<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15 (d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 15, 1999
FISHER SCIENTIFIC INTERNATIONAL INC.
(Exact name of registrant as specified in charter)
Delaware
(State or other jurisdiction of incorporation)
1-10920 02-0451017
(Commission File No.) (IRS employer identification no.)
Liberty Lane, Hampton, New Hampshire 03842
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (603) 926-5911
<PAGE> 2
ITEM 2: ACQUISITION OR DISPOSITION OF ASSETS
On April 15, 1999, Fisher Scientific International Inc. ("Fisher") spun
off (the "Spinoff") its wholly owned subsidiary, ProcureNet, Inc.
("ProcureNet"), through a pro rata distribution to the stockholders of Fisher of
all of the shares of common stock of ProcureNet (the "ProcureNet Common Stock").
The record date for the Spinoff was March 30, 1999. Fisher stockholders received
one share of ProcureNet Common Stock for every share of common stock of Fisher
owned by them at the close of business on March 30, 1999. The date for
distribution of the ProcureNet Common Stock was April 15, 1999.
ProcureNet provides procurement outsourcing services and supply chain
management technology to agencies of the United States government and industry.
Fisher decided to spin off ProcureNet because ProcureNet's business was not part
of Fisher's core business. The Spinoff is intended to simplify and focus
Fisher's operations, and to allow ProcureNet to build and develop its operations
as an independent entity.
ProcureNet Common Stock consists of three series: ProcureNet Voting Common
Stock, ProcureNet Series A Non-Voting Common Stock and ProcureNet Series B
Non-Voting Common Stock. After the Spinoff and certain related transactions, all
of the issued and outstanding capital stock of ProcureNet was substantially
identical to the issued and outstanding capital stock of Fisher. The holders of
Fisher's voting common stock as of the record date received the ProcureNet
Voting Common Stock, the holders of Fisher's non-voting common stock as of the
record date received the ProcureNet Series A Non-Voting Common Stock and the
holders of Fisher's Series B non-voting common stock as of the record date
received ProcureNet Series B Non-Voting Common Stock. The terms of each series
of ProcureNet Common Stock are substantially the same as the corresponding
series of Fisher's common stock. In addition, certain stockholders of Fisher who
hold warrants to purchase, in the aggregate, approximately 6.5% of Fisher's
stock also received warrants to purchase the same percentage of ProcureNet's
stock. The terms of the ProcureNet warrants are substantially the same as those
of the Fisher warrants.
ProcureNet Common Stock has not been registered, and it has not been
listed on any exchange. Holders of ProcureNet Common Stock are significantly
restricted in their ability to transfer shares of ProcureNet Common Stock.
The Spinoff is a taxable distribution to stockholders of Fisher who
received ProcureNet Common Stock. The Board of Directors of Fisher determined,
based on an appraisal performed by a firm of independent appraisers, that, for
tax purposes, the value per share of ProcureNet Common Stock is $0.15.
2
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ProcureNet will continue to provide certain services to Fisher and its
customers in the same manner as currently provided. ProcureNet and Fisher have
entered into agreements to govern their future relationship in order to ensure a
smooth transition following the Spinoff and to establish ProcureNet as an
independent company.
ProcureNet currently has $19 million of indebtedness outstanding to
Fisher, and ProcureNet may borrow up to an additional $3 million until December
31, 2006. All such indebtedness is due and payable on December 31, 2007 and
bears interest at the annual rate of nine percent. Fisher also holds a warrant
for the purchase of up to 20% of ProcureNet's equity (after giving effect to the
exercise of the warrant) under certain circumstances at any time prior to
December 31, 2007.
3
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ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS.
(b) Pro Forma Financial Information.
The pro forma information required by this Item 7 is contained
in the financial statements and notes thereto listed in the
Index on page F-1 herein.
(c) The following documents are filed as exhibits hereto:
2.01 Distribution Agreement, dated as of March 29, 1999,
between Fisher Scientific International Inc. and
ProcureNet, Inc.
4.01 Amended and Restated Certificate of Incorporation of
ProcureNet, Inc.
Pursuant to the requirements of the Securities Exchange Act of
1934, the Company has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Todd DuChene
---------------------------------------
Name: Todd DuChene
Title: Vice President, General Counsel
and Secretary
Dated: April 30, 1999
<TABLE>
<CAPTION>
Exhibit
Index Description
- ------- -----------
<S> <C> <C>
2.01 Distribution Agreement, dated
March 29, 1999, among Fisher Scientific
International Inc. and ProcureNet, Inc. .................... Filed electronically
4.01 Amended and Restated Certificate of
Incorporation of ProcureNet, Inc. .......................... Filed electronically
</TABLE>
4
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FISHER SCIENTIFIC INTERNATIONAL INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Fisher Scientific International Inc., Unaudited Pro Forma Financial
Information F-2
Unaudited Pro Forma Consolidated Balance Sheet
December 31, 1998 F-3
Unaudited Pro Forma Consolidated Statement of Operations
for the year ended December 31, 1998 F-4
Notes to Unaudited Pro Forma Financial Statements F-5
</TABLE>
F-1
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Fisher Scientific International Inc.
Unaudited Pro Forma Financial Information
The Unaudited Pro Forma Balance Sheet as of December 31, 1998 and the Unaudited
Pro Forma Statement of Operations for the period then ended set forth below give
effect to the spinoff of Fisher's procurement outsourcing services and supply
chain management technology business ("ProcureNet") to stockholders of Fisher
(the "Spinoff"). Following the Spinoff, Fisher and ProcureNet will operate as
separate, stand-alone companies. As part of the Spinoff Fisher and ProcureNet
will enter into a transition services agreement pursuant to which Fisher will
provide ProcureNet with certain management and other administrative services and
ProcureNet will continue to provide Fisher and its customers third party
procurement and electronic commerce support and services. The methodology for
determining the costs and expenses in providing and furnishing such services and
the amount of such costs and expenses allocated to the party receiving such
services shall be based on the methodology used prior to the Spinoff for
allocating such costs and expenses between ProcureNet and Fisher.
The Unaudited Pro Forma Financial Information is provided for informational
purposes only and does not purport to be indicative of Fisher's results of
operations that would actually have been achieved had the Spinoff been completed
as of or for the period presented, or that may be obtained in the future. The
Pro Forma Financial Information should be read in conjunction with the audited
and unaudited historical financial statements of Fisher and related notes
thereto previously reported on Forms 10-K and 10-Q.
F-2
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Fisher Scientific International Inc.
Unaudited Pro Forma Balance Sheet
December 31, 1998
(in millions)
<TABLE>
<CAPTION>
Historical Pro Forma(b)
----------------------------- -----------------------------
Fisher ProcureNet Adjustments Total
---------- ---------- ----------- ----------
<S> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents .................. $ 65.6 $ -- $ -- $ 65.6
Receivables, net ........................... 205.6 -- -- 205.6
Inventories ................................ 220.9 -- -- 220.9
Other current assets ....................... 69.0 -- -- 69.0
-------- -------- -------- --------
Total current assets ................... 561.1 -- -- 561.1
Property, plant and equipment, net .............. 246.0 -- -- 246.0
Goodwill ........................................ 385.9 -- -- 385.9
Other assets .................................... 149.9 -- 5.0(a) 154.9
Net assets from operations to be disposed of .... 14.7 (10.7) -- 4.0
-------- -------- -------- --------
Total assets ........................... $1,357.6 $ (10.7) $ 5.0 $1,351.9
======== ======== ======== ========
LIABILITIES AND STOCKHOLDERS' (DEFICIT) EQUITY
Current liabilities
Short-term debt ............................ $ 19.7 $ -- $ -- $ 19.7
Accounts payable ........................... 246.3 -- -- 246.3
Accrued and other current liabilities ...... 187.2 -- -- 187.2
-------- -------- -------- --------
Total current liabilities .............. 453.2 -- -- 453.2
Long-term debt .................................. 1,022.0 -- -- 1,022.0
Other liabilities ............................... 207.1 -- -- 207.1
-------- -------- -------- --------
Total liabilities ...................... 1,682.3 -- -- 1,682.3
Stockholders' (deficit) equity:
Preferred stock ........................ -- -- -- --
Common stock ........................... 0.4 -- -- 0.4
Capital in excess of par value ......... 313.3 -- -- 313.3
Retained (deficit) earnings ............ (618.2) (10.7) 5.0(a) (623.9)
Accumulated other comprehensive income . (19.7) -- -- (19.7)
Treasury stock ......................... (0.5) -- -- (0.5)
Other .................................. -- -- -- --
-------- -------- -------- --------
Total stockholders' (deficit) equity (324.7) (10.7) 5.0 (330.4)
-------- -------- -------- --------
Total liabilities and
stockholders' (deficit) equity ..... $1,357.6 $ (10.7) $ 5.0 $1,351.9
======== ======== ======== ========
</TABLE>
F-3
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Fisher Scientific International Inc.
Unaudited Pro Forma Statement of Operations
Year Ended December 31, 1998
(in millions, except per share amounts)
<TABLE>
<CAPTION>
Historical Pro Forma(b)
--------------------------- -------------------------
Fisher ProcureNet Adjustments Total
-------- ---------- ---------- --------
<S> <C> <C> <C> <C>
Sales ..................................... $2,252.3 $ -- $ -- $2,252.3
Cost of sales ............................. 1,616.0 -- -- 1,616.0
Selling, general and administrative expense 503.8 -- -- 503.8
Transaction-related costs ................. 71.0 -- -- 71.0
Restructuring and other charges ........... 23.6 -- -- 23.6
Loss from operations to be disposed of .... 15.1 (11.2) -- 3.9
-------- -------- -------- --------
Income from operations .................... 22.8 11.2 -- 34.0
Interest expense .......................... 90.3 -- -- 90.3
Other (income) expense, net ............... (7.2) 0.2 (0.5)(a) (7.5)
-------- -------- -------- --------
(Loss) income before income taxes ......... (60.3) 11.0 0.5 (48.8)
Income tax benefit provisions ............. (10.8) 4.4 0.2 (6.2)
-------- -------- -------- --------
Net (loss) income ......................... $ (49.5) $ 6.6 $ 0.3 $ (42.6)
======== ======== ======== ========
Net (loss) per common share:
Basic................................. $ (1.24) $ (1.07)
======== ========
Diluted............................... $ (1.24) $ (1.07)
======== ========
</TABLE>
F-4
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Fisher Scientific International Inc.
Notes to Unaudited Pro Forma Financial Information
(a) The Pro Forma Financial Statements reflect a $5 million note
receivable from ProcureNet with an annual interest rate of 9% due and
payable on December 31, 2007, which represents the conversion of a
portion of December 31, 1998 intercompany payables. Initially after the
Spinoff, ProcureNet will be dependent on financing facilities provided to
it by Fisher, including an $8 million line of credit provided by Fisher,
none of which is reflected on the Pro Forma Financial Statements. Since
December 31, 1998, ProcureNet has borrowed $5 million under the $8
million line of credit.
(b) Effective January 13, 1999, ProcureNet completed the acquisition of all of
the outstanding shares of Structured Computer Systems, Inc. ("SCS"), a
company that develops, markets and sells procurement software, for $9
million in cash. In order to finance this acquisition, ProcureNet issued a
note for $9 million to Fisher, which paid the purchase price of SCS on
behalf of ProcureNet. This note bears interest at an annual rate of 9% and
is due and payable on December 31, 2007. As these transactions occurred
after December 31, 1998, they are not reflected in the Pro Forma Financial
Statements.
