Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
NOVITRON INTERNATIONAL, INC.,
SPECTRAN HOLDINGS, INC.,
THE STOCKHOLDERS’ REPRESENTATIVE
AND
LANDMARK SCIENTIFIC, INC.
Dated as of August 21, 2002
ARTICLE I DEFINITIONS 2
Section 1.1. Accounts Payable. 2
Section 1.2. Accounts Receivable. 2
Section 1.3. Affiliate. 2
Section 1.4. Aggregate Parent Shares. 2
Section 1.5. Agreement. 2
Section 1.6. Business. 2
Section 1.7. Certificate of Merger. 2
Section 1.8. Closing. 2
Section 1.9. Closing Date. 3
Section 1.10. Code. 3
Section 1.11. Common Certificates. 3
Section 1.12. Confidentiality Agreement. 3
Section 1.13. Contracts. 3
Section 1.14. DGCL. 3
Section 1.15. Dissenting Shares. 3
Section 1.16. DOL. 3
Section 1.17. Effective Time. 3
Section 1.18. Environmental Claim. 3
Section 1.19. Environmental Laws. 3
Section 1.20. ERISA. 3
Section 1.21. Exchange Act. 4
Section 1.22. GAAP. 4
Section 1.23. Governance Agreement. 4
Section 1.24. Governmental Authority. 4
Section 1.25. Intellectual Property. 4
Section 1.26. IRS. 4
Section 1.27. Xxxx Shares. 4
Section 1.28. Knowledge of Landmark. 5
Section 1.29. Knowledge of Parent. 5
Section 1.30. Landmark. 5
Section 1.31. Landmark Beneficiary. 5
Section 1.32. Landmark Benefit Plans. 5
Section 1.33. Landmark Common Stock. 5
Section 1.34. Landmark Contracts. 5
Section 1.35. Landmark Disclosure Schedule. 5
Section 1.36. Landmark Dissenting Holder. 5
Section 1.37. Landmark ERISA Affiliate. 5
Section 1.38. Landmark Financial Statements. 5
Section 1.39. Landmark Share or Landmark Shares. 6
Section 1.40. Landmark Stockholder Approval. 6
Section 1.41. Landmark Stockholders. 6
Section 1.42. Law. 6
Section 1.43. Lien. 6
Section 1.44. Material Adverse Effect. 6
Section 1.45. Merger. 6
Section 1.46. Merger Consideration. 6
Section 1.47. Merger Subsidiary. 6
Section 1.48. Merger Subsidiary Common Stock. 7
Section 1.49. Nasdaq. 7
Section 1.50. Parent. 7
Section 1.51. Parent Beneficiary 7
Section 1.52. Parent Benefit Plans. 7
Section 1.53. Parent Common Stock. 7
Section 1.54. Parent ERISA Affiliate. 7
Section 1.55. Parent Financial Statements. 7
Section 1.56. Parent Preferred Stock. 7
Section 1.57. Parent Proxy Statement/Prospectus. 7
Section 1.58. Parent SEC Documents. 8
Section 1.59. Parent Special Meeting. 8
Section 1.60. Parent Stockholder Approval. 8
Section 1.61. Permits. 8
Section 1.62. Permitted Liens. 8
Section 1.63. Person. 8
Section 1.64. Prime Rate. 8
Section 1.65. Registration Statement. 8
Section 1.66. Retained Assets 9
Section 1.67. SEC. 9
Section 1.68. Securities Act. 9
Section 1.69. Stockholders’ Representative. 9
Section 1.70. Subsidiary. 9
Section 1.71. Surviving Corporation. 9
Section 1.72. Tax; Taxes. 9
Section 1.73. Tax Return. 9
Section 1.74. 25% Parent Stock Dividend. 9
Section 1.75. Unaudited Landmark Financial Statements. 10
ARTICLE II THE MERGER 10
Section 2.1. The Merger. 10
Section 2.2. Certificate of Incorporation and Bylaws. 10
Section 2.3. Board of Directors. 10
Section 2.4. Management. 11
Section 2.5. Effect on Capital Stock. 11
Section 2.6. Exchange of Common Certificates. 12
Section 2.7. Appointment of Stockholders’
Representative 13
Section 2.8. Anti-Dilution Provisions. 14
ARTICLE III STOCKHOLDER APPROVAL; EFFECTIVE TIME; CLOSING 15
Section 3.1. Stockholder Approval. 15
Section 3.2. Effective Time. 15
Section 3.3. Time and Place of Closing. 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF LANDMARK 15
Section 4.1. Organization and Authority of Landmark. 16
Section 4.2. Capitalization. 16
Section 4.3. Authority Relative to this Agreement;
Recommendation. 16
Section 4.4. Consents and Approvals; No Violations. 17
Section 4.5. Title to and Condition of Assets. 17
Section 4.6. Absence of Certain Events. 17
Section 4.7. Subsidiaries. 18
Section 4.8. Financial Statements. 18
Section 4.9. Litigation. 19
Section 4.10. Employee Benefit Plans Matters. 19
Section 4.11. Labor Matters. 21
Section 4.12. Tax Matters. 22
Section 4.13. Compliance with Law. 23
Section 4.14. Fees and Expenses of Brokers and Others. 23
Section 4.15. Absence of Undisclosed Liabilities. 23
Section 4.16. Environmental Laws and Regulations. 23
Section 4.17. Intellectual Property. 24
Section 4.18. Insurance. 25
Section 4.19. Books and Records. 25
Section 4.20. Accounts Receivable and Accounts
Payable. 25
Section 4.21. Material Contracts. 26
Section 4.22. Real or Personal Property. 27
Section 4.23. Vote Required. 27
Section 4.24. Full Disclosure. 27
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND
MERGER SUBSIDIARY 27
Section 5.1. Organization and Authority of the Parent. 27
Section 5.2. Capitalization. 28
Section 5.3. Authority Relative to this Agreement. 28
Section 5.4. Consents and Approvals; No Violations. 28
Section 5.5. SEC Documents. 29
Section 5.6. Fees and Expenses of Brokers and Others. 30
Section 5.7. Absence of Certain Events. 30
Section 5.8. Compliance with Law. 31
Section 5.9. Absence of Undisclosed Liabilities. 31
Section 5.10. Environmental Laws and Regulations. 31
Section 5.11. Vote Required; Board Approval. 32
Section 5.12. Parent Proxy Statement/Prospectus. 32
Section 5.13. Litigation. 32
Section 5.14. Employee Benefit Plans Matters. 32
Section 5.15. Tax Matters. 34
Section 5.16. Listing. 35
Section 5.17. Full Disclosure. 35
ARTICLE VI COVENANTS RELATING TO CONDUCT OF BUSINESS 36
Section 6.1. Conduct of Business of Landmark. 36
Section 6.2. Conduct of Business of Parent. 37
ARTICLE VII ADDITIONAL AGREEMENTS 38
Section 7.1. Parent Stockholder Meeting. 38
Section 7.2. The Parent Proxy Statement/Prospectus. 39
Section 7.3. Nasdaq Listing. 40
Section 7.4. Access to Information. 40
Section 7.5. Reasonable Efforts; Notification. 41
Section 7.6. Fees and Expenses. 41
Section 7.7. Public Announcements. 42
Section 7.8. Insurance. 42
Section 7.9. Agreement to Defend. 42
Section 7.10. Amendment of Schedules. 43
Section 7.11. Reorganization Status. 43
Section 7.12. Other Actions. 43
ARTICLE VIII CONDITIONS PRECEDENT TO CONSUMMATION OF THE
MERGER 43
Section 8.1. Conditions Precedent to Obligations of
Parent and Merger Subsidiary. 43
Section 8.2. Conditions Precedent to Obligations of
Landmark. 45
ARTICLE IX TERMINATION; AMENDMENT; WAIVER 47
Section 9.1. Termination. 47
Section 9.2. Effect of Termination. 47
Section 9.3. Amendment. 47
Section 9.4. Extension; Waiver. 47
Section 9.5. Procedure for Termination, Amendment,
Extension or Waiver. 47
ARTICLE X MISCELLANEOUS 47
Section 10.1. Entire Agreement; Assignment. 47
Section 10.2. Interpretation. 47
Section 10.3. Notices. 47
Section 10.4. Governing Law. 47
Section 10.5. Parties in Interest. 47
Section 10.6. Counterparts. 47
Section 10.7. Severability. 47
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A Agreement for Purchase of Assets
Exhibit 1.23 Governance Agreement
Exhibit 1.28 Knowledge of Landmark
Exhibit 1.29 Knowledge of Parent
Exhibit 2.1 Certificate of Merger
Exhibit 2.3 Board of Directors of Parent
Exhibit 2.4 Principal Officers of Surviving Corporation
Exhibit 4.8 Landmark Financial Statements
Exhibit 4.23 Stockholders of Landmark
DISCLOSURE SCHEDULES
Landmark Disclosure Schedule
Parent Disclosure Schedule
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated
as of August 21, 2002, by and among NOVITRON INTERNATIONAL, INC.,
a Delaware corporation (“Parent”), SPECTRAN HOLDINGS, INC., a
Delaware corporation and a wholly-owned subsidiary of Parent
(“Merger Subsidiary”), LANDMARK SCIENTIFIC, INC., a Delaware
corporation (“Landmark”), and XXXXXX X. XXXX, in his capacity as
representative of the stockholders of Landmark for the limited
purposes described herein (the “Stockholders’ Representative”),
recites and provides as follows:
RECITALS
WHEREAS, the respective Boards of Directors of Parent,
Merger Subsidiary and Landmark have approved the merger of Merger
Subsidiary with and into Landmark (the “Merger”) upon the terms
and subject to the conditions of this Agreement and whereby each
issued and outstanding share of Landmark Common Stock will be
converted into shares of Parent Common Stock, as provided herein;
WHEREAS, the Board of Directors of Parent has recommended
that its stockholders approve and adopt this Agreement and the
transactions contemplated hereby and will submit for
consideration, adoption and approval to the stockholders of
Parent at the Parent Special Meeting, this Agreement together
with the Certificate of Merger;
WHEREAS, the directors, executive officers and certain
stockholders of Landmark identified on Exhibit 4.23 intend to
execute in accordance with the applicable provisions of the DGCL
and the Certificate of Incorporation and Bylaws of Landmark, a
non-unanimous written consent adopting and approving this
Agreement, the Merger and the transactions contemplated hereby;
WHEREAS, Landmark, Merger Subsidiary and Parent desire to
make certain representations, warranties, covenants and
agreements in connection with the Merger and also to prescribe
various conditions to the Merger;
WHEREAS, for Federal income Tax purposes, it is intended
that the Merger shall constitute a reorganization within the
meaning of Section 368 of the Code and the regulations
promulgated thereunder; and
WHEREAS, prior to the consummation of the Merger, Landmark
shall transfer the Retained Assets (as defined herein) to an
Affiliate (as defined herein) of Landmark pursuant to the
Agreement for Purchase of Assets, attached here to as Exhibit A.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, which are
incorporated into and made part of this Agreement, and of the
mutual representations, warranties, covenants, agreements and
conditions set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Accounts Payable.
“Accounts Payable” shall mean payables from the operations
of Landmark arising in the ordinary course of the Business as of
the Closing.
Section 1.2. Accounts Receivable.
“Accounts Receivable” shall mean all accounts receivable,
security deposits, notes receivable, prepaids and associated
rights owned by Landmark and arising in the ordinary course of
the Business as of the Closing.
Section 1.3. Affiliate.
“Affiliate” shall have the meaning set forth in Rule 145 of
the SEC pursuant to the Securities Act.
Section 1.4. Aggregate Parent Shares.
“Aggregate Parent Shares” shall mean the shares of Parent
Common Stock constituting the Merger Consideration.
Section 1.5. Agreement.
“Agreement” shall have the meaning set forth in the preamble
to this Agreement.
Section 1.6. Business.
“Business” shall mean all of the business of Landmark,
including, without limitation, the business relating to the
development, manufacture, marketing, and distribution of
laboratory instrumentation, reagents and supplies including
clinical chemistry systems and related commercial activities, but
excluding the Retained Assets.
Section 1.7. Certificate of Merger.
“Certificate of Merger” shall have the meaning set forth in
Section 2.1 hereof.
Section 1.8. Closing.
“Closing” shall have the meaning set forth in Section 3.3
hereof.
Section 1.9. Closing Date.
“Closing Date” shall mean the date on which the Closing
occurs.
Section 1.10. Code.
“Code” shall mean the Internal Revenue Code of 1986, as
amended.
Section 1.11. Common Certificates.
“Common Certificates” shall have the meaning set forth in
Section 2.6(a) hereof.
Section 1.12. Confidentiality Agreement.
“Confidentiality Agreement” shall have the meaning set forth
in Section 7.4 hereof.
Section 1.13. Contracts.
“Contracts” shall mean all contracts, agreements, leases,
licenses, arrangements, understandings, relationships and
commitments, whether written or oral (and all amendments, side
letters, modifications and supplements thereto).
Section 1.14. DGCL.
“DGCL” shall mean the Delaware General Corporation Law, as
amended.
Section 1.15. Dissenting Shares.
“Dissenting Shares” shall have the meaning set forth in
Section 2.5(d) hereof.
Section 1.16. DOL.
“DOL” shall have the meaning set forth in Section 4.10(a)
hereof.
Section 1.17. Effective Time.
“Effective Time” shall have the meaning set forth in
Section 3.2 hereof.
Section 1.18. Environmental Claim.
“Environmental Claim” shall have the meaning set forth in
Section 4.16(b) hereof.
Section 1.19. Environmental Laws.
“Environmental Laws” shall have the meaning set forth in
Section 4.16(a) hereof.
Section 1.20. ERISA.
“ERISA” shall have the meaning set forth in Section 4.10(a)
hereof.
Section 1.21. Exchange Act.
“Exchange Act” shall mean the Securities Exchange Act of
1934, as amended.
Section 1.22. GAAP.
“GAAP” shall mean generally accepted accounting principles
as in effect in the United States of America at the time of the
preparation of the subject financial statement.
Section 1.23. Governance Agreement.
“Governance Agreement” shall mean the Governance Agreement,
dated as of the Closing Date, by and between Xxxxxx X. Xxxx and
Xxxxxx X. Xxxxx, et al., attached hereto as Exhibit 1.23.
Section 1.24. Governmental Authority.
“Governmental Authority” shall mean any federal, state,
provincial, municipal or other governmental department,
commission, board, bureau, agency, instrumentality or arbitration
panel, or any court, in each case whether of the United States,
any of its possessions or territories, or of any foreign nation.
Section 1.25. Intellectual Property.
“Intellectual Property” shall mean all intellectual property
owned or licensed by Landmark as of the Effective Time (but not
less than all Intellectual Property as of January 1, 2002 less
that attributable to the Retained Assets), including, without
limitation: (a) all inventions, patents and patent applications,
(b) all registered and unregistered trademarks, service marks,
trade dress, logos, trade names and brand names, and any
combination of such names, including all goodwill associated
therewith and all applications, registrations and renewals in
connection therewith, (c) all copyrightable works, all copyrights
and all applications, registrations and renewals in connection
therewith, (d) all trade secrets and confidential business
information (including, without limitation, ideas, research and
development, know-how, compositions, designs, drawings,
specifications, customer and supplier lists, pricing and cost
information and business and market plans and proposals), (e) all
computer software and source code (including, without limitation,
hard copy and soft copy as well as all data and related
documentation), (f) all websites and related content (including,
without limitation, underlying software, URL’s and domain names),
(g) all financial models and (h) all current and past customer
lists.
Section 1.26. IRS.
“IRS” shall mean the Internal Revenue Service.
Section 1.27. Xxxx Shares.
“Xxxx Shares” shall mean the shares of Parent Common Stock
beneficially owned by Xxxxxx X. Xxxx and his Affiliates
immediately prior to the Parent Special Meeting.
Section 1.28. Knowledge of Landmark.
“Knowledge of Landmark” shall mean the actual knowledge,
after due inquiry, of the Persons set forth in Exhibit 1.28
attached hereto.
