distribution. The Company provides its services under fee-based
contracts (where service fee revenue is based on either the sales value of the
products or service activity volume) and under master distributor agreements
(where the Company takes title to and resells the product).
In June 1999, Daisytek created a separate wholly-owned subsidiary and
PFSweb, Inc., a Delaware corporation, to become a holding company for PFSweb
upon completion of an initial public offering (the "Offering"). Daisytek has
contributed $20,000 for 14,305,000 shares of PFSweb, Inc. Simultaneous with the
effective date of the Offering, the assets, liabilities and equity which
currently comprise PFSweb will be contributed to PFSweb, Inc. No separate
financial statements of PFSweb, Inc. have been provided because it is a holding
company and they only reflect cash and equity of $20,000.
Daisytek plans to divest PFSweb, in two stages. The first stage involves
the sale and issuance of common stock of PFSweb, Inc. in this Offering. The
second stage, planned to occur in the year 2000, involves Daisytek distributing
to holders of its common stock all of its interest in PFSweb, Inc. through a
spin-off transaction in which the shares of PFSweb, Inc. would be distributed to
Daisytek common stockholders on a pro-rata basis. Daisytek, however, is not
obligated to effect the spin-off through the distribution of its interest and
the Company cannot provide assurance as to whether or when it will occur.
The interim condensed combined financial statements as of September 30,
1999, and for the six months ended September 30, 1998 and 1999, have been
prepared pursuant to the rules and regulations of the Securities and Exchange
Commission and are unaudited. The interim condensed combined financial
statements are presented on a carve-out basis and reflect the combined results
of operations and assets and liabilities of PFSweb. For all periods presented,
certain expenses reflected in the interim condensed combined financial
statements include an allocation of certain Daisytek corporate expenses and
infrastructure costs. Management believes that the methods used to allocate
expenses are reasonable, although the cost of services could be higher if
obtained from other sources. In addition, certain service fee revenue and cost
of service fee revenue have been reflected by PFSweb for services subcontracted
to PFSweb by Daisytek. The service fee revenue, cost of service fee revenue and
allocated expenses have been reflected on bases that Daisytek and PFSweb
consider to be a reasonable reflection of the services provided and revenue
earned by PFSweb and the utilization of services provided by Daisytek and the
benefit received by PFSweb. The financial information included herein may not
reflect the combined financial position, operating results, changes in
Daisytek's net investment and cash flows of PFSweb in the future or what it
would have been had PFSweb been a separate, stand-alone entity during the
periods presented.
In the opinion of management, the unaudited interim condensed combined
financial statements include all adjustments, consisting of only normal
recurring adjustments, necessary for a fair
F-19
<PAGE> 95
PFSWEB
NOTES TO UNAUDITED INTERIM
CONDENSED COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
presentation of the Company's financial position as of September 30, 1999, its
results of operations and its results of cash flows for the six months ended
September 30, 1998 and 1999. Results of the Company's operations for interim
periods may not be indicative of results for the full fiscal year.
The unaudited interim condensed combined financial statements should be
read in conjunction with the audited combined financial statements and
accompanying notes for the years ended March 31, 1997, 1998 and 1999 included
herein. Accounting policies used in the preparation of the unaudited interim
condensed combined financial statements are consistent in all material respects
with the accounting policies described in the notes to audited combined
financial statements.
2. COMPREHENSIVE LOSS (IN THOUSANDS):
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
SEPTEMBER 30,
-------------
1998 1999
---- -----
<S> <C> <C>
Net loss.................................................... $(16) $(773)
Comprehensive income adjustments:
Foreign currency translation adjustment................... (57) (46)
---- -----
Comprehensive loss.......................................... $(73) $(819)
==== =====
</TABLE>
3. TRANSACTIONS WITH DAISYTEK AND OTHER RELATED PARTIES:
The Company's product revenue from sales to Daisytek was $8.7 million and
$7.2 million for the six months ended September 30, 1998 and 1999, respectively.
The Company's cost and expenses include allocations from Daisytek for
certain general administrative services including information technology,
financial, treasury, legal, insurance and other corporate functions as well as
certain costs of operations including facility charges. These allocations have
been estimated on bases that Daisytek and the Company consider to be a
reasonable reflection of the utilization of services provided or the benefit
received by the Company. The methods used for allocation or expenses from
Daisytek were either (i) percentage of: revenue, shipped orders, or number of
employees or (ii) management's best estimate. However, these allocations of
costs and expenses do not necessarily indicate the costs and expenses that would
have been or will be incurred by the Company on a stand-alone basis. Management
estimates that incremental selling, general and administrative expenses
associated with PFSweb operating as a stand-alone publicly traded company,
including executive management, overhead and public company costs, insurance and
risk management costs, and other costs would have been approximately $1.0 to
$1.1 million for each of the six months ended September 30, 1998 and 1999.
In addition, included in the combined financial statements are service fee
revenues and cost of service fee revenue which have been reflected by PFSweb for
certain services subcontracted to PFSweb by Daisytek under Daisytek's
contractual agreements. Service fee revenues applicable to these contracts were
$363,000 and $350,000 for the six months ended September 30, 1998 and 1999,
respectively.
During the quarter ended September 30, 1999 and in connection with the
restructuring of certain IBM master distribution agreements, the Company
transferred to Daisytek certain related product inventory, accounts receivable
and accounts payable that it held under its prior agreements. In consideration
of this transfer, the Company received the net book value of these assets and
liabilities of approximately $20 million and reduced its payable to Daisytek by
a corresponding amount.
F-20
<PAGE> 96
PFSWEB
NOTES TO UNAUDITED INTERIM
CONDENSED COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
In May 1999, the Company entered into an agreement to provide services to a
certain company. An executive officer and director of PFSweb serve on the Board
of Directors of this company.
PFSweb, along with several other Daisytek subsidiaries, has guaranteed an
unsecured revolving line of credit with commercial banks of Daisytek (the
"Facility"). As of September 30, 1999, Daisytek had borrowed $55.0 million and
has a maximum borrowing availability of $85.0 million under the Facility,
leaving approximately $30.0 million available under the Facility. The Facility,
and PFSweb's guarantee thereon, expires on December 31, 2000.
4. NET LOSS PER COMMON SHARE:
The Company computed net loss per share in accordance with SFAS No. 128
"Earnings Per Share." Basic and diluted net loss per common share attributable
to PFSweb common stock was determined based on net loss divided by the
14,305,000 shares of PFSweb, Inc. outstanding prior to the Offering. For
purposes of the net loss per common share calculation, the shares outstanding
prior to the Offering are treated as outstanding for all periods presented.
There were no potentially dilutive securities outstanding during the periods
presented.
5. OTHER MATTERS:
On August 31, 1999, the Company entered into a lease for an approximately
442,000 square foot distribution facility in Memphis, Tennessee. The five year
lease, with monthly lease payments totaling approximately $109,000, expires on
August 31, 2004 and contains a renewal option for four years.
PFSweb, Inc. has authorized 6,000,000 shares of common stock for issuance
under its 1999 stock option plans (the "Option Plans"). The Option Plans, which
are currently administered by the Compensation Committee of the Board of
Directors of PFSweb, Inc. provide for the granting of incentive awards in the
form of stock options to directors, executive management, key employees, and
outside consultants of PFSweb, Inc. and its subsidiaries. The right to purchase
shares under the stock option agreements typically vest over a three year
period. Stock options must be exercised within 10 years from the date of grant.
Stock options are generally issued at fair market value. In July 1999, PFSweb,
Inc. issued options to purchase 1,344,250 common shares at $10.45. In August
1999, PFSweb, Inc. issued options to purchase 32,250 common shares at $13.00.
All of these options are subject to a three year vesting schedule, under which
no options vest for three years, subject to acceleration, in part, upon
completion of the spin-off of PFSweb, Inc. from Daisytek.
On September 21, 1999, Daisytek announced its plans to file this Offering.
In conjunction with the successful completion of this Offering, PFSweb, Inc. has
stated its intention to enter into agreements with Daisytek, including a tax
sharing agreement, a transaction management services agreement, transition
services agreement and a master separation agreement which are expected to have
a significant impact on the financial position and results of operations of
PFSweb, Inc.
On October 29, 1999, Daisytek amended the Facility, effective November 1,
1999, to increase the maximum borrowing availability to $105 million. This
amendment also provides for the release of PFSweb, Inc. and its subsidiaries as
guarantors or the Facility upon (i) the effective date of the Offering of the
shares of common stock of PFSweb, Inc. and (ii) the payment from PFSweb, Inc. to
Daisytek in settlement of the outstanding payable to Daisytek. Additionally,
this amendment also prohibits Daisytek from advancing funds to PFSweb, Inc.
following the completion of this Offering.
F-21
<PAGE> 97
PFSWEB, INC.
PRO FORMA COMBINED BALANCE SHEETS (UNAUDITED)
SEPTEMBER 30, 1999
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
HISTORICAL ADJUSTMENTS PRO FORMA
ASSETS ---------- ----------- ---------
<S> <C> <C> <C>
CURRENT ASSETS:
Cash................................................... $ 1,247 $ 13,146(2),(3) $14,393
Accounts receivable, net............................... 6,029 -- 6,029
Prepaid expenses and other current assets.............. 1,410 (466)(2) 944
Deferred tax asset..................................... 382 -- 382
------- -------- -------
Total current assets.............................. 9,068 12,680 21,748
------- -------- -------
PROPERTY AND EQUIPMENT:
Furniture, fixtures and equipment...................... 6,522 -- 6,522
Leasehold improvements................................. 2,671 -- 2,671
------- -------- -------
9,193 -- 9,193
Less -- Accumulated depreciation and amortization...... (861) -- (861)
------- -------- -------
Net property and equipment........................ 8,332 -- 8,332
OTHER ASSETS................................................ 12,588 -- 12,588
------- -------- -------
Total assets...................................... $29,988 $ 12,680 $42,668
======= ======== =======
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Trade accounts payable................................. $ 6,494 $ $ 6,494
Accrued expenses....................................... 1,413 -- 1,413
------- -------- -------
Total current liabilities......................... 7,907 -- 7,907
------- -------- -------
PAYABLE TO DAISYTEK......................................... 22,319 (22,319)(2) --
CAPITAL LEASE OBLIGATIONS................................... -- -- --
SHAREHOLDERS' EQUITY:
Preferred stock, $1.00 par value, 1,000,000 shares
authorized, none issued and outstanding.............. -- -- --
Common stock, $0.001 par value, 40,000,000 shares
authorized, 17,405,000 shares issued and outstanding
(pro forma and supplemental pro forma)............... -- 17(1),(2),(3) 17
Additional paid-in capital............................. -- 34,921(1),(2),(3) 34,921
Daisytek's net equity investment....................... (61) 61(1) --
Accumulated other comprehensive loss................... (177) -- (177)
------- -------- -------
Total shareholders' equity........................ (238) 34,999 34,761
------- -------- -------
Total liabilities and shareholders' equity........ $29,988 $ 12,680 $42,668
======= ======== =======
</TABLE>
The accompanying notes are an integral part of these unaudited pro forma
combined statements.
F-22
<PAGE> 98
PFSWEB, INC.
PRO FORMA COMBINED STATEMENTS OF OPERATIONS (UNAUDITED)
FOR THE YEAR ENDED MARCH 31, 1999
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- ---------
<S> <C> <C> <C>
REVENUES:
Product revenue...................................... $ 93,702 $ -- $ 93,702
Service fee revenue.................................. 7,547 -- 7,547
-------- ------- --------
Total revenues.................................... 101,249 -- 101,249
-------- ------- --------
COSTS OF REVENUES:
Cost of product revenue.............................. 88,335 -- 88,335
Cost of service fee revenue.......................... 5,323 -- 5,323
-------- ------- --------
Total costs of revenues........................... 93,658 -- 93,658
-------- ------- --------
Gross profit........................................... 7,591 -- 7,591
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES........... 6,711 -- 6,711
-------- ------- --------
Income from operations................................. 880 -- 880
INTEREST EXPENSE (INCOME), net......................... 374 (1,039)(2) (665)
-------- ------- --------
Income before income taxes............................. 506 1,039 1,545
PROVISION FOR INCOME TAXES(4).......................... 214 405 619
-------- ------- --------
NET INCOME............................................. $ 292 $ 634 $ 926
======== ======= ========
NET INCOME PER COMMON SHARE(5):
Basic and diluted.................................... $ 0.02 $ 0.04 $ 0.05
======== ======= ========
WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING:
Basic and diluted.................................... 14,305 17,405 17,405
</TABLE>
The accompanying notes are an integral part of these unaudited pro forma
combined statements.
F-23
<PAGE> 99
PFSWEB, INC.
PRO FORMA COMBINED STATEMENTS OF OPERATIONS (UNAUDITED)
FOR THE SIX MONTHS ENDED SEPTEMBER 30, 1999
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- ---------
<S> <C> <C> <C>
REVENUES:
Product revenue...................................... $55,778 $ -- $55,778
Service fee revenue.................................. 7,004 -- 7,004
------- ------- -------
Total revenues.................................... 62,782 -- 62,782
------- ------- -------
COSTS OF REVENUES:
Cost of product revenue.............................. 52,639 -- 52,639
Cost of service fee revenue.......................... 4,898 -- 4,898
------- ------- -------
Total costs of revenues........................... 57,537 -- 57,537
------- ------- -------
Gross profit........................................... 5,245 -- 5,245
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES........... 5,871 -- 5,871
------- ------- -------
Loss from operations................................... (626) -- (626)
INTEREST EXPENSE (INCOME), net......................... 650 (1,066)(2) (416)
------- ------- -------
Loss before income taxes............................... (1,276) 1,066 (210)
PROVISION (BENEFIT) FOR INCOME TAXES(4)................ (503) 415 (88)
------- ------- -------
NET LOSS............................................... $ (773) $ 651 $ (122)
======= ======= =======
NET LOSS PER COMMON SHARE(5):
Basic and diluted.................................... $ (0.05) $ 0.04 $ (0.01)
======= ======= =======
WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING:
Basic and diluted.................................... 14,305 17,405 17,405
</TABLE>
The accompanying notes are an integral part of these unaudited pro forma
combined statements.
F-24
<PAGE> 100
PFSWEB, INC.
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS
(UNAUDITED)
The unaudited pro forma combined statements of operations of PFSweb, Inc.
for the fiscal year ended March 31, 1999 and the six months ended September 30,
1999 have been prepared based on the combined financial statements and unaudited
condensed interim combined financial statements and related notes presented
elsewhere in this prospectus. The unaudited pro forma combined statements of
operations and the unaudited pro forma combined balance sheet have been prepared
as if the transactions and events described in the following paragraphs had
occurred as of the beginning of the respective periods presented, and as of
September 30, 1999, respectively.
PFSweb based the following pro forma adjustments on available information
and certain estimates and assumptions. Therefore, it is likely that the actual
adjustments will differ from the pro forma adjustments. PFSweb believes that
such assumptions provide a reasonable basis for presenting all of the
significant effects of the following transactions and events and that the pro
forma adjustments give appropriate effect to those assumptions and are properly
applied in the unaudited pro forma combined financial statements.
The unaudited pro forma combined statements of operations of PFSweb, Inc.
for the fiscal year ended March 31, 1999 and the six months ended September 30,
1999 do not reflect certain estimated incremental selling, general and
administrative expenses associated with PFSweb operating as a stand-alone
publicly traded company, including executive management, overhead and public
company costs, insurance and risk management costs, and other costs estimated to
be $2.2 million and $1.1 million, respectively.
(1) Reflects the reclassification of Daisytek's net equity investment as
common stock and additional paid-in capital.
(2) Reflects the issuance of 3,100,000 shares of common stock in this
offering, assuming an initial public offering price of $13.00 per
share, and the application of the estimated $35.0 million net proceeds
to settle the outstanding payable to Daisytek, reduce deferred offering
costs, and increase cash. The pro forma adjustments reflect the
reduction of historical interest expense associated with our payable to
Daisytek but do not reflect any interest income generated by the
proceeds in excess of our payable to Daisytek. See "Capitalization" and
"Use of Proceeds" elsewhere in this prospectus.
(3) Reflects the contribution from Daisytek of $20,000 for 14,305,000
shares of PFSweb's common stock.
(4) Reflects income taxes determined in accordance with the provisions of
SFAS No. 109 "Accounting for Income Taxes." The pro forma adjustments
to the provision (benefit) for taxes reflect income taxes as if these
transactions and events had occurred as of the beginning of the
respective period presented. These pro forma effective income tax rates
may not be indicative of performance in future periods.