F-5
<PAGE> 1
DISTRIBUTION AGREEMENT
between
FISHER SCIENTIFIC INTERNATIONAL INC.
and
PROCURENET, INC.
dated as of
March 29, 1999
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
PRE-SPINOFF TRANSACTIONS;
CERTAIN COVENANTS
Section 2.01. Corporate Restructuring Transactions ................ 8
Section 2.02. Certificate of Incorporation and Bylaws of ProcureNet 9
Section 2.03. Election of Directors ............................... 9
Section 2.04. Appointment of Officers ............................. 9
Section 2.05. Certain Provisions Relating to Assigned Agreements .. 9
Section 2.06. Consents ............................................ 10
Section 2.07. State Securities Laws ............................... 10
Section 2.08. Employees ........................................... 10
Section 2.09. Ancillary Agreements ................................ 11
ARTICLE III
THE SPINOFF
Section 3.01. The Spinoff ......................................... 11
Section 3.02. Spinoff Procedures; Deferral of Record Date
and Spinoff Date .................................... 11
Section 3.03. Notice to NYSE ...................................... 12
Section 3.04. Mailing of Information Statement .................... 12
Section 3.05. Distribution of ProcureNet Stock .................... 12
Section 3.06. Conditions to the Spinoff ........................... 12
Section 3.07. Actions to Be Taken Immediately After the Spinoff ... 14
ARTICLE IV
COVENANTS
Section 4.01. Further Assurances .................................. 14
Section 4.02. Assumption and Satisfaction of Liabilities .......... 14
Section 4.03. Property Received ................................... 14
Section 4.04. Transfers Not Effected Prior to the Spinoff;
Transfers Deemed Effective as of the Spinoff Date.... 14
Section 4.05. No Representations or Warranties .................... 15
Section 4.06. Removal of Certain Guarantees ....................... 16
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Section 4.07. Public Announcements ................................ 16
Section 4.08. Termination of Intercompany Agreements .............. 16
ARTICLE V
ACCESS TO INFORMATION
Section 5.01. Access to Books and Records ......................... 17
Section 5.02. Reimbursement ....................................... 17
Section 5.03. Confidentiality ..................................... 17
Section 5.04. Witness Services .................................... 18
Section 5.05. Retention of Books and Records ...................... 18
Section 5.06. Privileged Matters .................................. 19
ARTICLE VI
INSURANCE
Section 6.01. General ............................................. 20
Section 6.02. Treatment of Reserves ............................... 20
Section 6.03. Uninsured Retentions; Claims Management ............. 20
Section 6.04. Directors' and Officers' Insurance .................. 21
ARTICLE VII
INDEMNIFICATION
Section 7.01. Indemnification by ProcureNet ....................... 21
Section 7.02. Procedures for Indemnification ...................... 21
Section 7.03. Adjustments for Insurance Proceeds .................. 22
Section 7.04. Contribution ........................................ 23
Section 7.05. Remedies Cumulative ................................. 23
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Termination ......................................... 23
Section 8.02. Expenses ............................................ 23
Section 8.03. Notices ............................................. 24
Section 8.04. Governing Law ....................................... 24
Section 8.05. Choice of Forum ..................................... 24
Section 8.06. Amendments; Waivers, etc. ........................... 25
Section 8.07. Assignment .......................................... 25
Section 8.08. Third Party Beneficiaries ........................... 25
Section 8.09. Severability ........................................ 25
Section 8.10. Section Headings .................................... 25
Section 8.11. Integration ......................................... 26
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Page
Section 8.12. Counterparts ........................................ 26
Section 8.13. Coordination with Tax Sharing Agreement ............. 26
SCHEDULES
Schedule I ProcureNet Assets
Schedule II ProcureNet Liabilities
EXHIBITS
EXHIBIT A Borrower Security Agreement
EXHIBIT B Chase Equity Agreement
EXHIBIT C Credit Agreement
EXHIBIT D Employee Benefits Agreement
EXHIBIT E Fisher Warrant
EXHIBIT F Guarantee Agreement
EXHIBIT G Guarantor Security Agreement
EXHIBIT H Intellectual Property Agreement
EXHIBIT I Intercompany Note
EXHIBIT J Investors' Agreement
EXHIBIT K Pledge Agreement
EXHIBIT L SCS Note
EXHIBIT M Tax Sharing Agreement
EXHIBIT N Transitional Services Agreement
EXHIBIT O Warrant Agreement
EXHIBIT P Amended and Restated Certificate of Incorporation of
ProcureNet, Inc.
EXHIBIT Q Amended and Restated Bylaws of ProcureNet, Inc.
iii
<PAGE> 5
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT, dated as of March 29, 1999, between
FISHER SCIENTIFIC INTERNATIONAL INC., a Delaware corporation ("Fisher"), and
PROCURENET, INC., a Delaware corporation ("ProcureNet").
RECITALS
A. The Board of Directors of Fisher has deemed it appropriate and
advisable to separate Fisher's procurement outsourcing services and supply chain
management technology businesses by (a) having such businesses be owned by
ProcureNet and (b) afterwards, distributing as a dividend to holders of stock of
Fisher all of the stock of ProcureNet.
B. Following such separation and distribution, Fisher will not own
any stock of ProcureNet.
C. The parties hereto desire to set forth the terms and conditions of
such separation and distribution, including the principal corporate transactions
required to effect the foregoing.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following meanings:
"Agreement" means this Distribution Agreement, as it may be amended,
supplemented or restated from time to time, together with all Exhibits
and Schedules hereto.
"Ancillary Agreements" means the Borrower Security Agreement, Chase
Equity Agreement, the Credit Agreement, the Employee Benefits Agreement,
the Fisher Warrant, the Guarantee Agreement, the Guarantor Security
Agreement, the Intellectual Property Agreement, the Investors' Agreement,
the Pledge Agreement, the Notes, the Subleases, the Tax Sharing Agreement,
the Transitional Services Agreement, the Warrant Agreement, and all other
agreements and instruments contemplated by Section 2.09.
<PAGE> 6
"Books and Records" means all books, records, manuals, agreements,
financial data, customer and supplier lists, price lists, correspondence,
distribution lists, supplier lists, production data, sales and promotional
materials and records, purchasing materials and records, personnel
records, manufacturing and quality control records and procedures, blue
prints, research and development files, litigation files, computer files,
microfiche, tape recordings and other materials (in any form or medium).
"Borrower Security Agreement" means the security agreement, dated as
of March 19, 1999, between SPS and Fisher, attached hereto as Exhibit A,
as the same may be amended, supplemented or restated from time to time.
"Chase Equity Agreement" means the agreement to be entered into
between Chase Equity Associates, L.P. and ProcureNet, substantially in the
form of Exhibit B, as the same may be amended, supplemented or restated
from time to time.
"Consents" has the meaning set forth in Section 2.06.
"Corporate Restructuring Transactions" means the transactions to be
undertaken prior to the Spinoff to separate the ProcureNet Business from
the Fisher Business, as contemplated by Section 2.01.
"Credit Agreement" means the $8 million credit agreement, dated as of
March 19, 1999, between SPS as borrower and Fisher as lender, attached
hereto as Exhibit C, as the same may be amended, supplemented or restated
from time to time.
"DGCL" means the Delaware General Corporation Law, in effect from
time to time.
"Distribution Agent" means ChaseMellon Shareholder Services, L.L.C.,
or such other trust company or bank designated by Fisher, to act as the
agent responsible for the distribution of the ProcureNet Common Stock and
the ProcureNet Series B Non-Voting Common Stock to the Holders in the
Spinoff.
"ECD" means the business known as Fisher's Electronic Commerce
Division, consisting of the assets and Liabilities listed in Annex A to
Schedule I.
"Employee Benefits Agreement" means the Employee Benefits Agreement
to be entered into between ProcureNet and Fisher, substantially in the
form of Exhibit D, as the same may be amended, supplemented or restated
from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, in effect
from time to time.
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"Fisher" has the meaning set forth in the Introduction.
"Fisher Business" means all of the business, operations and
activities of Fisher and its Subsidiaries, except for the ProcureNet
Business, as of the Spinoff Date.
"Fisher Common Stock" means shares of common stock, par value $0.01
per share, of Fisher.
"Fisher Group" means Fisher and its Subsidiaries immediately after
the Spinoff.
"Fisher Indemnitees" means Fisher and the other members of the Fisher
Group and each of their respective past, present and future directors,
officers, employees and agents.
"Fisher Non-Voting Common Stock" means the shares of non-voting
common stock, par value $0.01 per share, of Fisher established pursuant to
the Certificate of Designation, dated January 20, 1998.
"Fisher Series B Non-Voting Common Stock" means the shares of Series
B non-voting common stock, par value $0.01 per share, of Fisher,
established pursuant to the Certificate of Designation, dated on or about
March 29, 1999.
"Fisher Uninsured Retention" means, with respect to any claim under
the Primary Casualty Program relating to Fisher Group Liability, any and
all amounts which, under the operation of the Primary Casualty Program,
the insured party or beneficiary shall be obligated to contribute (by
means of the application of a deductible or payment under a reimbursement
obligation, indemnity agreement, large loss rating agreement or other
similar instrument) in respect of such claim to the appropriate insurance
carrier or to a Person entitled to reimbursement or indemnity under
contractual or other arrangements; provided that, for purposes of
determining the amount of any Fisher Uninsured Retention, the benefits of
application of any maximum premium limits, stop-loss aggregates,
reimbursement or indemnity limits (or other provisions under the Primary
Casualty Program which would have the effect of aggregating deductibles of
self-insured retentions or limiting the indemnification or reimbursement
amounts) shall be allocated appropriately to reduce the uninsured
retentions of the ProcureNet Group and/or the Fisher Group.
"Fisher Warrant" means the warrant issued by ProcureNet to Fisher,
dated as of March 19, 1999, attached hereto as Exhibit E, as the same may
be amended, supplemented or restated from time to time.
"Governmental Authority" means any government, any political
subdivision, any governmental agency, bureau, department, board or
commission, any court or
3
<PAGE> 8
tribunal or any other governmental instrumentality, whether federal, state
or local, domestic or foreign.
"Group" means the ProcureNet Group or the Fisher Group.
"Guarantee Agreement" means the guarantee agreement, dated as of
March 19, 1999, between ProcureNet, SCS, SSI and Fisher, attached hereto
as Exhibit F, as the same may be amended, supplemented or restated from
time to time.
"Guaranteed Fisher Liabilities" has the meaning set forth in Section
4.06(a).
"Guaranteed ProcureNet Liabilities" has the meaning set forth in
Section 4.06(a).
"Guarantor Security Agreement" means the security agreement, dated as
of March 19, 1999 between ProcureNet, SCS, SSI and Fisher, attached hereto
as Exhibit G, as the same may be amended, supplemented or restated from
time to time.
"Holders" means the holders of record, as of the Record Date, of
Fisher Common Stock, Fisher Non-Voting Common Stock and/or Fisher Series B
Non-Voting Common Stock.
"Indemnification Notice" has the meaning set forth in Section 7.02.
"Indemnified Party" means any Person that is seeking indemnification
or payment from ProcureNet pursuant to Section 7.01.
"Information Statement" means the information statement to be sent to
the Holders relating to ProcureNet and the Spinoff.
"Intellectual Property Agreement" means the Software License
Agreement to be entered into between ProcureNet and Fisher, substantially
in the form of Exhibit H, as the same may be amended, supplemented or
restated from time to time.