Section 1.29. Knowledge of Parent.
“Knowledge of Parent” shall mean the actual knowledge, after
due inquiry, of the Persons set forth on Exhibit 1.29 attached
hereto.
Section 1.30. Landmark.
“Landmark” shall have the meaning set forth in the preamble
to this Agreement.
Section 1.31. Landmark Beneficiary.
“Landmark Beneficiary” shall have the meaning set forth in
Section 4.10(a) hereof.
Section 1.32. Landmark Benefit Plans.
“Landmark Benefit Plans” shall have the meaning set forth in
Section 4.10(a) hereof.
Section 1.33. Landmark Common Stock.
“Landmark Common Stock” shall mean the common stock, $.01
par value per share, of Landmark.
Section 1.34. Landmark Contracts.
“Landmark Contracts” shall have the meaning set forth in
Section 4.21(a) hereof.
Section 1.35. Landmark Disclosure Schedule.
“Landmark Disclosure Schedule” shall have the meaning set
forth in the introduction to Article IV hereof.
Section 1.36. Landmark Dissenting Holder.
“Landmark Dissenting Holder” shall have the meaning set
forth in Section 2.5(d) hereof.
Section 1.37. Landmark ERISA Affiliate.
“Landmark ERISA Affiliate” shall have the meaning set forth
in Section 4.10(c) hereof.
Section 1.38. Landmark Financial Statements.
“Landmark Financial Statements” shall have the meaning set
forth in Section 4.8 hereof.
Section 1.39. Landmark Share or Landmark Shares.
“Landmark Share” or “Landmark Shares” shall mean the shares
of Landmark Common Stock issued and outstanding immediately prior
to the Effective Time.
Section 1.40. Landmark Stockholder Approval.
“Landmark Stockholder Approval” shall mean the adoption and
approval of this Agreement and the Merger by the holders of a
majority of the outstanding shares of capital stock of Landmark,
acting by written consent in lieu of meeting in accordance with
Section 228 of the DGCL.
Section 1.41. Landmark Stockholders.
“Landmark Stockholders” shall mean the Persons listed in
Section 1.41 of the Landmark Disclosure Schedule.
Section 1.42. Law.
“Law” shall mean any federal, state, provincial, local or
other law, statute, act, ordinance or other governmental
requirement of any kind, and the rules, regulations and orders
promulgated thereunder.
Section 1.43. Lien.
“Lien” shall mean any mortgages, liens, pledges, charges,
security interests or encumbrances of any kind.
Section 1.44. Material Adverse Effect.
“Material Adverse Effect” shall mean, with respect to any
entity or group of entities, a material adverse effect (or any
development which, insofar as reasonably can be foreseen, is
reasonably likely to have a material adverse effect in the
future), on the business, assets, financial or other condition,
results of operations or prospects of such entity or group of
entities taken as a whole. For purposes of this definition, an
effect shall be deemed to be material if it alone or as part of a
group of effects has an impact of 10% or greater on the revenues
or net income of the relevant party.
Section 1.45. Merger.
“Merger” shall have the meaning set forth in the recitals to
this Agreement.
Section 1.46. Merger Consideration.
“Merger Consideration” shall have the meaning set forth in
Section 2.5(a) hereof.
Section 1.47. Merger Subsidiary.
“Merger Subsidiary” shall have the meaning set forth in the
preamble to this Agreement.
Section 1.48. Merger Subsidiary Common Stock.
“Merger Subsidiary Common Stock” shall mean the 1,000 shares
of Merger Subsidiary common stock, $.01 par value per share, of
which 100 shares are issued and outstanding and all of which are
owned by Parent.
Section 1.49. Nasdaq.
“Nasdaq” shall mean The Nasdaq SmallCap Market, Inc.
Section 1.50. Parent.
“Parent” shall have the meaning set forth in the preamble to
this Agreement.
Section 1.51. Parent Beneficiary
“Parent Beneficiary” shall have the meaning set forth in
Section 5.14(a).
Section 1.52. Parent Benefit Plans.
“Parent Benefit Plans” shall have the meaning set forth in
Section 5.14(a).
Section 1.53. Parent Common Stock.
“Parent Common Stock” shall mean the common stock, $.01 par
value per share, of Parent.
Section 1.54. Parent ERISA Affiliate.
“Parent ERISA Affiliate” shall have the meaning set forth in
Section 5.14(c).
Section 1.55. Parent Financial Statements.
“Parent Financial Statements” shall mean the audited
consolidated statements of financial condition, results of
operations and cash flows of Parent as of and for the period
ended March 31, 2001 and the unaudited consolidated statements of
financial condition, results of operations and cash flows of
Parent as of and for the period ended March 31, 2002, set forth
in the Parent SEC documents.
Section 1.56. Parent Preferred Stock.
“Parent Preferred Stock” shall have the meaning set forth in
Section 5.2.
Section 1.57. Parent Proxy Statement/Prospectus.
“Parent Proxy Statement/Prospectus” shall mean the Proxy
Statement/Prospectus of Parent included in the Registration
Statement and distributed to the stockholders of Parent in
connection with the Parent Special Meeting.
Section 1.58. Parent SEC Documents.
“Parent SEC Documents” shall have the meaning set forth in
Section 5.5 hereof.
Section 1.59. Parent Special Meeting.
“Parent Special Meeting” shall mean the special or annual
meeting of stockholders of Parent called pursuant to Section 3.1
hereof to consider, adopt and approve this Agreement and the
transactions contemplated herein, and any adjournments thereof.
Section 1.60. Parent Stockholder Approval.
“Parent Stockholder Approval” shall mean the adoption and
approval of this Agreement and the Merger by the holders of at
least two-thirds of the outstanding shares of capital stock of
Parent (excluding the Xxxx Shares) at the Parent Special Meeting
in accordance with Section 203 of the DGCL.
Section 1.61. Permits.
“Permits” shall mean all permits, licenses, variances,
exemptions, orders, registrations and approvals and governmental
authorizations of all Governmental Authorities.
Section 1.62. Permitted Liens.
“Permitted Liens” shall mean (a) liens for Taxes not yet due
and payable, (b) covenants, conditions and restrictions of record
or other title defects that do not materially interfere with the
existing use of an asset and do not materially and adversely
affect the marketability thereof and (c) minor Liens, that, in
the aggregate, do not and will not have a Material Adverse Effect
on the Business as currently conducted, and (d) those liens,
encumbrances, mortgages, charges, claims, restrictions, pledges,
security interests, impositions and other matters affecting
Landmark that are listed on Section 1.62 of the Landmark
Disclosure Schedule, true, correct and complete copies of which
have been delivered to Parent.
Section 1.63. Person.
“Person” shall mean any individual, corporation,
partnership, limited liability company, association, trust,
unincorporated entity or other legal entity.
Section 1.64. Prime Rate.
“Prime Rate” shall mean the prime rate of interest as
published in The Wall Street Journal from time to time.
Section 1.65. Registration Statement.
“Registration Statement” shall mean the Registration
Statement on Form S-4, including the Parent Proxy
Statement/Prospectus contained therein, to be filed by Parent
with the SEC with respect to the Parent Common Stock to be
offered to the holders of Landmark Common Stock in the Merger.
Section 1.66. Retained Assets
“Retained Assets” shall mean any and all assets of Landmark
that have been or will be transferred to an Affiliate of Landmark
prior to Closing, which assets are set forth on Section 1.66 of
the Landmark Disclosure Schedule.
Section 1.67. SEC.
“SEC” shall mean the Securities and Exchange Commission.
Section 1.68. Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as
amended.
Section 1.69. Stockholders’ Representative.
“Stockholders’ Representative” shall have the meaning set
forth in the preamble to this Agreement.
Section 1.70. Subsidiary.
“Subsidiary” shall mean each entity with respect to which a
party has the right to vote (directly or indirectly through one
or more other entities or otherwise) shares or other ownership
interests representing 50% or more of the votes eligible to be
cast in the election of directors of such entity or such other
applicable governing board.
Section 1.71. Surviving Corporation.
“Surviving Corporation” shall have the meaning set forth in
Section 2.1(a) hereof.
Section 1.72. Tax; Taxes.
“Tax” or “Taxes” means any federal, state, county, local, or
foreign taxes, charges, levies, imposts, duties, other
assessments, or similar charges of any kind whatsoever, including
any interest, penalties, and additions imposed thereon or with
respect thereto.
Section 1.73. Tax Return.
“Tax Return” means any report, return, information return,
or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group.
Section 1.74. 25% Parent Stock Dividend.
“25% Parent Stock Dividend” shall have the meaning set forth
in Section 5.2 hereof.
Section 1.75. Unaudited Landmark Financial Statements.
“Unaudited Landmark Financial Statements” shall have the
meaning set forth in Section 4.8 hereof.
ARTICLE II
THE MERGER
Section 2.1. The Merger.
(a) Immediately prior to the Effective Time, (i) Merger
Subsidiary and Landmark shall execute and deliver a certificate
of merger, substantially in the form attached hereto as
Exhibit 2.1, which certificate of merger shall be filed with the
Secretary of State of the State of Delaware in accordance with
the DGCL (the “Certificate of Merger”). Subject to the terms and
conditions of this Agreement, at the Effective Time, Merger
Subsidiary shall be merged with and into Landmark in accordance
with the provisions of, and with the effects provided in,
Subchapter IX of the DGCL. Landmark shall be the surviving
corporation (the “Surviving Corporation”) resulting from the
Merger and shall continue to be governed by the Laws of the State
of Delaware and shall succeed to and assume all of the rights and
obligations of Merger Subsidiary and the separate corporate
existence of Merger Subsidiary shall cease.
(b) If at any time after the Effective Time of the Merger,
the Surviving Corporation shall consider or be advised that any
further assignments or assurances in Law or otherwise are
necessary or desirable to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation, all rights, title and
interests in all real estate and other property and all
privileges, powers and franchises of Landmark and Merger
Subsidiary, then the Surviving Corporation and its proper
officers and directors, in the name and on behalf of Landmark and
Merger Subsidiary, shall execute and deliver all such proper
deeds, assignments and assurances in Law and do all things
necessary and proper to vest, perfect or confirm title to such
property or rights in the Surviving Corporation and otherwise to
carry out the purpose of this Agreement, and the proper officers
and directors of the Surviving Corporation are fully authorized
in the name of Landmark and Merger Subsidiary or otherwise to
take any and all such action.
Section 2.2. Certificate of Incorporation and Bylaws.
(a) The Certificate of Incorporation of Landmark, as in
effect immediately prior to the Effective Time of the Merger,
shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter changed or amended as provided
therein or by applicable Law.
(b) The Bylaws of Landmark, as in effect immediately prior
to the Effective Time of the Merger, shall be the Bylaws of the
Surviving Corporation until thereafter changed or amended as
provided therein or by applicable Law.
Section 2.3. Board of Directors.
(a) At the Effective Time, the Board of Directors of Parent
shall be as listed on Exhibit 2.3 attached hereto. The persons
named as members of the Board of Directors of Parent on
Exhibit 2.3 shall be named in Parent’s Proxy Statement/Prospectus
for the Parent Special Meeting, subject to receipt of the consent
of such individuals to be so named.
(b) The Board of Directors of the Surviving Corporation as
of the Effective Time shall be as set forth on Exhibit 2.3.
Section 2.4. Management.
The principal officers of the Surviving Corporation at the
Effective Time shall be as set forth on Exhibit 2.4.
Section 2.5. Effect on Capital Stock.
As of the Effective Time of the Merger, by virtue of the
Merger and without any action on the part of any holders of
Landmark Shares or capital stock of Merger Subsidiary:
(a) Subject to the other provisions of this Section 2.5,
each issued and outstanding Landmark Share shall be converted
into the right to receive, upon the surrender of the certificate
formerly representing such share of Landmark Common Stock, 25
shares of Parent Common Stock (the “Merger Consideration”);
provided that in no event shall more than 250,000 shares of
Parent Common Stock in the aggregate be issued to the holders of
Landmark Shares pursuant to such exchange.
(b) No fractional shares of Parent Common Stock shall be
issued in the Merger. A holder of Landmark Shares that would
otherwise be entitled to receive a fractional share of Parent
Common Stock as a result of the Merger shall be entitled to
receive for such fractional share either (i) nothing, if such
fractional share is equal to less than 0.5 of a share of Parent
Common Stock or (ii) one share of Parent Common Stock if such
fractional share is equal to 0.5 or greater of a share of Parent
Common Stock. The parties acknowledge that payment of the above
described fractional share consideration in lieu of issuing
fractional shares was not separately bargained-for consideration
but merely represents a mechanical rounding-off for purposes of
simplifying the corporate and accounting complexities which would
otherwise be caused by the issuance of fractional shares.
(c) Each share of Merger Subsidiary Common Stock issued and
outstanding immediately prior to the Effective Time of the Merger
will be converted into one share of the common stock, par value
$.01 per share, of the Surviving Corporation, and such common
stock of the Surviving Corporation issued on that conversion will
constitute all of the issued and outstanding shares of capital
stock of the Surviving Corporation.
(d) Notwithstanding any provision contained in this
Agreement to the contrary, Landmark Shares outstanding
immediately prior to the Effective Time of the Merger and held by
a holder who has not voted in favor of the Merger or consented
thereto in writing and who has demanded appraisal for such shares
(“Dissenting Shares”) in accordance with the DGCL (a “Landmark
Dissenting Holder”) shall not be converted into a right to
receive the Merger Consideration, but shall, from and after the
Effective Time, have only such rights as are afforded to the
holders thereof by the provisions of Section 262 of the DGCL,
unless such Landmark Dissenting Holder fails to perfect or
withdraws or otherwise loses such Landmark Dissenting Holder’s
right to appraisal. If, after the Effective Time of the Merger,
such Landmark Dissenting Holder fails to perfect or withdraws or
loses such Landmark Dissenting Holder’s right to appraisal, such
shares shall be treated as if they had been converted as of the
Effective Time of the Merger into a right to receive the Merger
Consideration payable in respect of such shares pursuant to
Section 2.5(a). Landmark shall give Parent prompt notice of
(i) any demands received by Landmark for appraisal of shares,
withdrawals of such demands, and any other instruments served
pursuant to the DGCL and received by Landmark and (ii) all
negotiations and proceedings with respect to such demands.
Landmark shall not, except with the prior written consent of
Parent, make any payment with respect to any demands for
appraisal, or offer to settle, or settle any such demands. If
any payments by Landmark are made to Landmark Dissenting Holders
with respect to demands for appraisal of Dissenting Shares, then
the Parent Common Stock otherwise issuable in exchange for such
Dissenting Shares pursuant to Section 2.5(a) shall be issued to
the remaining holders of Landmark Shares on a pro rata basis;
provided that (i) in no event shall more than 250,000 shares of
Parent Common Stock in the aggregate be issued to the holders of
Landmark Shares, (ii) after such payment and the payment to Third
Security, LLC set forth below (or reserves for one or more of
them), as of the Effective Time Landmark shall have at least
$200,000 of cash and cash items (the “Minimum Cash”).
(e) Landmark will not, without the prior written consent of
Parent, make any payment to Landmark Dissenting Holders (or incur
any legal fees or expenses) which would, on a pro forma basis
(after reserves) cause it to have less than the Minimum Cash as
of the Effective Time.
(f) If Parent makes any cash payment with respect to
Landmark Dissenting Shareholders (or incurs any legal expenses in
connection therewith), then the shares of Parent Common Stock
that would have been issuable to such Landmark Dissenting
Shareholders shall be retained by Parent.
Section 2.6. Exchange of Common Certificates.