(5) Reflects basic pro forma net income per share calculated based on
common stock outstanding of 17,405,000 shares upon completion of this
offering. It does not include up to 465,000 shares of common stock
which the underwriters have the option to exercise solely to cover
over-allotments. If the underwriters exercise their over-allotment
option in full, basic and diluted pro forma net income per share would
be $0.05 for the fiscal year ended March 31, 1999. Basic and diluted
pro forma net loss per share would be ($0.01) and basic for the six
months ended September 30, 1999.
F-25
<PAGE> 101
[inside back cover]
Picture # 1 - Daisytek headquarters - no caption.
Picture # 2 - inside of warehouse - no caption.
Picture # 3 - call center - no caption.
Picture # 4 - conference room - no caption.
Picture # 5 - outside of warehouse - no caption.
Picture # 6 - warehouse product bins - no caption.
Picture # 7 - warehouse conveyor equipment - no caption.
Picture # 8 - warehouse distribution equipment - no caption.
PFSweb logo and "From the click of the mouse to the knock at the house"
(TM)
<PAGE> 102
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3,100,000 SHARES
[PFS LOGO]
COMMON STOCK
-----------------------
PROSPECTUS
-----------------------
HAMBRECHT & QUIST
DAIN RAUSCHER WESSELS
A DIVISION OF DAIN RAUSCHER INCORPORATED
JEFFERIES & COMPANY, INC.
----------------------
, 1999
----------------------
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
which is contained in this prospectus. We are offering to sell and seeking
offers to buy shares of PFSweb, Inc. common stock only in jurisdictions where
offers and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of the PFSweb, Inc. common stock.
Through and including , 1999 (the 25th day after commencement of
the offering), all dealers effecting transactions in the common stock, whether
or not participating in this offering, may be required to deliver a prospectus.
This is in addition to the obligation of dealers to deliver a prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 103
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts are estimated
except the Securities and Exchange Commission registration fee and the
registration fee.
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---- ----------
<S> <C>
Securities and Exchange Commission registration fee......... $ 13,875
NASD registration fee....................................... 5,500
Nasdaq Stock Market listing fees............................ 95,000
Blue Sky qualification fees and expenses.................... 10,000
Legal fees and expenses..................................... 600,000
Accounting fees and expenses................................ 1,300,000
Transfer agent fees......................................... 10,000
Printing and engraving expenses............................. 150,000
Miscellaneous expenses...................................... 315,625
----------
Total............................................. $2,500,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
PFSweb is incorporated under the laws of the State of Delaware. Section 145
("Section 145") of the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended (the "General Corporation Law"), inter
alia, provides that a Delaware corporation may indemnify any persons who were,
are or are threatened to be made, parties to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was illegal.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
PFSweb's Amended and Restated Certificate of Incorporation and Bylaws
provide for the indemnification of officers and directors to the fullest extent
permitted by the General Corporation Law.
PFSweb anticipates that all of its directors and officers will be covered
by insurance policies against certain liabilities for actions taken in their
capacities as such, including liabilities under the Securities Act of 1933, as
amended.
II-1
<PAGE> 104
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In connection with its incorporation and organization, PFSweb issued
14,305,000 shares of common stock to Daisytek for an aggregate of $20,000.
PFSweb believes that this issuance was exempt from registration under Section
4(2) of the Securities Act as a transaction not involving any public offering.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 -- Form of Underwriting Agreement
2.1** -- Form of Master Separation Agreement by and among Daisytek
International Corporation, Daisytek, Incorporated,
Priority Fulfillment Services, Inc. and PFSweb, Inc.
2.2** -- Form of Initial Public Offering and Distribution
Agreement by and among Daisytek International
Corporation, Daisytek, Incorporated, Priority Fulfillment
Services, Inc. and PFSweb, Inc.
2.3** -- Form of Registration Rights Agreement by and among
Daisytek International Corporation, Daisytek,
Incorporated and PFSweb, Inc.
2.4** -- Form of Tax Indemnification and Allocation Agreement
between Daisytek International Corporation and PFSweb,
Inc.
2.5** -- Form of Transition Services Agreement between Daisytek
Incorporated and PFSweb, Inc.
2.6** -- Form of Transaction Management Services Agreement between
Daisytek, Incorporated and Priority Fulfillment Services,
Inc.
3.1 -- Amended and Restated Certificate of Incorporation
3.2 -- Amended and Restated Bylaws
4.1 -- Form of Common Stock certificate of PFSweb, Inc.
5.1** -- Opinion of Wolff & Samson, P.A.
10.1** -- Non-Employee Director Stock Option and Retainer Plan
10.2** -- Employee Stock Option Plan
10.3** -- Employee Annual Incentive Plan
10.4** -- Industrial Lease Agreement between Shelby Drive
Corporation and Priority Fulfillment Services, Inc.
10.5** -- Lease Contract between Transports Weerts and Priority
Fulfillment Services Europe B.V.
21.1** -- Subsidiaries of PFSweb, Inc.
23.1 -- Consent of Arthur Andersen LLP
23.2** -- Consent of Wolff & Samson, P.A. (included in Exhibit 5.1)
24.1** -- Power of Attorney
27.1 -- Financial Data Schedule
</TABLE>
- -------------------------
** Previously filed.
(b) Financial Statement Schedule.
Schedule II -- Valuation and Qualifying Accounts
II-2
<PAGE> 105
Schedules have been omitted because the information required to be set
forth therein is not applicable or is immaterial.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes to provide the Underwriters at the closing
specified in the Underwriting Agreement certificates in such denominations and
registered in such names as required by the Underwriters to permit prompt
delivery to each purchaser.
Insofar as the indemnification for liabilities arising under the Securities
Act of 1933 may be permitted as to directors, officers and controlling persons
of the Registrant pursuant to the provisions described in Item 14, or otherwise,
the Registrant has been advised that in the opinion of the SEC, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payments by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and this offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 106
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Plano,
State of Texas, on November 23, 1999.
/s/ MARK C. LAYTON*
------------------------------------
Mark C. Layton
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on November 23,
1999 in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ MARK C. LAYTON* Chairman of the Board, President and Chief
- ----------------------------------------------------- Executive Officer (Principal Executive
Mark C. Layton Officer)
/s/ THOMAS J. MADDEN Executive Vice President and Chief Financial
- ----------------------------------------------------- and Accounting Officer (Principal
Thomas J. Madden Financial and Accounting Officer)
/s/ CHRISTOPHER YATES* Director
- -----------------------------------------------------
Christopher Yates
/s/ JAMES R. POWELL* Director
- -----------------------------------------------------
James R. Powell
/s/ TIMOTHY M. MURRAY* Director
- -----------------------------------------------------
Timothy M. Murray
/s/ JAMES F. REILLY* Director
- -----------------------------------------------------
James F. Reilly
/s/ PETER P. J. VIKANIS* Director
- -----------------------------------------------------
Peter P. J. Vikanis
*By: /s/ THOMAS J. MADDEN
------------------------------------------------
Thomas J. Madden by
Power of Attorney
</TABLE>
II-4
<PAGE> 107
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Daisytek International Corporation and PFSweb, Inc.:
We have audited in accordance with generally accepted auditing standards,
the combined financial statements of PFSweb included in this registration
statement and have issued our report thereon dated September 22, 1999. Our
audits were made for the purpose of forming an opinion on the basic combined
financial statements taken as a whole. Schedule II of this registration
statement is the responsibility of the company's management and is presented for
purposes of complying with the Securities and Exchange Commission's rules and is
not part of the basic combined financial statements. This schedule has been
subjected to the auditing procedures applied in the audits of the basic combined
financial statements and, in our opinion, fairly states in all material respects
the financial data required to be set forth therein in relation to the basic
combined financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Dallas, Texas,
September 22, 1999
S-1
<PAGE> 108
SCHEDULE II
PFSWEB
VALUATION AND QUALIFYING ACCOUNTS
FOR THE THREE YEARS ENDED MARCH 31, 1999
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS
-----------------------
BALANCE AT CHARGES TO CHARGES TO BALANCE AT
BEGINNING COST AND OTHER END OF
OF PERIOD EXPENSES ACCOUNTS DEDUCTIONS PERIOD
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Fiscal Year Ended March 31, 1997:
Allowance for doubtful accounts...... $ -- 122 -- -- $122
Fiscal Year Ended March 31, 1998:
Allowance for doubtful accounts...... $122 299 -- (103) $318
Fiscal Year Ended March 31, 1999:
Allowance for doubtful accounts...... $318 344 -- (27) $635
</TABLE>
S-2
<PAGE> 109
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 -- Form of Underwriting Agreement
2.1** -- Form of Master Separation Agreement by and among Daisytek
International Corporation, Daisytek, Incorporated,
Priority Fulfillment Services, Inc. and PFSweb, Inc.
2.2** -- Form of Initial Public Offering and Distribution
Agreement by and among Daisytek International
Corporation, Daisytek, Incorporated, Priority Fulfillment
Services, Inc. and PFSweb, Inc.
2.3** -- Form of Registration Rights Agreement by and among
Daisytek International Corporation, Daisytek,
Incorporated and PFSweb, Inc.
2.4** -- Form of Tax Indemnification and Allocation Agreement
between Daisytek International Corporation and PFSweb,
Inc.
2.5** -- Form of Transition Services Agreement between Daisytek
Incorporated and PFSweb, Inc.
2.6** -- Form of Transaction Management Services Agreement between
Daisytek, Incorporated and Priority Fulfillment Services,
Inc.
3.1 -- Amended and Restated Certificate of Incorporation
3.2 -- Amended and Restated Bylaws
4.1 -- Form of Common Stock certificate of PFSweb, Inc.
5.1** -- Opinion of Wolff & Samson, P.A.
10.1** -- Non-Employee Director Stock Option and Retainer Plan
10.2** -- Employee Stock Option Plan
10.3** -- Employee Annual Incentive Plan
10.4** -- Industrial Lease Agreement between Shelby Drive
Corporation and Priority Fulfillment Services, Inc.
10.5** -- Lease Contract between Transports Weerts and Priority
Fulfillment Services Europe B.V.
21.1** -- Subsidiaries of PFSweb, Inc.
23.1 -- Consent of Arthur Andersen LLP
23.2** -- Consent of Wolff & Samson, P.A. (included in Exhibit 5.1)
24.1** -- Power of Attorney
27.1 -- Financial Data Schedule
</TABLE>
- -------------------------
** Previously filed.
<PAGE> 1
PFSWEB, INC.
3,100,000 SHARES(1)
COMMON STOCK
UNDERWRITING AGREEMENT
_____ __, 1999
HAMBRECHT & QUIST LLC
Dain Rauscher Wessels, a division of Dain Rauscher Incorporated
Jefferies & Company, Inc.
c/o Hambrecht & Quist LLC
One Bush Street
San Francisco, CA 94104
Ladies and Gentlemen:
PFSweb, Inc., a Delaware corporation (herein called the Company),
proposes to issue and sell 3,100,000 shares of its authorized but unissued
Common Stock, $0.001 par value (herein called the Common Stock) (said 3,100,000
shares of Common Stock being herein called the Underwritten Stock). The Company
proposes to grant to the Underwriters (as hereinafter defined) an option to
purchase up to 465,000 additional shares of Common Stock (herein called the
Option Stock and with the Underwritten Stock herein collectively called the
Stock). The Common Stock is more fully described in the Registration Statement
and the Prospectus hereinafter mentioned.
The Company hereby confirms the agreements made with respect to the
purchase of the Stock by the several underwriters, for whom you are acting,
named in Schedule I hereto (herein collectively called the Underwriters, which
term shall also include any underwriter purchasing Stock pursuant to Section
3(b) hereof). You represent and warrant that you have been authorized by each of
the other Underwriters to enter into this Agreement on its behalf and to act for
it in the manner herein provided.
As part of the offering contemplated by this Agreement, Hambrecht &
Quist LLC has agreed to reserve out of the Stock set forth opposite its name on
Schedule I to this Agreement, up to 217,000 shares, for sale to the Company's
employees, officers, directors and associates (collectively, "Participants"), as
set forth in the Prospectus under the heading "Underwriting" (the "Directed
Share Program"). The Stock to be sold by Hambrecht & Quist LLC pursuant to the
Directed Share Program (the "Directed Shares") will be sold by Hambrecht & Quist
LLC
--------------------
1 Plus an option to purchase from the Company up to 465,000 additional shares
to cover over-allotments.
<PAGE> 2
pursuant to this Agreement at the public offering price. Any Directed Shares not
orally confirmed for purchase by any Participants by the end of the first
business day after the date on which this Agreement is executed will be offered
to the public by Hambrecht & Quist LLC as set forth in the Prospectus.
1. REGISTRATION STATEMENT. The Company has filed with the Securities
and Exchange Commission (herein called the Commission) a registration statement
on Form S-1 (No. 333-87657), including the related preliminary prospectus, for
the registration under the Securities Act of 1933, as amended (herein called the
Securities Act) of the Stock. Copies of such registration statement and of each
amendment thereto, if any, including the related preliminary prospectus (meeting
the requirements of Rule 430A of the rules and regulations of the Commission)
heretofore filed by the Company with the Commission have been delivered to you.
The term Registration Statement as used in this agreement shall mean
such registration statement, including all exhibits and financial statements,
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, in the form in which it became effective, and
any registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission with respect to the Stock (herein called a Rule
462(b) registration statement), and, in the event of any amendment thereto after
the effective date of such registration statement (herein called the Effective
Date), shall also mean (from and after the effectiveness of such amendment) such
registration statement as so amended (including any Rule 462(b) registration
statement). The term Prospectus as used in this Agreement shall mean the
prospectus relating to the Stock first filed with the Commission pursuant to
Rule 424(b) and Rule 430A (or if no such filing is required, as included in the
Registration Statement) and, in the event of any supplement or amendment to such
prospectus after the Effective Date, shall also mean (from and after the filing
with the Commission of such supplement or the effectiveness of such amendment)
such prospectus as so supplemented or amended. The term Preliminary Prospectus
as used in this Agreement shall mean each preliminary prospectus included in
such registration statement prior to the time it becomes effective.
The Company has caused to be delivered to you copies of each
Preliminary Prospectus and has consented to the use of such copies for the
purposes permitted by the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND DAISYTEK.
(a) Each of the Company and Daisytek International Corporation, a
Delaware Corporation and parent of the Company ("Daisytek"), hereby jointly and
severally represents and warrants as follows:
(i) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has full
corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement and the
Prospectus and as being conducted, and is duly qualified as a foreign
corporation and in good standing in all jurisdictions in which the
character of the property owned or leased or the nature of
2
<PAGE> 3
the business transacted by it makes qualification necessary (except
where the failure to be so qualified would not have a material adverse
effect on the business, properties, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole).
Daisytek has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation.
(ii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any materially adverse change in the business, properties,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, other than as set
forth in the Registration Statement and the Prospectus, and since such
dates, except in the ordinary course of business, neither the Company
nor any of its subsidiaries has entered into any material transaction
not referred to in the Registration Statement and the Prospectus.
(iii) The Registration Statement has been declared effective
under the Securities Act, no post-effective amendment to the
Registration Statement has been filed as of the date of this Agreement
and no stop order suspending the effectiveness of the Registration
Statement or suspending or preventing the use of the Prospectus is in
effect and no proceedings for that purpose have been instituted or are
pending or contemplated by the Commission.
(iv) The Registration Statement and the Prospectus comply, and
on the Closing Date (as hereinafter defined) and any later date on
which Option Stock is to be purchased, the Prospectus will comply, in
all material respects, with the provisions of the Securities Act and
the rules and regulations of the Commission thereunder; on the
Effective Date, the Registration Statement did not contain any untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date the
Prospectus did not and, on the Closing Date and any later date on which
Option Stock is to be purchased, will not contain any 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, not misleading; provided, however, that
none of the representations and warranties in this subparagraph (iv)
shall apply to statements in, or omissions from, the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information herein or otherwise furnished in writing to the
Company by or on behalf of the Underwriters for use in the Registration
Statement or the Prospectus.