"Intercompany Note" means the $5 million note, dated as of December
31, 1998, issued by SPS to Fisher, attached hereto as Exhibit I, as the
same may be amended, supplemented or restated from time to time.
"Investors' Agreement" means the Investors' Agreement to be entered
into among ProcureNet and the other parties listed therein, substantially
in the form of Exhibit J, as the same may be amended, supplemented or
restated from time to time.
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"Law" means all laws, statutes and ordinances and all regulations,
rules, orders, decrees and other pronouncements of Governmental
Authorities.
"Liabilities" means any debt, liability, obligation, responsibility,
loss, damage (compensatory, punitive or other), fine, penalty, or
sanction, whether absolute, contingent or otherwise.
"Losses" means, with respect to any Person, any and all losses,
liabilities, penalties, claims, damages, demands, costs and expenses
(including reasonable attorneys' and accountants' fees and expenses) that
are assessed or imposed upon, or incurred or suffered by, such Person,
including reasonable attorneys' fees and expenses incurred in enforcing any
judgment, order, proclamation or other decision of any Governmental
Authority or arbitration tribunal. Notwithstanding the foregoing, "Losses"
of a Person shall exclude punitive and consequential damages incurred or
suffered by such Person but shall include amounts paid or required to be
paid by such Person as punitive or consequential damages to another Person.
"Notes" means the Intercompany Note and the SCS Note.
"NYSE" means the New York Stock Exchange.
"Person" means an individual, corporation, trust, joint venture,
association, partnership or other entity, or any governmental or political
subdivision or an agency or instrumentality thereof.
"Pledge Agreement" means the pledge agreement, dated as of March 19,
1999, between SPS, ProcureNet and Fisher, attached hereto as Exhibit K, as
the same may be amended, supplemented or restated from time to time.
"Primary Casualty Program" means, collectively, the series of
programs pursuant to which various insurance carriers have provided and
are providing insurance coverage to Fisher Entities with respect to known
or unknown claims relating to workers' compensation, automobile liability,
general liability, products liability and umbrella liabilities. Fisher
Entities shall consist of Fisher; Subsidiaries of Fisher; all Persons,
businesses and facilities acquired by Fisher or its Subsidiaries; and all
Persons, businesses and facilities sold or otherwise divested by Fisher
and its Subsidiaries, including all discontinued or abandoned businesses
or facilities.
"Privilege" has the meaning set forth in Section 5.06(a).
"Privileged Information" has the meaning set forth in Section
5.06(a).
"ProcureNet" has the meaning set forth in the Introduction.
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<PAGE> 10
"ProcureNet Assets" means the assets, properties and rights set forth
on Schedule I.
"ProcureNet Business" means the business, operations and activities
of the procurement outsourcing services and supply chain management
technology businesses of Fisher and its Subsidiaries as of the Spinoff
Date, as described in the Information Statement.
"ProcureNet Common Stock" means shares of common stock, par value
$0.01 per share, of ProcureNet.
"ProcureNet Group" means ProcureNet and its Subsidiaries immediately
after the Spinoff.
"ProcureNet Liabilities" means the Liabilities set forth on Schedule
II.
"ProcureNet Series A Non-Voting Common Stock" means shares of Series
A non-voting common stock, par value $0.01 per share, of ProcureNet.
"ProcureNet Series B Non-Voting Common Stock" means shares of Series
B non-voting common stock, par value $0.01 per share, of ProcureNet.
"ProcureNet Uninsured Retention" means, with respect to any claim
under the Primary Casualty Program relating to a ProcureNet Liability, any
and all amounts which, under the operation of the Primary Casualty
Program, the insured party shall be obligated to contribute (by means of
the application of a deductible or payment under a reimbursement
obligation, indemnity agreement, large loss rating agreement or other
similar instrument) in respect of such claim to the appropriate insurance
carrier or to a Person entitled to reimbursement or indemnity under
contractual or other arrangements; provided that, for purposes of
determining the amount of any ProcureNet Uninsured Retention, the benefits
of application of any maximum premium limits, stop-loss aggregates,
reimbursement or indemnity limits (or other provisions under the Primary
Casualty Program which would have the effect of aggregating deductibles of
self-insured retentions or limiting the indemnification or reimbursement
amounts) shall be allocated appropriately to reduce the uninsured
retentions of the ProcureNet Group and/or the Fisher Group).
"Record Date" means the close of business on the date established by
the Board of Directors of Fisher for the purpose of determining the
holders of record of Fisher Common Stock, Fisher Non-Voting Common Stock
and Fisher Series B Non-Voting Common Stock entitled to receive ProcureNet
Common Stock and ProcureNet Series
6
<PAGE> 11
B Non-Voting Common Stock in the Spinoff. Subject to Section 3.02, the
Board of Directors of Fisher has established March 30, 1999 as the Record
Date.
"SCS" means Structured Computer Systems, Inc., a Connecticut
corporation.
"SCS Note" means the $9 million note payable to Fisher, originally
issued by ProcureNet on January 14, 1999, and subsequently assumed by SPS
in connection with the Corporate Restructuring Transactions, which note
was issued in connection with the purchase of SCS and is attached hereto
as Exhibit L, as the same may be amended, supplemented or restated from
time to time.
"Spinoff" means the distribution of the ProcureNet Common Stock and
the ProcureNet Series B Non-Voting Common Stock to the Holders, as
contemplated by this Agreement and more fully described in the Information
Statement.
"Spinoff Date" means such date established by the Board of Directors
of Fisher as the date on which the Spinoff shall be effected. Subject to
Section 3.02, the Board of Directors of Fisher has established April 15,
1999 as the Spinoff Date.
"SPS" means Strategic Procurement Services, Inc., a Delaware
corporation.
"SSI" means SourceSys, Inc., a Delaware corporation.
"Subleases" means (a) the subleases to be executed by Fisher and
ProcureNet relating to properties located at: (i) 600 Business Center
Drive, Pittsburgh, PA 15205; (ii) 9999 Veterans Memorial Drive, Houston,
Texas 77038; and (iii) 22745 Savi Ranch Parkway, Yorba Linda, California
92887; and (b) subleases to be executed by ProcureNet and other parties
relating to properties located at: (i) 2 Madison Road, Fairfield, New
Jersey 07004-2381; and (ii) 30 Tower Lane, Avon, Connecticut 06001 and
(iii) 3375 Koapaka Suite F220-24, Honolulu, Hawaii 96819.
"Subsidiary" means any corporation, partnership, limited liability
company, joint venture or other entity (i) in which another Person owns,
directly or indirectly, ownership interests sufficient to elect a majority
of the Board of Directors (or Persons performing similar functions)
(irrespective of whether at the time any other class or classes of
ownership interest of such corporation, partnership, limited liability
company, joint venture or other entity shall or might have such voting
power upon the occurrence of any contingency) or (ii) of which another
Person is a general partner or an entity performing similar functions
(e.g., a trustee or managing member).
"Tax" or "Taxes" means any federal, state, local, foreign or other
income, alternative, minimum, accumulated earnings, personal holding
company, franchise,
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capital stock, net worth, capital, profits, windfall profits, gross
receipts, value added, sales (including, but not limited to, bulk sales),
use, goods and services, excise, customs duties, transfer, conveyance,
mortgage, registration, stamp, documentary, recording, premium, severance,
environmental (including, but not limited to, taxes under section 59A of
the Code), real property, personal property, ad valorem, intangibles,
rent, occupancy, license, utilities, occupational, employment,
unemployment insurance, social security, disability, workers'
compensation, payroll, health care, withholding, estimated or other
similar tax, duty or other governmental charge or assessment or
deficiencies thereof, including, but not limited to, all interest and
penalties thereon and additions thereto whether disputed or not.
"Tax Sharing Agreement" means the Tax Sharing Agreement to be entered
into between ProcureNet and Fisher, substantially in the form of Exhibit
M, as the same may be amended, supplemented or restated from time to time.
"Transitional Services Agreement" means the Transitional Services
Agreement to be entered into between ProcureNet and Fisher, substantially
in the form of Exhibit N, as the same may be amended, supplemented or
restated from time to time.
"Warrant Agreement" means the Common Stock Warrant Acquisition
Agreement to be entered into among ProcureNet and the other parties listed
therein, substantially in the form of Exhibit O, as the same may be
amended, supplemented or restated from time to time.
ARTICLE II
PRE-SPINOFF TRANSACTIONS;
CERTAIN COVENANTS
Section 2.01. Corporate Restructuring Transactions. (a) On or prior
to the Spinoff Date (but in all events prior to the Spinoff), each of the
parties shall, and each shall cause other members of its Group to, take such
actions as are necessary or desirable so that the ProcureNet Business (including
all ProcureNet Assets and ProcureNet Liabilities) shall be owned or held,
directly or indirectly, by ProcureNet. Without limiting the generality of the
forgoing, in order to effect the foregoing separation, the parties shall, and
each shall cause other members of its Group to, effect and consummate the
following distributions, contributions, transfers and other transactions and
such other distributions, transfers, contributions and other transactions as the
parties agree upon:
(i) Fisher Scientific Company L.L.C., a Delaware limited liability
company, shall distribute all assets and Liabilities of ECD to Fisher.
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(ii) Fisher shall contribute to ProcureNet (x) all assets and
Liabilities of ECD and (y) 73.15% of the capital stock of SSI.
(iii)ProcureNet shall contribute to SPS (w) the assets and
Liabilities of ECD, (x) 73.15% of the capital stock of SSI, (y) all of the
capital stock of SCS and (z) the SCS Note.
(b) As of the Spinoff Date, the ProcureNet Group shall be deemed to
have acquired (or, as applicable, retained) complete and sole beneficial
ownership over all of the ProcureNet Assets, together with all rights, powers
and privileges incident thereto, and shall be deemed to have assumed in
accordance with this Agreement all of the ProcureNet Liabilities, and all
duties, obligations and responsibilities incident thereto.
Section 2.02. Certificate of Incorporation and Bylaws of ProcureNet.
On or prior to the Spinoff Date (but in all events prior to the Spinoff),
ProcureNet and Fisher shall each take all necessary actions to amend and restate
the certificate of incorporation and bylaws of ProcureNet so that, as of the
Spinoff Date, the certificate of incorporation and bylaws of ProcureNet will be
substantially in the forms set forth in Exhibits P and Q, respectively.
Section 2.03. Election of Directors. On or prior to the Spinoff Date,
ProcureNet and Fisher shall take all necessary action so that as of the Spinoff
Date the composition of the Board of Directors of ProcureNet shall be as set
forth in the Information Statement.
Section 2.04. Appointment of Officers. On or prior to the Spinoff
Date, ProcureNet and Fisher shall take all necessary actions so that, as of the
Spinoff Date, ProcureNet will have the executive officers set forth in the
Information Statement.
Section 2.05. Certain Provisions Relating to Assigned Agreements. (a)
Subject to the provisions of Section 2.05(c), any agreement, commitment or
understanding to which any member of the ProcureNet Group or the Fisher Group is
a party that inures to the benefit of both the ProcureNet Business and the
Fisher Business shall be assigned in part, at the expense and risk of the
assignee, on or prior to the Spinoff Date or as soon as reasonably practicable
thereafter, so that each party (or other members of such party's Group) shall be
entitled to the rights and benefits inuring to its business under such
agreement, commitment or understanding, except as otherwise specifically
contemplated by any Ancillary Agreement.
