UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Wismer-Martin, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
(CUSIP Number)
Jonathan Klein, Esq.
Gordon Altman Butowsky Weitzen Shalov & Wein
114 West 47th Street, 21st Floor
New York, New York 10036
(212) 626-0879
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 28, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box //.
Check the following box if a fee is being paid with the statement
/x/. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7).
NOTE: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
Page 1 of 7 Pages
List of Exhibits is on Page 7<PAGE>
<PAGE>
SCHEDULE 13D
CUSIP No. Page of 7 Pages
1 NAME OF REPORTING PERSON
Physician Computer Network, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) //
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
7,679,916
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
7,679,916
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,679,916
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
<PAGE>
SCHEDULE 13D
CUSIP No. Page of 7 Pages
1 NAME OF REPORTING PERSON
Jeffry Picower
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) //
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
7,679,916
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
7,679,916
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,679,916
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47%
14 TYPE OF REPORTING PERSON*
IN
<PAGE>
Item 1. Security and Issuer
This Schedule 13D relates to the option (the "Option")
granted by Mr. Ronald Holden ("Stockholder") to Physician Computer
Network, Inc. ("PCN") to acquire up to 7,679,916 shares of common
stock, par value $.001 per share ("Shares"), of Wismer-Martin, Inc.
(the "Issuer" or "Wismer"), a Washington corporation. The address
of the principal executive office of the Issuer is N. 12828 Newport
Highway, Mead, Washington, 99021-9988.
Item 2. Identity and Background
The persons filing this statement are Physician Computer
Network, Inc., a New Jersey corporation ("PCN"), and Jeffry Picower
("Picower"), an individual who is a citizen of the United States of
America (collectively, the "Registrants"). The principal business
address and the address of the principal office of PCN is 1200 The
American Road, Morris Plains, New Jersey 07950. Mr. Picower's
address is 1410 South Ocean Boulevard, Palm Beach, Florida 33480.
The principal business of PCN is developing, marketing
and supporting practice management software products for physician
practices. Mr. Picower is Chairman of the Board and a Director of
PCN and the beneficial owner of approximately 44% of the issued and
outstanding common stock of PCN. Mr. Picower is also Chairman of
the Board of Monroe Systems for Business, Inc., a worldwide office
equipment and service organization, and serves as Chairman of the
Board and Chief Executive Officer of Advanced Medical, Inc., which
through its subsidiary, IMED Corporation, manufactures intravenous
infusion pumps.
The name, citizenship, present principal occupation or
employment and business address of each director and executive
officer of PCN is set forth in schedule A attached hereto and is
incorporated by reference in its entirety.
Neither PCN, Picower nor any other executive officer or
director of PCN has, during the past five years, (a) been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a
result of such proceeding was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or
mandating activities subject to, Federal or State securities laws
or a finding of any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Option was granted by Stockholder to PCN pursuant to
an Option Agreement, dated May 28, 1996 (the "Option Agreement"),
as consideration for PCN entering into a letter of intent with the
Issuer regarding the acquisition by PCN of the Issuer. (See Item
4 below). The exercise price of the Option is $0.81 per Share.
The aggregate purchase price of all 7,679,916 Shares subject to the
Option is $6,220,731.96. In the event of exercise of the Option,
the source of funding for the purchase of Shares will be general
working capital of PCN.
Item 4. Purpose of Transaction
PCN acquired the Option from Ronald Holden, Chairman of
the Board, Chief Executive Officer and the largest single
stockholder of the Issuer, on May 28, 1996. The Stockholder
granted PCN the Option in consideration for PCN entering into a
letter of intent (the "Letter of Intent") dated May 28, 1996,
regarding the acquisition by PCN of the Issuer. As described in
the Letter of Intent, PCN proposes to acquire the Issuer through
the merger of a wholly-owned subsidiary of PCN with and into the
Issuer or a similar transaction (the "Transaction"). As a result
of the Transaction, the Issuer would become a wholly-owned
subsidiary of PCN.