(v) The authorized capital stock of the Company consists of
1,000,000 shares of Preferred Stock, $1.00 par value, of which no
shares are outstanding, and 40,000,000 shares of Common Stock, $0.001
par value, of which there are outstanding [17,430,000] shares
(including the Underwritten Stock plus the number of shares of Option
Stock issued on the date hereof) and such authorized capital stock
conforms as to legal matters to the description thereof contained in
the Prospectus; proper corporate proceedings have been taken validly to
authorize such authorized capital stock; all of the outstanding shares
3
<PAGE> 4
of such capital stock (including the Underwritten Stock and the shares
of Option Stock issued, if any) have been duly and validly issued and
are fully paid and nonassessable; any Option Stock purchased after the
Closing Date, when issued and delivered to and paid for by the
Underwriters as provided in this Agreement, will have been duly and
validly issued and be fully paid and nonassessable; and no preemptive
rights of, or rights of refusal in favor of, stockholders exist with
respect to the Stock, or the issue and sale thereof, pursuant to the
Certificate of Incorporation or Bylaws of the Company and there are no
contractual preemptive rights that have not been waived, rights of
first refusal or right of co-sale which exist with respect to the issue
and sale of the Stock. All the issued and outstanding capital stock of
each of the subsidiaries of the Company has been duly authorized and
validly issued and is fully paid and nonassessable, and is owned by the
Company free and clear of all liens, encumbrances and security
interests, and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in such
subsidiaries are outstanding.
(vi) The Stock to be issued and sold by the Company is
authorized for listing by the Nasdaq National Market.
(vii) The Company is not, and upon receipt and pending
application of the net proceeds from the sale of the Stock to be sold
by the Company in the manner described in the Prospectus will not be,
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(viii) Each of the Master Separation Agreement, the Initial
Public Offering and Distribution Agreement, the Registration Rights
Agreement, the Tax Indemnification and Allocation Agreement, the
Transition Services Agreement, the Transaction Management Services
Agreement (collectively, the "Spin-off Agreements") and this Agreement
has been duly authorized, executed and delivered by the Company and
Daisytek and each of the Spin-off Agreements is a valid and binding
agreement of the Company and Daisytek enforceable in accordance with
its terms.
(ix) This Agreement and the issue and sale by the Company of
the shares of Stock sold by the Company as contemplated herein and the
Spin-off Agreements and the transactions contemplated therein do not
and will not conflict with, or result in a breach of, the Certificate
of Incorporation or Bylaws of Daisytek, the Company or any of their
subsidiaries, or any agreement or instrument to which Daisytek, the
Company or any of their subsidiaries is a party or by which any of the
properties or assets of Daisytek, the Company or any of their
subsidiaries may be bound or affected, or any applicable law or
regulation, or any order, writ, injunction or decree, of any
jurisdiction, court or governmental instrumentality.
(x) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement, except such as have been
obtained under the Securities Act and such as may
4
<PAGE> 5
be required under state securities or blue sky laws in connection with
the purchase and distribution of the Stock by the Underwriters, or for
the consummation of the transactions contemplated in the Spin-off
Agreements.
(xi) The Company's pro forma combined financial statements and
notes forming part of the Registration Statement and the Prospectus (i)
were derived from historical financial statements appearing in the
Registration Statement and the Prospectus and (ii) are based on
assumptions that provide a reasonable basis for presenting the
significant effects of the transactions and events as described in the
Registration Statement and the Prospectus, the related pro forma
adjustments give appropriate effect to such assumptions; and the pro
forma columns reflect the proper allocation of such adjustments to the
historical financial statements.
(xii) The Company has not offered, or caused the Underwriters
to offer, Stock to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or
type of business with the Company or (ii) a trade journalist or
publication to write or publish favorable information about the Company
or its business. The Registration Statement, the Prospectus and any
Preliminary Prospectus comply, and any further amendments or
supplements thereto will comply, with any applicable laws or
regulations of foreign jurisdictions in which the Prospectus or any
Preliminary Prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality
or court other than such as have been obtained, is necessary under the
securities laws and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(xiii) The information required to be set forth in the
Registration Statement in answer to Items 9, 10 and 11(c) of Form S-1
is accurately and adequately set forth therein in all material respects
or no response is required with respect to such Items, and the
description of the Company's stock option plans and the options granted
and which may be granted thereunder set forth in the Prospectus
accurately and fairly presents the information required to be shown
with respect to said plans and options to the extent required by the
Securities Act and the rules and regulations of the Commission
thereunder.
(xiv) There are no franchises, contracts, leases, documents or
legal proceedings, pending or threatened, which are of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement,
which are not described and filed as required.
(xv) There are no holders of securities of the Company having
rights to the registration of shares of Common Stock, or other
securities, because of the filing of the Registration Statement by the
Company, that have not waived such rights, or such rights
5
<PAGE> 6
have expired by reason of lapse of time following notification of the
Company's intent to file the Registration Statement.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Company agrees to issue and sell
3,100,000 of the Underwritten Stock to the several Underwriters and each of the
Underwriters agrees to purchase from the Company the respective aggregate number
of shares of Underwritten Stock set forth opposite its name in Schedule I. The
price at which such shares of Underwritten Stock shall be sold by the Company
and purchased by the several Underwriters shall be $___ per share. In making
this Agreement, each Underwriter is contracting severally and not jointly;
except as provided in paragraphs (b) and (c) of this Section 3, the agreement of
each Underwriter is to purchase only the respective number of shares of the
Underwritten Stock specified in Schedule I.
(b) If for any reason one or more of the Underwriters shall fail or
refuse (otherwise than for a reason sufficient to justify the termination of
this Agreement under the provisions of Section 8 or 9 hereof) to purchase and
pay for the number of shares of the Stock agreed to be purchased by such
Underwriter or Underwriters, the Company shall immediately give notice thereof
to you, and the non-defaulting Underwriters shall have the right within 24 hours
after the receipt by you of such notice to purchase, or procure one or more
other Underwriters to purchase, in such proportions as may be agreed upon
between you and such purchasing Underwriter or Underwriters and upon the terms
herein set forth, all or any part of the shares of the Stock which such
defaulting Underwriter or Underwriters agreed to purchase. If the non-defaulting
Underwriters fail so to make such arrangements with respect to all such shares
and portion, the number of shares of the Stock which each non-defaulting
Underwriter is otherwise obligated to purchase under this Agreement shall be
automatically increased on a pro rata basis to absorb the remaining shares and
portion which the defaulting Underwriter or Underwriters agreed to purchase;
provided, however, that the non-defaulting Underwriters shall not be obligated
to purchase the shares and portion which the defaulting Underwriter or
Underwriters agreed to purchase if the aggregate number of such shares of the
Stock exceeds 10% of the total number of shares of the Stock which all
Underwriters agreed to purchase hereunder. If the total number of shares of the
Stock which the defaulting Underwriter or Underwriters agreed to purchase shall
not be purchased or absorbed in accordance with the two preceding sentences, the
Company shall have the right, within 24 hours next succeeding the 24-hour period
above referred to, to make arrangements with other underwriters or purchasers
satisfactory to you for purchase of such shares and portion on the terms herein
set forth. In any such case, either you or the Company shall have the right to
postpone the Closing Date determined as provided in Section 5 hereof for not
more than seven business days after the date originally fixed as the Closing
Date pursuant to said Section 5 in order that any necessary changes in the
Registration Statement, the Prospectus or any other documents or arrangements
may be made. If neither the non-defaulting Underwriters nor the Company shall
make arrangements within the 24-hour periods stated above for the purchase of
all the shares of the Stock which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall be terminated without further
act or deed and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter
6
<PAGE> 7
to the Company. Nothing in this paragraph (b), and no action taken hereunder,
shall relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein set forth, the
Company grants an option to the several Underwriters to purchase, severally and
not jointly, up to 465,000 shares in the aggregate of the Option Stock from the
Company at the same price per share as the Underwriters shall pay for the
Underwritten Stock. Said option may be exercised only to cover over-allotments
in the sale of the Underwritten Stock by the Underwriters and may be exercised
in whole or in part at any time (but not more than once) on or before the
thirtieth day after the date of this Agreement upon written or telegraphic
notice by you to the Company setting forth the aggregate number of shares of the
Option Stock as to which the several Underwriters are exercising the option.
Delivery of certificates for the shares of Option Stock, and payment therefor,
shall be made as provided in Section 5 hereof. The number of shares of the
Option Stock to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Stock to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten Stock, as
adjusted by you in such manner as you deem advisable to avoid fractional shares.
4. OFFERING BY UNDERWRITERS.
(a) The terms of the initial public offering by the Underwriters of the
Stock to be purchased by them shall be as set forth in the Prospectus. The
Underwriters may from time to time change the public offering price after the
closing of the initial public offering and increase or decrease the concessions
and discounts to dealers as they may determine.
(b) The information set forth in the last paragraph on the front cover
page and under "Underwriting" in the Registration Statement, any Preliminary
Prospectus and the Prospectus relating to the Stock filed by the Company
(insofar as such information relates to the Underwriters) constitutes the only
information furnished by the Underwriters to the Company for inclusion in the
Registration Statement, any Preliminary Prospectus, and the Prospectus, and you
on behalf of the respective Underwriters represent and warrant to the Company
that the statements made therein are correct.
5. DELIVERY OF AND PAYMENT FOR THE STOCK.
(a) Delivery of certificates for the shares of the Underwritten Stock
and the Option Stock (if the option granted by Section 3(c) hereof shall have
been exercised not later than 7:00 A.M., San Francisco time, on the date two
business days preceding the Closing Date), and payment therefor, shall be made
at the office of Gibson, Dunn & Crutcher LLP, 1717 Main Street, Dallas, Texas
75201, at 7:00 a.m., San Francisco time, on the [fourth] business day after the
date of this Agreement, or at such time on such other day, not later than seven
full business days after such [fourth] business day, as shall be agreed upon in
writing by the Company and you. The date and hour of such delivery and payment
(which may be postponed as provided in Section 3(b) hereof) are herein called
the Closing Date.
7
<PAGE> 8
(b) If the option granted by Section 3(c) hereof shall be exercised
after 7:00 a.m., San Francisco time, on the date two business days preceding the
Closing Date, delivery of certificates for the shares of Option Stock, and
payment therefor, shall be made at the office of Gibson, Dunn & Crutcher LLP,
1717 Main Street, Dallas, Texas 75201, at 7:00 a.m., San Francisco time, on the
third business day after the exercise of such option.
(c) Payment for the Stock purchased from the Company shall be made to
the Company or its order by wire transfer in same day funds. Such payment shall
be made upon delivery of certificates for the Stock to you for the respective
accounts of the several Underwriters against receipt therefor signed by you.
Certificates for the Stock to be delivered to you shall be registered in such
name or names and shall be in such denominations as you may request at least one
business day before the Closing Date, in the case of Underwritten Stock, and at
least one business day prior to the purchase thereof, in the case of the Option
Stock. Such certificates will be made available to the Underwriters for
inspection, checking and packaging at the offices of ____________________, at
__________________ on the business day prior to the Closing Date or, in the case
of the Option Stock, by 3:00 p.m., New York time, on the business day preceding
the date of purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
for shares to be purchased by any Underwriter whose funds shall not have been
received by you on the Closing Date or any later date on which Option Stock is
purchased for the account of such Underwriter. Any such payment by you shall not
relieve such Underwriter from any of its obligations hereunder.
6. FURTHER AGREEMENTS OF THE COMPANY AND DAISYTEK. The Company and
Daisytek covenant and agree (and Daisytek shall cause the Company to covenant
and agree) as follows:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) a Prospectus containing information
previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rule 430A and (ii) not file any amendment to
the Registration Statement or supplement to the Prospectus of which you
shall not previously have been advised and furnished with a copy or to
which you shall have reasonably objected in writing or which is not in
compliance with the Securities Act or the rules and regulations of the
Commission.
(b) The Company will promptly notify each Underwriter in the
event of (i) the request by the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, (iii)
the institution or notice of intended institution of any action or
proceeding for that purpose, (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Stock for sale in any jurisdiction, or (v) the receipt by it of notice
of the initiation or threatening of any proceeding for such purpose.
The Company will make every reasonable effort to prevent the issuance
of such
8
<PAGE> 9
a stop order and, if such an order shall at any time be issued, to
obtain the withdrawal thereof at the earliest possible moment.
(c) The Company will (i) on or before the Closing Date,
deliver to you a signed copy of the Registration Statement as
originally filed and of each amendment thereto filed prior to the time
the Registration Statement becomes effective and, promptly upon the
filing thereof, a signed copy of each post-effective amendment, if any,
to the Registration Statement (together with, in each case, all
exhibits thereto unless previously furnished to you) and will also
deliver to you, for distribution to the Underwriters, a sufficient
number of additional conformed copies of each of the foregoing (but
without exhibits) so that one copy of each may be distributed to each
Underwriter, (ii) as promptly as possible deliver to you and send to
the several Underwriters, at such office or offices as you may
designate, as many copies of the Prospectus as you may reasonably
request, and (iii) thereafter from time to time during the period in
which a prospectus is required by law to be delivered by an Underwriter
or dealer, likewise send to the Underwriters as many additional copies
of the Prospectus and as many copies of any supplement to the
Prospectus and of any amended prospectus, filed by the Company with the
Commission, as you may reasonably request for the purposes contemplated
by the Securities Act.
(d) If at any time during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer any event
relating to or affecting the Company, or of which the Company shall be
advised in writing by you, shall occur as a result of which it is
necessary, in the opinion of counsel for the Company or of counsel for
the Underwriters, to supplement or amend the Prospectus in order to
make the Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser of the Stock, the
Company will forthwith prepare and file with the Commission a
supplement to the Prospectus or an amended prospectus so that the
Prospectus as so supplemented or amended will not contain any 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 existing at the time such Prospectus is delivered to such
purchaser, not misleading. If, after the initial public offering of the
Stock by the Underwriters and during such period, the Underwriters
shall propose to vary the terms of offering thereof by reason of
changes in general market conditions or otherwise, you will advise the
Company in writing of the proposed variation, and, if in the opinion
either of counsel for the Company or of counsel for the Underwriters
such proposed variation requires that the Prospectus be supplemented or
amended, the Company will forthwith prepare and file with the
Commission a supplement to the Prospectus or an amended prospectus
setting forth such variation. The Company authorizes the Underwriters
and all dealers to whom any of the Stock may be sold by the several
Underwriters to use the Prospectus, as from time to time amended or
supplemented, in connection with the sale of the Stock in accordance
with the applicable provisions of the Securities Act and the applicable
rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the
Company will submit to you, for your information, a copy of any
post-effective amendment to the Registration
9
<PAGE> 10
Statement and any supplement to the Prospectus or any amended
prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by you,
in the qualification of the Stock for offer and sale under the
securities or blue sky laws of such jurisdictions as you may designate
and, during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, in keeping such qualifications
in good standing under said securities or blue sky laws; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. The Company will,
from time to time, prepare and file such statements, reports, and other
documents as are or may be required to continue such qualifications in
effect for so long a period as you may reasonably request for
distribution of the Stock.
(g) During a period of five years commencing with the date
hereof, the Company will furnish to you, and to each Underwriter who
may so request in writing, copies of all periodic and special reports
furnished to stockholders of the Company and of all information,
documents and reports filed with the Commission (including the Report
on Form SR required by Rule 463 of the Commission under the Securities
Act).
(h) Not later than the 45th day following the end of the
fiscal quarter first occurring after the first anniversary of the
Effective Date, the Company will make generally available to its
security holders an earnings statement in accordance with Section 11(a)
of the Securities Act and Rule 158 thereunder.
(i) The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, including
all costs and expenses incident to (i) the preparation, printing and
filing with the Commission and the National Association of Securities
Dealers, Inc. of the Registration Statement, any Preliminary Prospectus
and the Prospectus, (ii) the furnishing to the Underwriters of copies
of any Preliminary Prospectus and of the several documents required by
paragraph (c) of this Section 6 to be so furnished, (iii) the printing
of this Agreement and related documents delivered to the Underwriters,
(iv) the preparation, printing and filing of all supplements and
amendments to the Prospectus referred to in paragraph (d) of this
Section 6, (v) the furnishing to you and the Underwriters of the
reports and information referred to in paragraph (g) of this Section 6
and (vi) the printing and issuance of stock certificates, including the
transfer agent's fees.
(j) The Company agrees to reimburse you, for the account of
the several Underwriters, for blue sky fees and related disbursements
(including counsel fees and disbursements and cost of printing
memoranda for the Underwriters) paid by or for the account of the
Underwriters or their counsel in qualifying the Stock under state
securities or blue sky laws and in the review of the offering by the
NASD.
(k) The Company and Daisytek agree that, without the prior
written consent of Hambrecht & Quist LLC on behalf of the Underwriters,
neither the Company nor
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<PAGE> 11
Daisytek will, for a period of 180 days following the commencement of
the public offering of the Stock by the Underwriters, directly or
indirectly, (i) sell, offer, contract to sell, make any short sale,
pledge, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for or any
rights to purchase or acquire Common Stock or (ii) enter into any swap
or other agreement that transfers, in whole or in part, any of the
economic consequences or ownership of Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Stock to
be sold to the Underwriters pursuant to this Agreement and (B) options
to purchase Common Stock granted under the stock option plans of the
Company, all as described in "Management -- PFSweb Stock Option and
Incentive Plans -- Employee Stock Option Plan" in the Preliminary
Prospectus.