(b) The assignee of any agreement, commitment or understanding
assigned, in whole or in part, under this Agreement (an "Assignee") shall, as a
condition to such assignment, assume and agree to pay, perform, and fully
discharge all obligations of the assignor under such agreement, commitment or
understanding (whether such obligations arose or were incurred prior to, on or
subsequent to the Spinoff Date and irrespective of
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whether such obligations have been asserted as of the Spinoff Date) or, in the
case of a partial assignment under Section 2.05(a), such Assignee's related
portion of such obligations as determined in accordance with the terms of the
relevant agreement, where determinable on the face thereof, and otherwise as
determined in accordance with the practice of the parties prior to the Spinoff.
Furthermore, the Assignee shall use its reasonable efforts to cause the assignor
of such agreement, commitment or understanding to be released from its
obligations under the assigned agreement, commitment or understanding (or in
the case of partial assignment Section 2.05(a), to the extent such agreement,
commitment or understanding is assigned).
(c) Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not constitute an agreement to assign any agreement, commitment
or understanding in whole or in part, or any rights thereunder if the agreement
to assign or attempt to assign, without the consent of a third party, would
constitute a breach thereof or in any way adversely affect the rights of the
Assignee thereof until such consent is obtained. If an attempted assignment
thereof would be ineffective or would adversely affect the rights of any party
hereto so that the Assignee would not, in fact, receive all such rights, the
parties hereto will cooperate with each other to effect any arrangement designed
reasonably to provide for the Assignee the benefits of, and to permit the
Assignee to assume liabilities under, any such agreement, commitment or
understanding.
Section 2.06. Consents. The parties hereto shall use their best
efforts to obtain all consents and approvals of other Persons (including
consents and approvals of, and filings with and notices to, any Governmental
Authority) required to consummate the Spinoff, the Corporate Restructuring
Transactions and the other transactions contemplated by this Agreement or any
Ancillary Agreement (the "Consents").
Section 2.07. State Securities Laws. Prior to the Spinoff Date, the
parties shall take all such action as may be necessary or desirable under the
securities laws of states of the United States or of other jurisdictions in
order to effect the Spinoff, including to permit the distribution of the
ProcureNet Common Stock in the Spinoff and the continuance of sales and
dealings therein.
Section 2.08. Employees. Except as otherwise specifically
contemplated by any Ancillary Agreement or agreed upon by the parties, (i)
Fisher shall, and shall cause other members of the Fisher Group to, use all
reasonable efforts to cause the employees engaged in the ProcureNet Business but
employed by members of the Fisher Group to make available their employment
services to the ProcureNet Group as of the Spinoff Date, and (ii) members of the
ProcureNet Group shall offer employment to such employees, as of the Spinoff
Date, at wage or salary levels and with employee benefits that are in the
aggregate substantially equivalent to and not less favorable to such employees
than those currently provided to such employees prior to the Spinoff Date.
Notwithstanding the above, any employee not otherwise specifically designated as
an
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employee of the ProcureNet Group that provides services to both the Fisher Group
and the ProcureNet Group shall remain an employee of the Fisher Group as of the
Spinoff Date.
Section 2.09. Ancillary Agreements. (a) On or prior to the Spinoff
Date, each of the parties shall, and (where applicable) shall cause other
members of its Group to, execute and deliver, the Employee Benefits Agreement,
the Intellectual Property Agreement, the Subleases, the Tax Sharing Agreement
and the Transitional Services Agreement.
(b) On or prior to the Spinoff Date, each of the parties shall, and
(where applicable) shall cause other members of its Group to, execute and
deliver such other agreements and instruments as are necessary or appropriate to
effect and consummate the Corporate Restructuring Transactions, the transfer of
the ProcureNet Assets to members of the ProcureNet Group and the assumption of
ProcureNet Liabilities by members of the ProcureNet Group.
ARTICLE III
THE SPINOFF
Section 3.01. The Spinoff. Upon the terms and subject to the
conditions of this Agreement, ProcureNet and Fisher shall effect and consummate
the Spinoff in accordance with this Agreement and as described in the
Information Statement.
Section 3.02. Spinoff Procedures; Deferral of Record Date and Spinoff
Date. Fisher's Board of Directors may (in its sole discretion and subject to and
in accordance with the provisions of the Exchange Act and the rules and
regulations promulgated therein, rules of the NYSE and provisions of the DGCL)
abandon the Spinoff, change the Record Date and the Spinoff Date and amend or
modify the terms and conditions of the Spinoff and any procedures relating to
the Spinoff (including the procedures set forth in this Agreement). Without
limiting the generality of the foregoing, if all the conditions precedent to the
Spinoff set forth in this Agreement have not theretofore been fulfilled or
waived, or Fisher does not reasonably anticipate that they will be fulfilled or
waived, on or prior to the date established as the Spinoff Date, Fisher may, by
resolution of its Board of Directors (or a committee thereof, so authorized),
defer the Spinoff Date to a later date. If Fisher's Board of Directors (or a
committee thereof, so authorized) so defers the Spinoff Date after the public
announcement of the Spinoff Date, if required by the rules of the NYSE, Fisher
shall promptly thereafter issue a public announcement regarding such deferment
and shall take such other actions as may be deemed necessary or desirable with
respect to the dissemination of such information.
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Section 3.03. Notice to NYSE. Fisher shall, to the extent possible,
give the NYSE not less than ten days advance notice of the Record Date in
compliance with Rule 10b-17 under the Exchange Act.
Section 3.04. Mailing of Information Statement. As soon as
practicable after Fisher's Board of Directors has determined the Record Date,
ProcureNet and Fisher shall mail or otherwise disseminate the Information
Statement to the Holders.
Section 3.05. Distribution of ProcureNet Stock. (a) Upon the terms
and subject to the conditions of this Agreement, on or before the Spinoff Date
but effective immediately following the close of business on the Spinoff Date,
Fisher shall:
(i) deliver to the Distribution Agent, for the benefit of the Holders
of Fisher Common Stock and Fisher Non-Voting Common Stock, the share
certificate or share certificates representing the ProcureNet Common
Stock;
(ii) deliver to the Distribution Agent, for the benefit of the
Holders of Fisher Series B Non-Voting Common Stock, the share certificate
or share certificates representing the ProcureNet Series B Non-Voting
Common Stock.
(iii) instruct the Distribution Agent to distribute promptly to each
Holder (A) one share of ProcureNet Common Stock for (x) every one share of
Fisher Common Stock held by such Holder on the Record Date and (y) every
one share of Fisher NonVoting Common Stock held by such Holder on the
Record Date; and (B) one share of ProcureNet Series B Non-Voting Common
Stock for every one share of Fisher Series B Non-Voting Common Stock held
by such Holder on the Record Date.
(b) ProcureNet shall provide, or cause to be provided, to the
Distribution Agent sufficient certificates representing ProcureNet Common Stock
and ProcureNet Series B Non-Voting Common Stock in such denominations as the
Distribution Agent may request in order to effect the Spinoff. All shares of
ProcureNet Common Stock and ProcureNet Series B Non-Voting Common Stock issued
pursuant to the Spinoff shall be validly issued, fully paid and nonassessable
and free of any preemptive (or similar) rights.
Section 3.06. Conditions to the Spinoff. The consummation of the
Spinoff shall be subject to the fulfillment, or waiver by ProcureNet and Fisher,
on or prior to the Spinoff Date, of each of the following conditions:
(a) No Litigation. No action or proceeding shall be pending by any
Person on the Spinoff Date before any Governmental Authority to restrain,
enjoin or otherwise prevent the consummation of the Spinoff or the other
transactions contemplated by
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this Agreement or any Ancillary Agreement or to recover any material
damages or to obtain other material relief as a result of the Spinoff.
(b) No Prohibitions. No Law shall be enacted, issued, promulgated or
proposed (whether temporary, preliminary or pending) that would restrict,
prevent or prohibit consummation of the Spinoff or the other transactions
contemplated by this Agreement or any Ancillary Agreement or would have a
material adverse effect on the condition (financial or otherwise),
properties, business, results of operations or prospects of the ProcureNet
Group or the Fisher Group.
(c) Consents from Governmental Authorities. The parties shall have
obtained all required Consents, the failure of which to obtain would, in
the opinion of Fisher, have a material adverse effect on the condition
(financial or otherwise), properties, business, results of operations or
prospects of the ProcureNet Group or the Fisher Group, and such Consents
shall be in full force and effect.
(d) Section 170 of DGCL. The Board of Directors of Fisher shall have
received a report of an independent appraiser, in form and substance
reasonably satisfactory to the Board of Directors of Fisher, confirming
that Fisher's surplus is sufficient to permit, without violation of
Section 170 of the DGCL, the distribution of the stock of ProcureNet.
(e) Indenture. Fisher shall have received a report of an independent
appraiser, in form and substance reasonably satisfactory to the Board of
Directors of Fisher, regarding the amount of the dividend to be
distributed in the Spinoff in order for Fisher to confirm that the Spinoff
will not result in a breach of Section 4.4 of the Indenture, dated as of
January 21, 1998, between Fisher and State Street Bank and Trust Company
(as trustee), for Fisher's 9% Senior Subordinated Notes due 2008.
(f) Amendment to Fisher Credit Agreement. Fisher shall have obtained
all required amendments and consents to the Credit Agreement dated as of
January 21, 1998 (as previously amended), among Fisher, The Chase
Manhattan Bank (as administrative agent) and the other parties listed
therein, to permit the Corporate Restructuring Transactions, the Spinoff
and the other transactions contemplated by this Agreement and the
Ancillary Agreements, in form and substance reasonably satisfactory to the
Board of Directors of Fisher.
(g) Mailing of Information Statement. The Information Statement shall
have been mailed or otherwise disseminated to the Holders.
(h) Certain Ancillary Agreements. Each of the parties thereto shall
have executed and delivered the Chase Equity Agreement, the Investors'
Agreement and the Warrant Agreement.
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(i) Covenants. Each of the parties shall have performed and complied
in all material respects with all agreements and covenants required by
this Agreement to be performed on or prior to the Spinoff Date.
Section 3.07. Actions to Be Taken Immediately After the Spinoff.
Promptly after the Spinoff, ProcureNet shall (i) convert the shares of
ProcureNet Common Stock that Chase Equity Associates, L.P. receives in the
Spinoff into shares of ProcureNet Series A Non-Voting Common Stock in accordance
with the Chase Equity Agreement; and (ii) issue the warrants pursuant to the
Warrant Agreement.
ARTICLE IV
COVENANTS
Section 4.01. Further Assurances. Each of the parties shall use all
reasonable efforts to (i) execute and deliver such instruments and documents as
the other party may reasonably request in order to consummate the transactions
contemplated by this Agreement and the Ancillary Agreements, and (ii) take or
cause to be taken all actions, and do or cause to be done all other things,
necessary or desirable to consummate the transactions contemplated by this
Agreement and the Ancillary Agreements.
Section 4.02. Assumption and Satisfaction of Liabilities. Except as
otherwise specifically contemplated by any Ancillary Agreement, from and after
the Spinoff Date, ProcureNet shall, and shall cause other members of the
ProcureNet Group to, assume, pay, perform and discharge all ProcureNet
Liabilities in accordance with their terms as and when they become due and
otherwise in accordance with the practice of the parties prior to the Spinoff.