The Letter of Intent provides that, in connection with
the Transaction, PCN would pay to the shareholders of the Issuer an
aggregate of (x) $1,980,000 in cash and (y) 935,000 shares of
common stock of PCN, subject to adjustment based upon the market
price of PCN's common stock prior to the consummation of the
Transaction. The Transaction is subject to, among other things,
completion by PCN of its due diligence investigation of the Issuer,
regulatory approval and approval of the Transaction by the Issuer's
shareholders.
Item 5. Interest in the Securities of the Issuer
As of the close of business on May 28, 1996, as a result
of its ownership of the Option, PCN may be deemed to beneficially
own in the aggregate 7,679,916 Shares, representing approximately
47% of the Issuer's outstanding Shares (based upon the 16,325,461
Shares stated to be outstanding in the Issuer's filing with the
Securities and Exchange Commission (the "SEC") on Form 10-QSB for
the quarter ended March 31, 1996). As beneficial owner and holder
of approximately 44% of PCN's common stock and Chairman of the
Board and a Director of PCN, Picower may be deemed to have
investment and voting power over the Shares. However, as provided
by Rule 13d-4 of the Securities Exchange Act of 1934, as amended,
Picower disclaims beneficial ownership of all Shares of the Issuer
beneficially owned by PCN.
PCN has sole voting power and sole dispositive power with
regard to 7,679,916 Shares. In addition, Picower through his
association with PCN, may be deemed to have shared voting power and
shared dispositive power with regard to the 7,679,916 Shares.
The only transaction in the Shares by any of the
Registrants effected during the past sixty days was PCN's
acquisition of the Option to purchase 7,679,916 Shares from the
Stockholder, which was effected by execution of the Option
Agreement on May 28, 1996.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
The Option Agreement was entered into on May 28, 1996,
between the Stockholder and PCN in order to induce PCN to enter
into the Letter of Intent regarding the proposed acquisition of the
Issuer by PCN. Under the Option Agreement, the Stockholder granted
to PCN an option to purchase: (i) 1,795,750 of the Shares; (ii)
5,468,875 of the Shares; or (iii) all 7,679,916 Shares for a
purchase price of $.81 per share at any time from and after May 28
and on or prior to the first to occur of: (x) July 15, 1996; or (y)
the date on which PCN and Issuer enter into a definitive merger
agreement regarding the Transaction (the "Expiration Date"). The
Option Agreement provides that the Option shall be exercisable by
PCN upon delivery to Stockholder of a written notice indicating the
number of shares PCN wishes to acquire. In addition, the Option
Agreement provides for the terms of payment for the Shares, as well
as customary anti-dilution protection including, among other
things, as a result of stock splits or the reorganization,
dissolution, liquidation or merger of the Issuer into another
company prior to the Expiration Date. The foregoing summary of the
Option Agreement is qualified in its entirety by reference to the
to the text of such agreement, which is attached hereto as Exhibit
2 and incorporated herein by reference.
On May 28, 1996, PCN and Issuer entered into a Letter of
Intent detailing the proposal of PCN to acquire all of the issued
and outstanding capital stock of the Issuer through a merger of a
subsidiary of PCN with Issuer or a similar transaction. The Letter
of Intent describes, among other things, that upon the closing of
the Transaction, (i) Issuer would become a wholly-owned subsidiary
of PCN and (ii) the holders of Shares of Issuer would be entitled
to receive an aggregate of (x) $1,980,000 in cash and (y) 935,000
shares of PCN common stock ("PCN Shares"). In addition, the Letter
of Intent makes provisions for the increase or decrease in the
number of PCN Shares which will be issued to Issuer's shareholders
in the event that the per share market price of the PCN Shares
drops below $10 per share or rises above $12.25 per share. The
Letter of Intent also contains certain representations and
warranties and covenants by the Issuer to PCN. These include,
among others, (a) the representation that the Board of Directors of
the Issuer has approved the basic terms of the Transaction; (b)
that the Issuer will deliver audited financial statements to PCN as
soon as possible; (c) that during the term of the Letter of Intent
the Issuer will not solicit or discuss with any potential third
party buyer proposals with respect to the sale of the Shares or the
assets or business of the Issuer; and (d) that the Issuer will
conduct its business in the ordinary course. In addition, the
Letter of Intent describes certain of the conditions to which
consummation of the Transaction will be subject, including, without
limitation, completion by PCN of its due diligence investigation of
the Issuer, regulatory approval and approval of the Transaction by
the Issuer's shareholders. The foregoing summary of the Letter of
Intent is qualified in its entirety by reference to the text of
such, which is attached hereto as Exhibit 3 and incorporated herein
by reference.