(l) If at any time during the 25-day period after the
Registration Statement becomes effective any rumor, publication or
event relating to or affecting the Company shall occur as a result of
which in your opinion the market price for the Stock has been or is
likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising
the Company to the effect set forth above, forthwith prepare, consult
with you concerning the substance of, and disseminate a press release
or other public statement, reasonably satisfactory to you, responding
to or commenting on such rumor, publication or event.
(m) The Company agrees to use its best efforts to complete the
divestiture of the Company from Daisytek as described in the
Registration Statement and the Prospectus.
(n) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date
of the effectiveness of the Registration Statement. The Company will
direct the transfer agent to place stop transfer restrictions upon such
securities for such period of time. Furthermore, the Company will
comply with all applicable securities and other applicable laws, rules
and regulations in each foreign jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
(o) The Company agrees to pay, or reimburse if paid by the
Underwriters, all reasonable fees and disbursements of counsel incurred
by the Underwriters in connection with the Directed Share Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred
by the Underwriters in connection with the Directed Share Program.
11
<PAGE> 12
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Company and Daisytek jointly and severally agrees to
indemnify and hold harmless each Underwriter and each person (including each
partner or officer thereof) who controls any Underwriter within the meaning of
Section 15 of the Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which such indemnified parties or
any of them may become subject under the Securities Act, the Securities Exchange
Act of 1934, as amended (herein called the Exchange Act), or the common law or
otherwise, and each of the Company and Daisytek jointly and severally agrees to
reimburse each such Underwriter and controlling person for any legal or other
expenses (including,except as otherwise hereinafter provided, reasonable fees
and disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Prospectus as part thereof and any Rule 462(b) registration
statement) or any post-effective amendment thereto (including any Rule 462(b)
registration statement), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment thereof or supplement thereto) or the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreements of the Company and
Daisytek contained in this paragraph shall not apply to any such losses, claims,
damages, liabilities or expenses if such statement or omission was made in
reliance upon and in conformity with information furnished as herein stated or
otherwise furnished in writing to the Company by or on behalf of any Underwriter
for use in any Preliminary Prospectus or the Registration Statement or the
Prospectus or any such amendment thereof or supplement thereto.
Further, each of the Company and Daisytek jointly and severally agrees
to indemnify and hold harmless each Underwriter and each person (including each
partner or officer thereof) who controls any Underwriter within the meaning of
Section 15 of the Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which such indemnified parties or
any of them may become subject under the Securities Act, the Securities Exchange
Act, or the common law or otherwise, and each of the Company and Daisytek
jointly and severally agrees to reimburse each such Underwriter and controlling
person for any legal or other expenses (including,except as otherwise
hereinafter provided, reasonable fees and disbursements of counsel) incurred by
the respective indemnified parties in connection with defending against any such
losses, claims, damages or liabilities or in connection with any investigation
or inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus wrapper material prepared by or with the consent of the Company for
distribution in foreign jurisdictions in connection with the Directed Share
Program attached to the Prospectus or any Preliminary Prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement therein, when considered in
conjunction with the Prospectus or
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<PAGE> 13
any applicable Preliminary Prospectus, not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of the shares which,
immediately following the effectiveness of the Registration Statement, were
subject to a properly confirmed agreement to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program; provided,
however, that, neither the Company nor Daisytek shall be responsible under this
subparagraph (iii) for any losses, claims, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted from
the bad faith or gross negligence of any Underwriter.
The indemnity agreements of each of the Company and Daisytek contained
in this section 7(a) and the representations and warranties of the Company and
Daisytek contained in Section 2 hereof shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the delivery of and payment for the Stock.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its officers who signs the Registration Statement on his
own behalf or pursuant to a power of attorney, each of its directors, each other
Underwriter and each person (including each partner or officer thereof) who
controls the Company or any such other Underwriter within the meaning of Section
15 of the Securities Act, from and against any and all losses, claims, damages
or liabilities, joint or several, to which such indemnified parties or any of
them may become subject under the Securities Act, the Exchange Act, or the
common law or otherwise and to reimburse each of them for any legal or other
expenses (including, except as otherwise hereinafter provided, reasonable fees
and disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Prospectus as part thereof and any Rule 462(b) registration
statement) or any post-effective amendment thereto (including any Rule 462(b)
registration statement) or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus (as amended or as supplemented if
the Company shall have filed with the Commission any amendment thereof or
supplement thereto) or the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, if such statement
or omission was made in reliance upon and in conformity with information
furnished as herein stated or otherwise furnished in writing to the Company by
or on behalf of such indemnifying Underwriter for use in the Registration
Statement or the Prospectus or any such amendment thereof or supplement thereto.
The indemnity agreement of each Underwriter contained in this paragraph (b)
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified party and shall survive
the delivery of and payment for the Stock.
(c) Each party indemnified under the provision of paragraphs (a) and
(b) of this Section 7 agrees that, upon the service of a summons or other
initial legal process upon it in any
13
<PAGE> 14
action or suit instituted against it or upon its receipt of written notification
of the commencement of any investigation or inquiry of, or proceeding against,
it in respect of which indemnity may be sought on account of any indemnity
agreement contained in such paragraphs, it will promptly give written notice
(herein called the Notice) of such service or notification to the party or
parties from whom indemnification may be sought hereunder. No indemnification
provided for in such paragraphs shall be available to any party who shall fail
so to give the Notice if the party to whom such Notice was not given was unaware
of the action, suit, investigation, inquiry or proceeding to which the Notice
would have related and was prejudiced by the failure to give the Notice, but the
omission so to notify such indemnifying party or parties of any such service or
notification shall not relieve such 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 such indemnity agreement. Any indemnifying party
shall be entitled at its own expense to participate in the defense of any
action, suit or proceeding against, or investigation or inquiry of, an
indemnified party. Any indemnifying party shall be entitled, if it so elects
within a reasonable time after receipt of the Notice by giving written notice
(herein called the Notice of Defense) to the indemnified party, to assume (alone
or in conjunction with any other indemnifying party or parties) the entire
defense of such action, suit, investigation, inquiry or proceeding, in which
event such defense shall be conducted, at the expense of the indemnifying party
or parties, by counsel chosen by such indemnifying party or parties and
reasonably satisfactory to the indemnified party or parties; provided, however,
that (i) if the indemnified party or parties reasonably determine that there may
be a conflict between the positions of the indemnifying party or parties and of
the indemnified party or parties in conducting the defense of such action, suit,
investigation, inquiry or proceeding or that there may be legal defenses
available to such indemnified party or parties different from or in addition to
those available to the indemnifying party or parties, then counsel for the
indemnified party or parties shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interests of the indemnified party or parties and (ii) in any event, the
indemnified party or parties shall be entitled to have counsel chosen by such
indemnified party or parties participate in, but not conduct, the defense. If,
within a reasonable time after receipt of the Notice, an indemnifying party
gives a Notice of Defense and the counsel chosen by the indemnifying party or
parties is reasonably satisfactory to the indemnified party or parties, the
indemnifying party or parties will not be liable under paragraphs (a) through
(c) of this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party or parties in connection with the defense of the action,
suit, investigation, inquiry or proceeding, except that (A) the indemnifying
party or parties shall bear the legal and other expenses incurred in connection
with the conduct of the defense as referred to in clause (i) of the proviso to
the preceding sentence and (B) the indemnifying party or parties shall bear such
other expenses as it or they have authorized to be incurred by the indemnified
party or parties. If, within a reasonable time after receipt of the Notice, no
Notice of Defense has been given, the indemnifying party or parties shall be
responsible for any legal or other expenses incurred by the indemnified party or
parties in connection with the defense of the action, suit, investigation,
inquiry or proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 7, then each 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 the losses, claims, damages or
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<PAGE> 15
liabilities referred to in paragraph (a) or (b) of this Section 7 (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnifying party in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, or actions in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and Daisytek, taken together, and the Underwriters shall be deemed to be
in the same respective proportions as the total net proceeds from the offering
of the Stock received by the Company and the total underwriting discount
received by the Underwriters, as set forth in the table on the cover page of the
Prospectus, bear to the aggregate public offering price of the Stock. 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 each
indemnifying party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be 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 into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities, or actions in respect thereof, referred to in the first
sentence of this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation, preparing to defend or defending against any action or claim
which is the subject of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discount applicable to the Stock purchased by such
Underwriter. 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 who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this paragraph (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it will promptly give written
notice of such service to the party or parties from whom contribution may be
sought, but the omission so to notify such party or parties of any such service
shall not relieve the party from whom contribution may be sought from any
obligation it may have hereunder or otherwise (except as specifically provided
in paragraph (c) of this Section 7).
(e) Neither the Company nor Daisytek will, without the prior written
consent of each Underwriter, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
Underwriter or any person who controls such Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act is a party to
15
<PAGE> 16
such claim, action, suit or proceeding) unless such settlement, compromise or
consent includes an unconditional release of such Underwriter and each such
controlling person from all liability arising out of such claim, action, suit or
proceeding.
8. TERMINATION. This Agreement may be terminated by you at any time
prior to the Closing Date by giving written notice to the Company if after the
date of this Agreement trading in the Common Stock shall have been suspended, or
if there shall have occurred (i) the engagement in hostilities or an escalation
of major hostilities by the United States or the declaration of war or a
national emergency by the United States on or after the date hereof, (ii) any
outbreak of hostilities or other national or international calamity or crisis or
change in economic or political conditions if the effect of such outbreak,
calamity, crisis or change in economic or political conditions in the financial
markets of the United States would, in the Underwriters' reasonable judgment,
make the offering or delivery of the Stock impracticable, (iii) suspension of
trading in securities generally or a material adverse decline in value of
securities generally on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market, or limitations on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such exchange or system, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of, or
commencement of any proceeding or investigation by, any court, legislative body,
agency or other governmental authority which in the Underwriters' reasonable
opinion materially and adversely affects or will materially or adversely affect
the business or operations of the Company, (v) declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in the Underwriters' reasonable opinion has a
material adverse effect on the securities markets in the United States. If this
Agreement shall be terminated pursuant to this Section 8, there shall be no
liability of the Company or Daisytek to the Underwriters and no liability of the
Underwriters to the Company or Daisytek; provided, however, that in the event of
any such termination the Company agrees to indemnify and hold harmless the
Underwriters from all costs or expenses incident to the performance of the
obligations of the Company and Daisytek under this Agreement, including all
costs and expenses referred to in paragraphs (i) and (j) of Section 6 hereof.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Stock shall be subject to the
performance by the Company of all its obligations to be performed hereunder at
or prior to the Closing Date or any later date on which Option Stock is to be
purchased, as the case may be, and to the following further conditions:
(a) The Registration Statement shall have become effective;
and no stop order suspending the effectiveness thereof shall have been
issued and no proceedings therefor shall be pending or threatened by
the Commission.
(b) The legality and sufficiency of the sale of the Stock
hereunder and the validity and form of the certificates representing
the Stock, all corporate proceedings and other legal matters incident
to the foregoing, and the form of the Registration Statement and of the
Prospectus (except as to the financial statements contained therein),
shall have
16
<PAGE> 17
been approved at or prior to the Closing Date by Gibson, Dunn &
Crutcher LLP, counsel for the Underwriters.
(c) You shall have received from Wolff & Samson, P.A., counsel
for the Company and Daisytek, an opinion, addressed to the Underwriters
and dated the Closing Date, covering the matters set forth in Annex A
hereto, and if Option Stock is purchased at any date after the Closing
Date, an additional opinion from such counsel, addressed to the
Underwriters and dated such later date, confirming that the statements
expressed as of the Closing Date in such opinion remain valid as of
such later date.
(d) You shall be satisfied that (i) as of the Effective Date,
the statements made in the Registration Statement and the Prospectus
were true and correct and neither the Registration Statement nor the
Prospectus omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein,
respectively, not misleading, (ii) since the Effective Date, no event
has occurred which should have been set forth in a supplement or
amendment to the Prospectus which has not been set forth in such a
supplement or amendment, (iii) since the respective dates as of which
information is given in the Registration Statement in the form in which
it originally became effective and the Prospectus contained therein,
there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the
business, properties, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, and,
since such dates, except in the ordinary course of business, neither
the Company nor any of its subsidiaries has entered into any material
transaction not referred to in the Registration Statement in the form
in which it originally became effective and the Prospectus contained
therein, (iv) neither the Company nor any of its subsidiaries has any
material contingent obligations which are not disclosed in the
Registration Statement and the Prospectus, (v) there are not any
pending or known threatened legal proceedings to which the Company or
any of its subsidiaries is a party or of which property of the Company
or any of its subsidiaries is the subject which are material and which
are not disclosed in the Registration Statement and the Prospectus,
(vi) there are not any franchises, contracts, leases or other documents
which are required to be filed as exhibits to the Registration
Statement which have not been filed as required, (vii) the
representations and warranties of the Company herein are true and
correct in all material respects as of the Closing Date or any later
date on which Option Stock is to be purchased, as the case may be, and
(viii) there has not been any material change in the market for
securities in general or in political, financial or economic conditions
from those reasonably foreseeable as to render it impracticable in your
reasonable judgment to make a public offering of the Stock, or a
material adverse change in market levels for securities in general (or
those of companies in particular) or financial or economic conditions
which render it inadvisable to proceed.
(e) You shall have received on the Closing Date and on any
later date on which Option Stock is purchased a certificate, dated the
Closing Date or such later date, as the case may be, and signed by the
President and the Chief Financial Officer of the Company, stating that
the respective signers of said certificate have carefully examined
17
<PAGE> 18
the Registration Statement in the form in which it originally became
effective and the Prospectus contained therein and any supplements or
amendments thereto, and that the statements included in clauses (i)
through (vii) of paragraph (d) of this Section 9 are true and correct.
(f) You shall have received from Arthur Andersen LLP, a letter
or letters, addressed to the Underwriters and dated the Closing Date
and any later date on which Option Stock is purchased, confirming that
they are independent public accountants with respect to the Company
within the meaning of the Securities Act and the applicable published
rules and regulations thereunder and based upon the procedures
described in their letter delivered to you concurrently with the
execution of this Agreement (herein called the Original Letter), but
carried out to a date not more than three business days prior to the
Closing Date or such later date on which Option Stock is purchased (i)
confirming, to the extent true, that the statements and conclusions set
forth in the Original Letter are accurate as of the Closing Date or
such later date, as the case may be, and (ii) setting forth any
revisions and additions to the statements and conclusions set forth in
the Original Letter which are necessary to reflect any changes in the
facts described in the Original Letter since the date of the Original
Letter or to reflect the availability of more recent financial
statements, data or information. The letters shall not disclose any
change, or any development involving a prospective change, in or
affecting the business or properties of the Company or any of its
subsidiaries which, in your sole judgment, makes it impractical or
inadvisable to proceed with the public offering of the Stock or the
purchase of the Option Stock as contemplated by the Prospectus.
(g) You shall have received from Arthur Andersen LLP a letter
stating that their review of the Company's system of internal
accounting controls, to the extent they deemed necessary in
establishing the scope of their examination of the Company's financial
statements as at____________ _____, 1999, did not disclose any weakness
in internal controls that they considered to be material weaknesses.
(h) You shall have been furnished evidence in usual written or
telegraphic form from the appropriate authorities of the several
jurisdictions, or other evidence satisfactory to you, of the
qualification referred to in paragraph (f) of Section 6 hereof.
(i) Prior to the Closing Date, the Stock to be issued and sold
by the Company shall have been duly authorized for listing by the
Nasdaq National Market upon official notice of issuance.
(j) On or prior to the Closing Date, you shall have received
from all directors, officers, and beneficial holders of more than 5% of
the outstanding Common Stock agreements, in form reasonably
satisfactory to Hambrecht & Quist LLC, stating that without the prior
written consent of Hambrecht & Quist LLC on behalf of the Underwriters,
such person or entity will not, for a period of 180 days following the
commencement of the public offering of the Stock by the Underwriters,
directly or indirectly, (i) sell, offer, contract to sell, make any
short sale, pledge, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or
18
<PAGE> 19
warrant to purchase or otherwise transfer or dispose of any shares of
Common Stock or any securities convertible into or exchangeable or
exercisable for or any rights to purchase or acquire Common Stock or
(ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences or ownership of Common Stock,
whether any such transaction described in clause (i) or (ii) above is
to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.
All the agreements, opinions, certificates and letters mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if Gibson, Dunn & Crutcher LLP, counsel for the
Underwriters, shall be satisfied that they comply in form and scope.