Section 4.03. Property Received. Except as otherwise specifically
contemplated by any Ancillary Agreement, from and after the Spinoff Date, each
of ProcureNet and Fisher shall, and shall cause other members of its Group to,
promptly transfer to the appropriate member of the other's Group (as directed by
ProcureNet or Fisher, as the case may be) any property received that is an asset
of the other. Except as otherwise specifically contemplated by any Ancillary
Agreement, if a party or a member of such party's Group receives any funds upon
the payment of accounts receivable that belong to the other Group, such party
shall or shall cause to be transferred to the appropriate member of the other's
Group (as directed by ProcureNet or Fisher, as the case may be) such funds by
wire transfer not more than 30 days after receipt thereof.
Section 4.04. Transfers Not Effected Prior to the Spinoff; Transfers
Deemed Effective as of the Spinoff Date. To the extent that any transfers
contemplated by Article II are not consummated prior to the Spinoff, the parties
shall cooperate (and shall
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cause other members of their Group to cooperate) to effect such transfers as
promptly as practicable following the Spinoff. Nothing herein shall be deemed to
require the transfer of any assets or the assumption of any Liabilities
(including any authorizations, approvals or consents of, or licenses granted by,
any Governmental Authority) which by their terms or operation of Law cannot be
transferred or assumed; provided that the parties shall cooperate (and shall
cause the other members of their Group to cooperate) to seek to obtain any
necessary consents or approvals for the transfer of all assets and Liabilities
contemplated to be transferred pursuant to this Article II. If any such transfer
of assets or Liabilities has not been consummated, after the Spinoff Date the
party retaining such asset or Liability (or, as applicable, other members of
such party's Group) shall hold such asset in trust for the use and benefit of
the party entitled thereto (at the expense of the party entitled thereto) or
retain such Liability for the account of the party by whom such Liability is to
be assumed pursuant hereto, as the case may be, and take such other action as
may be reasonably requested by the party to whom such asset is to be transferred
or by whom such Liability is to be assumed, as the case may be, in order to
place such party, insofar as is reasonably possible, in the same position as
would have existed had such asset or Liability been transferred or assumed as
contemplated hereby. As and when any such asset or Liability becomes
transferable or assumable, such transfer shall be effected forthwith.
Section 4.05. No Representations or Warranties. (a) Each of the
parties understands and agrees that no party hereto is (whether in this
Agreement, in any Ancillary Agreement or otherwise) making any representation
or warranty, express, implied or otherwise, including any representation or
warranty as to (i) the assets, businesses or liabilities retained, transferred
or assumed, (ii) any consents, authorizations or approvals of third parties
(including Governmental Authorities) required for the transfer or assumption by
such party of any asset or Liability, (iii) the value of any asset or freedom of
any asset from any lien, claim, equity, encumbrance or other security interest
or adverse claim, (iv) the absence of any defenses or right of set off or
freedom from counterclaim with respect to any claim or asset, or (v) the legal
sufficiency to convey title to any asset.
(b) Each party hereto understands and agrees that there are no
representations or warranties, express, implied or otherwise, as to the
merchantability or fitness of any of the assets either transferred to or
retained by the ProcureNet Group pursuant to this Agreement or any Ancillary
Agreement, and all such assets so transferred or retained shall be transferred
or retained on an "AS IS, WHERE IS" basis, and the member of the ProcureNet
Group to whom any such assets are transferred, or who retains assets, shall bear
the economic and legal risk that any conveyances of such assets shall prove to
be insufficient or that the title of such party or any other member of the
ProcureNet Group to any such assets shall be other than good and marketable and
free and clear of any lien, claim, encumbrance or other security interest or
adverse claim.
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Section 4.06. Removal of Certain Guarantees. (a) ProcureNet shall use
all reasonable efforts (excluding payment of money) to obtain, as promptly as
practicable after the Spinoff Date, the release of members of the Fisher Group
from their obligations regarding the ProcureNet Liabilities on which any member
of the Fisher Group is an obligor by reason of any guarantee of obligations for
borrowed money, including obligations evidenced by bonds, debentures or other
similar instruments and obligations under acceptance, letter of credit or
similar facilities (the "Guaranteed ProcureNet Liabilities"). Fisher shall use
all reasonable efforts (excluding the payment of money) to obtain, as promptly
as practicable after the Spinoff Date, the release of members of the ProcureNet
Group from their obligations with respect to any Liabilities of Fisher on which
any member of the ProcureNet Group is an obligor by reason of any guarantee of
obligations for borrowed money, including obligations evidenced by bonds,
debentures or other similar instruments and obligations under acceptance, letter
of credit or similar facilities (the "Guaranteed Fisher Liabilities").
(b) No member of the ProcureNet Group or Fisher Group shall extend
the term of any Guaranteed Fisher Liabilities or Guaranteed ProcureNet
Liabilities, as the case may be, or modify any such guaranteed liability in any
way that would increase the liability guaranteed thereunder unless the guarantee
of Fisher or ProcureNet or of the member of such Group, as the case may be, is
released as to any extended or released liability of obligations under such
guaranteed liabilities or the other party otherwise consents in writing. If a
member of the ProcureNet Group or the Fisher Group is required to pay, as
guarantor, any Guaranteed Fisher Liabilities or Guaranteed ProcureNet
Liabilities, as the case may be, such Person (as the case may be) will be
entitled to all the rights of the payee in any property of the other party
pledged as security for such guaranteed liabilities.
Section 4.07. Public Announcements. ProcureNet and Fisher shall
cooperate and consult with each other before issuing any press release or
otherwise making any public statement or announcement regarding the Spinoff and
the transactions contemplated hereby, and shall not issue any such press
release or otherwise make any such public statement or announcement without the
prior consent of the other party, which shall not be unreasonably withheld;
provided that a party may, without the prior consent of any other party, issue
such press release or otherwise make such public statement or announcement as
may be required by Law or the rules of the NYSE if it has used all reasonable
efforts to consult with such other party and to obtain its consent but has been
unable to do so in a timely manner.
Section 4.08. Termination of Intercompany Agreements. Effective as of
the consummation of the Spinoff, all agreements between any member of the
ProcureNet Group, on the one hand, and any member of the Fisher Group, on the
other hand, shall be deemed terminated, except for this Agreement and the
Ancillary Agreements and except as otherwise specifically contemplated by this
Agreement or any Ancillary Agreement.
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ARTICLE V
ACCESS TO INFORMATION
Section 5.01. Access to Books and Records. Except to the extent
otherwise specifically contemplated by this Article V or any Ancillary
Agreement, from and after the Spinoff Date, each of ProcureNet and Fisher shall
(and shall cause other members of its Group to) afford to each other party and
its authorized accountants, counsel and other designated representatives
reasonable access and duplicating rights (all such duplicating costs to be borne
by the requesting party) during normal business hours, subject to appropriate
restrictions for classified, privileged or confidential information, to the
Books and Records of such party and each other member of such party's Group
relating to periods prior to the Spinoff Date, but only to the extent such Books
and Records relate to the requesting party's business and affairs.
Section 5.02. Reimbursement. Except to the extent otherwise
specifically contemplated by this Agreement or any Ancillary Agreement, a party
providing Books and Records to any other party (or such party's representatives)
under this Article V shall be entitled to reimbursement from such other party,
upon the presentation of invoices therefor, for all costs and expenses
reasonably incurred in providing such Books and Records.
Section 5.03. Confidentiality. (a) Each of the ProcureNet Group and
the Fisher Group shall not (and shall cause its advisors and other
representatives not to) use or permit the use of, and shall hold (and shall
cause its advisors and other representatives to hold), in strict confidence, all
information concerning the other Group in its possession, custody or control to
the extent such information relates to the periods prior to the Spinoff Date,
relates to any Ancillary Agreement, or is obtained in the course of performing
services for the other Group pursuant to any Ancillary Agreement. Neither the
ProcureNet Group nor the Fisher Group shall (and each shall cause its advisors
and other representatives not to) otherwise release or disclose such information
to any other Person, without the prior written consent of the other Group,
unless compelled to disclose such information by judicial or administrative
process or unless such disclosure is required by Law and such Group has used
commercially reasonable efforts to consult with the other affected party or
parties prior to such disclosure.
(b) To the extent that a party hereto is compelled by judicial or
administrative process to disclose such information under circumstances in which
any evidentiary privilege would be available, such party agrees to assert such
privilege in good faith prior to making such disclosure. Each of the parties
shall consult with each relevant other party in connection with any such
judicial or administrative process, including in determining whether any
privilege is available, and shall not object to each such relevant
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party and its counsel participating in any hearing or other proceeding
(including any appeal of an initial order to disclose) in respect of such
disclosure and assertion of privilege.
(c) Notwithstanding anything in this Section 5.03 to the contrary, no
party shall be prohibited from using or permitting the use of, or required to
hold in confidence, any information to the extent that (i) such information has
been or is in the public domain through no fault of such party, (ii) such
information is, after the Spinoff Date, lawfully acquired from other sources by
such party, or (iii) this Agreement or any Ancillary Agreement permits the use
or disclosure of such information by such party.
Section 5.04. Witness Services. At all times from and after the
Spinoff Date, each of ProcureNet and Fisher shall use its reasonable efforts to
make available to the other party's Group, upon reasonable written request, the
officers, directors, employees and agents of members of its Group for fact
finding, consultation or interviews and as witnesses to the extent that (i) such
persons may reasonably be required in connection with the prosecution or defense
of any action in which the requesting party or any member of its Group may from
time to time be involved, and (ii) there is no conflict in the action between
the requesting party or any member of its respective Group and the party to
which a request is made pursuant to this Section 5.04 or any member of such
party's Group. Except as otherwise agreed, a party providing witness services to
any other party under this Section 5.04 shall be entitled to reimbursement from
the recipient of such services, upon the presentation of invoices therefor, for
reasonable costs and expenses incurred in connection with providing such witness
services (including travel expenses and attorneys' fees and expenses for such
witnesses, but not salary expenses). For purposes of this Section 5.04, "action"
means any action, suit, arbitration, inquiry, proceeding or investigation by or
before any Governmental Authority or any arbitration tribunal.
Section 5.05. Retention of Books and Records. Except when a longer
period is required by Law or is specifically contemplated elsewhere in this
Agreement or by any Ancillary Agreement, each party shall, and shall cause the
other members of its Group to, retain until the seventh anniversary of the
Spinoff Date, all material information (including all material Books and
Records) relating to the other Group and the other Group's operations and
businesses prior to the Spinoff Date; provided that all material information
(including all material Books and Records) relating to Tax matters shall be
retained until the tenth anniversary of the Spinoff Date. Notwithstanding the
foregoing, prior to the termination of such periods any party hereto may offer,
and after the termination of such periods each party hereto shall offer, in
writing to deliver to the other parties all or a portion of such information as
it relates to members of the offering party's Group and, if such offer is
accepted in writing within 90 days after receipt thereof, the offering party
shall promptly arrange for the delivery of such information (or copies thereof)
to each accepting party (at the expense of such accepting party). If such offer
is
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<PAGE> 23
not so accepted, the offered information may be destroyed or otherwise disposed
of by the offering party at any time thereafter.
Section 5.06. Privileged Matters. (a) Each party shall, and shall
cause the other members of its Group to, use its reasonable efforts to maintain,
preserve, protect and assert all privileges including all privileges arising
under or relating to the attorney-client relationship (including the
attorney-client and attorney work product privileges), that relate directly or
indirectly to any member of any other Group for any period prior to the Spinoff
Date ("Privilege" or "Privileges"). Each party shall use its reasonable efforts
not to waive, or permit the other members of its Group to waive, any such
Privilege that could be asserted under applicable Law without the prior written
consent of the other parties. With respect to each party, the rights and
obligations created by this Section 5.06 shall apply to all information as to
which a member of its Group did assert or, but for the Spinoff, would have been
entitled to assert the protection of a Privilege ("Privileged Information"),
including any and all information that (i) was generated or received prior to
the Spinoff Date but which, after the Spinoff, is in the possession of a member
of the other Group, or (ii) is generated or received after the Spinoff Date but
refers to or relates to Privileged Information that was generated or received
prior to the Spinoff Date.