(a) On or before the Effective Time of the Merger, Parent
shall mail to each holder of record of a certificate or
certificates that immediately prior to the Effective Time of the
Merger represented outstanding shares of Landmark Common Stock
(the “Common Certificates”), other than Parent, Landmark and any
wholly owned Subsidiary of Landmark or Parent, (i) a letter of
transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Common Certificates shall pass,
only upon receipt of the Common Certificates by Parent and shall
be in a form and have such other provisions as Parent may
reasonably specify) and (ii) instructions for use in effecting
the surrender of the Common Certificates in exchange for the
Merger Consideration. Upon surrender of a Common Certificate to
Parent or to such other agent or agents as may be appointed by
Parent, together with such letter of transmittal, duly executed,
and such other documents as may reasonably be required by Parent,
(i) the holder of such Common Certificate shall receive from
Parent, as soon as reasonably practicable, the Merger
Consideration payable with respect to the number of shares of
Landmark Common Stock represented by such Common Certificate and
(ii) the Common Certificate so surrendered shall forthwith be
canceled. If any shares of Parent Common Stock that a holder of
a Common Certificate has a right to receive are to be issued to a
Person other than the Person in whose name such Common
Certificate so surrendered is registered, it shall be a condition
of exchange that such Common Certificate shall be properly
endorsed or otherwise in proper form for transfer and that the
Person requesting such exchange shall pay any transfer or other
taxes required by reason of the exchange to a Person other than
the registered holder of such Common Certificate or establish to
the reasonable satisfaction of Parent that such tax has been paid
or is not applicable. Until surrendered as contemplated by this
Section 2.6, each Common Certificate shall be deemed as of the
Effective Time of the Merger to represent only the right to
receive, upon surrender of such Common Certificate in accordance
with this Section 2.6(a), Merger Consideration.
(b) No dividends or other distributions declared or made
after the Effective Time of the Merger with respect to the Parent
Common Stock shall be paid to the holder of any unsurrendered
Common Certificate with respect to the Parent Common Stock
represented thereby. No shares of Parent Common Stock with
respect to Landmark Common Stock shall be paid to any Person
until the holder of record of the Common Certificate representing
the right to receive such shares of Parent Common Stock shall
have been surrendered in accordance with Section 2.6(a).
(c) All shares of Parent Common Stock issued upon the
surrender of Common Certificates in accordance with the terms of
this Article II, together with any dividends payable thereon to
the extent contemplated by this Section 2.6, shall be deemed to
have been exchanged and paid in full satisfaction of all rights
pertaining to the Landmark Common Stock theretofore represented
by such Common Certificates and there shall be no further
registration of transfers on the stock transfer books of the
Surviving Corporation of the shares of Landmark Common Stock that
were outstanding immediately prior to the Effective Time of the
Merger. If, after the Effective Time of the Merger, Common
Certificates are presented to Parent for any reason, they shall
be canceled and exchanged as provided in this Article II.
(d) Neither Parent nor Landmark nor any of their
Subsidiaries shall be liable to any holder of Landmark Shares or
Parent Common Stock, as the case may be, for such shares (or
dividends or distributions with respect thereto) delivered to a
public official pursuant to any applicable abandoned property,
escheat or similar Law.
(e) Parent or the Surviving Corporation shall be entitled
to deduct and withhold, or cause the exchange agent, if any, to
deduct and withhold, from consideration otherwise payable
pursuant to this Agreement to any Landmark Stockholder such
amounts as are required to be deducted and withheld with respect
to the making of such payment under the Code, or any provision of
state, local or foreign Tax Law. To the extent that amounts are
so withheld, (i) such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of
the Common Certificates in respect of which such deduction and
withholding was made, and (ii) Parent shall provide, or cause its
exchange agent to provide, to the holders of such securities
written notice of the amounts so deducted or withheld.
Section 2.7. Appointment of Stockholders’ Representative
(a) The Landmark Stockholders hereby irrevocably appoint
Xxxxxx X. Xxxx as the Stockholders’ Representative to act as the
agent of such stockholders with respect to, and with the full
power to resolve, all questions, disputes, to authorize the
payments of amounts for expenses, to defend, negotiate and/or
settle such claims, to employ such agents, consultants and
professionals, to delegate authority to his agents, and to take
such actions, to grant such consents and waivers and execute such
documents on their behalf in connection with this Agreement as
the Stockholders’ Representative, in his sole discretion, deems
best and to perform all of the functions of the Stockholders’
Representative under this Agreement.
(b) Parent may rely upon written directions and notices
received from the Stockholders’ Representative with respect to
the matters described herein. In the event Xxxxxx X. Xxxx ceases
to be able to perform his duties as a Stockholders’
Representative as a result of his death, incapacity or
resignation, the former Landmark Stockholders (voting in
proportion to each stockholder’s former holdings of Landmark
Shares as of the Effective Time) shall designate an individual to
serve as his successor and to assume all of his duties and
obligations as a Stockholders’ Representative hereunder and shall
so notify Parent in writing of any such designation. The parties
acknowledge and agree that Xxxxxx X. Xxxx, or any successors
designated pursuant to this Section 2.7, is acting as the
Stockholders’ Representative for the stockholders of Landmark for
the limited administrative purposes set forth herein and nothing
in this Agreement is intended to, nor shall, impose any personal
liability on Xxxxxx X. Xxxx or any other Person who serves as
Stockholders’ Representative. At any time, Landmark Stockholders
who held immediately prior to the Effective Time a majority of
the Landmark Shares may remove or replace the person serving as
the Stockholders’ Representative and name a substitute for such
person by written notice to Parent.
(c) The Stockholders’ Representative shall not be liable
for any act done or omitted in such capacity while acting in good
faith, except for any act done or omitted which constitutes gross
negligence or willful misconduct. Any act done or omitted
pursuant to the advice of counsel shall be conclusive evidence of
such good faith and of the absence of gross negligence or willful
misconduct.
(d) Each of the Landmark Stockholders hereby agrees,
jointly and severally, to indemnify, defend and forever hold the
Stockholders’ Representative harmless, from and against any and
all losses, demands, causes of action, judgments, liabilities,
claims, costs, damages and expenses (including, without
limitation, fines, forfeitures, reasonable attorneys’ fees,
disbursements and administrative or court costs) directly or
indirectly arising out of, resulting from, or in connection with,
any claim or alleged claim with respect to the Stockholders’
Representative’s obligations under this Agreement or any other
agreement contemplated hereby or thereby, except for claims or
alleged claims arising out of the gross negligence or willful
misconduct of the Stockholders’ Representative.
(e) Parent shall provide the Stockholders’ Representative
with such information and assistance as he may reasonably
request, including making employees available on a mutually
convenient basis.
Section 2.8. Anti-Dilution Provisions.
Except with respect to the 25% Parent Stock Dividend
(which has already been taken into account in determining the
Merger Consideration), in the event Parent changes the number of
shares of Parent Common Stock issued and outstanding prior to the
Effective Date as a result of a stock split, stock dividend,
recapitalization or similar transaction with respect to the
outstanding Parent Common Stock and the record date therefor
shall be prior to the Effective Time, the number of shares of
Parent Common Stock constituting the Merger Consideration shall
be proportionately adjusted.
ARTICLE III
STOCKHOLDER APPROVAL; EFFECTIVE TIME; CLOSING
Section 3.1. Stockholder Approval.
(a) This Agreement together with the Certificate of Merger
shall be submitted for consideration, adoption and approval by
the holders of shares of Parent Common Stock at the Parent
Special Meeting, and this Agreement together with the Certificate
of Merger shall be adopted and approved by the Landmark
Stockholders by non-unanimous written consent in accordance with
Section 228 of the DGCL. Parent and Landmark shall coordinate
and cooperate with respect to the timing of the Parent Special
Meeting and shall endeavor to hold such meeting as soon as
practicable after the date hereof. The Board of Directors of
each of Parent and Landmark shall recommend that their respective
stockholders approve this Agreement and the transactions
contemplated hereby and such recommendation shall be contained in
each of Parent’s and Landmark’s proxy statements.
Section 3.2. Effective Time.
The Merger shall become effective upon (i) the filing and
recordation of the Certificate of Merger with the Secretary of
State of the State of Delaware or (ii) at such later time as is
set forth in the Certificate of Merger (the “Effective Time”).
Upon satisfaction by Landmark of the conditions precedent to the
consummation of the Merger set forth in Section 8.1 and upon
satisfaction by Parent of the conditions precedent to the
consummation of the Merger set forth in Section 8.2, the parties
shall cause the Certificate of Merger to be filed on the same day
as the Closing; provided, however, if the offices of the
Secretary of State of the State of Delaware are closed at such
time, the parties will cause the Certificate of Merger to be
filed with the Secretary of State of the State of Delaware at the
earliest possible time on the next business day on which such
offices are not closed following the Closing.
Section 3.3. Time and Place of Closing.
The closing of the transactions contemplated by this
Agreement shall take place at a time and on a date mutually
agreed upon by the parties hereto, provided that such date shall
be no later than the third business day following the date on
which all of the conditions to the obligations of the parties set
forth in Article VIII have been satisfied as provided therein
(the “Closing”). The Closing shall take place at the offices of
Hunton & Xxxxxxxx located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LANDMARK
Except as specifically set forth in the disclosure schedule
of Landmark attached hereto (the “Landmark Disclosure Schedule”),
Landmark represents and warrants to Parent and Merger Subsidiary
as follows:
Section 4.1. Organization and Authority of Landmark.
Landmark is duly organized, validly existing and in good
standing under the laws of the State of Delaware. Landmark has
the full corporate power to carry on its Business as it is now
being conducted and to own, operate and hold under lease its
assets and properties as, and in the places where, such
properties and assets now are owned, operated or held. Landmark
is duly qualified as a foreign entity to do business, and is in
good standing, in each jurisdiction where the failure to be so
qualified would have a Material Adverse Effect on Landmark. The
copies of the Certificate of Incorporation and Bylaws of
Landmark, which have been delivered to Parent, are complete and
correct and in full force and effect on the date hereof, and no
amendment or other modification has been filed, recorded or is
pending or contemplated thereto.
Section 4.2. Capitalization.
Landmark’s authorized equity capitalization consists of
50,000 shares of Landmark Common Stock. As of the close of
business on the date hereof, 10,000 shares of Landmark Common
Stock were issued and outstanding. Such shares of Landmark
capital stock constituted all of the issued and outstanding
shares of capital stock of Landmark as of such date. All issued
and outstanding Landmark Shares have been duly authorized and
validly issued and are fully paid and nonassessable, are not
subject to and have not been issued in violation of any
preemptive rights and have not been issued in violation of any
federal or state securities laws. Except as provided in
Section 8.2(m) hereof, Landmark has not declared or paid any
dividend on, or declared or made any distribution with respect
to, or authorized or effected any split-up or any other
recapitalization of, any of the Landmark Shares, or directly or
indirectly redeemed, purchased or otherwise acquired any of its
outstanding capital stock or agreed to take any such action and
will not take any such action during the period between the date
of this Agreement and the Effective Time. Section 4.2 of the
Landmark Disclosure Schedule lists all of the stockholders of
Landmark as of the date hereof and sets forth the respective
holdings of each such stockholder. There are no outstanding
options, warrants, notes, subscriptions or other rights to
purchase or acquire any capital stock of Landmark, nor are there
any outstanding securities that are convertible into or
exchangeable for any capital stock of Landmark. There are no
contracts, commitments, understandings, arrangements or
restrictions by which Landmark is bound to sell or issue any
shares of its capital stock.
Section 4.3. Authority Relative to this Agreement;
Recommendation.
The execution, delivery and performance of this Agreement
and of all of the other documents and instruments required hereby
by Landmark are within the corporate power and authority of
Landmark. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized and approved by the Board of
Directors of Landmark, and no other corporate proceeding on the
part of Landmark other than obtaining the Landmark Stockholder
Approval is necessary to authorize this Agreement or to
consummate the transactions contemplated herein. This Agreement
and all of the other documents and instruments required hereby
have been or will be duly and validly executed and delivered by
Landmark and (assuming the due authorization, execution and
delivery hereof and thereof by Parent and Merger Subsidiary)
constitute or will constitute valid, legal and binding agreements
of Landmark, enforceable against Landmark in accordance with
their respective terms.
Section 4.4. Consents and Approvals; No Violations.
Except for (i) the filing and recordation of the Certificate
of Merger with the Secretary of State of the State of Delaware as
required by the DGCL; (ii) obtaining the Landmark Stockholder
Approval and (iii) otherwise as set forth in Section 4.4 of the
Landmark Disclosure Schedule attached hereto, no filing or
registration with, or notice to, and no Permit, authorization,
consent or approval of, any public court, tribunal or
administrative, governmental or regulatory body, agency or
authority is necessary or required in connection with the
execution and delivery of this Agreement by Landmark or for the
consummation by Landmark of the transactions contemplated by this
Agreement. Assuming that all filings, registrations, Permits,
authorizations, consents and approvals contemplated by the
immediately preceding sentence have been duly made or obtained,
neither the execution or delivery of this Agreement by Landmark
nor the performance of this Agreement nor the consummation of the
transactions contemplated hereby by Landmark will (x) conflict
with or result in any breach of any provision of the Certificates
of Incorporation or Bylaws of Landmark, (y) result in a violation
or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any
of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, Landmark Contract or other
instrument or obligation to which Landmark is a party or by which
it or any of its properties or assets may be bound or (z) violate
any order, writ, injunction, decree, statute, rule or regulation
applicable to Landmark or any of its properties or assets.
Section 4.5. Title to and Condition of Assets.
Landmark has good title to, or valid leasehold interests in,
all its properties and assets owned by it, except for such as are
no longer used or useful in the conduct of its Business or as
have been disposed of in the ordinary course of Business, except
for minor defects in title, easements, restrictive covenants and
similar encumbrances or impediments that, in the aggregate do not
and will not have a Material Adverse Effect on the Business as
currently conducted. Except as set forth in Section 4.5 of the
Landmark Disclosure Schedule, all such assets and properties,
other than assets and properties in which Landmark has leasehold
interests, are free and clear of all Liens, except for Permitted
Liens and the proposed transaction will not cause a default under
any lease. The terms of all leases are set forth in Section 4.5
of the Landmark Disclosure Schedule.
Section 4.6. Absence of Certain Events.
Except as set forth in Section 4.6 of the Landmark
Disclosure Schedule, since January 1, 2002, Landmark has not
suffered any adverse change in its Business, financial condition
or results of operations that will have a Material Adverse Effect
on Landmark. Since January 1, 2002, Landmark has conducted its
Business in the ordinary course and consistent with past practice
and there has not been: (i) any entry into any Contract or an
amendment of any Contract between Landmark on the one hand, and
any of the executive officers or key employees or consultants of
Landmark on the other hand, providing for employment of any such
officer or key employee or consultant or any general or material
increase in the compensation, severance or termination benefits
payable or to become payable by Landmark to any of the executive
officers or key employees or consultants of Landmark (except for
normal increases in the ordinary course of Business that are
consistent with past practices and that, in the aggregate, do not
result in a material increase in benefits or compensation
expense), or any adoption of or increase in any bonus, insurance,
pension or other employee benefit plan, payment or arrangement
(including, without limitation, the granting of stock options or
stock appreciation rights or the award of restricted stock) made
to, for or with any such executive officer or key employee or
consultant; (ii) any entry by Landmark into or termination of or
amendment to any material Contract or transaction (including,
without limitation, any borrowing, capital expenditure, sale of
assets or any Lien (other than Permitted Liens) made on any of
the properties or assets of Landmark) other than in the ordinary
and usual course of Business copies of each employment contract
and any other material contract have been delivered to Parent;
(iii) any material change in the accounting methods, principles
or practices of Landmark; (iv) any damage, destruction or loss,
whether covered by insurance or not, having a Material Adverse
Effect upon Landmark; (v) any event, occurrence or action that
has had or is reasonably likely to have a Material Adverse Effect
on Landmark; (vi) except as provided in Section 8.2(m) hereof,
any declaration, setting aside or payment of any dividend or
distribution (whether in cash, stock or property) with respect to
the Landmark Shares; (vii) any amendment of any material term of
any outstanding equity security (or any instrument convertible
into or exchangable for any equity security) of Landmark;
(viii) any repurchase, redemption or other acquisition by
Landmark of any outstanding shares of capital stock or other
equity securities of, or other ownership interests in, Landmark;
or (ix) any Contract to do any of the foregoing.