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving notice to the
Company. Any such termination shall be without liability of the Company or
Daisytek to the Underwriters and without liability of the Underwriters to the
Company or Daisytek; provided, however, that (i) in the event of such
termination, the Company agrees to indemnify and hold harmless the Underwriters
from all costs or expenses incident to the performance of the obligations of the
Company under this Agreement, including all costs and expenses referred to in
paragraphs (i), (j) and (o) of Section 6 hereof, and (ii) if this Agreement is
terminated by you because of any refusal, inability or failure on the part of
the Company or Daisytek to perform any agreement herein, to fulfill any of the
conditions herein, or to comply with any provision hereof other than by reason
of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the transactions contemplated hereby.
10. CONDITIONS OF THE OBLIGATION OF THE COMPANY. The obligation of the
Company to deliver the Stock shall be subject to the conditions that (a) the
Registration Statement shall have become effective and (b) no stop order
suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
In case either of the conditions specified in this Section 10 shall not
be fulfilled, this Agreement may be terminated by the Company by giving notice
to you. Any such termination shall be without liability of the Company or
Daisytek to the Underwriters and without liability of the Underwriters to the
Company or Daisytek; provided, however, that in the event of any such
termination the Company agrees to indemnify and hold harmless the Underwriters
from all costs or expenses incident to the performance of the obligations of the
Company and Daisytek under this Agreement, including all costs and expenses
referred to in paragraphs (i) and (j) of Section 6 hereof.
11. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to its other
obligations under Section 7 of this Agreement, the Company hereby agrees to
reimburse on a quarterly basis the Underwriters for all reasonable legal and
other expenses incurred in connection with investigating or defending any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
paragraph (a) of Section 7 of this Agreement, notwithstanding the absence of a
judicial
19
<PAGE> 20
determination as to the propriety and enforceability of the obligations under
this Section 11 and the possibility that such payments might later be held to be
improper; provided, however, that (i) to the extent any such payment is
ultimately held to be improper, the persons receiving such payments shall
promptly refund them and (ii) such persons shall provide to the Company, upon
request, reasonable assurances of their ability to effect any refund, when and
if due.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of Daisytek, the Company and the several Underwriters and,
with respect to the provisions of Section 7 hereof, the several parties (in
addition to Daisytek, the Company and the several Underwriters) indemnified
under the provisions of said Section 7, and their respective personal
representatives, successors and assigns. Nothing in this Agreement is intended
or shall be construed to give to any other person, firm or corporation any legal
or equitable remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors and assigns" as herein used
shall not include any purchaser, as such purchaser, of any of the Stock from any
of the several Underwriters.
13. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, telegraphed or delivered to Hambrecht & Quist LLC, One Bush Street,
San Francisco, California 94104; and if to the Company or Daisytek, shall be
mailed, telegraphed or delivered to the Company's office, 500 North Central
Expressway, Plano, Texas 75074, Attention: Mark C. Layton. All notices given by
telegraph shall be promptly confirmed by letter.
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or Daisytek or their respective directors or officers, and (c)
delivery and payment for the Stock under this Agreement; provided, however, that
if this Agreement is terminated prior to the Closing Date, the provisions of
paragraph (k) of Section 6 hereof all be of no further force or effect.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
20
<PAGE> 21
Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement among the Company,
Daisytek and the several Underwriters in accordance with its terms.
Very truly yours,
PFSWEB, INC.
By
----------------------------------
Name:
Title:
DAISYTEK INTERNATIONAL CORPORATION
By
----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
HAMBRECHT & QUIST LLC
Dain Rauscher Wessels, a division of Dain Rauscher Incorporated
Jefferies & Company, Inc.
By Hambrecht & Quist LLC
By
----------------------------------
Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in Schedule I hereto.
<PAGE> 22
SCHEDULE I
UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF
SHARES
TO BE
UNDERWRITERS PURCHASED
------------ ---------
<S> <C>
Hambrecht & Quist LLC..............................................................
Dain Rauscher Wessels, a division of Dain Rauscher Incorporated....................
Jefferies & Company, Inc...........................................................
---------
Total.....................................................................
=========
</TABLE>
<PAGE> 23
ANNEX A
MATTERS TO BE COVERED IN THE OPINION OF WOLFF & SAMSON, P.A.
COUNSEL FOR THE COMPANY AND DAISYTEK
(i) each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, is duly
qualified as a foreign corporation and in good standing in each state
of the United States of America in which its ownership or leasing of
property requires such qualification (except where the failure to be so
qualified would not have a material adverse effect on the business,
properties, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole), and has full corporate power
and authority to own or lease its properties and conduct its business
as described in the Registration Statement; all the issued and
outstanding capital stock of each of the subsidiaries of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable, and is owned by the Company free and clear of all liens,
encumbrances and security interests, and to the best of such counsel's
knowledge, no options, warrants or other rights to purchase, agreements
or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in such
subsidiaries are outstanding; Daisytek has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation;
(ii) the authorized capital stock of the Company consists of
1,000,000 shares of Preferred Stock, $1.00 par value, of which no
shares are outstanding, and 40,000,000 shares of Common Stock, $0.01
par value, of which there are outstanding (degree) shares (including
the Underwritten Stock plus the number of shares of Option Stock issued
on the date hereof) and such authorized capital stock conforms to the
description thereof contained in the Prospectus; proper corporate
proceedings have been taken validly to authorize such authorized
capital stock; all of the outstanding shares of such capital stock
(including the Underwritten Stock and the shares of Option Stock
issued, if any) have been duly and validly issued and are fully paid
and nonassessable; any Option Stock purchased after the Closing Date,
when issued and delivered to and paid for by the Underwriters as
provided in the Underwriting Agreement, will have been duly and validly
issued and be fully paid and nonassessable; and no preemptive rights
of, or rights of refusal in favor of, stockholders exist with respect
to the Stock, or the issue and sale thereof, pursuant to the
Certificate of Incorporation or Bylaws of the Company and, to the
knowledge of such counsel, there are no contractual preemptive rights
that have not been waived, rights of first refusal or right of co-sale
which exist with respect to the issue and sale of the Stock;
(iii) the Registration Statement has become effective under
the Securities Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement
or suspending or preventing the use of the Prospectus is in
A-1
<PAGE> 24
effect and no proceedings for that purpose have been instituted or are
pending or contemplated by the Commission;
(iv) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial data
contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and with the rules and regulations of the Commission
thereunder;
(v) such counsel has no reason to believe that on the
Effective Date the Registration Statement (except as to the financial
statements and schedules and other financial and statistical data
contained or incorporated by reference therein, as to which such
counsel need not express any opinion or belief) contained any 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 the Prospectus (except as to the
financial statements and schedules and other financial and statistical
data contained or incorporated by reference therein, as to which such
counsel need not express any opinion or belief) as of its date or at
the Closing Date (or any later date on which Option Stock is
purchased), contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(vi) the information required to be set forth in the
Registration Statement in answer to Items 9, 10 (insofar as it relates
to such counsel) and 11(c) of Form S-1 is to the best of such counsel's
knowledge accurately and adequately set forth therein in all material
respects or no response is required with respect to such Items, and the
description of the Company's stock option plans and the options granted
and which may be granted thereunder set forth in the Prospectus
accurately and fairly presents the information required to be shown
with respect to said plans and options to the extent required by the
Securities Act and the rules and regulations of the Commission
thereunder;
(vii) such counsel do not know of any franchises, contracts,
leases, documents or legal proceedings, pending or threatened, which in
the opinion of such counsel are of a character required to be described
in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement, which are not described and
filed as required;
(viii) each of the Spin-off Agreements and the Underwriting
Agreement has been duly authorized, executed and delivered by the
Company and Daisytek and each of the Spin-off Agreements is a valid and
binding agreement of the Company and Daisytek enforceable in accordance
with its terms;
(ix) the Underwriting Agreement and the issue and sale by the
Company of the shares of Stock sold by the Company as contemplated
therein and the Spin-off Agreements and the transactions contemplated
therein do not and will not conflict with,
A-2
<PAGE> 25
or result in a breach of, the Certificate of Incorporation or Bylaws of
Daisytek, the Company or any of their subsidiaries or any agreement or
instrument known to such counsel to which Daisytek, the Company or any
of their subsidiaries is a party or by which any of the properties or
assets of Daisytek, the Company or any of their subsidiaries may be
bound or affected, or any applicable law or regulation, or so far as is
known to such counsel, any order, writ, injunction or decree, of any
jurisdiction, court or governmental instrumentality;
(x) there are no holders of securities of the Company having
rights to the registration of shares of Common Stock, or other
securities, because of the filing of the Registration Statement by the
Company, that have not waived such rights, or such rights have expired
by reason of lapse of time following notification of the Company's
intent to file the Registration Statement;
(xi) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated in the Underwriting Agreement, except such as
have been obtained under the Securities Act and such as may be required
under state securities or blue sky laws in connection with the purchase
and distribution of the Stock by the Underwriters, or for the
transactions contemplated in the Spin-off Agreements; and
(xii) the Stock issued and sold by the Company is duly
authorized for listing by the Nasdaq National Market.
A-3
<PAGE> 1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PFSWEB, INC.
(Pursuant to Section 245 of the General
Corporation Law of the State of Delaware)
PFSWEB, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify as
follows:
1. The name of the corporation is PFSweb, Inc. (the
"Corporation").
2. The date of filing the original Certificate of
Incorporation of the Corporation with the Secretary of State of the State of
Delaware was June 28, 1999.
3. This Amended and Restated Certificate of Incorporation
amends and restates the provisions of the Certificate of Incorporation of the
Corporation, as amended, and was duly adopted by the written consent of the
sole stockholder of the Corporation entitled to vote thereon in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware (the "GCL").
4. The Certificate of Incorporation of the Corporation, as
amended and restated hereby, shall, upon its filing with the Secretary of State
of the State of Delaware, read in its entirety as follows:
FIRST: The name of the corporation is PFSweb, Inc. (the
"Corporation").
SECOND: The registered office of the Corporation in the State
of Delaware is located at 1013 Centre Road, Wilmington, County of New Castle,
Delaware 19805. The name of the registered agent of the Corporation at such
address is Corporation Service Company.
THIRD: The purpose of the Corporation and the nature and
objects of the business to be transacted, promoted, and carried on are to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 41,000,000 shares, divided into
two classes as follows: (i) 1,000,000 shares of Preferred Stock, par value
$1.00 per share ("Preferred Stock"); and (ii) 40,000,000 shares of Common
Stock, par value $.001 per share ("Common Stock").
Upon the filing of this Amended and Restated Certificate of
Incorporation, all previously issued and outstanding shares of common stock,
$.01 par value, of the Corporation shall be automatically converted into an
equal number of shares of Common Stock, par value $.001 per share, of the
Corporation.
<PAGE> 2
The designations and the powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock and the
Common Stock of the Corporation are as follows:
A. Provisions Relating to the Preferred Stock.
1. The Preferred Stock may be issued from time to time in one
or more classes or series, the shares of each class or series to have such
designations and powers, preferences, and rights, and qualifications,
limitations, and restrictions thereof as are stated and expressed herein and in
the resolution or resolutions providing for the issuance of such class or
series adopted by the board of directors of the Corporation as hereafter
prescribed.
2. Authority is hereby expressly granted to and vested in the
board of directors of the Corporation to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series, and with
respect to each such class or series of the Preferred Stock, to fix and state
by the resolution or resolutions from time to time adopted providing for the
issuance thereof the following:
(i) whether or not such class or series is to have voting
rights, full, special, or limited, or is to be without voting rights,
and whether or not such class or series is to be entitled to vote as a
separate class either alone or together with the holders of one or
more other classes or series of stock;
(ii) the number of shares to constitute such class or
series and the designations thereof;
(iii) the preferences, and relative, participating,
optional, or other special rights, if any, and the qualifications,
limitations, or restrictions thereof, if any, with respect to any such
class or series;
(iv) whether or not the shares of any such class or series
shall be redeemable at the option of the Corporation or the holders
thereof or upon the happening of any specified event, and, if
redeemable, the redemption price or prices (which may be payable in
the form of cash, notes, securities, or other property), and the time
or times at which, and the terms and conditions upon which, such
shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of such class or series
shall be subject to the operation of retirement or sinking funds to be
applied to the purchase or redemption of such shares for retirement,
and, if such retirement or sinking fund or funds are to be
established, the annual amount thereof, and the terms and provisions
relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in
cash, stock of the Corporation, or other property, or a combination
thereof, the conditions upon which and the
2
<PAGE> 3
times when such dividends are payable, the preference to or the
relation to the payment of dividends payable on any other class or
classes or series of stock, whether such dividends shall be cumulative
or noncumulative, and if cumulative, the date or dates from which such
dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof
which the holders of any such class or series shall be entitled to
receive upon the voluntary and involuntary dissolution of, or upon any
distribution of the assets of, the Corporation;
(viii) whether or not the shares of any such class or
series, at the option of the Corporation or the holder thereof or upon
the happening of any specified event, shall be convertible into or
exchangeable for the shares of any other class or classes or of any
other series of the same or any other class or classes of stock,
securities, or other property of the Corporation and the conversion
price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be
stated and expressed or provided for in such resolution or
resolutions; and
(ix) such other special rights and provisions with respect
to any such class or series as may to the board of directors of the
Corporation seem advisable.
3. The shares of each class or series of the Preferred Stock
may vary from the shares of any other class or series thereof in any or all of
the foregoing respects. The board of directors of the Corporation may increase
the number of shares of Preferred Stock designated for any existing class or
series by a resolution adding to such class or series authorized and unissued
shares of the Preferred Stock not designated for any other class or series. The
board of directors of the Corporation may decrease the number of shares of the
Preferred Stock designated for any existing class or series by a resolution,
subtracting from such series unissued shares of the Preferred Stock designated
for such class or series, and the shares so subtracted shall become authorized,
unissued, and undesignated shares of the Preferred Stock.
B. Provisions Relating to the Common Stock.
1. Each holder of Common Stock shall be entitled to one vote
for each share of Common Stock standing in such holder's name on the records of
the Corporation on each matter submitted to a vote of the stockholders.
2. Subject to the rights of the holders of the Preferred
Stock, the holders of the Common Stock shall be entitled to receive when, as,
and if declared by the board of directors of the Corporation, out of funds
legally available therefor, dividends payable in cash, stock or otherwise.
3. Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock and the holders of any bonds, debentures, or other obligations
of the Corporation shall have been paid in full the amounts to which they shall
be entitled (if any), or a sum sufficient for such payment in full shall have
been set aside, the
3
<PAGE> 4
remaining net assets of the Corporation shall be distributed pro rata to the
holders of the Common Stock in accordance with their respective rights and
interests, to the exclusion of the holders of the Preferred Stock and any
bonds, debentures, or other obligations of the Corporation.
C. General.
1. Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (in any form, but not
less in value than the par value thereof) as may be fixed by the board of
directors of the Corporation, which is expressly authorized to fix the same in
its absolute and uncontrolled discretion subject to the foregoing conditions.
Shares so issued for which the consideration shall have been paid or delivered
to the Corporation shall be deemed fully paid stock and shall not be liable to
any further call or assessment thereon, and the holders of such shares shall
not be liable for any further payments in respect of such shares.
2. The Corporation shall have authority to create and issue
rights and options entitling their holders to purchase or otherwise acquire
shares of the Corporation's capital stock of any class or series or other
securities of the Corporation, and such rights and options shall be evidenced
by instrument(s) approved by the board of directors of the Corporation or any
committee thereof. The board of directors of the Corporation or any committee
thereof shall be empowered to set the exercise price, duration, times for
exercise, and other terms of such options or rights; provided, however, that
the consideration to be received (which may be in any form) for any shares of
capital stock subject thereto shall have a value not less than the par value
thereof.
FIFTH: No contract or transaction between the Corporation and
one or more of its directors, officers, or stockholders or between the
Corporation and any person (as used herein "person" means any other
corporation, partnership, association, firm, trust, joint venture, political
subdivision, or instrumentality) or other organization in which one or more of
its directors, officers, or stockholders are directors, officers, or
stockholders, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee which authorizes the
contract or transaction, or solely because his, her or their votes are counted
for such purpose, if: (i) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to
the board of directors or the committee, and the board of directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, or ratified by the board
of directors, a committee thereof (to the extent permitted by applicable law),
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
4
<PAGE> 5
SIXTH: 1. To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or
proceeding (a "Proceeding"), whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a director or officer of the Corporation, or is or was serving in any
capacity at the request of the Corporation for any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(an "Other Entity"), against judgments, fines, penalties, excise taxes, amounts
paid in settlement and costs, charges and expenses (including attorneys' fees
and disbursements). Persons who are not directors or officers of the
Corporation may be similarly indemnified in respect of service to the
Corporation or to an Other Entity at the request of the Corporation to the
extent the Board of Directors at any time specifies that such persons are
entitled to the benefits of this Article.