Item 7. Material to be Filed as Exhibits
Exhibit 1 Joint Filing Agreement dated May 30, 1996
between PCN and Picower.
Exhibit 2 Option Agreement between Stockholder and
PCN dated May 28, 1996.
Exhibit 3 Letter of Intent between PCN and the
Issuer dated May 28, 1996.
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANTS
Name, Business Address and Principal Occupation
of each Executive Officer and Director of PCN
The following sets forth the name and principal
occupation of each executive officer and director of PCN. Each
such person is a citizen of the United States of America. The
business address of each director and officer is c/o Physician
Computer Network, Inc., 1200 The American Road, Morris Plains, New
Jersey 07950.
Name Position
Jeffry M. Picower* Chairman of the Board and Director
Henry Green President, Chief Executive Officer
and Director
John F. Mortell Executive Vice President and Chief
Operating Officer
James R. Bailey Senior Vice President
Steven E. Kelsky Senior Vice President
William S. Edwards Vice President
Kenneth W. Ernsting Vice President
Thomas F. Wraback Vice President-Finance
Jerry Brager Director
Frederick Frank Director
Frederic Greenberg Director
Richard B. Kelsky Director
* See Item 2 above. Mr. Picower's address is 1410 South Ocean
Boulevard, Palm Beach, Florida, 33480.
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: May 30, 1996
PHYSICIAN COMPUTER NETWORK, INC.
By: /s/ Thomas P. Wraback
Thomas P. Wraback
Its: Vice President - Finance
/s/ Jeffry Picower
Jeffry Picower
[Signature Page for Schedule 13D with respect
to Wismer - Martin Inc.]
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13D-1(f) under the Securities
Exchange Act of 1934, as amended, the undersigned agree to the
joint filing on behalf of each of them of a statement on Schedule
13D (including amendments thereto) with respect to the Option
regarding Shares of common stock, par value $.001 per share, of
Wismer-Martin, Inc., and further agree that this Joint Filing
Agreement be included as an Exhibit to such joint filings. In
evidence thereof, the undersigned, being duly authorized, have
executed this Joint Filing Agreement this 30th day of May, 1996.
PHYSICIAN COMPUTER NETWORK, INC.
By: /s/ Thomas P. Wraback
Thomas P. Wraback
Its: Vice President and Finance
/s/ Jeffry Picower
Jeffry Picower
(Joint Filing Agreement for Schedule 13D - Wismer-Martin,
Inc.)
EXHIBIT 3
Physician Computer Network, Inc.
1200 The American Road
Morris Plains, New Jersey 07950
May 28, 1996
Wismer-Martin, Inc.
N. 12828 Newport Highway
Mead, Washington 99021-9988
Attention: Chief Executive Officer
Gentlemen:
This letter will confirm the proposal of Physician
Computer Network, Inc. ("PCN") for PCN to acquire all of the issued
and outstanding capital stock of Wismer-Martin, Inc. (the
"Company") through a merger of a subsidiary of PCN with the Company
or similar transaction (any such transaction referred to as the
"Transaction").