Section 4.7. Subsidiaries.
Except as set forth on Section 4.7 of the Landmark
Disclosure Schedule, Landmark does not own any Subsidiaries and
Landmark does not own or hold of record and/or beneficially own
or hold, any shares of any class of the capital stock of any
corporation or any legal or beneficial ownership interest in any
general or limited partnership, limited liability company,
business trust or joint venture or any other unincorporated trade
or business enterprise.
Section 4.8. Financial Statements.
The audited consolidated statements of financial condition,
results of operations and cash flows of Landmark as of and for
the 12-month periods ended December 31, 2001 and December 31,
2000 and the unaudited consolidated statements of financial
condition, results of operations and cash flows of Landmark as of
and for the 12-month period ended December 31, 1999 and the three-
month periods ending March 31, 2002 and March 31, 2001 attached
hereto as Exhibit 4.8. (collectively, the “Landmark Financial
Statements”), were previously provided to Parent. Except as
disclosed in the notes to the Landmark Financial Statements, the
Landmark Financial Statements taken as a whole present fairly in
accordance with GAAP, in all material respects, the consolidated
financial condition, results of operations and cash flows of
Landmark, as of the dates, and for the periods indicated (except
for the absence of notes and normal recurring year-end
adjustments with respect to the unaudited Landmark Financial
Statements).
Section 4.9. Litigation.
Except as set forth in Section 4.9 of the Landmark
Disclosure Schedule, there is no action, suit, proceeding or
investigation pending or, to the Knowledge of Landmark,
threatened, against, relating to or affecting Landmark at law or
in equity, or before any Governmental Authority, including,
without limitation, with respect to infringement of any Landmark
Intellectual Property. Except as set forth in Section 4.9 of the
Landmark Disclosure Schedule, Landmark is not subject to any
order, judgment, decree or obligation that would have a Material
Adverse Effect on the Business as currently conducted.
Section 4.10. Employee Benefit Plans Matters.
(a) Section 4.10 of the Landmark Disclosure Schedule
contains a true and complete list of (i) all employee welfare
benefit and employee pension benefit plans as defined in sections
3(1) and 3(2) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), including, but not limited to, plans
that provide retirement income or result in a deferral of income
by employees for periods extending to termination of employment
or beyond, and plans that provide medical, surgical, or hospital
care benefits or benefits in the event of sickness, accident,
disability, death or unemployment and (ii) all other material
employee benefit agreements or arrangements (other than “payroll
practices” under Department of Labor (the “DOL”) Regulation
Section 2510.3-1) that are currently in effect as of the date of
this Agreement, or have been approved before this date but are
not yet effective, for the benefit of any director, officer,
employee or other service provider or any former director,
officer, employee or other service provider (or any of their
beneficiaries) of Landmark (collectively, a “Landmark
Beneficiary”), or with respect to which Landmark may have any
material liability (“Landmark Benefit Plans”).
(b) With respect to each Landmark Benefit Plan, Landmark
has heretofore made available to Parent, as applicable, complete
and correct copies of each of the following documents which
Landmark has prepared or has been required to prepare:
(i) the Landmark Benefit Plans and any amendments
thereto (or if a Landmark Benefit Plan is not a written
agreement, a description thereof);
(ii) the most recent annual Form 5500 reports filed
with the IRS;
(iii) the most recent statement filed with the DOL
pursuant to 29 U.S.C. par 2520.104-23;
(iv) the most recent annual Form 990 and 1041 reports
filed with the IRS;
(v) the most recent actuarial reports;
(vi) the most recent reports prepared in accordance
with Statement of Financial Accounting Standards No. 106;
(vii) the most recent summary plan description and
summaries of material modifications thereto;
(viii) the trust agreement, group annuity contract
or other funding agreement that provides for the funding of the
Landmark Benefit Plan;
(ix) the most recent financial statement;
(x) the most recent determination letter received from
the IRS; and
(xi) any agreement pursuant to which Landmark is
obligated to indemnify any Person.
(c) All contributions and other payments required to have
been made by Landmark or any entity (whether or not incorporated)
that is (or is required to be) treated as a single employer with
Landmark under Section 414 of the Code (a “Landmark ERISA
Affiliate”) with respect to any Landmark Benefit Plan have been
or will be timely made and all such amounts properly accrued
through the date of the Landmark Financial Statements have been
reflected therein.
(d) The terms of all Landmark Benefit Plans that are
intended to be “qualified” within the meaning of
Section 401(a) of the Code have received favorable determination
letters from the IRS on the current forms of such Landmark
Benefit Plans or the applicable remedial amendment periods will
not have ended prior to the Effective Time of the Merger. Except
as disclosed in Section 4.10 of the Landmark Disclosure Schedule,
to the Knowledge of Landmark, no event or condition exists or has
occurred that could cause the IRS to disqualify any Landmark
Benefit Plan that is intended to be qualified under
Section 401(a) of the Code. Except as disclosed in Section 4.10
of the Landmark Disclosure Schedule, with respect to each
Landmark Benefit Plan, Landmark and each Landmark ERISA Affiliate
are in compliance in all material respects with, and each
Landmark Benefit Plan and related source of benefit payment is
and has been operated in compliance with, its terms, all
applicable Laws governing such plan or source, including, without
limitation, ERISA, the Code and applicable local Law. To the
Knowledge of Landmark, except as set forth in Section 4.10 of the
Landmark Disclosure Schedule, no Landmark Benefit Plan is subject
to any ongoing audit, investigation, or other administrative
proceeding of the IRS, the DOL, or any other Governmental
Authority or is scheduled to be subject to such an audit
investigation or proceeding.
(e) With respect to each Landmark Benefit Plan, to the
Knowledge of Landmark, there exists no condition or set of
circumstances that could subject Landmark or any Landmark ERISA
Affiliate to any liability arising under the Code, ERISA or any
other applicable Law (including, without limitation, any
liability to or under any such plan or under any indemnity
agreement to which Landmark or any Landmark ERISA Affiliate is a
party), which liability, excluding liability for benefit claims
and funding obligations, each payable in the ordinary course,
could reasonably be expected to have a Material Adverse Effect on
Landmark. No claim, action or litigation has been made,
commenced or, to the Knowledge of Landmark, threatened, by or
against any Landmark with respect to any Landmark Benefit Plan
(other than for benefits in the ordinary course) that could
reasonably be expected to have a Material Adverse Effect on
Landmark.
(f) Except as disclosed in Section 4.10 of the Landmark
Disclosure Schedule, no Landmark Benefit Plan that is a “welfare
benefit plan” (within the meaning of Section 3(1) of ERISA)
provides benefits for any retired or former employees (other than
as required under Sections 601 et seq. of ERISA and Section 4980
of the Code or other applicable state or local Law that
specifically mandates continued health coverage).
(g) No Landmark Benefit Plan is a “multiemployer plan” as
defined in Section 3(37) of ERISA and neither Landmark nor any
Landmark ERISA Affiliate has previously maintained or had an
obligation to contribute to a “multiemployer plan” (as defined
above).
(h) Neither Landmark nor any entity that was at any time
during the six-year period ending on the date of this Agreement a
Landmark ERISA Affiliate has ever maintained, had an obligation
to contribute to, contributed to, or had any liability with
respect to any plan that is or was a pension plan (as defined in
Section 3(2) of ERISA) that is or was subject to Title IV of
ERISA.
(i) No Landmark Beneficiary will be eligible to accrue any
additional benefits under any Landmark Benefit Plan after the
Effective Time except for COBRA benefits, the cost of which shall
be paid entirely by the recipient.
Section 4.11. Labor Matters.
Except as set forth in Section 4.11 of the Landmark
Disclosure Schedule:
(a) Landmark is and has been in compliance in all material
respects with all applicable Laws respecting employment and
employment practices, terms and conditions of employment and
wages and hours including, without limitation, any such Laws
respecting employment discrimination and occupational safety and
health requirements, and has not and is not engaged in any unfair
labor practice;
(b) there is no unfair labor practice charge or complaint
against Landmark pending or, to the Knowledge of Landmark,
threatened before the National Labor Relations Board or any other
comparable authority;
(c) Landmark is not a party to any collective bargaining
agreements;
(d) there is no litigation, arbitration proceeding,
governmental investigation, citation or action of any kind
pending or, to the Knowledge of Landmark, threatened against
Landmark relating to employment, employment practices, terms and
conditions of employment or wages and hours;
(e) there are no pending or, to the Knowledge of Landmark,
threatened, strikes, lockouts or other work stoppages involving
any persons employed by Landmark;
(f) there are no representation petitions or other similar
petitions or requests for representation pending or, to the
Knowledge of Landmark, threatened, before the National Labor
Relations Board or other Government Authority in connection with
any persons employed by Landmark; and
(g) as of the Effective Time, Landmark will have no
employees.
Section 4.12. Tax Matters.
Except as set forth in Section 4.12 of the Landmark
Disclosure Schedule:
(a) Landmark is not a member of an affiliated group, within
the meaning of Section 1504(a) of the Code, and neither Landmark
nor any entity to whose liabilities Landmark has succeeded, has
ever filed a consolidated federal income Tax Return with (or been
included in a consolidated return of) an affiliated group, except
(i) from the date of Landmark’s incorporation until December 31,
1998, Landmark was a member of an affiliated group of which
Biological & Popular Culture, Inc. (“Biopop”), renamed GIV
Holdings, Inc. on December 31, 1998, was the common parent (Xxxxx
Xxxxxx, Inc., a publicly traded distributor of healthcare
products and services, purchased Biopop on December 31, 1998),
(ii) from January 1, 1999 until October 31, 1999, Landmark was a
member of an affiliated group of which BCCX, Inc. was the common
parent and (iii) from November 1, 1999 through December 31, 2000,
Landmark was a member of an affiliated group of which Clinical
Chemistry Holdings, Inc. was the common parent. Landmark has
delivered to Parent copies of each of the consolidated tax
returns referenced in clauses (ii) and (iii) in the preceding
sentence.
(b) Landmark (and, as applicable, the affiliated group of
which Landmark was a member) has timely filed or caused to be
filed all material Tax Returns required to have been filed by or
for it, and all information set forth in such Tax Returns with
respect to Landmark is correct and complete in all material
respects; provided, however, that this representation is limited
to the Knowledge of Landmark with respect to Biopop’s affiliated
group with respect to any Tax Return filed after December 31,
1998;
(c) Landmark (and, as applicable, the affiliated group of
which Landmark was a member) has paid all material Taxes due and
payable by it, except for those being contested in good faith;
provided, however, that this representation is limited to the
Knowledge of Landmark with respect to Biopop’s affiliated group
with respect to any Taxes payable after December 31, 1998;
(d) the Landmark Financial Statements fully and properly
reflect, as of their dates, the liabilities of Landmark for all
Taxes for all periods ending on or before such dates; provided,
however, that this representation is limited to the Knowledge of
Landmark with respect to Biopop’s affiliated group with respect
to any date on or after December 31, 1998;
(e) there is no pending examination, administrative or
judicial proceeding, or deficiency or refund litigation, with
respect to any Taxes of Landmark (and, as applicable, the
affiliated group of which Landmark was a member); provided,
however, that this representation is limited to the Knowledge of
Landmark with respect to Biopop’s affiliated group;
(f) since April 16, 1997, Landmark has not distributed to
its stockholders or security holders stock or securities of a
controlled corporation in a transaction to which
Section 355(a) of the Code applies;
(g) Landmark is not, or has not been at any time within the
last five years, a “United States real property holding
corporation” for purposes of Section 897 of the Code; and
(h) Landmark has no Knowledge of any fact, nor has Landmark
taken any action that would or would be reasonably likely to
adversely affect the qualification of the Merger as a
“reorganization” within the meaning of Section 368(a) of the
Code.
Section 4.13. Compliance with Law.
Landmark holds all Permits necessary for the lawful conduct
of its Business, except for failures to hold such Permits that
would not have a Material Adverse Effect on Landmark. Landmark
is in compliance with the material terms of the Permits, except
where the failure so to comply would not have a Material Adverse
Effect on Landmark. The Business of Landmark is not being
conducted in violation of any relevant Law, ordinance or
regulation of any Governmental Authority except for violations or
possible violations which do not have, and, could not reasonably
be expected to have, a Material Adverse Effect on Landmark. No
investigation or review by any Governmental Authority with
respect to Landmark is pending or, to the Knowledge of Landmark,
threatened.
Section 4.14. Fees and Expenses of Brokers and Others.
Other than Third Security, LLC, for which a fee for services
rendered shall be paid by Landmark to Third Security, LLC prior
to Closing in an amount equal to the lesser of (x) $300,000 and
(y) the amount of Landmark’s cash immediately prior to the
Closing, if any, in excess of the cash required to satisfy
Landmark’s obligations pursuant to Sections 6.1(m) and 7.6,
establish cash reserves, escrows or accruals as required under
this Agreement and meet the condition set forth in
Section 8.1(j), Landmark (a) has not had any dealings,
negotiations or communications with any broker, finder or
investment banker or other intermediary in connection with the
transactions contemplated by this Agreement, (b) is not committed
to any liability for any brokers’ or finders’ fees or any similar
fees in connection with the transactions contemplated by this
Agreement and (c) has not retained any broker, finder or
investment banker or other intermediary to act on its behalf in
connection with the transactions contemplated by this Agreement.
Section 4.15. Absence of Undisclosed Liabilities.
Except as set forth in Section 4.15 of the Landmark
Disclosure Schedule, Landmark does not have any material
liabilities or obligations of any kind, whether absolute,
accrued, asserted or unasserted, contingent or otherwise,
required by GAAP to be set forth in a financial statement or in
the notes thereto except liabilities, obligations or
contingencies that (i) are accrued or reserved against in the
balance sheet of Landmark as of December 31, 2001, or (ii) were
incurred after December 31, 2001 in the ordinary course of
Business and consistent with past practices during 2001.
Section 4.16. Environmental Laws and Regulations.
(a) Landmark is in compliance with all applicable Laws
(including common Law) and regulations relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata) (collectively, “Environmental
Laws”), which compliance includes, but is not limited to, the
possession by Landmark of all Permits and other governmental
authorizations required under applicable Environmental Laws, and
compliance with the terms and conditions thereof, except where
the failure so to comply would not have a Material Adverse Effect
on Landmark.
(b) Landmark has not received written notice of, or, to the
Knowledge of Landmark, is the subject of, any action, cause of
action, claim, investigation, demand or notice by any Person
alleging liability under or non-compliance with any Environmental
Law (an “Environmental Claim”).
(c) There have been no releases or offsite shipments from
any property owned by Landmark (or to the Knowledge of Landmark
any property adjacent to Landmark’s property) of any hazardous,
toxic or radioactive material, substance or wastes defined or
regulated as such under the Environmental Law that would be
reasonably likely to result in an Environmental Claim.
(d) To the Knowledge of Landmark, there are no
circumstances that are reasonably likely to prevent or interfere
with the material compliance with all Environmental Laws by
Landmark in the future.
(e) There are no Environmental Claims that are pending or,
to the Knowledge of Landmark, threatened, against Landmark or
against any Person whose liability for any Environmental Claim
Landmark has or may have retained or assumed either contractually
or by operation of Law.
Section 4.17. Intellectual Property.
(a) Except as set forth on Section 4.17 of the Landmark
Disclosure Schedule, Landmark is the sole owner of all right,
title and interest in the Intellectual Property owned by Landmark
and has all necessary licenses, rights, permissions and
authorizations to use the Intellectual Property licensed by
Landmark. The Intellectual Property constitutes all non-tangible
property necessary for the operation of the Business as presently
conducted. To the Knowledge of Landmark, each item of
Intellectual Property has been used with the authorization of
every other claimant thereto and the execution, delivery and
performance of this Agreement will not impair such use by
Landmark after the Closing.