1. The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to indemnification
hereunder the funds necessary for payment of expenses, including attorneys'
fees and disbursements, incurred in connection with any Proceeding, in advance
of the final disposition of such Proceeding; provided, however, that, if
required by the GCL, such expenses incurred by or on behalf of any director or
officer or other person may be paid in advance of the final disposition of a
Proceeding only upon receipt by the Corporation of an undertaking, by or on
behalf of such director or officer (or other person indemnified hereunder), to
repay any such amount so advanced, if it shall ultimately be determined by
final judicial decision from which there is no further right of appeal that
such director, officer or other person is not entitled to be indemnified for
such expenses.
2. The rights to indemnification, and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Amended and Restated Certificate
of Incorporation, the By-laws of the Corporation, any agreement, any vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
such office.
3. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
continue as to a person who has ceased to be a director or officer (or other
person indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
4. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the
5
<PAGE> 6
power to indemnify such person against such liability under the provisions of
this Article, the By-laws or under Section 145 of the GCL or any other
provision of law.
5. The provisions of this Article shall be a contract between
the Corporation, on the one hand, and each director and officer who serves in
such capacity at any time while this Article is in effect and any other person
indemnified hereunder, on the other hand, pursuant to which the Corporation and
each such director, officer, or other person intend to be legally bound. No
repeal or modification of this Article shall affect any rights or obligations
with respect to any state of facts then or theretofore existing or thereafter
arising or any proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts.
6. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
be enforceable by any person entitled to such indemnification or reimbursement
or advancement of expenses in any court of competent jurisdiction. The burden
of proving that such indemnification or reimbursement or advancement of
expenses is not appropriate shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors, its independent legal
counsel and its stockholders) to have made a determination prior to the
commencement of such action that such indemnification or reimbursement or
advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) that such person is not
entitled to such indemnification or reimbursement or advancement of expenses
shall constitute a defense to the action or create a presumption that such
person is not so entitled. Such a person shall also be indemnified for any
expenses incurred in connection with successfully establishing his or her right
to such indemnification or reimbursement or advancement of expenses, in whole
or in part, in any such proceeding.
7. Any director or officer of the Corporation serving in any
capacity for (a) another corporation of which a majority of the shares entitled
to vote in the election of its directors is held, directly or indirectly, by
the Corporation or (b) any employee benefit plan of the Corporation or any
corporation referred to in clause (a) shall be deemed to be doing so at the
request of the Corporation.
8. Any person entitled to be indemnified or to reimbursement
or advancement of expenses as a matter of right pursuant to this Article may
elect to have the right to indemnification or reimbursement or advancement of
expenses interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the applicable
Proceeding, to the extent permitted by law, or on the basis of the applicable
law in effect at the time such indemnification or reimbursement or advancement
of expenses is sought. Such election shall be made, by a notice in writing to
the Corporation, at the time indemnification or reimbursement or advancement of
expenses is sought; provided, however, that if no such notice is given, the
right to indemnification or reimbursement or advancement of expenses shall be
determined by the law in effect at the time indemnification or reimbursement or
advancement of expenses is sought.
6
<PAGE> 7
SEVENTH: All the powers of the Corporation, insofar as the
same may be lawfully vested by this Amended and Restated Certificate of
Incorporation in the board of directors, are hereby conferred upon the board of
directors. In furtherance and not in limitation of that power, the board of
directors shall have the power, upon the affirmative vote of a majority of the
Classified Directors (as hereinafter defined) at a meeting lawfully convened,
to make, adopt, alter, amend, and repeal from time to time the Bylaws of the
Corporation and to make from time to time new Bylaws of the Corporation,
subject to the right of the stockholders entitled to vote thereon to adopt,
alter, amend, and repeal Bylaws made by the board of directors or to make new
Bylaws; provided, however, that the stockholders of the Corporation shall be
entitled to adopt, alter, amend, or repeal Bylaws made by the board of
directors or to make new Bylaws solely upon the affirmative vote of the holders
of at least seventy five percent (75%) of the outstanding shares of each class
of capital stock of the Corporation then entitled to vote thereon.
EIGHTH: Except for the provisions of Article SIXTH and NINTH
herein, the Corporation reserves the right to amend, alter, change, or repeal
any provision contained in this certificate of incorporation in the manner now
or hereafter prescribed by law and all rights conferred on officers, directors,
and stockholders herein are granted subject to this reservation.
NINTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or amendment of this Article NINTH by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation arising
from an act or omission occurring prior to the time of such repeal or
amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions
of this Article NINTH, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter enacted,
including without limitation any subsequent amendment to the GCL.
TENTH: 1. The number of directors constituting the board of
directors shall be fixed by the board of directors of the Corporation, provided
that such number shall be no fewer than three and no more than ten (plus such
number of directors as may be elected from time to time pursuant to the terms
of any series of Preferred Stock that may be issued and outstanding from time
to time). The directors of the Corporation (exclusive of directors who are
elected pursuant to the terms of, and serve as representatives of the holders
of, any series of Preferred Stock) shall be referred to herein as "Classified
Directors" and shall be divided into three classes, with the first class
referred to herein as "Class I," the second class as "Class II," and the third
class as "Class III." Each class shall consist as nearly as possible of
one-third (1/3) of the total number of directors making up the entire board of
directors. The term of office of the initial Class I directors shall expire at
the 2000 annual meeting of stockholders, the term of office of the initial
Class II directors shall expire at the 2001 annual meeting of stockholders, and
the term of office of the initial Class III directors shall expire at the 2002
annual meeting of stockholders, with each director to hold office until his
successor shall have been duly
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elected and qualified. At each annual meeting of stockholders, directors
elected to succeed those directors whose terms then expire shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
successor shall have been duly elected and qualified.
1. Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of Preferred Stock issued by the Corporation
shall have the right, voting separately by series or by class (excluding
holders of Common Stock), to elect directors, the election, term of office,
filling of vacancies, and other features of such directorships shall be
governed by the terms of this Amended and Restated Certificate of Incorporation
(including any amendment to this Amended and Restated Certificate of
Incorporation that designates a series of Preferred Stock), and such directors
so elected by the holders of Preferred Stock shall not be divided into classes
pursuant to this Article TENTH unless expressly provided by such terms.
2. Any or all Classified Directors may be removed only with
cause, at any annual or special meeting of stockholders, upon the affirmative
vote of the holders of a majority of the outstanding shares of each class of
capital stock of the Corporation then entitled to vote in person or by proxy at
an election of such Classified Directors, provided that notice of the intention
to act upon such matter shall have been given in the notice calling such
meeting. Unless otherwise provided by the terms of the certificate of
incorporation (including any amendment thereto that designates a series of
preferred stock) any vacancies occurring in the board of directors caused by an
increase in the number of Classified Directors, or the death, resignation,
retirement, disqualification, removal or other termination from office of any
Classified Director may be filled by the vote of a majority of the Classified
Directors then in office, though less than a quorum, or by the affirmative
vote, at any annual meeting or any special meeting of the stockholders called
for the purpose of filing such directorship, of the holders of a majority of
the outstanding shares of each class of capital stock then entitled to vote in
person or by proxy at an election of such directors. Each successor director so
chosen shall hold office until the next election of the class for which such
director shall have been chosen and until his respective successor shall have
been duly elected and qualified.
3. Election of directors, whether Classified Directors or
otherwise, need not be by written ballot.
ELEVENTH: The Corporation expressly elects to be governed by
Section 203 of the GCL.
TWELFTH: Special meetings of stockholders of the Corporation
may be called by the board of directors pursuant to a resolution adopted by a
majority of the Classified Directors then serving or by the Chairman of the
board of directors.
THIRTEENTH: Notwithstanding any other provisions of this
Amended and Restated Certificate of Incorporation or any provision of law which
might otherwise permit a lesser vote or no vote, the affirmative vote of the
holders of at least seventy five percent (75%) of the outstanding shares of
each class of capital stock of the Corporation then entitled to vote thereon
shall be required to
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amend, alter, or repeal any one or more of Articles of this Amended and
Restated Certificate of Incorporation.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed and attested as of the
____ day of November, 1999.
PFSWEB, INC.
By:
----------------------------------
Thomas J. Madden, Vice President
ATTEST:
- --------------------------------
Harvey H. Achatz, Secretary
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<PAGE> 1
EXHIBIT 3.2
AMENDED
AND
RESTATED
BYLAWS
OF
PFSWEB, INC.
A Delaware Corporation
<PAGE> 2
AMENDED AND RESTATED
BYLAWS
OF
PFSWEB, INC.
A Delaware Corporation
PREAMBLE
These Amended and Restated Bylaws are subject to, and
governed by, the General Corporation Law of the State of Delaware (the
"Delaware Corporation Law") and the Certificate of Incorporation of PFSweb,
Inc., a Delaware corporation (the "Corporation"), as amended, restated,
modified or otherwise in effect from time to time (the "certificate of
incorporation"). In the event of a direct conflict between the provisions of
these Bylaws and the mandatory provisions of the Delaware Corporation Law or
the provisions of the certificate of incorporation of the Corporation, such
provisions of the Delaware Corporation Law or the certificate of incorporation
of the Corporation, as the case may be, will be controlling.
ARTICLE ONE:
OFFICES
1.1 Registered Office and Agent. The registered office and
registered agent of the Corporation shall be as designated from time to time by
the appropriate filing by the Corporation in the office of the Secretary of
State of the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the board
of directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE TWO:
MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may be properly brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders
may be called by the board of directors pursuant to a resolution adopted by a
majority of the Classified Directors (as hereinafter defined) then serving or
by the Chairman of the Board. A special meeting shall be held on such date and
at such time as shall be designated by the person(s) calling the meeting and
stated in the notice of the meeting or in a duly executed waiver of notice of
such meeting.
<PAGE> 3
Only such business shall be transacted at a special meeting as may be stated or
indicated in the notice of such meeting given in accordance with these Bylaws
or in a duly executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may
be held at any place within or without the State of Delaware designated by the
board of directors. A special meeting of stockholders may be held at any place
within or without the State of Delaware designated in the notice of the meeting
or a duly executed waiver notice of such meeting. Meetings of stockholders
shall be held at the principal office of the Corporation unless another place
is designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day,
and time of each meeting of the stockholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called shall be delivered not
less than ten nor more than 60 days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary,
or the officer or person(s) calling the meeting, to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, it
shall be directed to such stockholder at his address as it appears on the
records of the Corporation, unless he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address.
Notice of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 Notice of Stockholder Business; Nomination of Director
Candidates.
(a) At annual or special meetings of the stockholders,
only such business shall be conducted as shall have been brought before
meetings (i) pursuant to the Corporation's notice of meeting, (ii) by or at the
direction of the board of directors, or (iii) by any stockholder of the
Corporation who (1) is a stockholder of record at the time of giving of notice
provided for in this Section 2.5, (2) shall be entitled to vote at such
meeting, and (3) complies with the notice procedures set forth in this Section
2.5.
(b) Only persons who are nominated in accordance with the
procedures set forth in these Bylaws shall be eligible to serve as directors.
Nominations of persons for election to the board of directors may be made at an
annual or special meeting of stockholders (i) by or at the direction of the
board of directors, (ii) by any stockholder of the Corporation who (1) is a
stockholder of record at the time of giving of notice provided for in this
Section 2.5, (2) meets the requirements set forth in Section 2.2 above, (3)
shall be entitled to vote at such meeting, and (4) complies with the notice
procedures set forth in this Section 2.5.
(c) A stockholder must give timely, written notice to the
Secretary of the Corporation to nominate directors at an annual or special
meeting pursuant to Section 2.5(b) hereof or to propose business to be brought
before an annual or special meeting pursuant to clause (iii) of Section 2.5(a)
hereof. To be timely in the case of an annual meeting, a
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<PAGE> 4
stockholder's notice must be received at the principal executive offices of the
Corporation not less than 90 days before the first anniversary of the preceding
year's annual meeting. To be timely in the case of a special meeting or in the
event that the date of the annual meeting is changed by more than 30 days from
such anniversary date, a stockholder's notice must be received at the principal
executive offices of the Corporation no later than the close of business on the
tenth day following the earlier of the day on which notice of the meeting date
was mailed or public disclosure of the meeting date was made. Such
stockholder's notice shall set forth (i) with respect to each matter, if any,
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (ii) with respect to each person, if
any, whom the stockholder proposes to nominate for election or re-election as a
director, all information relating to such person (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director) that is required under the Securities Exchange Act of
1934, as amended , (iii) the name and address, as they appear on the
Corporation's records, of the stockholder proposing such business or nominating
such persons (as the case may be), and the name and address of the beneficial
owner, if any, on whose behalf the proposal or nomination is made, (iv) the
class and number of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder of record and by the beneficial
owner, if any, on whose behalf the proposal or nomination is made, and (v) any
material interest or relationship that such stockholder of record and/or the
beneficial owner, if any, on whose behalf the proposal or nomination is made
may respectively have in such business or with such nominee. At the request of
the board of directors, any person nominated for election as a director shall
furnish to the Secretary of the Corporation the information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
(d) Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted, and no person shall be nominated to
serve as a director, at an annual or special meeting of stockholders, except in
accordance with the procedures set forth in this Section 2.5 and elsewhere in
these Bylaws. The chairman of the meeting shall, if the facts warrant,
determine that business was not properly brought before the meeting, or that a
nomination was not made, in accordance with the procedures prescribed by these
Bylaws and, if he shall so determine, he shall so declare to the meeting, and
any such business not properly brought before the meeting shall not be
transacted and any defective nomination shall be disregarded. Notwithstanding
the foregoing provisions of these Bylaws, a stockholder shall also comply with
all applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the matters set forth
in this Section 2.5.
2.6 Voting List. Prior to each meeting of stockholders, the
Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares of capital stock registered in the name of
each stockholder. To the extent required by law, such list shall be kept on
file at a place within the city where the meeting is to be held, which place
shall be specified in the notice of meeting or a duly executed waiver of notice
of such meeting or, if not so specified, at the place where the meeting is to
be held and shall be open to examination by any
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<PAGE> 5
stockholder during ordinary business hours. Such list shall be produced at such
meeting and kept at the meeting at all times during such meeting and may be
inspected by any stockholder who is present.
2.7 Quorum. The holders of a majority of the outstanding
shares of capital stock entitled to vote on a matter, present in person or by
proxy, shall constitute a quorum at any meeting of stockholders, except as
otherwise provided by law, the certificate of incorporation of the Corporation,
or these Bylaws. If a quorum shall not be present, in person or by proxy, at
any meeting of stockholders, the stockholders entitled to vote thereat who are
present, in person or by proxy (or, if no stockholder entitled to vote is
present, any officer of the Corporation), may adjourn the meeting from time to
time without notice other than announcement at the meeting (unless the board of
directors, after such adjournment, fixes a new record date for the adjourned
meeting), until a quorum shall be present, in person or by proxy. At any
adjourned meeting at which a quorum shall be present, in person or by proxy,
any business may be transacted which may have been transacted at the original
meeting had a quorum been present; provided that, if the adjournment is for
more than 30 days or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. When a quorum is
present at any meeting, the vote of the holders of a least a majority of the
outstanding shares of capital stock entitled to vote thereat who are present,
in person or by proxy, shall decide any question brought before such meeting,
unless the question is one on which, by express provision of law, the
certificate of incorporation of the Corporation, or these Bylaws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
2.9 Method of Voting; Proxies. Except as otherwise provided
in the certificate of incorporation of the Corporation or by law, each
outstanding share of capital stock, regardless of class, shall be entitled to
one vote on each matter submitted to a vote at a meeting of stockholders.
Elections of directors need not be by written ballot. At any meeting of
stockholders, every stockholder having the right to vote may vote either in
person or by a proxy executed in writing by the stockholder or by his duly
authorized attorney-in-fact. Each such proxy shall be filed with the Secretary
of the Corporation before or at the time of the meeting. No proxy shall be
valid after three years from the date of its execution, unless otherwise
provided in the proxy. If no date is stated in a proxy, such proxy shall be
presumed to have been executed on the date of the meeting at which it is to be
voted. Each proxy shall be revocable unless expressly provided therein to be
irrevocable and coupled with an interest sufficient in law to support an
irrevocable power or unless otherwise made irrevocable by law.