1. The Merger. The Merger Agreement (as hereinafter
defined) will provide that, at the closing of the Transaction (the
"Closing"): (i) the Company will become a subsidiary of PCN; and
(ii) the holders of the common stock of the Company (the "Company
Stock") and all other issued and outstanding securities of the
Company which are, with or without the payment of consideration,
convertible into, or otherwise exchangeable or exercisable for, any
capital stock of the Company, will be entitled to receive an
aggregate of (x) $1,980,000 in cash and (y) 935,000 shares of
common stock of PCN ("PCN Common Stock") (in each case, subject to
appropriate reduction for shares of the Company Stock with respect
to which appraisal or dissenters rights are perfected under
applicable law); provided, however, that, in the event that on the
third business day prior to the Closing (the "Trigger Date") the
aggregate Market Price (as hereinafter defined) of 935,000 shares
of PCN common stock is: (i) less than $9,350,000, the aggregate
number of shares of PCN Common Stock issuable by PCN in connection
with the Transaction shall be increased to a number of shares of
PCN Common Stock having an aggregate Market Price on the Trigger
Date equal to $9,350,000; or (ii) more than $11,453,750, the
aggregate number of shares of PCN Common Stock issuable by PCN in
connection with the Transaction shall be decreased to a number of
shares of PCN Common Stock having an aggregate Market Price on the
Trigger Date equal to $11,453,750. The parties agree that it is
their mutual intention that the receipt by the Company's
shareholders of PCN common stock in connection with the Transaction
be treated as a tax-free exchange for Federal income tax purposes.
As used herein, the "Market Price" of PCN Common Stock
shall be deemed to be the average of the closing sale price of
shares of PCN Common Stock as reported on the NASDAQ Stock Market
during the fifteen (15) trading days immediately preceding the date
of the determination.
2. Board of Directors Approval. The Company represents
and warrants to PCN that the Board of Directors of the Company has
approved the basic terms of the Transaction as described herein and
authorized and directed the officers of the Company to: (i) execute
and deliver this letter of intent by and on behalf of the Company;
and (ii) negotiate the terms and conditions of the Merger
Agreement, as described herein.
3. Financial Statements. The Company agrees to deliver
to PCN, as soon as available, audited financial statements of the
Company for the nine month period ended March 31, 1996 (the
"Audited Statements"). The Company will also deliver to PCN, as
soon as available, monthly statements in respect of each month
ending following March 31, 1996. The Company agrees to use its
best efforts to cause the Audited Statements to be finalized and
delivered to PCN as soon as possible.
4. No Solicitation. The Company agrees, for the benefit
of PCN, that, from and after the date of this Letter for so long as
this Letter remains in effect, neither the Company nor any officer,
director, employee, or other person with actual or apparent
authority to act on behalf of the Company will, directly or
indirectly, solicit or discuss with any potential third party buyer
any proposals with respect to the sale to any third party (whether
by way of a merger or otherwise) of all, or any substantial part
of, the Company Stock, the Company, the assets of the Company (the
"Assets") or the Company's business, provide any information
relating to the possible sale of the Company Stock, the Company,
the Assets or the Company's business, to any potential third party
buyer, or disclose to any potential third party buyer the fact that
the Company is, or the Stock or Assets and the Company's business
are, for sale, generally. The Company acknowledges to PCN that the
Company is unique and that PCN shall have the right, in addition to
any other rights it may have, to specific enforcement against the
Company of PCN's rights under this Section 4.
5. Conduct of Business. So long as this Letter remains
in effect, the Company shall: (i) conduct its business only in the
ordinary course (and consistent with past practices), (ii) not pay
any distribution or other compensation (whether by way of dividend,
payment of debt, management fee or additional compensation
transactions) to the stockholders of the Company or any entity in
which any affiliate of such stockholders has an interest (other
than, consistent with past practice, to stockholders who are
employees of the Company); (iii) not grant any executive salary
adjustment or bonus other than pursuant to compensation programs
existing on the date hereof and not enter into any employment
contracts or amendments to existing employment agreements other
than offers of at-will employment to non-management personnel; (iv)
not make any material capital expenditures or material disposition
of the Company's equipment or other assets (tangible or intangible)
or other material transactions involving the Company; (v) use its
best efforts to maintain its employee work force at its present
level and composition and to make no adjustment in wages or hours
of work, nor enter into any union contract or adopt any new
pension, benefit or severance plan, except in the ordinary course
of business consistent with past practice; (vi) disclose the terms
of this Letter or the fact that negotiations regarding the
Transaction are taking place only to the Company's employees on a
need to know basis; (vii) if requested by PCN, assist PCN in
securing the continued employment by the Company or PCN, as the
case may be, of those employees of the Company identified by PCN;
and (viii) account for all transactions and business of the Company
in accordance with generally accepted accounting principles,
consistently applied and consistent with past practice. The
Company shall promptly notify PCN in the event the Company fails to
conduct its business in the manner provided for in this paragraph
5.