(b) Except as set forth on Section 4.17 of the Landmark
Disclosure Schedule for a period of three years prior to the date
hereof, Landmark has not interfered with, infringed upon,
misappropriated or otherwise come into conflict with any
Intellectual Property rights of any third party, and Landmark has
not received any written charge, complaint, claim, demand or
notice alleging any such interference, infringement,
misappropriation or violation (including any claim that Landmark
must license or refrain from using any Intellectual Property
rights of any third party). To the Knowledge of Landmark, no
third party has interfered with, infringed upon, misappropriated
or otherwise come into conflict with any Intellectual Property
rights of Landmark. Except as set forth on Section 4.17 of the
Landmark Disclosure Schedule, there are no pending claims,
litigation, arbitration, opposition proceedings, petitions to
cancel, interferences, administrative proceedings, demand letters
or cease and desist letters challenging the Intellectual
Property, or Landmark’s rights therein.
(c) Section 4.17 of the Landmark Disclosure Schedule
identifies each existing patent, trademark, copyright or other
registration that has been issued to Landmark that is currently
valid and existing with respect to any of the Intellectual
Property, identifies each pending application or application for
registration that Landmark has made with respect to any of the
Intellectual Property and identifies each license, agreement or
other permission that Landmark has granted to any third party
with respect to any of the Intellectual Property (together with
any exceptions thereto). Except as set forth on Section 4.17 of
the Landmark Disclosure Schedule, Landmark has made available to
Parent correct and complete copies of all such patents,
registrations, applications, licenses, agreements and permissions
(as amended to date) and has made available to Parent correct and
complete copies of all other written documentation evidencing
ownership and prosecution (if applicable) of each such item.
Section 4.17 of the Landmark Disclosure Schedule also identifies
each trade name or unregistered trademark used by Landmark.
Except as set forth on Section 4.17 of the Landmark Disclosure
Schedule, with respect to each item of Intellectual Property
required to be identified therein: (i) to the Knowledge of
Landmark, the item is not subject to any outstanding injunction,
judgment, order, decree, ruling or charge; (ii) no action, suit,
proceeding, hearing, charge, complaint, claim or demand is
pending or, to the Knowledge of Landmark, is threatened which
challenges the legality, validity, enforceability, use or
ownership of the item; and (iii) Landmark has not licensed or
permitted any third party to use any such item.
Section 4.18. Insurance.
All material fire and casualty, general liability, product
liability, and sprinkler and water damage insurance policies
maintained by Landmark are with reputable insurance carriers,
provide full and adequate coverage for all normal risks incident
to the Business of Landmark and its properties and assets, except
for any such failures to maintain insurance policies that,
individually or in the aggregate, are not reasonably likely to
have a Material Adverse Effect on Landmark. Section 4.18 of the
Landmark Disclosure Schedule sets forth, with respect to each
insurance policy maintained by Landmark, the name of the
insurance carrier, a description of the type of coverage,
deductible amounts, limits on coverage and other material terms
of the policy.
Section 4.19. Books and Records.
The books of account, minute books, stock record books and
other records of Landmark are complete and correct in all
material respects and have been maintained in accordance with
sound business practices, including the requirements relating to
a system of internal accounting controls. To the Knowledge of
Landmark, Landmark has made available to Parent for examination
the originals or true and correct copies of all documents that
Parent has requested in connection with the transactions
contemplated by this Agreement.
Section 4.20. Accounts Receivable and Accounts Payable.
Except as set forth on Section 4.20 of the Landmark
Disclosure Schedule, the Accounts Receivable all have arisen from
bona fide transactions with independent third parties in the
ordinary course of Business and were, on the Landmark Financial
Statements, subject to adequate reserves in accordance with and
based upon Landmark’s past practice. All Accounts Payable of
Landmark have arisen from bona fide transactions in the ordinary
course of Business and are to be paid in accordance with normal
trade practice.
Section 4.21. Material Contracts.
(a) Section 4.21 of the Landmark Disclosure Schedule
contains a true, correct and complete list of all Contracts
(which term includes all amendments, modifications and
supplements thereto and all side letters affecting the
obligations of any party thereunder) to which Landmark is a party
or by which any of the properties or assets of Landmark are bound
that are, material to the Business, properties or assets of
Landmark taken as a whole, including, without limitation:
(i) regardless of amount, employment, product design or
development, personal services, consulting, non-competition,
severance, golden parachute, or indemnification Contracts
(including, without limitation, any Contract to which Landmark is
a party involving employees or Affiliates of Landmark);
(ii) regardless of amount, Contracts granting rights of first
refusal or first negotiation; (iii) regardless of amount,
partnership or joint venture agreements; (iv) agreements for the
acquisition, sale or lease of material properties or assets or
stock or otherwise; (v) Contracts or agreements with any
Governmental Authority; (vi) Contracts relating to the purchase
of goods, equipment or services used in support of the Business
or operations of Landmarks of amounts in excess of $30,000 per
year or having a duration in excess of one year; (vii) customer
Contracts; (viii) regardless of amount, Contracts which contain
covenants pursuant to which Landmark has agreed not to compete
with any Person or any Person has agreed not to compete with
Landmark; (ix) Contracts upon which any substantial part of the
Business of Landmark is dependent or which, if breached, could
reasonably be expected to have a Material Adverse Effect on
Landmark; and (x) all commitments and agreements, whether written
or oral, to enter into any of the foregoing (collectively, the
“Landmark Contracts”).
(b) Except as set forth in Section 4.21 of the Landmark
Disclosure Schedule, each of the Landmark Contracts is valid,
binding, in full force and effect and enforceable in accordance
with its terms, and true and correct copies thereof (or, as to
oral contracts, complete written descriptions thereof) have been
delivered to Parent, and there is no existing default that has
not been cured or waived under any Landmark Contract so listed by
Landmark or, to the Knowledge of Landmark, by any other party
thereto, and no event has occurred that with the lapse of time or
the giving of notice or both would constitute a default
thereunder by Landmark or, to the Knowledge of Landmark, any
other party, that in any such case would have a Material Adverse
Effect on the Business as currently conducted.
(c) Except as set forth in Section 4.21 of the Landmark
Disclosure Schedule, no party to any such Landmark Contract has
given written notice to Landmark of, or made, a claim against
Landmark with respect to any breach or default thereunder or, to
the Knoweldge of Landmark, threatened any of the foregoing.
(d) Except as set forth in Section 4.4 of the Landmark
Disclosure Schedule, the execution and delivery of this Agreement
by Landmark does not, and the consummation of the transactions
contemplated by this Agreement will not, result in any violation
or breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any
material benefit) under, or require the consent or waiver under,
any of the material terms, conditions or provisions of the
Landmark Contracts identified in Schedule 4.21 of the Landmark
Disclosure Schedule that would have a Material Adverse Effect on
the Business as currently conducted.
Section 4.22. Real or Personal Property.
Except as set forth in Section 4.22 of the Landmark
Disclosure Schedule, Landmark does not lease for a term of more
than six months nor own any real or personal property.
Section 4.23. Vote Required.
The affirmative vote of the holders of a majority of the
outstanding shares of Landmark capital stock is the only vote of
the holders of any class or series of Landmark’s capital stock
necessary to approve and adopt this Agreement and the Merger.
Landmark has taken or will take all action necessary to have the
holders of Landmark capital stock approve and adopt this
Agreement and the Merger in accordance with the applicable
provisions of this Agreement, the DGCL, the Certificate of
Incorporation and Bylaws of Landmark and any other applicable
governing instrument. In accordance with the applicable
provisions of the DGCL, the Certificate of Incorporation and
Bylaws of Landmark and any other applicable governing
instruments, Landmark will receive a validly executed, non-
unanimous written consent of certain of the Landmark Stockholders
listed on Exhibit 4.23 hereto.
Section 4.24. Full Disclosure.
No representation or warranty made by Landmark contained in this
Agreement and no statement contained in any agreement,
certificate or schedule furnished or to be furnished by Landmark
to Parent in, or pursuant to the provisions of, this Agreement,
contains or shall contain any untrue statement of a material fact
or omits or will omit to state any material fact necessary, in
the light of the circumstances under which it was made, in order
to make statements herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUBSIDIARY
Parent and Merger Subsidiary represent and warrant to
Landmark, jointly and severally, as follows:
Section 5.1. Organization and Authority of the Parent.
Each of Parent and Merger Subsidiary is duly organized,
validly existing and in good standing under the laws of the State
of Delaware. Each of Parent and Merger Subsidiary has full
corporate power to carry on its business as it is now being
conducted and to own, operate and hold under lease its assets and
properties as, and in the places where, such properties and
assets now are owned, operated or held. Each of Parent and
Merger Subsidiary is duly qualified as a foreign entity to do
business, and is in good standing, in each jurisdiction where the
failure to be so qualified would have a Material Adverse Effect
on Parent or Merger Subsidiary, as the case may be. The copies
of the Certificate of Incorporation and Bylaws of each of Parent
and Merger Subsidiary, which have been delivered to Landmark, are
complete and correct and in full force and effect on the date
hereof, and no amendment or other modification has been filed,
recorded or is pending or contemplated thereto.
Section 5.2. Capitalization.
Parent’s authorized equity capitalization consists of
6,000,000 shares of Parent Common Stock and 1,000,000 shares of
preferred stock, $.01 par value per share (“Parent Preferred
Stock”). As of the close of business on August 21, 2002, shares
of Parent Common Stock and no shares of Parent Preferred Stock
were issued and 1,490,012 shares of Parent Common Stock and no
shares of Parent Preferred Stock were outstanding. Such shares
of Parent Common Stock constituted all of the issued and
outstanding shares of capital stock of Parent as of such date.
On August 12, 2002, the Board of Directors of Parent declared a
25% stock dividend pursuant to which one share of Parent Common
Stock will be issued for every four outstanding shares of Parent
Common Stock (the “25% Parent Stock Dividend”). The record date
for the stock dividend is August 26, 2002, and the stock dividend
will be payable on September 10, 2002. After the stock dividend
is paid, 1,860,015 shares of Parent Common Stock will be issued
and outstanding. Merger Subsidiary’s authorized equity
capitalization consists of 1,000 shares of Merger Subsidiary
Common Stock. As of the close of business on the date hereof,
100 shares of Merger Subsidiary Common Stock were issued and
outstanding and held by Parent. Such shares of Merger Subsidiary
Common Stock constituted all of the issued and outstanding shares
of capital stock of Merger Subsidiary as of such date. All
issued and outstanding shares of Parent Common Stock and Merger
Subsidiary Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable, are not subject to
and have not been issued in violation of any preemptive rights.
Section 5.3. Authority Relative to this Agreement.
The execution, delivery and performance of this Agreement
and of all of the other documents and instruments required hereby
by Parent and Merger Subsidiary are within the corporate power
and authority of Parent and Merger Subsidiary. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly
authorized by the Boards of Directors of Parent and Merger
Subsidiary and no other corporate proceeding on the part of
Parent or Merger Subsidiary other than obtaining the Parent
Stockholder Approval is necessary to authorize this Agreement or
to consummate the transactions contemplated herein. This
Agreement and all of the other documents and instruments required
hereby have been or will be duly and validly executed and
delivered by Parent and Merger Subsidiary, as applicable, and
(assuming the authorization, execution and delivery hereof and
thereof by the Board of Directors of Landmark) constitute or will
constitute valid, legal and binding agreements of Parent and
Merger Subsidiary, enforceable against Parent and Merger
Subsidiary in accordance with their respective terms.
Section 5.4. Consents and Approvals; No Violations.
Except for (i) the filing and recordation of the Certificate
of Merger with the Secretary of State of the State of Delaware as
required by the DGCL; (ii) obtaining the Parent Stockholder
Approval and (iii) the filing with Nasdaq of a listing
application covering the shares of Parent Common Stock issuable
in the Merger, no filing or registration with, or notice to, and
no Permit, authorization, consent or approval of, any public
court, tribunal or administrative, governmental or regulatory
body, agency or authority is necessary or required in connection
with the execution and delivery of this Agreement by Parent and
Merger Subsidiary or for the consummation by Parent and Merger
Subsidiary of the transactions contemplated by this Agreement.
Assuming that all filings, registrations, Permits,
authorizations, consents and approvals contemplated by the
immediately preceding sentence have been duly made or obtained,
neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated hereby by
Parent and Merger Subsidiary will (x) conflict with or result in
any breach of any provision of the Certificate of Incorporation
or Bylaws of Parent or Merger Subsidiary, (y) result in a
violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any
of the terms, conditions or provisions of any material note,
bond, mortgage, indenture, license, Contract or other instrument
or obligation to which Parent or Merger Subsidiary is a party or
by which Parent or Merger Subsidiary or any of their properties
or assets may be bound or (z) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to
Parent or Merger Subsidiary or any of their properties or assets
except, in the case of subsections (y) or (z) above, for
violations, breaches or defaults that would not have a Material
Adverse Effect on Parent or Merger Subsidiary and that will not
prevent or delay the consummation of the transactions
contemplated hereby.
Section 5.5. SEC Documents.
Parent has filed all required reports, schedules, forms,
statements and other documents with the SEC under the Exchange
Act since January 1, 1998 (such documents, together with all
exhibits and schedules thereto and documents incorporated by
reference therein collectively referred to herein as the “Parent
SEC Documents”). As of their respective dates, the Parent SEC
Documents complied in all material respects with the requirements
of the Exchange Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to such
Parent SEC Documents, and none of the Parent SEC Documents
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Except
for an arithmetic currency conversion error in Parents quarterly
report for the period ending September 30, 2001 which was
subsequently corrected, the consolidated financial statements of
Parent included in the Parent SEC Documents complied in all
material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto,
have been prepared in accordance with GAAP (except, in the case
of unaudited statements, as permitted by Form 10-Q of the SEC)
applied on a consistent basis during the periods involved (except
as may be indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Rule 10-01 of Regulation S-
X of the SEC) and fairly present the consolidated financial
position of Parent and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations
and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end audit adjustments and
other adjustments described therein).
Section 5.6. Fees and Expenses of Brokers and Others.
Except for the engagement by Parent of Xxxxxxxxx & Company
LLC to deliver to Parent’s Board of Directors an opinion, dated
as of August 12, 2002, as to the fairness, from a financial point
of view, to Parent and the stockholders of Parent, other than
Xxxxxx X. Xxxx and his Affiliates, of the acquisition of Landmark
by Parent in exchange for the Merger Consideration to be paid by
Parent to the holders of Landmark Shares, neither Parent nor
Merger Subsidiary (a) has had any dealings, negotiations or
communications with any broker, finder or investment banker or
other intermediary in connection with the transactions
contemplated by this Agreement, (b) is committed to any liability
for any brokers’ or finders’ fees or any similar fees in
connection with the transactions contemplated by this Agreement
or (c) has retained any broker, finder or investment banker or
other intermediary to act on its behalf in connection with the
transactions contemplated by this Agreement.
Section 5.7. Absence of Certain Events.
Except as set forth in Section 5.7 of the Parent Disclosure
Schedule or as reflected in a Parent SEC Document filed by, or a
press release issued by, Parent prior to the date hereof, since
April 1, 2001, Parent has not suffered any adverse change in its
business, financial condition or results of operations that will
have a Material Adverse Effect on Parent. Since April 1, 2001,
Parent has conducted its business in the ordinary course and
consistent with past practice and there has not been: (i) except
for employment contracts with Xxxxxx X. Xxxxx, Xxxx Xxxxx and
Xxxxxxx Tennyenhuis, copies of which have been provided by Parent
to Landmark, any entry into any Contract or an amendment of any
Contract between Parent on the one hand, and any of the executive
officers or key employees or consultants of Parent on the other
hand, providing for employment of any such officer or key
employee or consultant or any general or material increase in the
compensation, severance or termination benefits payable or to
become payable by Parent to any of the executive officers or key
employees or consultants of Parent (except for normal increases
in the ordinary course of business that are consistent with past
practices and that, in the aggregate, do not result in a material
increase in benefits or compensation expense), or any adoption of
or increase in any bonus, insurance, pension or other employee
benefit plan, payment or arrangement (including, without
limitation, the granting of stock options or stock appreciation
rights or the award of restricted stock) made to, for or with any
such executive officer or key employee or consultant; (ii) any
entry by Parent into any material Contract or transaction
(including, without limitation, any borrowing, capital
expenditure, sale of assets or any Lien (other than Permitted
Liens) made on any of the properties or assets of Parent) other
than in the ordinary and usual course of business; (iii) any
change in the accounting methods, principles or practices of
Parent; (iv) any damage, destruction or loss, whether covered by
insurance or not, having a Material Adverse Effect upon Parent;
(v) any event, occurrence or action that has had or is reasonably
likely to have a Material Adverse Effect on Parent; (vi) any
declaration, setting aside or payment of any dividend or
distribution (whether in cash, stock or property) with respect to
the Parent Common Stock, except for the 25% Parent Stock
Dividend; (vii) any amendment of any material term of any
outstanding equity security of Parent; (viii) any repurchase,
redemption or other acquisition by Parent of any outstanding
shares of capital stock or other equity securities of, or other
ownership interests in, Parent; or (ix) any Contract to do any of
the foregoing.