2.10 Record Date. For the purpose of determining stockholders
entitled (a) to notice of or to vote at any meeting of stockholders or any
adjournment thereof, (b) to receive payment of any dividend or other
distribution or allotment of any rights, or (c) to exercise any rights in
respect of any change, conversion, or exchange of stock or for the purpose of
any other
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<PAGE> 6
lawful action, the board of directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the board of directors, for any such determination of stockholders,
such date in any case to be not more than 60 days and not less than ten days
prior to such meeting nor more than 60 days prior to any other action. If no
record date is fixed:
(i) The record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held.
(ii) The record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
board of directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
2.11 Conduct of Meeting. The Chairman of the Board, if such
office has been filled, and, if not or if the Chairman of the Board is absent
or otherwise unable to act, the Chief Executive Officer, if such office has
been filled, and, if not or if the Chief Executive Officer is absent or
otherwise unable to act, the President shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer's duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these Bylaws or by some person
appointed by the meeting.
2.12 Inspectors. The board of directors may, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed shall
fail to appear or act, the chairman of the meeting shall, or if inspectors
shall not have been appointed, the chairman of the meeting may, appoint one or
more inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number
of shares represented at the meeting, the existence of a quorum, and the
validity and effect of proxies and shall receive votes, ballots, or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count, and tabulate all votes, ballots, or consents, determine
the results, and do such acts as are proper to conduct the election or vote
with fairness to all stockholders. On request of the chairman of the meeting,
the inspectors shall make a report in writing of any challenge, request, or
matter determined by them and shall execute a certificate of any fact found by
them. No director or candidate for the office of director shall act as an
inspector of an election of directors. Inspectors need not be stockholders.
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ARTICLE THREE:
DIRECTORS
3.1 Management. The business and property of the Corporation
shall be managed by the board of directors. Subject to the restrictions imposed
by law, the certificate of incorporation of the Corporation, or these Bylaws,
the board of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of
directors constituting the board of directors shall be fixed by the board of
directors, provided that such number shall be no fewer than three and no more
than ten (plus such number of directors as may be elected from time to time
pursuant to the terms of any series of Preferred Stock that may be issued and
outstanding from time to time). The directors of the Corporation (exclusive of
directors who are elected pursuant to the terms of, and serve as
representatives of the holders of, any series of Preferred Stock) shall be
referred to herein as "Classified Directors" and shall be divided into three
classes, with the first class referred to herein as "Class I," the second class
as "Class II," and the third class as "Class III." Each class shall consist as
nearly as possible of one-third (1/3) of the total number of directors making
up the entire board of directors. The term of office of the initial Class I
directors shall expire at the 2000 annual meeting of stockholders, the term of
office of the initial Class II directors shall expire at the 2001 annual
meeting of stockholders, and the term of office of the initial Class III
directors shall expire at the 2002 annual meeting of stockholders, with each
director to hold office until his successor shall have been duly elected and
qualified. At each annual meeting of stockholders, directors elected to succeed
those directors whose terms then expire shall be elected for a term of office
to expire at the third succeeding annual meeting of stockholders after their
election, with each director to hold office until his successor shall have been
duly elected and qualified.
Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of preferred stock issued by the Corporation
shall have the right, voting separately by series or by class (excluding
holders of common stock), to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies, and other
features of such directorships shall be governed by the terms of the
certificate of incorporation (including any amendment to the certificate of
incorporation that designates a series of preferred stock).
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal; Vacancies. Unless otherwise provided by the
terms of the certificate of incorporation (including any amendment thereto that
designates a series of preferred stock), any or all Classified Directors may be
removed with cause, at any annual or special meeting of stockholders, upon the
affirmative vote of the holders of a majority of the outstanding shares of each
class of capital stock then entitled to vote in person or by proxy at an
election of such directors, provided that notice of the intention to act upon
such matter shall have been given in the notice calling such meeting. Unless
otherwise provided by the terms of the certificate of incorporation (including
any amendment thereto that designates a series of
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preferred stock), any vacancies occurring in the board of directors caused by
an increase in the number of Classified Directors or the death, resignation,
retirement, disqualification, removal or other termination from office of any
Classified Directors may be filled by the vote of a majority of the Classified
Directors then in office, though less than a quorum, or by the affirmative
vote, at any annual meeting or any special meeting of the stockholders called
for the purpose of filling such directorship, of the holders of a majority of
the outstanding shares of each class of capital stock then entitled to vote in
person or by proxy at an election of such directors. Each successor director so
chosen shall hold office until the next election of the class for which such
director shall have been chosen and until his respective successor shall have
been duly elected and qualified.
3.5 Meetings of Directors. The directors may hold their
meetings and may have an office and keep the records of the Corporation, except
as otherwise provided by law, in such place or places within or without the
State of Delaware as the board of directors may from time to time determine or
as shall be specified in the notice of such meeting or duly executed waiver of
notice of such meeting.
3.6. First Meeting. Each newly elected board of directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as
the annual meeting of stockholders, and no notice of such meeting shall be
necessary.
3.7 Election of Officers. At the first meeting of the board
of directors after each annual meeting of stockholders at which a quorum shall
be present, the board of directors shall elect the officers of the Corporation.
3.8 Regular Meetings. Regular meetings of the board of
directors shall be held at such times and places as shall be designated from
time to time by resolution of the board of directors. Notice of such regular
meetings shall not be required.
3.9 Special Meetings. Special meetings of the board of
directors shall be held whenever called by the Chairman of the Board, the Chief
Executive Officer, the President, or any director.
3.10 Notice. The Secretary shall give notice of each special
meeting to each director at least 24 hours before the meeting. Notice of any
such meeting need not be given to any director who, either before or after the
meeting, submits a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
The purpose of any special meeting shall be specified in the notice or waiver
of notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the board of
directors, a majority of the directors fixed in the manner provided in these
Bylaws shall constitute a quorum for the transaction of business. If at any
meeting of the board of directors there is less than a quorum present, a
majority of those present or any director solely present may adjourn the
meeting from time to time without further notice. Unless the act of a greater
number is required
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by law, the certificate of incorporation of the Corporation, or these Bylaws,
the act of a majority of the directors present at a meeting at which a quorum
is in attendance shall be the act of the board of directors. At any time that
the certificate of incorporation of the Corporation provides that directors
elected by the holders of a class or series of stock shall have more or less
than one vote per director on any matter, every reference in these Bylaws to a
majority or other proportion of directors shall refer to a majority or other
proportion of the votes of such directors.
3.12 Procedure. At meetings of the board of directors,
business shall be transacted in such order as from time to time the board of
directors may determine. The Chairman of the Board, if such office has been
filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the Chief Executive Officer, if such office has been filled,
and, if not or if the Chief Executive Officer is absent or otherwise unable to
act, the President shall preside at all meetings of the board of directors. In
the absence or inability to act of either such officer, a chairman shall be
chosen by the board of directors from among the directors present. The
Secretary of the Corporation shall act as the secretary of each meeting of the
board of directors unless the board of directors appoints another person to act
as secretary of the meeting. The board of directors shall keep regular minutes
of its proceedings which shall be placed in the minute book of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who
is present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
3.14 Compensation. The board of directors shall have the
authority to fix the compensation, including fees and reimbursement of
expenses, paid to directors for attendance at regular or special meetings of
the board of directors or any committee thereof; provided, that nothing
contained herein shall be construed to preclude any director from serving the
Corporation in any other capacity or receiving compensation therefor.
ARTICLE FOUR:
COMMITTEES
4.1 Designation. The board of directors may, by resolution
adopted by a majority of the entire board of directors, designate one or more
committees, including without limitation an Executive Committee, Audit
Committee and Compensation Committee as hereinafter described.
4.2 Number; Qualification; Term. Each committee shall consist
of one or more directors appointed by resolution adopted by a majority of the
entire board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as
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such until the earliest of (i) the expiration of his term as director, (ii) his
resignation as a committee member or as a director, or (iii) his removal as a
committee member or as a director.
4.3 Authority. Each committee, to the extent expressly
provided in the resolution establishing such committee, shall have and may
exercise all of the authority of the board of directors in the management of
the business and the property of the Corporation except to the extent expressly
restricted by such resolution or by law, the certificate of incorporation of
the Corporation, or these Bylaws.
4.4 Committee Changes. The board of directors shall have the
power at any time to fill vacancies in, to change the membership of, and to
discharge any committee.
4.5 Alternate Members of Committees. The board of directors
may designate one or more directors as alternate members of any committee. Any
such alternate member may replace any absent or disqualified member at any
meeting of the committee. If no alternate committee members have been so
appointed to a committee or each such alternate committee member is absent or
disqualified, the member or members of such committee present at any meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may
be held without notice at such time and place as may be designated from time to
time by the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may
be held whenever called by any committee member. The committee member calling
any special meeting shall cause notice of such special meeting, including
therein the time and place of such special meeting, to be given to each
committee member at least two days before such special meeting. Neither the
business to be transacted at, nor the purpose of, any special meeting of any
committee need be specified in the notice or waiver of notice of any special
meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a
majority of the number of members designated by the board of directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting of any committee, a majority of the members present may adjourn
the meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the members
present at any meeting at which a quorum is in attendance shall be the act of a
committee, unless the act of a greater number is required by law, the
certificate of incorporation of the Corporation, or these Bylaws.
4.9 Minutes. Each committee shall cause minutes of its
proceedings to be prepared and shall report the same to the board of directors
upon the request of the board of directors. The minutes of the proceedings of
each committee shall be delivered to the Secretary of the Corporation for
placement in the minute books of the Corporation.
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4.10 Compensation. Committee members may, by resolution of
the board of directors, be allowed a fixed sum and expenses of attendance, if
any, for attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such
director by law.
4.12 Executive Committee. The board of directors may, by
resolution, designate one or more of its members to constitute an Executive
Committee. The Executive Committee shall have and may exercise all of the
authority of the board in the management of the business and affairs of the
Corporation within the limits permitted by law, including without limitation,
the power and authority of the board: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware Corporation Law; and (v) to the
extent authorized in the resolution or resolutions providing for the issuance
of shares of stock adopted by the board, to fix any of the preference rights of
such shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of shares
for, shares of any other class or classes or any other series of the same of
any other class or classes of stock of the Corporation.
4.13 Audit Committee. The board of directors may, by
resolution, designate not less than two of the directors then in office to
constitute an Audit Committee. At least a majority of such directors must be
independent of management and free from any relationship that, in the opinion
of the board, would interfere with such directors' exercise of independent
judgment as a committee member. The Audit Committee, if established, shall (i)
consider and make recommendations to the board with respect to the employment
of a firm of independent public accountants, (ii) confer with the Corporation's
independent public accountants to determine the scope of the audit that such
accountants will perform, (iii) receive reports from the independent public
accountants and transmit such reports to the board, and after the close of the
fiscal year, transmit to the board the financial statements certified by such
accountants, (iv) inquire into, examine and make comments on the accounting
procedures of the Corporation and the reports of the independent public
accountants, and (v) consider and make recommendations to the board upon
matters presented to it by the officers of the Corporation pertaining to the
audit practices and procedures adhered to by the Corporation. The board may
designate one member of the Audit Committee to act as its chairman.
4.14 Compensation Committee. The board of directors may, by
resolution, designate not less than two of the directors then in office to
constitute a Compensation Committee, at least one of which shall be independent
of management so as to exercise independent judgment as a committee member. The
Compensation Committee may exercise all of the authority of the board in
administering the Corporation's executive compensation plans, including stock
option plans.
4.15 Other Committees. In addition to the Executive
Committee, the Audit Committee and the Compensation Committee, the board of
directors may, by resolution,
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designate one or more other committees of the board in accordance with the
provisions of these Bylaws.
ARTICLE FIVE:
NOTICE
5.1 Method. Whenever by statute, the certificate of
incorporation of the Corporation, or these Bylaws, notice is required to be
given to any committee member, director, or stockholder and no provision is
made as to how such notice shall be given, personal notice shall not be
required and any such notice may be given (a) in writing, by mail, postage
prepaid, addressed to such committee member, director, or stockholder at his
address as it appears on the books or (in the case of a stockholder) the stock
transfer records of the Corporation, or (b) by any other method permitted by
law (including but not limited to overnight courier service, telegram, telex,
or telefax). Any notice required or permitted to be given by mail shall be
deemed to be delivered and given at the time when the same is deposited in the
United States mail as aforesaid. Any notice required or permitted to be given
by overnight courier service shall be deemed to be delivered and given at the
time delivered to such service with all charges prepaid and addressed as
aforesaid. Any notice required or permitted to be given by telegram, telex, or
telefax shall be deemed to be delivered and given at the time transmitted with
all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to
any stockholder, director, or committee member of the corporation by statute,
the certificate of incorporation of the Corporation, or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE SIX:
OFFICERS
6.1 Number; Titles, Term of Office. The officers of the
Corporation shall be a Chairman of the Board, a President, a Secretary, and
such other officers as the board of directors may from time to time elect or
appoint, including a Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, Chief Accounting Officer, one or more Vice Presidents (with
each Vice President to have such descriptive title, if any, as the board of
directors shall determine), Controller and a Treasurer. Each officer shall hold
office until his successor shall have been duly elected and shall have
qualified, until his death, or until he shall resign or shall have been removed
in the manner hereinafter provided. Any two or more offices may be held by the
same person. None of the officers need be a stockholder or a director of the
Corporation or a resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in its
judgment the best interest of
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the Corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal, or otherwise) may be filled by the
board of directors.
6.4 Authority. Officers shall have such authority and perform
such duties in the management of the Corporation as are provided in these
Bylaws or as may be determined by resolution of the board of directors not
inconsistent with these Bylaws.
6.5 Compensation. The compensation, if any, of officers and
agents shall be fixed from time to time by the board of directors or any
committee thereof; provided, however, that the board of directors may delegate
the power to determine the compensation of any officer and agent (other than
the officer to whom such power is delegated) to any other officer of the
Corporation.
6.6 Chairman. The Chairman of the Board shall preside at all
meetings of the board of directors and shall exercise such powers and perform
such other duties as shall be determined from time to time by the board.
6.7 Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the Corporation and shall have general
supervision and direction over the business of the Corporation, subject,
however, to the control of the board and of any duly authorized committee of
directors. The Chief Executive Officer, in the absence of the Chairman, shall
preside at each meeting of the stockholders and of the board. He may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts and
other instruments, except in cases where the signing and execution thereof
shall be expressly delegated by the board or by the By-laws to some other
officer or agent of the Corporation, or shall be required by law otherwise to
be signed or executed; and, in general, shall perform all duties incident to
the office of Chief Executive Officer and such other duties as from time to
time may be assigned to him by the board or by the By-laws.
6.8 President. The President shall assist the Chief Executive
Officer in the management of and supervision and direction over the business
and affairs of the Corporation, subject, however, to the direction of the Chief
Executive Officer and the control of the board. The President may, in the
absence of the Chairman and the Chief Executive Officer, preside, if present,
at each meeting of the stockholders and of the board. The President may sign
and execute in the name of the Corporation deeds, mortgages, bonds, contracts
and other instruments except in cases in which the signing and execution
thereof shall be expressly delegated by the board or by these By-laws to some
other officer or agent of the Corporation or shall be required by statute
otherwise to be signed or executed and, in general, shall perform all duties
incident to the office of the President and such other duties as from time to
time may be assigned to him by the board, by the By-laws or by the Chief
Executive Officer.
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6.9 Chief Operating Officer. The Chief Operating Officer
shall be the chief operating officer of the Corporation, and shall assist the
Chief Executive Officer and the President in the active management of and
supervision and direction over the business and affairs of the Corporation,
subject, however, to the direction of the Chief Executive Officer and the
President and the control of the board. In the absence of the Chairman, the
Chief Executive Officer and the President, the Chief Operating Officer shall
preside at each meeting of the stockholders and of the board. He may, with the
Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer,
sign certificates for shares of capital stock of the Corporation. He may sign
and execute in the name of the Corporation deeds, mortgages, bonds, contracts
and other instruments, except in cases where the signing and execution thereof
shall be expressly delegated by the board or by the By-laws to some other
officer or agent of the Corporation, or shall be required by law otherwise to
be signed or executed; and, in general, shall perform all duties incident to
the office of Chief Operating Officer and such other duties as from time to
time may be assigned to him by the board, by the By-laws, by the Chief
Executive Officer or by the President.
6.10 Chief Financial Officer. The Chief Financial Officer
shall be the chief financial officer of the Corporation, and shall render to
the board, whenever the board may require, an account of the financial
condition of the Corporation; shall make, sign and file financial, tax and
similar reports to any state, federal or municipal government, agency or
department, or any self-regulatory organization; shall provide for the
continuous review of all accounts and reports; and shall perform such other
duties as from time to time may be assigned to him by the board, by the By-laws
or the Chief Executive Officer or President.