(b) Upon receipt by a party or any member of its Group of any
subpoena, discovery or other request that arguably calls for the production or
disclosure of Privileged Information, or if a party or any member of its Group
obtains knowledge that any current or former employee of such party or any
member of its Group has received any subpoena, discovery or other request which
arguably calls for the production or disclosure of Privileged Information, such
party shall promptly notify the other parties of the existence of the request
and shall provide the other parties a reasonable opportunity to review the
information and to assert any rights it may have under this Section 5.06 or
otherwise to prevent the production or disclosure of Privileged Information. No
party shall, or shall permit any member of its Group to, produce or disclose any
information arguably covered by a Privilege under this Section 5.06 unless (i)
each other party has provided its express written consent to such production or
disclosure, or (ii) a court of competent jurisdiction has entered an order which
is not then appealable or a final, nonappealable order finding that the
information is not entitled to protection under any applicable privilege (it
being understood that the parties not providing their consent to the production
or disclosure of such information shall bear the costs and expenses incident to
such court proceedings).
(c) The parties understand and agree that the transfer of any Books
and Records or other information between members of the ProcureNet Group, on the
one hand, and members of the Fisher Group, on the other hand, including pursuant
to any Ancillary Agreement, shall be made in reliance on the agreements of
ProcureNet and Fisher, as set forth in Section 5.03 and this Section 5.06, to
maintain the confidentiality of Privileged Information and to assert and
maintain all applicable Privileges. The Books and Records
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<PAGE> 24
being transferred pursuant to this Agreement or any Ancillary Agreement, the
access to information being granted pursuant to Section 5.01 or any Ancillary
Agreement, the agreement to provide witnesses and individuals pursuant to
Section 5.04 and the transfer of Privileged Information to any party pursuant to
this Agreement shall not be deemed a waiver of any Privilege that has been or
may be asserted under this Section 5.06 or otherwise.
ARTICLE VI
INSURANCE
Section 6.01. General. Except as otherwise agreed by the parties, all
policies of liability, fire, workers' compensation and other forms of insurance
insuring the ProcureNet Assets and ProcureNet Business shall be maintained by
Fisher until the Spinoff Date, unless ProcureNet shall have earlier obtained
appropriate coverage. Fisher shall, if so requested by ProcureNet, use
reasonable efforts to assist ProcureNet in obtaining such insurance coverages in
such amounts as are agreed upon by the parties. Following the Spinoff Date, each
of the parties shall cooperate with and assist the other party in the prevention
of conflicts or gaps in insurance coverage and/or collection of proceeds.
Section 6.02. Treatment of Reserves. On or before the Spinoff Date,
Fisher shall transfer to ProcureNet all reserves for ProcureNet Liabilities
relating to ProcureNet Uninsured Retentions. ProcureNet and Fisher shall
cooperate and take all such actions as may be necessary in connection with the
allocation of uninsured retentions.
Section 6.03. Uninsured Retentions; Claims Management. (a) ProcureNet
shall be responsible for payment of all ProcureNet Liabilities (including, if
required, for the negotiation and posting of any bond or collateral guaranteeing
payment to insurance carriers or Persons with indemnification or reimbursement
obligations) relating to ProcureNet Uninsured Retentions. Within 60 days
following receipt from Fisher or an insurance carrier (in which case ProcureNet
shall promptly notify Fisher of such receipt) of an invoice with supporting
documentation evidencing payment of such ProcureNet Liabilities by Fisher or
such insurance carrier, ProcureNet shall reimburse Fisher or such insurance
carrier for such payment.
(b) Fisher shall have claims' management responsibility and
settlement authority, in accordance with established claim procedures with
applicable insurance carriers, for all claims to the extent such claims relate
to any Liability of Fisher; provided that if any such claim involves ProcureNet
Uninsured Retentions Fisher may settle such claim only with the prior agreement
of ProcureNet (which agreement shall not be unreasonably withheld). In
connection with such claims' management, ProcureNet shall
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<PAGE> 25
cooperate with Fisher and provide to Fisher any applicable insurance information
in ProcureNet's possession required for Fisher to present claims for payment to
the appropriate insurance carrier or carriers.
(c) ProcureNet shall have claims' management responsibility and
settlement authority, in accordance with established claims procedures with
applicable insurance carriers, for all claims to the extent such claims relate
to ProcureNet Liabilities; provided that if any such claim involves Fisher
Uninsured Retentions ProcureNet may settle such claim only with the prior
agreement of Fisher (which agreement shall not be unreasonably withheld). In
connection with such claims' management, Fisher shall cooperate with ProcureNet
and provide to ProcureNet any applicable insurance information in Fisher's
possession required for ProcureNet to present claims for payment to the
appropriate insurance carrier or carriers.
(d) On or promptly following the Spinoff Date, members of the Fisher
Group shall turn over to ProcureNet all of their files on insured claims
relating to ProcureNet Liabilities.
Section 6.04. Directors' and Officers' Insurance. ProcureNet shall
use its best efforts to procure and maintain directors' and officers' liability
insurance coverage at least equal to Fisher's current directors' and officers'
liability insurance coverage for the directors and officers of the ProcureNet
Group at the Spinoff Date for such persons' acts as directors or officers of
members of the ProcureNet Group for periods on and after the Spinoff Date.
ARTICLE VII
INDEMNIFICATION
Section 7.01. Indemnification by ProcureNet. Except and to the extent
otherwise specifically contemplated by any Ancillary Agreement, ProcureNet
shall indemnify, defend and hold harmless the Fisher Indemnitees from and
against any and all Losses of the Fisher Indemnitees arising out of, by reason
of or otherwise in connection with (i) any ProcureNet Liability, or (ii) any
breach by any member of the ProcureNet Group of any provision of this Agreement
or any Ancillary Agreement.
Section 7.02. Procedures for Indemnification. (a) As promptly as
practicable after receipt by an Indemnified Party of notice of any Loss in
respect of which ProcureNet may be liable under this Article VII, the
Indemnified Party shall give notice thereof (the "Indemnification Notice") to
ProcureNet. The Indemnification Notice shall state the reason for the
indemnification claim and (if known) the amount or estimate of the amount that
may be due under this Article VII, and shall provide relevant
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<PAGE> 26
documentary or other evidence regarding such claim and the proposed
indemnification amount. The failure of any Indemnified Party to give such notice
shall not relieve ProcureNet of its indemnification obligations under this
Article VII, except to the extent such failure results in a lack of actual
notice to ProcureNet and ProcureNet is materially prejudiced as a result of
failure to receive such notice. Within 60 days of receipt of an Indemnification
Notice in accordance with this Section 7.02(a), ProcureNet shall deliver to the
Indemnified Party a notice of its acceptance of or disagreement with such
indemnification claim.
(b) In the case of any claim asserted by a third party (including any
Governmental Authority), the Indemnified Party shall (i) notify ProcureNet of
such claim within 30 days of receipt of such claim (but at least 15 days prior
to the expiration of the period during which the defendant may assert its
defense, if such period expires earlier), it being understood that the failure
to give such notice shall not relieve ProcureNet of its indemnification
obligations under this Article VII, except to the extent such failure results in
a lack of actual notice to ProcureNet and ProcureNet is materially prejudiced as
a result of failure to receive such notice, and (ii) permit ProcureNet, at its
option and expense, to take over and assume the defense of any such claim by
counsel satisfactory to the Indemnified Party and to settle or otherwise dispose
of the same; provided that if ProcureNet does so take over and assume the
defense, (x) the Indemnified Party may at its discretion at all times
participate, at its own expense, in such defense by counsel of its own choice,
and (y) ProcureNet shall, at all times and to the maximum extent possible, keep
the Indemnified Party informed of the status of such claim and the proceedings
related thereto; provided, further, that ProcureNet shall not be entitled to
assume the defense of any such third-party claim (and shall be liable for
reasonable fees and expenses of counsel to the Indemnified Party for defending
such claim) if, in the Indemnified Party's reasonable judgment, a conflict of
interest exists between the Indemnified Party and ProcureNet in respect of such
claim. ProcureNet shall not, in defense of any such claim, except with the prior
written consent of the Indemnified Party, enter into any settlement that does
not include, as an unconditional term thereof, the giving by the claimant or
plaintiff in question to the Indemnified Party and all other Fisher Indemnitees
a release of all liabilities in respect of such claims. If ProcureNet does not
accept the defense of any claim within 30 days of delivery of the notice, the
Indemnified Party shall have the right to defend against any such claim by
counsel of its own choice and shall be entitled to settle or agree to pay in
full such claim or demand; provided that if an Indemnified Party does so take
over and assume the defense, the Indemnified Party shall, at all times and to
the maximum extent possible, keep ProcureNet informed of the status of such
claim and the proceedings related thereto.
Section 7.03. Adjustments for Insurance Proceeds. If Losses by an
Indemnified Party are covered by an insurance policy or by an indemnification or
reimbursement obligation of another Person, the Indemnified Party shall use
commercially reasonable efforts to collect insurance or indemnity or
reimbursement payments with respect thereto.
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<PAGE> 27
If the Indemnified Party recovers such insurance proceeds or indemnity or
reimbursement payments prior to being indemnified and held harmless by
ProcureNet with respect to such Losses, the payment made by ProcureNet with
respect to such Losses shall be reduced by the net amount of insurance proceeds
or indemnity or reimbursement payments received by the Indemnified Party, less
reasonable attorneys' fees and other expenses incurred in connection with such
recovery. If the Indemnified Party recovers such insurance proceeds or indemnity
or reimbursement payments after being indemnified and held harmless by
ProcureNet with respect to such Losses, the Indemnified Party shall pay to
ProcureNet the net amount of insurance proceeds or indemnity or reimbursement
payments (less reasonable attorney's fees and other expenses incurred in
connection with such recovery) received by the Indemnified Party.
Section 7.04. Contribution. To the extent that any indemnification
provided for under Section 7.01 is unavailable to an Indemnified Party or is
insufficient in respect of any Losses of such Indemnified Party, then ProcureNet
in lieu of indemnifying such Indemnified Party thereunder, in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of ProcureNet on the one hand
and the Indemnified Party on the other hand in connection with the action,
inaction, statement or omission or alleged action, inaction, statement or
omission that resulted in such Losses as well as any other relevant equitable
considerations.
Section 7.05. Remedies Cumulative. The remedies provided in this
Article VII shall be cumulative and shall not preclude assertion by any
Indemnified Party of any other rights or the seeking of any and all other
remedies against ProcureNet.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Termination. This Agreement may be abandoned at any
time prior to the Spinoff by and in the sole discretion of Fisher without the
approval of ProcureNet. In the event of such termination, no party shall have
any liability of any kind to the other party or any other Person. After the
Spinoff Date, this Agreement may be terminated only by the written agreement of
each of the parties hereto.
Section 8.02. Expenses. Except as specifically contemplated elsewhere
in this Agreement or by any Ancillary Agreement, Fisher shall bear and pay all
fees, costs and expenses incurred in connection with the Spinoff and the
consummation of the transactions contemplated hereby.