Section 5.8. Compliance with Law.
Parent holds all Permits necessary for the lawful conduct of
its business, except for failures to hold such Permits that would
not have a Material Adverse Effect on Parent. Parent is in
compliance with the material terms of the Permits, except where
the failure so to comply would not have a Material Adverse Effect
on Parent. The business of Parent is not being conducted in
violation of any relevant Law, ordinance or regulation of any
Governmental Authority except for violations or possible
violations which do not have, and, could not reasonably be
expected to have, a Material Adverse Effect on Parent. No
investigation or review by any Governmental Authority with
respect to Parent is pending or, to the Knowledge of Parent,
threatened.
Section 5.9. Absence of Undisclosed Liabilities.
Except as set forth in Section 5.9 of the Parent Disclosure
Schedule, Parent does not have any liabilities or obligations of
any kind, whether absolute, accrued, asserted or unasserted,
contingent or otherwise, required by GAAP to be set forth in a
financial statement or in the notes thereto except liabilities,
obligations or contingencies that (i) are accrued or reserved
against in the balance sheet of Parent as of December 31, 2001,
or (ii) were incurred after December 31, 2001 in the ordinary
course of business and consistent with past practices.
Section 5.10. Environmental Laws and Regulations.
Except as set forth on Section 5.10 of the Parent Disclosure
Schedule:
(a) Parent is in compliance with all applicable
Environmental Laws , which compliance includes, but is not
limited to, the possession by Parent of all Permits and other
governmental authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions
thereof, except where the failure so to comply would not have a
Material Adverse Effect on Parent.
(b) Parent has not received written notice of, or, to the
Knowledge of Parent , is the subject of, any Environmental Claim.
(c) There have been no releases or offsite shipments from
any property owned by Parent of any hazardous, toxic or
radioactive material, substance or wastes defined or regulated as
such under the Environmental Law that would be reasonably likely
to result in an Environmental Claim.
(d) To the Knowledge of Parent, there are no circumstances
that are reasonably likely to prevent or interfere with the
material compliance with all Environmental Laws by Parent in the
future.
(e) There are no Environmental Claims that are pending or,
to the Knowledge of Parent, threatened, against Parent or, to the
Knowledge of Parent, against any Person whose liability for any
Environmental Claim Parent has or may have retained or assumed
either contractually or by operation of Law.
Section 5.11. Vote Required; Board Approval.
(a) The affirmative vote of (i) the holders of shares of
Parent Common Stock representing at least the Parent Stockholder
Approval is the only vote of the holders of any class or series
of Parent capital stock necessary to approve and adopt this
Agreement and the transactions contemplated hereby.
(b) Parent’s Board of Directors has unanimously
(i) determined that this Agreement and the transactions
contemplated hereby, including the Merger, are advisable and in
the best interests of Parent and its stockholders, (ii) approved
this Agreement and the transactions contemplated hereby and
(iii) resolved to recommend to its stockholders that they vote in
favor of adopting and approving the Agreement and the
transactions contemplated hereby, including the Merger, in
accordance with the terms hereof.
Section 5.12. Parent Proxy Statement/Prospectus.
None of the information with respect to Parent to be
included in the Parent Proxy Statement/Prospectus or the
Registration Statement will, in the case of the Parent Proxy
Statement/Prospectus or any amendments thereof or supplements
thereto, at the time of the mailing of the Parent Proxy
Statement/Prospectus or any amendments thereof or supplements
thereto, and at the time of the Parent Special Meeting, or, in
the case of the Registration Statement, at the time it becomes
effective and at the Effective Time, contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading. The Parent Proxy Statement/Prospectus will
comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations promulgated
thereunder, except that no representation is made by Parent with
respect to information supplied in writing by Landmark or any
Affiliate of Landmark for inclusion in the Parent Proxy
Statement/Prospectus.
Section 5.13. Litigation.
There is no litigation, arbitration proceeding, governmental
investigation, citation or action of any kind pending or, to the
Knowledge of Parent, proposed or threatened that involves Parent
and that seeks restraint, prohibition, damages or other relief in
connection with this Agreement or the consummation of the
transactions contemplated hereby.
Section 5.14. Employee Benefit Plans Matters.
(a) Section 5.14 of the Parent Disclosure Schedule contains
a true and complete list of (i) all employee welfare benefit and
employee pension benefit plans as defined in sections 3(1) and
3(2) of ERISA, including, but not limited to, plans that provide
retirement income or result in a deferral of income by employees
for periods extending to termination of employment or beyond, and
plans that provide medical, surgical, or hospital care benefits
or benefits in the event of sickness, accident, disability, death
or unemployment and (ii) all other material employee benefit
agreements or arrangements (other than “payroll practices” under
DOL Regulation Section 2510.3-1) that are currently in effect as
of the date of this Agreement, or have been approved before this
date but are not yet effective, for the benefit of any director,
officer, employee or other service provider or any former
director, officer, employee or other service provider (or any of
their beneficiaries) of Parent (collectively, a “Parent
Beneficiary”, or with respect to which Parent may have any
material liability (“Parent Benefit Plans”).
(b) With respect to each Parent Benefit Plan, Parent has
heretofore made available to Landmark, as applicable, complete
and correct copies of each of the following documents, if any,
which Parent has prepared or has been required to prepare:
(i) the Parent Benefit Plans and any amendments
thereto (or if a Parent Benefit Plan is not a written agreement,
a description thereof);
(ii) the most recent annual Form 5500 reports filed
with the IRS;
(iii) the most recent statement filed with the DOL
pursuant to 29 U.S.C. par 2520.104-23;
(iv) the most recent annual Form 990 and 1041 reports
filed with the IRS;
(v) the most recent actuarial reports;
(vi) the most recent reports prepared in accordance
with Statement of Financial Accounting Standards No. 106;
(vii) the most recent summary plan description and
summaries of material modifications thereto;
(viii) the trust agreement, group annuity contract
or other funding agreement that provides for the funding of the
Parent Benefit Plan;
(ix) the most recent financial statement;
(x) the most recent determination letter received from
the IRS; and
(xi) any agreement pursuant to which Parent is
obligated to indemnify any Person (including any indemnification
agreements with directors of Parent).
(c) All contributions and other payments, if any, required
to have been made by Parent or any entity (whether or not
incorporated) that is (or is required to be) treated as a single
employer with Parent under Section 414 of the Code (a “Parent
ERISA Affiliate”) with respect to any Parent Benefit Plan (or to
any person pursuant to the terms thereof) have been or will be
timely made and all such amounts properly accrued through the
date of the most recent Parent Financial Statements have been
reflected therein.
(d) The terms of all Parent Benefit Plans, if any, that are
intended to be “qualified” within the meaning of
Section 401(a) of the Code have received favorable determination
letters from the IRS on the current forms of such Parent Benefit
Plans or the applicable remedial amendment periods will not have
ended prior to the Effective Time of the Merger. Except as
disclosed in Section 5.14 of the Parent Disclosure Schedule, to
the Knowledge of Parent, no event or condition exists or has
occurred that could cause the IRS to disqualify any Parent
Benefit Plan that is intended to be qualified under
Section 401(a) of the Code. Except as disclosed in Section 5.14
of the Parent Disclosure Schedule, with respect to each Parent
Benefit Plan, Parent and each Parent ERISA Affiliate are in
compliance in all material respects with, and each Parent Benefit
Plan and related source of benefit payment is and has been
operated in compliance with, its terms, all applicable Laws
governing such plan or source, including, without limitation,
ERISA, the Code and applicable local Law. To the Knowledge of
Parent, except as set forth in Section 5.14 of the Parent
Disclosure Schedule, no Parent Benefit Plan is subject to any
ongoing audit, investigation, or other administrative proceeding
of the IRS, the DOL, or any other Governmental Authority or is
scheduled to be subject to such an audit investigation or
proceeding.
(e) With respect to each Parent Benefit Plan, to the
Knowledge of Parent, there exists no condition or set of
circumstances that could subject Parent or any Parent ERISA
Affiliate to any liability arising under the Code, ERISA or any
other applicable Law (including, without limitation, any
liability to or under any such plan or under any indemnity
agreement to which Parent or any Parent ERISA Affiliate is a
party), which liability, excluding liability for benefit claims
and funding obligations, each payable in the ordinary course,
could reasonably be expected to have a Material Adverse Effect on
Parent. No claim, action or litigation has been made, commenced
or, to the Knowledge of Parent, threatened, by or against any
Parent with respect to any Parent Benefit Plan (other than for
benefits in the ordinary course) that could reasonably be
expected to have a Material Adverse Effect on Parent.
(f) Except as disclosed in Section 5.14 of the Parent
Disclosure Schedule, no Parent Benefit Plan, if any, that is a
“welfare benefit plan” (within the meaning of Section 3(1) of
ERISA) provides benefits for any retired or former employees
(other than as required under Sections 601 et seq. of ERISA and
Section 4980 of the Code or other applicable state or local Law
that specifically mandates continued health coverage).
(g) No Parent Benefit Plan is a “multiemployer plan” as
defined in Section 3(3) of ERISA and neither Parent nor any
Parent ERISA Affiliate has previously maintained or had an
obligation to contribute to a “multiemployer plan” (as defined
above).
(h) Neither Parent nor any entity that was at any time
during the six-year period ending on the date of this Agreement a
Parent ERISA Affiliate has ever maintained, had an obligation to
contribute to, contributed to, or had any liability with respect
to any plan that is or was a pension plan (as defined in
Section 3(2) of ERISA) that is or was subject to Title IV of
ERISA.
Section 5.15. Tax Matters.
Except as set forth in Section 5.15 of the Parent Disclosure
Schedule:
(a) Parent and its Subsidiaries are members of the
affiliated group, within the meaning of Section 1504(a) of the
Code, of which Parent is the common parent; such affiliated group
files a consolidated federal income Tax Return; and neither
Parent, any of its Subsidiaries, nor any entity to whose
liabilities Parent or any of its Subsidiaries has succeeded, has
filed a consolidated federal income Tax Return with (or been
included in a consolidated return of) a different affiliated
group than that of which Parent is the common parent;
(b) Parent has timely filed or caused to be filed all
material Tax Returns required to have been filed by or for it,
and all information set forth in such Tax Returns is correct and
complete in all material respects;
(c) Parent has paid all material Taxes due and payable by
it, except for those being contested in good faith;
(d) the Parent Financial Statements fully and properly
reflect, as of their dates, the liabilities of Parent for all
Taxes for all periods ending on or before such dates;
(e) there is no pending examination, administrative or
judicial proceeding, or deficiency or refund litigation, with
respect to any Taxes of Parent;
(f) since April 16, 1997, Parent has not distributed to its
stockholders or security holders stock or securities of a
controlled corporation in a transaction to which
Section 355(a) of the Code applies;
(g) Parent is not, or has not been at any time within the
last five years, a “United States real property holding
corporation” for purposes of Section 897 of the Code; and
(h) Parent has no Knowledge of any fact, nor has Parent
taken any action that would or would be reasonably likely to
adversely affect the qualification of the Merger as a
“reorganization” within the meaning of Section 368(a) of the
Code.
Section 5.16. Listing.
The Parent Common Stock is included in and listed on Nasdaq.
The Parent is in compliance with the terms of its listing
agreement with Nasdaq, Nasdaq’s rules and Nasdaq’s standards for
continued listing and has complied or will timely comply with
such agreement and such rules and standards in connection with
the transactions contemplated by this Agreement. No proceeding
is pending or, to the best of the Parent’s knowledge and belief,
threatened relating to any unresolved violation of any of such
items or delisting of the Parent’s Common Stock and the Parent
has no reason to believe that the Parent Common Stock will not
continue to be so listed.
Section 5.17. Full Disclosure.
No representation or warranty made by Parent contained in
this Agreement and no statement contained in any agreement,
certificate or schedule furnished or to be furnished by Parent to
Landmark in, or pursuant to the provisions of, this Agreement,
contains or shall contain any untrue statement of a material fact
or omits or will omit to state any material fact necessary, in
the light of the circumstances under which it was made, in order
to make statements herein or therein not misleading.
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 6.1. Conduct of Business of Landmark.
During the period from the date of this Agreement to the
Effective Time of the Merger, unless Parent shall otherwise
consent in writing and except as otherwise expressly contemplated
or permitted by this Agreement, Landmark will, to the extent
permitted by this Agreement, operate its Business solely in the
ordinary course, consistent with past practice and in good faith
with the goal of preserving intact its assets and current
business organizations, keeping available the services of its
current officers and employees, maintaining the Landmark
Contracts and preserving its relationships with customers,
suppliers, creditors, brokers, agents and others with whom it has
business dealings. Without limiting the generality of the
foregoing, and except as otherwise expressly contemplated by this
Agreement, or as agreed to in writing by Parent, Landmark agrees
that:
(a) Landmark shall not issue, sell or grant any shares of
capital stock of any class, or any securities or rights
convertible into, exchangeable for, or evidencing the right to
subscribe for any shares of capital stock, or any rights,
warrants, options, calls, commitments or any other agreements of
any character to purchase or acquire any shares of capital stock
or any securities or rights convertible into, exchangeable for,
or evidencing the right to subscribe for, any shares of capital
stock or any other securities in respect of, in lieu of, or in
substitution for, shares outstanding on the date hereof.
(b) Landmark shall not (i) split, combine, subdivide or
reclassify any shares of its capital stock or (ii) except as
provided in Section 8.2(m) hereof, declare, set aside for payment
or pay any dividend or make any other distribution in respect of,
any of its capital stock, or redeem or repurchase any of its
capital stock.
(c) Landmark shall not adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization.
(d) Landmark shall not adopt any amendments to its
Certificate of Incorporation or Bylaws or alter through merger,
liquidation, reorganization, restructuring or in any other
fashion its corporate structure or ownership.
(e) Landmark shall not (i) incur any additional
indebtedness for money borrowed or guarantee any such
indebtedness of another Person, (ii) enter into any “keep well”
or other agreement to maintain any financial condition of another
Person or (iii) enter into any arrangement having the economic
effect of any of the foregoing.
(f) Landmark shall not acquire or agree to acquire by
merging or consolidating with, or by purchasing a substantial
portion of the assets of, or by any other manner, (i) any
business or any corporation, limited liability company,
partnership, joint venture, association or other business
organization or division thereof or (ii) any assets that,
individually or in the aggregate, are material to Landmark except
(without limitation of Section 6.1(h) below but subject to
Section 6.1(i)), in the ordinary course of Business consistent
with past practice.
(g) Landmark shall not sell, lease, license or otherwise
encumber or subject to any Lien (other than a Permitted Lien) or
otherwise dispose of any of the properties or assets of Landmark
that, individually or in the aggregate, are material to Landmark
except for the Retained Assets.
(h) Landmark shall not make or agree to make any capital
expenditures not previously approved by the Board of Directors in
Landmark’s 2001 or 2002 capital budget as set forth in Section
6.1(h) of the Landmark Disclosure Schedule.