6.11 Vice Presidents. Each Vice President shall have such
powers and perform such duties as from time to time may be assigned to such
Vice President by the board or by the Chief Executive Officer or the President
and shall perform such other duties as may be prescribed in the By-laws.
6.12 Secretary. Secretary shall attend all meetings of the
stockholders and shall record all the proceedings of the meetings of the board
and of the stockholders in a book to be kept for that purpose, and shall
perform like duties for committees of the board, when required. The Secretary
shall give, or cause to be given, notice of all special meetings of the board
and of the stockholders and shall perform such other duties as may be
prescribed by the board or by the Chief Executive Officer, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation, and the Secretary, or an Assistant
Secretary, shall have authority to impress the same on any instrument requiring
it, and when so impressed the seal may be attested by the signature of the
Secretary or by the signature of such Assistant Secretary. The board may give
general authority to any other officer to impress the seal of the Corporation
and to attest the same by such officer's signature. The Secretary or an
Assistant Secretary may also attest all instruments signed by the Chairman, the
Chief Executive Officer or the President. The Secretary shall have charge of
all the books, records and papers of the Corporation relating to its
organization and management, shall see that the reports, statements and other
documents required by statute are properly kept and filed and, in general,
shall perform all duties incident to the office of Secretary of a corporation
and such other duties
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as may from time to time be assigned to the Secretary by the board, by the
By-laws, by the Chief Executive Officer or by the President.
6.13 Treasurer. The Treasurer shall have charge and custody
of, and be responsible for, all funds, securities and notes of the Corporation;
receive and give receipts for moneys due and payable to the Corporation from
any sources whatsoever; deposit all such moneys and valuable effects in the
name and to the credit of the Corporation in such depositaries as may be
designated by the board; against proper vouchers, cause such funds to be
disbursed by checks or drafts on the authorized depositaries of the Corporation
signed in such manner as shall be determined by the board and be responsible
for the accuracy of the amounts of all moneys so disbursed; regularly enter or
cause to be entered in books or other records maintained for the purpose full
and adequate account of all moneys received or paid for the account of the
Corporation; have the right to require from time to time reports or statements
giving such information as the Treasurer may desire with respect to any and all
financial transactions of the Corporation from the officers or agents
transacting the same; render to the Chairman, the Chief Executive Officer, the
President or the board, whenever the Chairman, the Chief Executive Officer, the
President or the board shall require the Treasurer so to do, an account of the
financial condition of the Corporation and of all financial transactions of the
Corporation; exhibit at all reasonable times the records and books of account
to any of the Directors upon application at the office of the Corporation where
such records and books are kept; disburse the funds of the Corporation as
ordered by the board; and, in general, perform all duties incident to the
office of Treasurer of a corporation and such other duties as may from time to
time be assigned to the Treasurer by the board, by the By-laws or by the Chief
Executive Officer or by the President.
6.14 Assistant Secretaries and Assistant Treasurers.
Assistant Secretaries and Assistant Treasurers shall perform such duties as
shall be assigned to them by the Secretary or by the Treasurer, respectively,
or by the board, by the By-laws or by the Chief Executive Officer or by the
President.
ARTICLE SEVEN:
CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock
of the Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board, the
Chief Executive Officer or the President or a Vice President and also by the
Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any and all signatures on the certificate may be a facsimile and may
be sealed with the seal of the Corporation or a facsimile thereof. If any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, a certificate has ceased to be such officer,
transfer agent, or registrar before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue. The
certificates shall be consecutively numbered and shall be entered in the books
of the Corporation as they are issued and shall exhibit the holder's name and
the number of shares.
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7.2 Replacement of Lost or Destroyed Certificates. The board
of directors may direct a new certificate or certificates to be issued in place
of a certificate or certificates theretofore issued by the Corporation and
alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate or certificates representing shares
to be lost or destroyed. When authorizing such issue of a new certificate or
certificates the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal
representatives. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate representing shares duly endorsed or accompanied
by proper evidence of succession, assignment, or authority to transfer, the
Corporation or its transfer agent shall issue a new certificate to the person
entitled thereto, cancel the old certificate, and record the transaction upon
its books.
7.4 Registered Stockholders. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
7.5 Regulations. The board of directors shall have the power
and authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear such
legends as the board of directors deems appropriate to assure that the
Corporation does not become liable for violations of federal or state
securities laws or other applicable law.
ARTICLE EIGHT:
MISCELLANEOUS; PROVISIONS
8.1 Dividends. Subject to provisions of law and the
certificate of incorporation of the Corporation, dividends may be declared by
the board of directors at any regular or special meeting and may be paid in
cash, in property, or in shares of stock of the Corporation. Such declaration
and payment shall be at the discretion of the board of directors.
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8.2 Reserves. There may be created by the board of directors
out of funds of the Corporation legally available therefor such reserve or
reserves as the directors from time to time, in their discretion, consider
proper to provide for contingencies, to equalize dividends, or to repair or
maintain any property of the Corporation, or for such other purpose as the
board of directors shall consider beneficial to the Corporation, and the board
of directors may modify or abolish any such reserve in the manner in which it
was created.
8.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the proceedings of
its stockholders and board of directors and shall keep at its registered office
or principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be
fixed by the board of directors.
8.5 Seal. The seal of the Corporation shall be such as from
time to time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer
may resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the Chief
Executive Officer, the President, or the Secretary. Such resignation shall take
effect at the time specified therein or, if no time is specified therein,
immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the
Board, the Chief Executive Officer, the President, or any Vice President of the
Corporation shall have the power and authority to transfer, endorse for
transfer, vote, consent, or take any other action with respect to any
securities of another issuer which may be held or owned by the Corporation and
to make, execute, and deliver any waiver, proxy, or consent with respect to any
such securities.
8.8 Telephone Meetings. Stockholders (acting for themselves
or through a proxy), members of the board of directors, and members of any
committee of the board of directors may participate in and hold a meeting of
such stockholders, board of directors, or committee by means of a conference
telephone or similar communications equipment by means of which persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this section shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
8.9 Action Without a Meeting.
(a) Except as otherwise provided in the certificate of
incorporation of the Corporation, any action required by the Delaware
Corporation Law to be taken at any annual or special meeting of the
stockholders, or any action which may be taken at any annual or special
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meeting of the stockholders, may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders (acting for themselves or
through a proxy) of at least seventy-five percent (75%) of the outstanding
shares of each class of capital stock of the Corporation then entitled to vote
thereon and shall be delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Every written consent of stockholders
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within sixty days of the earliest dated consent delivered in
the manner required by this Section 8.9(a) to the Corporation, written consents
signed by a sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office, principal place
of business, or such officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
(b) Except as otherwise provided in the certificate of
incorporation of the Corporation or in these Bylaws, any action required or
permitted to be taken at a meeting of the board of directors, or of any
committee of the board of directors, may be taken without a meeting if a
consent or consents in writing, setting forth the action so taken, shall be
signed by all the directors or all the committee members, as the case may be,
entitled to vote with respect to the subject matter thereof, and such consent
shall have the same force and effect as a vote of such directors or committee
members, as the case may be, and may be stated as such in any certificate or
document filed with the Secretary of State of the State of Delaware or in any
certificate delivered to any person. Such consent or consents shall be filed
with the minutes of proceedings of the board or committee, as the case may be.
8.10 Invalid Provisions. If any part of these Bylaws shall be
held invalid or inoperative for any reason, the remaining parts, so far as it
is possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.12 Headings. The headings used in these Bylaws have been
inserted for administrative convenience only and do not constitute matter to be
construed in interpretation.
8.13 References. Whenever herein the singular number is used,
the same shall include the plural where appropriate, and words of any gender
should include each other gender where appropriate.
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8.14 Amendments. The board of directors shall have the power,
upon the affirmative vote of a majority of the Directors at a meeting lawfully
convened, to make, adopt, alter, amend, and repeal from time to time these
Bylaws and to make from time to time new Bylaws, subject to the right of the
stockholders entitled to vote thereon to adopt, alter, amend, and repeal Bylaws
made by the board of directors or to make new Bylaws; provided, however, that
the stockholders of the Corporation shall be entitled to adopt, alter, amend,
or repeal Bylaws made by the board of directors or to make new Bylaws solely
upon the affirmative vote of the holders of at least seventy-five percent (75%)
of the outstanding shares of each class of capital stock of the Corporation
then entitled to vote thereon.
ARTICLE NINE:
CERTAIN TRANSACTIONS WITH STOCKHOLDERS
AND CORPORATE OPPORTUNITIES
9.1 Certain Acknowledgements.
(a) In recognition and anticipation (i) that the
Corporation will cease to be an indirect wholly-owned subsidiary of Daisytek
International Corporation ("Parent") but that Parent will remain, for the
period of time, a significant stockholder of the Corporation, (ii) that the
Corporation may from time to time enter into contractual, corporate or business
relations with one or more of its directors or officers, or one or more
corporations, partnerships, associations or other organizations in which one or
more of its directors or officers have a financial interest (collectively,
"Related Entities"), (iii) that directors, officers, and/or employees of Parent
may serve as directors or the Corporation, (iv) that Parent may engage in
business activities that overlap with those in which the Corporation, directly
or indirectly, may engage, (v) that the Corporation will engage in material
business transactions with Parent and that the Corporation is expected to
benefit therefrom, and (vi) that, as a consequence of the foregoing, it is in
the best interests of the Corporation that the respective rights and duties of
the Corporation and of Parent, and the duties of any directors of the
Corporation who are also directors, officers or employees of Parent, be
determined and delineated in respect of any transactions between, or
opportunities that may be suitable for both, the Corporation, on the one hand,
and Parent, on the other hand, the provisions of this Article shall regulate
and define the conduct of certain of the business and affairs of the
Corporation in relation to Parent.
(b) For purposes of this Article Nine only:
1. The term "Corporation" shall mean the Corporation
and all corporations, partnerships, joint ventures, associations and other
entities in which the Corporation beneficially owns (directly or indirectly)
more than 50% of the outstanding voting stock, voting power or similar voting
interests, and
2. The term "Parent" shall mean Parent and all
corporations, partnerships, joint ventures, associations and other entities
(other than the Corporation, defined in accordance with clause (i) of this
Section) in which Parent beneficially owns (directly or indirectly) more than
50% of the outstanding voting stock, voting power or similar voting interests.
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9.2 Contracts or Transactions.
(a) No contract or transaction (or any amendment,
modification or termination thereof) between the Corporation and Parent or any
Related Entity or between the Corporation and one or more of the directors or
officers of the Corporation, Parent or any Related Entity, shall be void or
voidable solely for the reason that Parent, any Related Entity or any one or
more of the directors or officers of the Corporation, Parent or any Related
Entity are parties thereto, or solely because any such directors or officers
are present at or participate in the meeting of the board of directors or
committee thereof that authorizes the contract, transaction, amendment,
modification or termination or solely because his or their votes are counted
for such purpose but any such contract or transaction (or any amendment,
modification or termination thereof) shall be governed by the provisions of the
Corporation's bylaws, the laws of Delaware and other applicable law.
(b) Directors of the Corporation who are also directors
or officers of Parent or any Related Entity may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
that authorizes or approves any such contract or transaction (or amendment,
modification or termination thereof). Outstanding shares of Common Stock owned
by Parent and any Related Entities may be counted in determining the presence
of a quorum at a meeting of stockholders that authorizes or approves any such
contract or transaction (or amendment, modification or termination thereof).
(c) For purposes of this Article Nine, any contract or
transaction with any corporation, partnership, joint venture, association or
other entity in which the Corporation beneficially owns (directly or
indirectly) more than 50% of the outstanding voting stock, voting power,
partnership interest or similar voting interests, or with any officer or
director thereof, shall be deemed to be a contract or transaction with the
Corporation.
9.3 Alteration, Amendment, Change or Repeal. Notwithstanding
anything herein to the contrary, the foregoing provisions of this Article Nine
as they apply to Parent shall expire on the date that Parent ceases to own
beneficially Common Stock representing at least 20% of the combined voting
power of the Corporation's voting stock and no person who is a director or
officer of the Corporation is also a director or officer of Parent; provided,
however, that nothing in the foregoing provisions of this Article shall
contradict or limit the provisions set forth under Section 144 of the Delaware
Corporation Law. The alteration, amendment, change or repeal of any provision
of this Article shall not eliminate or reduce the effect of this Article in
respect of any matter occurring, or any cause of action, suit or claim that,
but for this Article, would accrue or arise, prior to such alteration,
amendment, repeal or adoption.
19
<PAGE> 1
EXHIBIT 4.1
<TABLE>
<S> <C> <C> <C>
COMMON STOCK PAR VALUE $.001
NUMBER SHARES
----------------- -----------------
[PFSWEB LOGO]
PFSweb, Inc.
THIS CERTIFICATE IS TRANSFERABLE IN
INCORPORATED UNDER THE LAWS THE CITIES OF NEW YORK, NEW YORK
OF THE STATE OF DELAWARE AND RIDGEFIELD PARK, NEW JERSEY
CUSIP 717098 10 7
SEE REVERSE FOR CERTAIN
DEFINITIONS AND RESTRICTIONS
ON TRANSFER
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.001 PER SHARE, OF
PFSweb, Inc.
(herein called the "Corporation") transferable on the books of the Corporation by the holder hereof, in
person or by duly authorized attorney, upon surrender of this Certificate properly endorsed or
accompanied by a proper assignment. This Certificate and the shares represented hereby are issued under
and shall be held subject to all of the provisions of the Amended and Restated Certificate of
Incorporation and the Bylaws of the Corporation, and all amendments thereto, copies of which are on file
at the principal offices of the Corporation and the Transfer Agent, to all of which the holder of this
Certificate, by acceptance hereof, assents. This Certificate is not valid unless countersigned by the
Transfer Agent and registered by the Registrar of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused the facsimile signatures of its duly authorized
officers and its facsimile seal to be hereunto affixed.
Dated:
/s/ COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
President and Chief Executive Officer [SEAL] TRANSFER AGENT AND REGISTRAR
BY
/s/
Secretary AUTHORIZED SIGNATURE
</TABLE>
<PAGE> 2
PFSweb, Inc.
The Corporation will furnish to any stockholder, upon request and
without charge, a full statement of the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof which the Corporation is authorized to issue and the
qualifications, limitations or restrictions of such preferences and/or rights of
each such class of stock or series thereof. Any such request should be made to
the Secretary of the Corporation at its principal place of business or to the
Transfer Agent and Registrar. The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT- Custodian
TEN ENT - as by the entireties ----------- -------------
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to Minors
in common Act
-----------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value Received, __________________________________ hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
- --------------------------------------------------------------------------------
Shares
- -------------------------------------------------------------------------
of the Common Stock represented by the within Certificate and do(es) hereby
irrevocably constitute and appoint
- --------------------------------------------------------------------------------
Attorney
- ----------------------------------------------------------------------
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated
---------------------------------
NOTICE:
THE SIGNATURE(S) TO THIS X
ASSIGNMENT MUST CORRESPOND ----------------------------------
WITH THE NAME(S) AS WRITTEN (SIGNATURE)
UPON THE FACE OF THE
CERTIFICATE IN EVERY
PARTICULAR WITHOUT ALTERATION X
OR ENLARGEMENT OR ANY CHANGE ----------------------------------
WHATEVER. (SIGNATURE)
-----------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
-----------------------------------------
SIGNATURE(S) GUARANTEED BY:
-----------------------------------------
<PAGE> 1
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas,
November 22, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE UNAUDITED
FINANCIAL STATEMENTS OF PFSWEB, INC. AS OF AND FOR THE SIX MONTHS ENDED
SEPTEMBER 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-START> APR-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 1,247
<SECURITIES> 0
<RECEIVABLES> 6,646
<ALLOWANCES> 617
<INVENTORY> 0
<CURRENT-ASSETS> 9,068
<PP&E> 9,193
<DEPRECIATION> 861
<TOTAL-ASSETS> 29,988
<CURRENT-LIABILITIES> 7,907
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> (238)
<TOTAL-LIABILITY-AND-EQUITY> 29,988
<SALES> 62,782
<TOTAL-REVENUES> 62,782
<CGS> 57,537
<TOTAL-COSTS> 57,537
<OTHER-EXPENSES> 5,724
<LOSS-PROVISION> 147
<INTEREST-EXPENSE> 650
<INCOME-PRETAX> (1,276)
<INCOME-TAX> (503)
<INCOME-CONTINUING> (773)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (773)
<EPS-BASIC> (.05)
<EPS-DILUTED> (.05)
</TABLE>