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<PAGE> 28
Section 8.03. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for in this Agreement shall be in
writing and shall be deemed validly given upon personal delivery or one day
after being sent by overnight courier service or by telecopy (so long as for
notices or other communications sent by telecopy, the transmitting telecopy
machine records electronic confirmation of the due transmission of the notice),
at the following address or telecopy number, or at such other address or
telecopy number as a party may designate to the other parties:
If to ProcureNet, to:
2 Madison Road
Fairfield, New Jersey 07004-2381
Telecopy: 973-575-5467
Attention: Corporate Secretary
with a copy to:
Liberty Lane
Hampton, New Hampshire 03842
Telecopy: 603-926-5911
Attention: Corporate Secretary
If to Fisher, to:
Liberty Lane
Hampton, New Hampshire 03842
Telecopy: 603-926-5911
Attention: General Counsel
Section 8.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of laws provisions thereof.
Section 8.05. Choice of Forum. Each of the parties hereby irrevocably
submits to the exclusive jurisdiction of the courts of the State of New
Hampshire and the Federal courts of the United States of America located in the
State of New Hampshire solely in respect of the interpretation and enforcement
of the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby and thereby,
and hereby waives, and agrees not to assert, as a defense in any action, suit,
or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit, or
proceeding may not be brought or is not maintainable in said courts or that the
venue thereof may not be appro-
24
<PAGE> 29
priate or that this Agreement or any such document may not be enforced in or by
such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
court. Each of the parties hereby consents to and grants any such court
jurisdiction over the person of such parties and over the subject matter of any
such dispute and agrees that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 8.03 in
such other manner as may be permitted by law, shall be valid and sufficient
service thereof.
Section 8.06. Amendments; Waivers, etc. (a) Subject to Section 3.02,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by an instrument in writing, signed by the party against
which enforcement of such amendment, discharge, waiver or termination is sought.
(b) No failure or delay by any party in exercising any right, power
or privilege under this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies provided herein shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 8.07. Assignment. This Agreement shall not be assignable or
otherwise transferable by a party without the prior consent of the other
parties, and any attempt to so assign or otherwise transfer this Agreement
without such consent shall be void and of no effect. This Agreement shall be
binding upon the respective successors and assigns of the parties hereto.
Section 8.08. Third Party Beneficiaries. Except as provided in
Article VII hereof (relating to Fisher Indemnitees), nothing in this Agreement
shall be construed as giving any Person, other than the parties hereto and their
successors and permitted assigns, any right, remedy or claim under or in respect
of this Agreement or any provision hereof.
Section 8.09. Severability. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, it shall be adjusted rather
than voided, if possible, in order to achieve the intent of the parties hereto
to the maximum extent possible. In any event, the invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
pro vision, in any other jurisdiction.
Section 8.10. Section Headings. The article and section headings of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
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<PAGE> 30
Section 8.11. Integration. This Agreement, including the Schedules
and Exhibits hereto, and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement of the parties and
supersede any and all prior agreements, arrangements and understandings relating
to the subject matters hereof and thereof.
Section 8.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same instrument.
Section 8.13. Coordination with Tax Sharing Agreement. To the extent
that there is any inconsistency between the terms of this Agreement and the Tax
Sharing Agreement as to any Tax matter, the terms of the Tax Sharing Agreement
shall prevail.
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<PAGE> 31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
FISHER SCIENTIFIC INTERNATIONAL INC.
By
----------------------------------
Name:
Title:
PROCURENET, INC.
By
----------------------------------
Name:
Title:
27
<PAGE> 32
Schedule I
to
Distribution Agreement
PROCURENET ASSETS
A. All of the capital stock of each of SPS and SCS and 73.15% of the capital
stock of SSI.
B. The assets of ECD as listed in Annex A to this Schedule I.
C. Rights under the agreements listed in Annex B to this Schedule I.
D. The assets reflected on the audited balance sheet of the ProcureNet
Business as at December 31, 1998 (other than the assets disposed of in the
ordinary course of business).
E. Assets acquired by Fisher or its Subsidiaries from December 31, 1998 to
the close of business on the Spinoff Date that are of a type or nature
that would have resulted in such assets being included as an asset on the
audited balance sheet of the ProcureNet Business as at December 31, 1998
had such assets been acquired on or prior to December 31, 1998, determined
on a basis consistent with the determination of assets included on the
audited balance sheet of the ProcureNet Business as at December 31, 1998.
F. All of the assets, properties and rights expressly allocated to members of
the ProcureNet Group under this Agreement or any of the Ancillary
Agreements.
I-1
<PAGE> 33
Schedule II
to
Distribution Agreement
PROCURENET LIABILITIES
A. The Liabilities reflected on the audited balance sheet of the ProcureNet
Business as at December 31, 1998, including the notes thereto.
B. The Liabilities incurred in the conduct or operation of the ProcureNet
Business or the ownership or use of the ProcureNet Assets, whether arising
before, at or after the Spinoff.
C. The Liabilities of ECD as listed in Annex A to Schedule I.
D. The Liabilities of Fisher with respect to the purchase of SSI including
Fisher's Liabilities under the Stockholders Agreement, dated as of June
10, 1998, by and among Fisher and the parties identified therein.
E. Obligations and commitments under the agreements listed in Annex B to
Schedule I.
F. The Liabilities arising under or in connection with the Information
Statement.
G. Liabilities of ProcureNet or any of its Subsidiaries arising under this
Agreement or any of the Ancillary Agreements.
II-1
<PAGE> 1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PROCURENET, INC.
PROCURENET, INC., a corporation organized and existing by virtue of
the General Corporation Law of the State of Delaware (the "Law"), DOES HEREBY
CERTIFY:
1. That the Corporation was originally incorporated under the name "W
& W Holdings Inc." and the date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was May 24,
1994. The original Certificate of Incorporation was subsequently amended on
August 10, 1994, August 12, 1994 and February 5, 1999.
2. This Amended and Restated Certificate of Incorporation, having
been duly adopted in accordance with Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware, further amends, and restates and
integrates, the Certificate of Incorporation of the Corporation.
3. Accordingly, the Certificate of Incorporation of the Corporation
is hereby further amended and restated to read in its entirety as follows:
<PAGE> 2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
PROCURENET, INC.
FIRST: The name of the corporation is ProcureNet, Inc. (the
"Corporation").
SECOND: The address of the registered office of the Company in the State
of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, Wilmington, New Castle County, Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of which the Corporation shall have
authority to issue is 115,000,000 shares, of which 100,000,000 shares shall be
Common Stock, par value $0.01 per share (the "Common Stock"), and 15,000,000
shares shall be Preferred Stock, par value $0.01 per share (the "Preferred
Stock").
FIFTH: (a) The Corporation may issue Common Stock from time to time in one
or more series or classes as the Board of Directors may establish by the
adoption of a resolution or resolutions relating thereto, each series or class
to have such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, as shall be
stated in the resolution or resolutions providing for the issue of such series
or class adopted by the Board of Directors pursuant to authority to do so, which
authority is hereby granted to the Board of Directors.
(b) The Common Stock initially authorized for issuance by the Corporation
shall consist of 100,000,000 shares of Common Stock. The designations and the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of such shares of Common Stock shall be governed by the
following provisions:
(i) Identical Rights. Except as otherwise provided herein or
otherwise established by the Board of Directors pursuant to the provision
of Article FIFTH (a), all shares of Common Stock shall be identical and
shall entitle the holders thereof to the same rights and privileges.
(ii) Voting Rights. Except as otherwise required by law or as
otherwise provided herein or otherwise established by the Board of
Directors pursuant to
2
<PAGE> 3
Article FIFTH (a), on all matters submitted to the Corporation's
stockholders, the holders of Common Stock shall be entitled to one vote
per share.
(iii) Dividend Rights. When and as dividends or other distributions
are declared, whether payable in cash, in property or in securities of the
Corporation, the holders of shares of Common Stock shall be entitled to
share equally, share for share, in such dividends or other distributions,
provided that if dividends or other distributions are declared which are
payable in shares of Common Stock, such dividends or other distributions
shall be declared payable at the same rate for all holders of Common
Stock, and the dividends payable in shares of Common Stock will be payable
to holders of Common Stock.
(iv) No Closing of Transfer Books. The Corporation shall not close
its books against the transfer of any share of Common Stock.
SIXTH: The Corporation may issue Preferred Stock from time to time in
one or more series as the Board of Directors may establish by the adoption of a
resolution or resolutions relating thereto, each series to have such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors pursuant to authority to do so, which
authority is hereby granted to the Board of Directors.
SEVENTH: The duration of the Corporation is to be perpetual.
EIGHTH: (a) Except as may be provided pursuant to resolutions of the
Board of Directors, adopted pursuant to the provisions of this Certificate of
Incorporation, establishing any series or class of Common Stock or Preferred
Stock and granting to holders of shares of such series or class of Common Stock
or Preferred Stock rights to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be determined
from time to time in the manner described in the Amended and Restated By-laws
(the "By-laws"). The directors, other than those who may be elected by the
holders of Common Stock or Preferred Stock pursuant to such resolutions, shall
be classified with respect to the time for which they severally hold office into
three classes, as nearly equal in number as possible, as shall be provided in
the manner specified in the By-laws, one class initially to be elected for a
term expiring at the annual meeting of stockholders to be held in the year
following the date hereof, another class initially to be elected for a term
expiring at the annual meeting of stockholders to be held in the next succeeding
year, and another class initially to be elected for a term expiring at the
annual meeting of stockholders to be held in the year following such next
succeeding year, with the members of each class to hold office until their
successors have
3
<PAGE> 4
been elected and qualified. At each annual meeting of stockholders, the
successors of the class of directors whose term expires at that meeting shall be
elected to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election. No director need be
a stockholder.
(b) Except as otherwise provided in a resolution of the Board of
Directors, adopted pursuant to the provisions of this Certificate of
Incorporation, establishing a series or class of Common Stock or Preferred Stock
and creating in the holders of shares of such series or class rights to elect
directors under specified circumstances, newly created directorships resulting
from any increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled by the affirmative vote of a majority of the remaining
directors then in office, even if less than a quorum of the Board of Directors,
or by a sole remaining director. Any director elected in accordance with the
preceding sentence shall hold office until the annual meeting of stockholders at
which the term of office of the class to which such director has been elected
expires, and until such director's successor shall have been duly elected and
qualified. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(c) Subject to the rights of holders of Common Stock or Preferred
Stock to elect directors under circumstances specified in a resolution of the
Board of Directors, adopted pursuant to the provisions of this Certificate of
Incorporation establishing such series or class, any director may be removed
from office only for cause by the affirmative vote of the holders of at least
80% of the voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock"), voting together as a single class.
(d) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of the Voting Stock, voting together as a single class,
shall be required to amend or repeal, or adopt any provision inconsistent with,
any provision of this Article EIGHTH.
NINTH: Except as required by law and subject to the rights of the
holders of any series of Preferred Stock established pursuant to the provisions
of this Certificate of Incorporation, special meetings of stockholders may be
called only by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors of the Corporation (as determined in
accordance with the By-laws). Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of the Voting Stock, voting together
as a single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, any provision of this Article NINTH.