(i) Except as provided in this Agreement or in the ordinary
course of Business, Landmark shall not (i) enter into any
Contract in excess of $50,000 individually or in the aggregate,
or (ii) modify, amend or transfer in any respect or terminate any
Landmark Contract or waive, release or assign any rights or
claims thereunder.
(j) Except as set forth in Section 6.1(j) of the Landmark
Disclosure Schedule and except as may be required by Law,
Landmark shall not (i) adopt or amend any bonus, profit sharing,
compensation, stock option, pension, retirement, deferred
compensation, employment or other employee benefit plan,
agreement, trust, fund or other arrangement (including any
Landmark Benefit Plan) for the benefit or welfare of any
employee, officer, director or service provider or former
employee, officer, director or service provider, (ii) increase
the compensation or fringe benefits of any such individuals of
Landmark, or (iii) except as provided in an existing Landmark
Benefit Plan, increase the compensation or fringe benefits of any
such individuals or pay any benefit not required by any existing
plan, arrangement or agreement.
(k) Landmark shall not make any material change to its
accounting methods, principles or practices, except as may be
required by GAAP.
(l) Landmark shall not create, incur or assume any material
Lien (other than a Permitted Lien) on any of its material assets.
(m) Landmark shall not settle any litigation or waive,
assign or release any rights or claims except in either case
(i) in the ordinary course of Business and (ii) for any such
settlement which (x) would not impose either restrictions on the
conduct of the Business of Landmark or (y) for litigation items
settled for money, involve in the aggregate in excess of $50,000
in cost to Landmark (which amount shall be paid in full or
escrowed prior to the payment of the fee to Third Security, LLC
described in Section 4.14 and the dividend to the Landmark
Stockholders described in Section 8.2(m)). Landmark shall not
pay, discharge or satisfy any liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or
otherwise), except in the ordinary course of Business or in
accordance with their terms.
Section 6.2. Conduct of Business of Parent.
During the period from the date of this Agreement to the
Effective Time of the Merger, unless Landmark shall otherwise
consent in writing and except as otherwise expressly contemplated
or permitted by this Agreement, Parent will, to the extent
permitted by this Agreement, operate its business solely in the
ordinary course, consistent with past practice and in good faith
with the goal of preserving intact its assets and current
business organizations, keeping available the services of its
current officers and employees, maintaining its contracts and
preserving its relationships with customers, suppliers,
creditors, brokers, agents and others with whom it has business
dealings. Without limiting the generality of the foregoing, and
except as otherwise expressly contemplated by this Agreement, or
as agreed to in writing by Landmark, Parent agrees that other
than in the ordinary course of business:
(a) Parent shall not issue, sell or grant any shares of
capital stock of any class, or any securities or rights
convertible into, exchangeable for, or evidencing the right to
subscribe for any shares of capital stock, or any rights,
warrants, options, calls, commitments or any other agreements of
any character to purchase or acquire any shares of capital stock
or any securities or rights convertible into, exchangeable for,
or evidencing the right to subscribe for, any shares of capital
stock or any other securities in respect of, in lieu of, or in
substitution for, shares outstanding on the date hereof.
(b) Parent shall not (i) split, combine, subdivide or
reclassify any shares of its capital stock or (ii) declare, set
aside for payment or pay any dividend, or make any other
distribution in respect of, any of its capital stock, or redeem
or repurchase any of its capital stock or any outstanding
options, warrants or rights of any kind to acquire any shares of,
or any outstanding securities that are convertible into or
exchangeable for any shares of its capital stock, except (A) for
repurchases of unvested shares in connection with the termination
of a relationship with any employee, consultant or director
pursuant to stock option or purchase agreements in effect on the
date hereof or approved by Landmark or (B) with respect to the
25% Parent Stock Dividend.
(c) Parent shall not adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization.
(d) Parent shall not adopt any amendments to its
Certificate of Incorporation or Bylaws or alter through merger,
liquidation, reorganization, restructuring or in any other
fashion its corporate structure or ownership.
(e) Parent shall not acquire or agree to acquire by merging
or consolidating with, or by purchasing a substantial portion of
the assets of, or by any other manner, (i) any business or any
corporation, limited liability company, partnership, joint
venture, association or other business organization or division
thereof or (ii) any assets that, individually or in the
aggregate, are material to Parent except in the ordinary course
of business consistent with past practice.
(f) Parent shall not make any change to its accounting
methods, principles or practices, except as may be required by
GAAP.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1. Parent Stockholder Meeting.
Parent shall take all action necessary, in accordance with
the DGCL and its Certificate of Incorporation and Bylaws, to duly
call, give notice of, convene and hold the Parent Special Meeting
as promptly as practicable, to consider and vote upon the
adoption and approval of this Agreement and the transactions
contemplated hereby. The stockholder vote required for the
adoption and approval of the transactions contemplated by this
Agreement shall be the vote required by the DGCL and Parent’s
Certificate of Incorporation and Bylaws. Parent will, through
its Board of Directors, recommend to its stockholders approval of
such matters. Parent shall coordinate and cooperate with
Landmark with respect to the timing of the Parent Special Meeting
and shall use its best efforts to hold the Parent Special Meeting
as soon as practicable after the date hereof.
Section 7.2. The Parent Proxy Statement/Prospectus.
(a) Parent shall, as soon as practicable following the
execution of this Agreement, prepare and file with the SEC a
draft of the Parent Proxy Statement/Prospectus (in a form
approved by Landmark, which approval may be withheld in the sole
discretion of Landmark) for the Parent Special Meeting. Parent
and Landmark shall cooperate to respond promptly to any comments
made by the SEC with respect thereto.
(b) Parent shall file the Registration Statement with the
SEC, and shall
(i) after consultation with Landmark respond promptly
to any comments made by the SEC with respect thereto; provided,
however, that Parent will not file any amendment or supplement to
the Parent Proxy Statement/Prospectus without first furnishing to
Landmark a copy thereof for its review and will not file any such
proposed amendment or supplement to which Landmark reasonably
and promptly objects;
(ii) use its best efforts to cause the SEC to declare
the Registration Statement effective under the Securities Act as
soon as practicable, and Parent shall cause the Parent Proxy
Statement/Prospectus to be mailed to its stockholders at the
earliest practicable time after effectiveness of the Registration
Statement to mail such Parent Proxy Statement/Prospectus;
(iii) cause the registration or qualification of
the Parent Common Stock to be issued upon conversion of the
Landmark Shares in accordance with this Agreement and the
Certificate of Merger and, to the extent required, under the
state securities or “Blue Sky” laws of each state of residence of
a record holder of Landmark Shares as reflected in its respective
stock transfer ledger (a current copy of which has been
previously delivered to Parent, provided there is not a material
increase in the number of Landmark Shares between the date hereof
and the Closing Date;
(iv) promptly advise Landmark (A) when the Registration
Statement becomes effective, (B) when, prior to the Effective
Time, any amendment to the Registration Statement shall be filed
or become effective, or (C) of the issuance by the SEC of any
stop order suspending the Registration Statement or the
institution or threatening of any proceeding for that purpose and
(D) of the receipt by Parent of any notification with respect to
the suspension of the registration or qualification of Parent
Common Stock for sale in any jurisdiction or the institution or
threatening of any proceeding for that purpose; and
(v) use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(c) If, at any time when the Parent Proxy
Statement/Prospectus is required to be delivered under the
Securities Act or the Exchange Act, any event occurs as a result
of which the Parent Proxy Statement/Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements contained therein, in light of the circumstances under
which they were made, not misleading, or if it shall be necessary
to amend the Registration Statement or supplement the Parent
Proxy Statement/Prospectus to comply with the Securities Act or
the Exchange Act or the respective rules thereunder, Landmark and
its stockholders through the Stockholders’ Representative will
cooperate to permit Parent promptly to prepare and file with the
SEC an amendment or supplement (in a form mutually agreeable to
Parent and Landmark) that will correct such statement or omission
or effect such compliance.
Section 7.3. Nasdaq Listing.
Parent shall promptly prepare and submit to Nasdaq a listing
application covering the shares of Parent Common Stock issuable
in the Merger, and shall use its reasonable best efforts to
obtain, prior to the Effective Time of the Merger or as soon as
reasonably practicable thereafter, approval for the listing of
such Parent Common Stock, subject to official notice of issuance,
and Landmark shall cooperate with Parent with respect to such
listing.
Section 7.4. Access to Information.
Upon reasonable notice, Landmark and Parent shall each (and
shall cause each of their respective Subsidiaries to) afford to
the officers, employees, accountants, counsel and other
representatives of the other, reasonable access during normal
business hours during the period from the date hereof to the
Effective Time of the Merger, to all of its properties, books,
Contracts, commitments and records, and during such period, each
of Landmark and Parent shall (and shall cause each of their
respective Subsidiaries to) furnish promptly to the other all
information concerning its business, properties and personnel as
such other party may reasonably request; provided, however, that
notwithstanding the foregoing provisions of this Section 7.4 or
any other provision of this Agreement, neither Landmark nor
Parent shall be required to provide to the other party any
information that is subject to a confidentiality agreement and
that relates primarily to a party other than Landmark, Parent or
any Subsidiary or former Subsidiary of Landmark or Parent, but
shall identify to the other party the type of document and
counter party. Each of Landmark and Parent agrees that it will
not, and it will cause its respective representatives not to, use
any information obtained pursuant to this Section 7.4 for any
purpose unrelated to the consummation of the transactions
contemplated by this Agreement. The Confidentiality Agreement
dated August 21, 2002 (the “Confidentiality Agreement”), by and
between Landmark and Parent, shall apply with respect to
information furnished by Landmark, Parent and their respective
Subsidiaries and representatives thereunder or hereunder and any
other activities contemplated thereby. The parties agree that
this Agreement and the transactions contemplated hereby shall not
constitute a violation of the Confidentiality Agreement and that
the provisions hereof shall supersede all provisions of the
Confidentiality Agreement in the event of a conflict.
Section 7.5. Reasonable Efforts; Notification.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, except to the extent otherwise required by
United States regulatory considerations and otherwise provided in
this Section 7.5, each of Landmark and Parent agrees to use
commercially reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary,
proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Merger, and the other
transactions contemplated by this Agreement, including (i) the
obtaining of all necessary actions or nonactions, waivers,
consents and approvals from Governmental Authorities and the
making of all necessary registrations and filings (including
filings with Governmental Authorities, if any) and the taking of
all reasonable steps as may be necessary to obtain an approval or
waiver from, or to avoid an action or proceeding by, any
Governmental Authority, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the
defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including
seeking to have any stay or temporary restraining order entered
by any court or other Governmental Authority vacated or reversed
and (iv) the execution and delivery of any additional instruments
necessary to consummate the transactions contemplated by this
Agreement. Notwithstanding the foregoing, neither Landmark nor
Parent shall be required to agree to any consent, approval or
waiver that would require such party to take an action that would
impair the value that such party reasonably attributes to the
Merger and the transactions contemplated thereby. In connection
with and without limiting the foregoing, Landmark and its Board
of Directors shall (1) take all action reasonably necessary to
ensure that no state takeover statute or similar statute or
regulation is or becomes applicable to the Merger and (2) if any
state takeover statute or similar statute or regulation becomes
applicable to the Merger, take all action reasonably necessary to
ensure that the Merger may be consummated as promptly as
practicable on the terms contemplated by this Agreement and
otherwise to minimize the effect of such statute or regulation on
the Merger.
(b) Landmark shall give prompt notice to Parent, and Parent
shall give prompt notice to Landmark, of (i) any representation
or warranty made by it contained in this Agreement becoming
untrue or inaccurate in any material respect or (ii) the failure
by it to comply with or satisfy in any material respect any
covenant, condition or agreement to be complied with or satisfied
by it under this Agreement; provided, however, that no such
notification shall affect the representations or warranties or
covenants or agreements of the parties or the conditions to the
obligations of the parties hereunder.
Section 7.6. Fees and Expenses.
The parties hereto agree that (i) Parent shall bear (A) all
fees and expenses, including, but not limited to, the fees and
expenses of accountants and attorneys, incurred by Parent or
Merger Subsidiary in connection with this Agreement, the Merger,
the Parent Proxy Statement/Prospectus, the Registration Statement
and the transactions contemplated hereby and thereby and (B) all
amounts payable to Landmark Dissenting Holders for perfected
appraisal rights in respect of Dissenting Shares up to a maximum
aggregate amount of $10,000, (ii) Landmark shall bear (A) all
fees and expenses, including, but not limited to, the fees and
expenses of investment bankers, accountants and attorneys,
incurred by Landmark in connection with this Agreement, the
Merger and the transactions contemplated hereby and (B) all
amounts payable to Landmark Dissenting Holders for perfected
appraisal rights in respect of Dissenting Shares in excess of
$10,000 and (iii) Landmark shall reimburse Parent for 50% of the
fees paid by Parent to Xxxxxxxxx & Company LLC relating to the
delivery of the fairness opinion by Xxxxxxxxx & Company LLC to
Parent (all of the foregoing relating to Landmark shall be paid
in full or escrowed prior to the payment of the fee to Third
Security, LLC described in Section 4.14 and the dividend to the
Landmark Stockholders described in Section 8.2(m)).
Section 7.7. Public Announcements.
(a) Parent and Landmark will consult with each other before
issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any
such public statement prior each party having had the opportunity
to review and comment on such press release or public statement,
except that each party may respond to questions from stockholders
and may respond to inquiries from financial analysts and media
representatives in a manner consistent with its past practice and
each party may make such disclosure as may be required by
applicable Law or by obligations pursuant to any listing
agreement with the Nasdaq or any national securities exchange
without prior consultation to the extent such consultation is not
reasonably practicable. The parties agree that the initial press
release or releases to be issued in connection with the execution
of this Agreement shall be mutually agreed upon prior to the
issuance thereof.
Section 7.8. Insurance.
(a) After the Effective Time, Parent shall cause the
Surviving Corporation to either maintain the insurance policies
(other than liability insurance for directors and officers)
currently maintained by Landmark or, promptly following the
Effective Time, replace such policies with comparable insurance
policies, which replacement policies shall provide for the same
or better benefits to Landmark.
(b) Parent and the Surviving Corporation agree that the
indemnification obligations set forth in Landmark’s Certificate
of Incorporation and Bylaws, in each case as of the date of this
Agreement, shall survive the Merger and shall not be amended,
repealed or otherwise modified for a period of six years after
the Effective Time in any manner (other than as required by Law
or recommended by the SEC, rating agency or the like) that would
adversely affect the rights thereunder of the individuals who on
or prior to the Effective Time were directors, officers,
employees or agents of Landmark or its Subsidiaries.
(c) Parent agrees to use its commercially reasonable
efforts to obtain liability insurance for its directors and
officers on terms reasonably satisfactory to Xxxxxx X. Xxxx as
soon as practicable after the Effective Time.
Section 7.9. Agreement to Defend.
In the event any claim, action, suit, investigation or other
proceeding by any Governmental Authority or other person or other
legal or administrative proceeding is commenced that questions
the validity or legality of the transactions contemplated hereby
or seeks damages in connection therewith, the parties hereto
agree to cooperate and use their reasonable best efforts to
defend against and respond thereto.
Section 7.10. Amendment of Schedules.
Landmark shall promptly (and, in any event, within a
reasonable time prior to Closing) notify Parent of (a) any event
that would render inaccurate in any material respect any
representation or warranty of Landmark, or (b) any change or
addition that Landmark proposes to make to any schedule to this
Agreement. No notification made pursuant to this Section 7.10
shall be deemed to cure any breach of any representation,
warranty or covenant made in this Agreement or to modify any of
the schedules attached hereto unless Parent specifically agrees
thereto in writing, nor shall any such notification be considered
to constitute or give rise to a waiver by Parent of any condition
set forth in this Agreement unless Parent specifically so agrees.
Section 7.11. Reorganization Status.