6. The Merger Agreement. As soon as reasonably
practicable after the acceptance of this proposal by the Company,
PCN's counsel will prepare the definitive merger agreement (the
"Merger Agreement"). The Merger Agreement shall, among other
things:
(a) describe with greater particularity the
Transaction, including, without limitation, the mechanics
thereof and the consideration to be paid by PCN with respect
thereto;
(b) contain appropriate representations and
warranties from the Company, including without limitation, as
to: (i) the financial condition, properties, liabilities,
businesses and financial statements of the Company, in each
case where appropriate, relating to the Company as a whole;
(ii) the Company's right and title to the Assets, including,
without limitation, all intellectual property owned by the
Company; (iii) the nature of all copyrights and other
intellectual property owned or used by the Company and the
fact that such copyrights and intellectual property does not
infringe on the intellectual property rights of others; (iv)
the nature and identity of any liens or encumbrances covering
the Assets; and (v) the nature of the Company's pension plans
and the compliance of those plans with the requirements of
ERISA;
(c) contain provisions for reciprocal
indemnification providing, among other things, for
indemnification for any loss arising as a result of a breach
of any representation or warranty contained in the Agreement;
(d) contain the agreement of the Company to
promptly seek the approval of its shareholders to the Merger
Agreement and the Transaction; and
(e) contain such other terms and conditions as
are customary and normal in a transaction of this type.
The Agreement shall be consistent with this Letter and otherwise on
terms reasonably satisfactory to PCN and the Company.
7. Conditions. Consummation of the Transaction will be
subject to, and where applicable the Merger Agreement will contain,
the following conditions:
(a) there shall have been no material adverse
change in the Company's business, operations, financial
condition or prospects from June 30, 1995 to Closing;
(b) that PCN shall have received (in form and
substance reasonably satisfactory to PCN) reports and opinions
on such legal and other matters in connection with the
transactions as PCN deems pertinent;
(c) that the Company shall have delivered the
Audited Statements;
(d) that prior to the Closing, the Company shall
not have changed the nature of its business, and shall have
operated only in the ordinary course;
(e) that all of the representations and warranties
of the Company, the stockholders (if applicable) set forth in
the Agreement are true and correct in all material respects
prior to the Closing;
(f) that all of the covenants and agreements of the
Company and the stockholders (if applicable) shall have been
satisfied on or prior to the Closing;
(g) that on or prior to the Closing Date, certain
affiliates, stockholders and employees identified by PCN shall
have delivered non-competition agreements, in form
satisfactory to PCN, to PCN;
(h) that the Transaction shall have been approved
by the requisite number of shareholders of the Company as is
required under applicable law (and prior to the Closing the
Company shall use its best efforts to obtain such approval);
(i) that all required consents and approvals shall
have been obtained and all necessary filings shall have been
made and, where necessary, become effective, including,
without limitation, any approval required under the Hart-
Scott-Rodino Antitrust Improvement Act of 1976, as amended;
(j) that a Registration Statement on Form S-4
covering the common stock to be issued by PCN in connection
with the Transaction shall have been declared effective by the
Securities and Exchange Commission;
(k) that shareholders of the Company holding no
more than 5% of the Company's issued and outstanding Company
Stock shall have perfected their appraisal or dissenter rights
under applicable law; and
(l) that, contemporaneously with the execution of
the Merger Agreement, the Company shall have obtained and
delivered to PCN "lock-up" letters from the Company's
affiliates (as such term is defined in the Securities Act of
1933, as amended) placing such restrictions on the purchase
and sale by such affiliates of the Company's and PCN's capital
stock as PCN may reasonably request (which lock-up letters
shall be in a form reasonably acceptable to PCN);
8. Due Diligence. PCN's obligations to enter into the
Merger Agreement are subject to the approval thereof by PCN's board
of directors and completion of a due diligence investigation with
respect to the Company's Assets, liabilities, business and
capitalization, as well as the Company's financial condition and
prospects generally, and to PCN being satisfied, in its sole
discretion, with the results thereof, which due diligence
investigation will commence promptly after the execution and
delivery of the Letter by the Company. In this connection, the
Company hereby authorizes PCN and such staff, consultants and
experts as PCN deems necessary or desirable, upon reasonable prior
notice to the Company, to make reasonable visits to the Company's
facilities during normal business hours and, on such occasions, to
have full access to the Company's books and records and staff.