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<PAGE> 5
TENTH: Unless and except to the extent that the By-laws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
ELEVENTH: No contract or other transaction of the Corporation shall
be void, voidable, fraudulent or otherwise invalidated, impaired or affected, in
any respect, by reason of the fact that any one or more of the officers,
directors or stockholders of the Corporation shall individually be party or
parties thereto or otherwise interested therein, or shall be officers, directors
or stockholders of any other corporation or corporations which shall be party or
parties thereto or otherwise interested therein; provided that such contract or
other transactions be duly authorized or ratified by the Board of Directors,
with the assenting vote of a majority of the disinterested directors then
present, or, if only one such is present, with his assenting vote.
TWELFTH: The Board of Directors may from time to time make, amend,
supplement or repeal the By-laws; provided, however, that the stockholders may
change or repeal any By-law adopted by the Board of Directors; and provided,
further, that no amendment or supplement to the By-laws adopted by the Board of
Directors shall vary or conflict with any amendment or supplement to the By-laws
adopted by the stockholders. Notwithstanding the foregoing and anything
contained in this Certificate of Incorporation to the contrary, Section 3
("Special Meetings") of Article II ("Meetings of Stockholders") of the By-laws,
Section 2 ("Number, Election and Terms") and Section 10 ("Removal of Directors")
of Article III ("Directors") of the By-laws, and the final sentence of Article
XI ("Amendments") of the By-laws, shall not be amended or repealed, and no
provision inconsistent with any thereof shall be adopted, without the
affirmative vote of the holders of at least 80% of the voting power of the
Voting Stock, voting together as a single class. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the voting power of the Voting Stock,
voting together as a single class, shall be required to amend or repeal, or
adopt any provision inconsistent with, any provision of this Article TWELFTH.
THIRTEENTH: 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 statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
FOURTEENTH: (a) 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 a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
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(b)(1) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or the
person of whom he or she is the legal representative, is or was a director or
officer 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
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action or inaction in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in this paragraph (b), the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this paragraph (b)
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer of the Corporation (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
(2) Right of Claimant to Bring Suit. If a claim under subparagraph
(b)(1) is not paid in full by the Corporation within 30 days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim.
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It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceedings in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification or the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(3) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this paragraph (b) shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(4) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
FIFTEENTH: The Corporation expressly elects not to be governed by
Section 203 of the Delaware General Corporation Law (the "DGCL").
SIXTEENTH: (a) Until the Corporation shall have registered the Common
Stock under Section 12 of the Exchange Act of 1934, as amended (the "Exchange
Act"), except as otherwise provided in this Article SIXTEENTH, no share of
Common Stock (including any shares issued as a result of any stock split, stock
dividend or similar distribution made in respect of such shares) shall be
transferred or become subject to any agreement to transfer, in any manner
whatsoever, whether voluntary or involuntary, by sale, contract, warrant,
option, gift, operation of law or otherwise (any of the foregoing, a
"Transfer").
(b) The following Transfers will be permitted notwithstanding the
provisions of paragraph (a) of this Article SIXTEENTH:
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(i) Transfers pursuant to the distribution of shares of Common Stock
by Fisher Scientific International Inc. ("Fisher") to the holders of its
common stock (the "Distribution");
(ii) Transfers to the Corporation, Fisher or their Affiliates;
(iii) Transfers to holders of Common Stock who receive shares of
Common Stock in the Distribution;
(iv) Transfers by gift, bequest or the laws of descent or
distribution;
(v) Transfers in connection with a transfer to an unaffiliated third
party pursuant to a merger, consolidation, stock for stock exchange,
tender offer approved by the Corporation's Board of Directors or similar
transaction involving the Corporation;
(vi) Transfers to a trust for employees of the Corporation and its
subsidiaries established under a qualified employee benefit plan;
(vii) Transfers by a trust to the trust's beneficiaries;
(viii) Transfers for cash only in transactions which would be exempt
from the registration requirements of Section 5 of the Securities Act of
1933, as amended (the "Securities Act"), because of the exemption provided
by Section 4(2) of the Securities Act (as if the transferor were the
issuer of the shares), provided that the transferee is an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act; and
(ix) Pursuant to an effective registration statement under the
Securities Act;
provided that, (A) in the case of clauses (ii) (other than to the Corporation),
(iii), (iv), (v), (vi), (vii) and (viii), prior to any Transfer, the transferee
to such Transfer shall deliver to the Corporation its written acknowledgment of
the restrictions on Transfer set forth in this Article SIXTEENTH, except that a
written acknowledgment by a transferee under clause (v) is not required to
acknowledge that for any subsequent transfer by it to qualify as a permitted
Transfer of the type contemplated by clause (viii) such Transfer must be for
cash, and (B) any holder of Common Stock shall give the Corporation at least 10
business days' prior notice of any proposed Transfer of shares by such holder
that is permitted under clause (ii) (other than the Corporation), (iii), (iv),
(vi), (vii) or (viii) of Article SIXTEENTH (b) and prompt notice of any such
actual Transfer.
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(c) Any Transfer of any shares of Common Stock in violation of this
Article SIXTEENTH shall be void and of no effect. The Corporation shall not
register, recognize or give effect to any such Transfer and the intended
transferee of any such shares of Common Stock pursuant to any such Transfer
shall acquire no rights in such shares.
(d) Prior to such time as the Corporation shall have registered the
Common Stock under Section 12 of the Exchange Act, each certificate representing
shares of the Common Stock shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER SET FORTH IN THE COMPANY'S AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION AND NEITHER THIS CERTIFICATE
NOR THE SHARES REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE
TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE COMPANY'S AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE CORPORATION."
(e) Each certificate representing shares of the Common Stock (other
than shares of Common Stock issued in connection with the Distribution to a
Person who is not an officer, director or holder of 5% or more of the Company's
voting securities) shall, in addition to the legend specified in Article
SIXTEENTH (d) (if applicable), bear the following legend if such shares are
issued other than pursuant to an effective registration statement under the
Securities Act, or in connection with a transfer of such shares by a holder
thereof under Rule 144 under the Securities Act ("Rule 144"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (I) (A) SUCH
DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (B) THE HOLDER HEREOF SHALL
HAVE DELIVERED TO THE COMPANY AN OPINION OF COUNSEL, WHICH OPINION
AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, TO THE
EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF SUCH ACT OR (C) A NO-ACTION LETTER FROM THE SECURITIES
AND EXCHANGE COMMISSION, REASONABLY SATISFACTORY TO COUNSEL FOR THE
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COMPANY, SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION
AND (II) SUCH DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM."
(f) New certificates representing previously issued shares of Common
Stock which bore the legends set forth in Article SIXTEENTH (d) and/or (e) above
shall not be issued without such legends unless (i) such shares have been sold
to the public pursuant to an effective registration statement under the
Securities Act or Rule 144, (ii) with respect to the legend set forth in Article
SIXTEENTH (d) only, unless the Corporation shall have registered the Common
Stock under Section 12 of the Exchange Act; or (iii) with respect to the legend
set forth in Article SIXTEENTH (e) only, unless otherwise permitted under the
Securities Act and the holder of such shares expressly requests the issuance of
such certificates in writing and delivers an opinion of counsel, which opinion
and counsel shall be reasonably satisfactory to the Corporation, to the effect
that the disposition of such shares by the holder thereof is exempt from the
provisions of Section 5 of the Securities Act.
SEVENTEENTH: (a) Subject to and upon compliance with the provisions
of this Article SEVENTEENTH, each record holder of Common Stock shall be
entitled at any time and from time to time, in such holder's sole discretion and
at such holder's option, to convert any or all of the shares of such holder's
Common Stock into the same number of shares of Common Stock designated as Series
A Non-Voting Common Stock of the Corporation, par value $.01 per share (the
"Series A Non-Voting Common Stock"), by the Certificate of Designation dated on
or about April 13, 1999.
(b) Each conversion of shares of Common Stock of the Corporation into
shares of Series A Non-Voting Common Stock of the Corporation shall be effected
by the surrender of the certificate or certificates representing the shares of
Common Stock to be converted into shares of Series A Non-Voting Common Stock
(the "Converting Shares") at the principal office of the Corporation (or such
other office or agency of the Corporation as the Corporation may designate by
written notice to the holders of Common Stock) at any time during its usual
business hours, together with written notice by the holder of such Converting
Shares stating that such holder desires to convert the Converting Shares, or a
stated number of the shares represented by such certificate or certificates,
into an equal number of shares of Series A Non-Voting Common Stock (the
"Converted Shares"). Such notice shall also state the name or names (with
addresses) and denominations in which the certificate or certificates for
Converted Shares are to be issued and shall include instructions for the
delivery thereof. The Corporation shall promptly notify each holder of
Converting Shares of its receipt of such notice. Promptly after such surrender
and the receipt of such written notice, the Corporation will issue and deliver
in accordance with the surrendering holder's instructions the certificate or
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certificates evidencing the Converted Shares issuable upon such conversion, and
the Corporation will deliver to the converting holder a certificate (which shall
contain such legends as were set forth on the surrendered certificate or
certificates) representing any shares which were represented by the certificate
or certificates that were delivered to the Corporation in connection with such
conversion, but which were not converted. Such conversions, to the extent
permitted by law, shall be deemed to have been effected as of the close of
business on the date on which such certificate or certificates shall have been
surrendered to, and such notice shall have been received by, the Corporation,
and at such time the rights of the holder of the Converting Shares as such
holder shall cease and the person or persons in whose name or names the
certificate or certificates for the Converted Shares are to be issued upon such
conversion shall be deemed to have become the holder or holders of record of the
Converted Shares. Upon issuance of shares in accordance with this Article
SEVENTEENTH, such Converted Shares shall be deemed to be duly authorized,
validly issued, fully paid and non-assessable. The Corporation shall take all
such actions as may be necessary to assure that all such shares of Series A
Non-Voting Common Stock may be so issued without violation of any applicable law
or governmental regulation or any requirements of any domestic securities
exchange upon which shares of Series A Non-Voting Common Stock may be listed
(except for official notice of issuance which will be immediately transmitted by
the Corporation upon issuance). The Corporation shall not close its books
against the transfer of shares of Common Stock in any manner which would
interfere with the timely conversion of any shares of Common Stock.
EIGHTEENTH: Any action required to be taken, or which may be taken,
at any annual or special meeting of the stockholders of the Corporation may be
taken without a meeting, without prior notice and without a vote if taken by a
written consent or consents, setting forth the action so taken, of the holders
of outstanding shares of Common Stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares of outstanding Common Stock entitled to vote thereon were
present and voted, and if otherwise taken in accordance with Section 228 of the
DGCL. Prompt notice of the taking of a corporate action without a meeting by
less than unanimous written consent of all shares of Common Stock entitled to
vote thereon shall be given in accordance with Section 228 of the DGCL to those
holders of shares of Common Stock entitled to vote thereon who have not
consented in writing.
NINETEENTH: Definitions. In addition to other terms defined herein,
the following terms shall have the meanings set forth below:
"Affiliate" means with respect to any person, any other person,
directly or indirectly controlling, controlled by or under common control
with such person. For the purpose of the above definition, the term
"control" (including with correlative
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meaning, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through
the ownership of voting securities or by contract or otherwise.
Notwithstanding any other provision herein, the Board shall in good faith
determine whether any party shall be deemed an "Affiliate" of any person
for purposes of this Amended and Restated Certificate of Incorporation and
such determination shall be binding and conclusive upon the Corporation
and its stockholders.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation, having been duly adopted by the Board of Directors and the
Corporation's sole stockholder, has been duly executed this 13th day of April,
1999.
PROCURENET, INC.
By:
-----------------------------
Name: Todd M. DuChene
Title: Secretary
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