Neither Landmark nor Parent shall, nor shall either of them
permit any Affiliate to, take any actions which would, or would
be reasonably likely to, adversely affect the status of the
Merger as a “reorganization” within the meaning of
Section 368(a) of the Code. Landmark, Parent, and their
respective Affiliates shall use all reasonable efforts to achieve
such result, including, without limitation, providing
representations reasonably requested by counsel in connection
with the tax opinion to be provided pursuant to Section 8.2(g).
Unless otherwise required by Law, each of Landmark, Parent, and
their respective Affiliates shall (i) report the Merger on all
Tax Returns as a reorganization within the meaning of
Section 368(a) of the Code and (ii) not take any position or
action that is inconsistent with the characterization of the
Merger as such a reorganization in any audit, administrative
proceeding, litigation or otherwise.
Section 7.12. Other Actions.
Except as contemplated by this Agreement, neither Parent nor
Landmark shall, and neither shall permit any of its Subsidiaries
to, take or agree or commit to take any action that is reasonably
likely to result in any of its respective representations or
warranties hereunder being untrue in any material respect (except
to the extent any representation or warranty is already qualified
by materiality in which case it shall be true in all respects) or
in any of the conditions to the Merger set forth in Article VIII
not being satisfied.
ARTICLE VIII
CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER
Section 8.1. Conditions Precedent to Obligations of Parent
and Merger Subsidiary.
The obligations of Parent and Merger Subsidiary to
consummate the Merger are subject to the satisfaction or waiver
at or prior to the Effective Time of the following conditions
precedent:
(a) The representations and warranties of Landmark
contained in this Agreement (other than any representations and
warranties made as of a specific date) shall be true and correct
as of the Closing Date in all material respects (except to the
extent any representation or warranty is already qualified by
materiality, in which case it shall be true and correct in all
respects), except as otherwise contemplated or permitted by this
Agreement, and Parent shall have received a certificate to that
effect dated the Closing Date and executed on behalf of Landmark
by the chief executive officer.
(b) Each of the covenants, agreements and obligations of
Landmark to be performed at or before the Effective Time pursuant
to the terms of this Agreement shall have been duly performed in
all material respects at or before the Effective Time, and at the
Closing, Landmark shall have delivered to Parent a certificate to
that effect.
(c) Parent shall have received the opinion of Hunton &
Xxxxxxxx, counsel to Landmark, dated the Closing Date and
addressed to Parent, reasonably satisfactory in form and
substance to Parent and Parent’s counsel.
(d) The stockholders of Landmark listed on Exhibit 4.23
hereto, acting by non-unanimous written consent, shall have
adopted and approved this Agreement and the transactions
contemplated hereby, including the Merger, as and to the extent
required by, and in accordance with, the DGCL or other applicable
Law, and by the provisions of any governing instruments.
(e) Prior to the execution of this Agreement, Parent shall
have received in writing from Landmark an undertaking by each
Person, if any, that Landmark, after discussions with counsel for
Landmark, believes may be an Affiliate of Landmark, in form
satisfactory to Parent that no shares of Parent Common Stock
received or to be received by such Affiliate pursuant to the
Merger will be sold or disposed of except pursuant to an
effective registration statement under the Securities Act or in
accordance with the provisions of paragraph (d) of Rule 145 under
the Securities Act or another exemption from registration under
the Securities Act.
(f) There shall not be pending or threatened by any
Governmental Authority any suit, action or proceeding (or by any
other Person any pending suit, action or proceeding which has a
reasonable likelihood of success) (i) challenging or seeking to
restrain or prohibit the consummation of the Merger or any of the
other transactions contemplated by this Agreement or seeking to
obtain from Parent or Merger Subsidiary any damages that are
material in relation to Parent and Merger Subsidiary taken as a
whole, (ii) seeking to prohibit or limit the ownership or
operation by the Surviving Corporation or any of its Subsidiaries
of any material portion of the Business or assets of Landmark,
Parent or any of their respective Subsidiaries, to dispose of or
hold separate any material portion of the Business or assets of
Landmark, Parent or any of their respective Subsidiaries, as a
result of the Merger or any of the other transactions
contemplated by this Agreement or (iii) seeking to prohibit the
Surviving Corporation or any of its Subsidiaries from effectively
controlling in any material respect the Business or operations of
Landmark or its respective Subsidiaries.
(g) There shall have been no events, changes or effects
with respect to Landmark having or which could reasonably be
expected to have a Material Adverse Effect on Landmark.
(h) All proceedings, corporate or other, to be taken by
Landmark in connection with the transactions contemplated by this
Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to Parent and
Parent’s counsel, and Landmark shall have made available to
Parent for examination the originals or true and correct copies
of all documents that Parent may reasonably request in connection
with the transactions contemplated by this Agreement.
(i) Parent shall have received from its financial advisor,
Xxxxxxxxx & Company LLC, a written opinion, dated as of
August 12, 2002, that the acquisition of Landmark by Parent in
exchange for the Merger Consideration to be paid by Parent to the
holders of Landmark Shares is fair, from a financial point of
view, to Parent and the stockholders of Parent, other than Xxxxxx
X. Xxxx and his Affiliates.
(j) Landmark shall have the Minimum Cash after payment by
Landmark of the fees and expenses that Landmark is responsible
for paying, reserving or escrowing pursuant to Section 7.6 hereof
or Section 6.1(m) or any other provision hereof.
(k) The Governance Agreement shall have been duly executed
by the parties thereto.
(l) Landmark shall have transferred the Retained Assets to
an Affiliate of Landmark, as set forth in the Agreement for
Purchase of Assets attached hereto as Exhibit A.
Section 8.2. Conditions Precedent to Obligations of Landmark.
The obligations of Landmark to consummate the Merger are
subject to the satisfaction or waiver at or prior to the
Effective Time of the following conditions precedent:
(a) The representations and warranties of Parent and Merger
Subsidiary contained in this Agreement (other than any
representations and warranties made as of a specific date) shall
be true and correct as of the Closing Date in all material
respects (except to the extent any representation and warranty is
already qualified by materiality, in which case it shall be true
and correct in all respects), except as otherwise contemplated or
permitted by this Agreement, and Landmark shall have received a
certificate to that effect dated the Closing Date and executed on
behalf of Parent by the chief executive officer.
(b) Each of the covenants, agreements and obligations of
Parent and Merger Subsidiary to be performed at or before the
Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the
Effective Time and at the Closing Parent and Merger Subsidiary
shall have delivered to Landmark a certificate to that effect.
(c) This Agreement and the transactions contemplated
hereby, including the Merger, shall have been approved and
adopted as and to the extent required by, and in accordance with,
the DGCL or other applicable Law and by the provisions of any
governing instruments, at the Parent Special Meeting by the
stockholders of Parent holding the number of shares of Parent
Common Stock equal to the Parent Stockholder Approval;
(d) Landmark shall have received the opinion of Peabody &
Xxxxxx LLP, counsel to Parent and Merger Subsidiary, dated the
Closing Date and addressed to Landmark, reasonably satisfactory
in form and substance to Landmark and Landmark’s counsel.
(e) There shall not be pending or threatened by any
Governmental Authority any suit, action or proceeding (or by any
other Person any pending suit, action or proceeding which has a
reasonable likelihood of success) (i) challenging or seeking to
restrain or prohibit the consummation of the Merger or any of the
other transactions contemplated by this Agreement or seeking to
obtain from Landmark any damages that are material in relation to
Landmark, (ii) seeking to prohibit or limit the ownership or
operation by the Surviving Corporation or any of its Subsidiaries
of any material portion of the Business or assets of Landmark,
Parent or any of their respective Subsidiaries, to dispose of or
hold separate any material portion of the Business or assets of
Landmark, Parent or any of their respective Subsidiaries, as a
result of the Merger or any of the other transactions
contemplated by this Agreement or (iii) seeking to prohibit the
Surviving Corporation or any of its Subsidiaries from effectively
controlling in any material respect the Business or operations of
Landmark or its respective Subsidiaries.
(f) There shall have been no events, changes or effects
with respect to Parent having or which could reasonably be
expected to have a Material Adverse Effect on Parent.
(g) The Board of Directors of Parent shall be as listed on
Exhibit 2.3 attached hereto.
(h) The Stockholders’ Representative shall have received an
opinion from Hunton & Xxxxxxxx, dated as of the Closing Date, to
the effect that, for federal income Tax purposes, (i) the Merger
will be a “reorganization” within the meaning of
Section 368(a) of the Code, and (ii) no Landmark Stockholder will
recognize gain or loss on the exchange of his or her Landmark
Shares for shares of Parent Common Stock in the Merger.
(i) All proceedings, corporate or other, to be taken by
Parent and Merger Subsidiary in connection with the transactions
contemplated by this Agreement, and all documents incident
thereto, shall be reasonably satisfactory in form and substance
to Landmark and Landmark’s counsel, and Parent and Merger
Subsidiary shall have made available to Landmark for examination
the originals or true and correct copies of all documents that
Landmark may reasonably request in connection with the
transactions contemplated by this Agreement.
(j) Landmark shall have received a copy of the written
opinion of Xxxxxxxxx & Company LLC, dated as of August 12, 2002,
that the acquisition of Landmark by Parent in exchange for the
Merger Consideration to be paid by Parent to the holders of
Landmark Shares is fair, from a financial point of view, to
Parent and the stockholders of Parent, other than Xxxxxx X. Xxxx
and his Affiliates.
(k) The Governance Agreement shall have been duly executed
by the parties thereto.
(l) Landmark shall have transferred the Retained Assets to
an Affiliate of Landmark, as set forth in the Agreement for
Purchase of Assets attached hereto as Exhibit A.
(m) Landmark shall have paid aggregate dividends to the
Landmark Stockholders equal to the amount of Landmark’s cash
following the transfer of the Retained Assets to an Affiliate of
Landmark pursuant to the Agreement for Purchase of Assets
attached hereto as Exhibit A and prior to the Closing, if any, in
excess of the cash required to satisfy Landmark’s obligations
pursuant to Sections 4.14, 6.1(m) and 7.6, establish cash
reserves, escrows or accruals as required under this Agreement
and meet the condition set forth in Section 8.1(j).
ARTICLE IX
TERMINATION; AMENDMENT; WAIVER
Section 9.1. Termination.
This Agreement may be terminated and the Merger contemplated
hereby may be abandoned at any time prior to the Effective Time,
notwithstanding approval of this Agreement, the Merger and the
transactions contemplated hereby:
(a) by mutual written consent of Landmark and Parent;
(b) by, Parent, if the Landmark Stockholder Approval is not
attained upon a vote at a duly held meeting of stockholders of
Landmark or at any adjournment thereof or by the written consent
of such stockholders in accordance with the DGCL and the Landmark
Certificate of Incorporation and Bylaws;
(c) by, Landmark , if the Parent Stockholder Approval is
not attained upon a vote at a duly held meeting of stockholders
of Parent or at any adjournment thereof or by the written consent
of such stockholders in accordance with the DGCL and the Parent
Certificate of Incorporation and Bylaws;
(d) by either Parent or Landmark:
(i) if any court of competent jurisdiction or any
Governmental Authority shall have issued an order, decree or
ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Merger; or
(ii) if the Merger shall not have been consummated on
or before December 31, 2002, unless the failure to consummate the
Merger is the result of a material breach of this Agreement by
the party seeking to terminate this Agreement.
(e) by Parent, if Landmark breaches in any material respect
any of its representations or warranties herein or fails to
perform in any material respect any of its covenants, agreements
or obligations under this Agreement, which breach has not been
cured within 30 days following receipt by Landmark of notice of
breach or by the date specified in Section 9.1(d)(ii);
(f) by Landmark, if Parent breaches in any material respect
any of its representations or warranties herein or fails to
perform in any material respect any of its covenants, agreements
or obligations under this Agreement, which breach has not been
cured within 30 days following receipt by Parent of notice of
breach or by the date specified in Section 9.1(d)(ii); and
(g) by Landmark in the event that Parent fails to file the
Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with Section 9.2 hereof within 24 hours of
the Effective Time, unless the failure to file is the result of
(i) the failure of Landmark to satisfy all of the conditions to
the consummation of the Merger set forth in Section 8.1 or
(ii) the office of the Secretary of State of the State of
Delaware being closed, provided that the filing is completed as
soon as practicable upon the reopening of such office.
Section 9.2. Effect of Termination.
If this Agreement is so terminated and the Merger is not
consummated, this Agreement shall forthwith become void and have
no effect, without any liability on the part of any party or its
directors, officers, employees, agents or stockholders, other
than the confidentiality provisions of Section 7.4. Nothing
contained in this Section 9.2 shall relieve any party from
liability for any breach of this Agreement.
Section 9.3. Amendment.
This Agreement and the Certificate of Merger may be amended
by action taken by Merger Subsidiary, Landmark and Parent at any
time before or after adoption of this Agreement by the
stockholders of each of Parent and Landmark; provided, however,
that after such stockholder approval no amendment shall be made
which under applicable Law requires the approval of such
stockholders without the approval of stockholders. This
Agreement may not be amended except by an instrument in writing
signed on behalf of both of the parties hereto.
Section 9.4. Extension; Waiver.
At any time prior to the Effective Time, either party hereto
may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other
party hereto, (ii) waive any inaccuracies in the representations
and warranties contained herein or in any document, certificate
or writing delivered pursuant hereto by the other party hereto or
(iii) waive compliance with any of the agreements or conditions
contained herein by the other party hereto. Any agreement on the
part of any party to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party hereto to assert any of its
rights hereunder shall not constitute a waiver of such rights.
Section 9.5. Procedure for Termination, Amendment, Extension
or Waiver.
A termination of this Agreement pursuant to Section 9.1, an
amendment of this Agreement pursuant to Section 9.3 or an
extension or waiver pursuant to Section 9.4 shall, in order to be
effective, require in the case of Parent or Landmark, action by
its respective Board of Directors or the duly authorized designee
of such Board of Directors.
ARTICLE X
MISCELLANEOUS
Section 10.1. Entire Agreement; Assignment.
This Agreement and the Confidentiality Agreement
(a) constitute the entire agreement between the parties with
respect to the subject matter hereof and thereof and supersedes
all other prior agreements and understandings, both written and
oral, between the parties or any of them with respect to the
subject matter hereof and thereof, and (b) shall not be assigned
by operation of Law or otherwise.
Section 10.2. Interpretation.
Unless the context requires otherwise, all words used in
this Agreement in the singular number shall extend to and include
the plural, all words in the plural number shall extend to and
include the singular and all words in any gender shall extend to
and include all genders. The table of contents and article and
section headings in this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof. The
descriptive headings herein are inserted for convenience of
reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
Section 10.3. Notices.
All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by
delivery in person, by cable, telecopy, telegram or telex,
overnight delivery service from a national carrier or by
registered or certified mail (postage prepaid, return receipt
requested) to the respective parties as follows:
if to Landmark:
Landmark Scientific, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Telecopy: (000) 000-0000
with a copy to:
Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxxx, III, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to Parent or Merger Subsidiary:
Novitron International, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, M.D.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Stockholders’ Representative:
Xxxxxx X. Xxxx
c/o Third Security, LLC
The Governor Tyler
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esquire
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxxx, III, Esq.
Telephone: (000) 000-0000
Telecopy: (804) 788-8218
or to such other address as the person to whom notice is given
may have previously furnished to the others in writing in the
manner set forth above.
Section 10.4. Governing Law.
This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware regardless of
the Laws that might otherwise govern under applicable principles
of conflicts of Laws thereof.
Section 10.5. Parties in Interest.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other
Person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 10.6. Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
Section 10.7. Severability.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of Law or
public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed on its behalf by its officers
thereunto duly authorized, all as of the day and year first above
written.
LANDMARK SCIENTIFIC, INC.
By:_____________________________
Name:
Title:
NOVITRON INTERNATIONAL, INC.
By:_____________________________
Xxxxxx X. Xxxxx
Chairman of the Board and
Chief Executive Officer
SPECTRAN HOLDINGS, INC.
By:_____________________________
Xxxxxx X. Xxxxx
Chairman of the Board and
Chief Executive Officer
STOCKHOLDERS’ REPRESENTATIVE
_________________________________
Xxxxxx X. Xxxx