9. Confidentiality. PCN and the Company agree to hold
all information heretofore or hereafter obtained from the other or
such party's advisers or agents about the other in strict
confidence and to use the information so obtained only for the
purpose of evaluating the Transaction contemplated by this Letter
and the Letter Agreement, except as otherwise required by law;
provided that, prior to any disclosure required by law, the
disclosing party notifies the other party in order to provide such
other party with an opportunity to take all appropriate action to
avoid or limit disclosure to the extent consistent with legal
obligations. If no Merger Agreement is reached or, if reached, is
thereafter terminated, each party agrees to return to the other,
promptly, all such information provided in written form, as well as
all copies thereof.
10. Duration of this Letter. This Letter shall expire if
a counterpart is not executed by you and, as so executed, returned
to us, by May 29, 1996. If executed by you, this Letter shall
expire on June 30, 1996 if the Merger Agreement has not been
entered into on or before that date. The parties shall, in good
faith, attempt to enter into the Merger Agreement on or before June
30, 1996.
11. Publicity. Any publicity relating to this
transaction and the method of its release shall be approved by each
of PCN and the Company, unless otherwise required by law. To the
extent a press release is required by law, PCN or the Company, as
the case may be, shall provide the other party with an opportunity
to review and comment of such on such press release prior to the
distribution thereof. Promptly following the execution and
delivery of this letter by PCN and the Company, PCN and the Company
shall, in good faith, attempt to agree upon and issue a joint press
release regarding the Transaction.
12. Good Faith. So long as this Letter remains in
effect, PCN and the Company shall negotiate in good faith to reach
agreement as to the terms of the Agreement as soon as practicable.
13. Expenses. Whether or not the transactions
contemplated in this Letter are consummated, each of the Company
and PCN will bear its own expenses for legal, accounting and other
professional fees incurred in connection therewith, except as
otherwise specifically provided in this Letter or in the Agreement.
14. Brokers. The Company, on the one hand, and PCN, on
the other hand, agree to indemnify and hold the other harmless from
any brokerage, finders, investment bankers or financial advisors
fees and expenses arising for their respective accounts with
respect to the transactions described herein.
15. Options and Proxies. The parties hereto acknowledge
that, contemporaneously with the execution and delivery of this
Letter by PCN and the Company, Mr. Ronald Holden, the beneficial
owner of 7,679,916 shares of the Company Stock, has granted to PCN
options to purchase such shares at any time prior to the earlier of
(x) July 15, 1996 or (y) the date upon which the Merger Agreement
is executed, for a cash exercise price per share of $0.81. The
Company agrees that, as a condition to PCN entering into the Merger
Agreement, the Company shall cause to be delivered to PCN: (i)
options to acquire up to 66-2/3% of the Company Stock for a per
share exercise price equal to the amount to be paid to the
Company's shareholders in connection with the Transaction; and (ii)
proxies to vote such shares in favor of the Transaction.
16. Effect of this Letter. This Letter sets forth the
principal terms to be incorporated in and the manner in which we
will try to arrive at the Agreement, and is not intended to create
any legally binding obligation on the part of any party, except
with respect to the obligations under Paragraphs 2, 3, 4, 5 and 8
through 17 while this Letter is in effect and, as to Paragraph 2,
9, 12 and 14, thereafter. If the Merger Agreement is entered into,
any obligations of the parties hereto shall terminate, except to
the extent expressly reaffirmed in the Agreement.
17. Counterparts. This Letter may be executed in any
number of counterparts, each of which, when executed, shall be
deemed to be an original and all of which together shall be deemed
to be one and the same instrument.
If this is acceptable to you, would you please so indicate on
the copies of this Letter enclosed herewith, in the space provided.
Very truly yours,
Physician Computer Network, Inc.
By: /s/ Thomas P. Wraback
ACCEPTED AND AGREED
as of this day of
May 1996
WISMER-MARTIN, INC.
By: /s/ Ronald Holden
EXHIBIT 2
OPTION AGREEMENT
OPTION AGREEMENT, dated May 28, 1996, by and between
Physician Computer Network, Inc., a New Jersey corporation ("PCN"),
and Ronald Holden (the "Stockholder") .
W I T N E S S E T H:
WHEREAS, simultaneously with the execution and delivery
of this Agreement, PCN and Wismer Martin, Inc. (the "Company") are
entering into a letter of intent, dated the date hereof (the
"Letter of Intent"), regarding the proposed terms upon which PCN
will enter into a definitive agreement (the "Agreement") to acquire
all of the capital stock of the Company through a merger or similar
transaction (the "Transaction"); and
WHEREAS, in order to induce PCN to enter into the Letter
of Intent and negotiate the terms of the Agreement, Stockholder
desires to enter into this Option Agreement with respect to the
7,679,916 shares (the "Shares") of Common Stock, par value $.01 per
share, of the Company (the "Common Stock"), beneficially owned by
the Stockholder.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration given to each party hereto,
the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Option
(a) Stockholder hereby grants to PCN an option (the
"Option") to purchase: (i) 1,795,750 of the Shares; (ii) 5,468,875
of the Shares; or (iii) all of the Shares, in each case for a
purchase price of $0.81 per share (the "Exercise Price"), at any
time from and after the date hereof and prior to the first to occur
of (x) July 15, 1996 or (y) the date on which PCN and the Company
enter into the Agreement (the "Expiration Date"). The Option shall
be exercisable by PCN one time for the number of Shares specified
in clauses (i), (ii) or (iii), and no combination thereof.
(b) The Option shall be exercisable by PCN by delivery
to Stockholder of a written notice indicating the number of shares
PCN wishes to acquire (the "Notice"). The Notice shall be
accompanied by payment of the purchase price of the Shares
purchased as specified therein. Payment for the shares may be made
in cash or by check payable to the order of Stockholder. Upon
delivery of payment for the Shares, Stockholder shall deliver to
PCN a certificate or certificates for the number of Shares
indicated in the Notice, together with duly executed stock powers
therefor. Upon delivery, such Shares shall be fully-paid and non-
assessable and free and clear of all liens, security interests and
other encumbrances.
(c) In the event that, prior to the Expiration Date, the
Company shall issue shares of its Common Stock as stock dividends
or shall subdivide or split or combine the outstanding shares of
Common Stock, the Exercise Price shall forthwith proportionately be
decreased in the case of a stock dividend, subdivision or stock
split, or proportionately be increased in the case of combinations,
in each case to the nearest one cent, to give effect to such
change. Concurrently, the number of Shares to which this Option
shall apply shall be increased or decreased in proportion to the
increase or decrease in the number of shares of Common Stock
outstanding as a result of such change.
(d) In the event of any reorganization or
reclassification of the outstanding shares of Common Stock, or in
the case of any consolidation with or merger of the Company into
another corporation in which the Company is not the surviving
corporation, or in the case of any sale, lease or conveyance of
all, or substantially all, of the property, assets, business and
goodwill of the Company, PCN shall thereafter have the right upon
exercise of the Option to purchase from Stockholder the kind and
amount of shares of stock and other securities and property
received by Stockholder upon such reorganization, reclassification,
consolidation, merger or sale, at a price equal to the Exercise
Price then in effect, and, prior to the Expiration Date,
Stockholder will not sell, convey or otherwise dispose of any
shares of stock and other securities or property received by
Stockholder upon the consummation of any such transaction.
(e) In the event the Company shall, at any time prior to
the Expiration Date and prior to the exercise in full of the
Option, dissolve, liquidate or wind up its affairs, PCN shall be
entitled, upon exercise of the Option, to receive, in lieu of the
Shares which it would have been entitled to receive, the same kind
and amount of assets as PCN would have received, the same kind and
amount of assets as would have been issued, distributed or paid to
it upon any such dissolution, liquidation or winding up with
respect to such Shares had it been the holder of record of such
Shares on the record date for the determination.
Section 2. Maintenance of Shares. During the term of
this Agreement, except the sale of the Shares to PCN upon exercise
of the Option or in connection with the Transaction, Stockholder
will continue to be the beneficial and record owner of all right,
title and interest in and to the Shares and agrees that he will not
sell, assign, pledge or otherwise dispose of, or grant any proxies
with respect to, the Shares, other than proxies called for by the
terms of the Letter of Intent, or enter into any contract, option
or other arrangement or understanding with respect to the sale,
assignment, pledge or other disposition, directly or indirectly, of
the Shares or any right, title or interest in or to the Shares.
Section 3. Term of Agreement. The obligations of
Stockholder under this Agreement will terminate on the Expiration
Date.
Section 4. Representations and Warranties of
Stockholder. Stockholder represents and warrants to PCN as of the
date hereof that:
(a) Stockholder is the record and beneficial owner of
the Shares and the Shares (i) represent all of the Common Stock
owned of record or beneficially by Stockholder, directly or
indirectly, (ii) are fully-paid and non-assessable and (iii) are
free and clear of all liens, security interests and other
encumbrances;
(b) Stockholder has full legal power and authority to
execute and deliver this Agreement;
(c) the Shares are free and clear of all proxies, voting
agreements, voting trusts and other agreements relating to the
voting of the shares; and
(d) Stockholder has duly executed and delivered this
Agreement.
Section 5. Specific Performance. Stockholder
acknowledges that PCN would suffer irreparable damage if any of the
provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly
agreed that PCN shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States
or any state thereof having jurisdiction, this being in addition to
any other remedy to which PCN may be entitled at law or in equity.
Section 6. Binding Effect. This Agreement shall inure
to the benefit of and, subject to applicable law, be binding upon
the parties hereto and their respective heirs, personal
representatives, successors and assigns.
Section 7. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of New York, without giving effect to the principles of conflict of
laws thereof.
Section 8. Counterparts. This Agreement may be executed
in two counterparts, each of which shall be an original, but which
together shall constitute one and the same agreement.
Section 9. Effect of Headings. The section headings
herein are for convenience only and shall not affect the
construction hereof.
Section 10. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of
this agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
Section 11. Amendment; Waiver. No amendment or waiver
of any provision of this Agreement or consent to departure
therefrom shall be effective unless in writing and signed by PCN
and Stockholder, in the case of an amendment, or by the party which
is the beneficiary of any such provision, in the case of a waiver
or a consent to departure therefrom.
Section 12. Entire Agreement. This Agreement sets forth
the entire understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements,
covenants, arrangements, communications, representations and
warranties, whether oral or written, by either party with respect
thereto.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed
by the parties hereto all as of the day and year first above
written.
/s/ Ronald Holden
RONALD HOLDEN
PHYSICIAN COMPUTER NETWORK,
INC.
BY: /s/ Thomas P. Wraback
Vice President-Finance
