EXHIBIT 10.8
AGREEMENT AND PLAN OF MERGER
dated as of August __, 1998
by and among
LANDCARE USA, INC.,
ARTSE ACQUISITION CORP.,
ARTEKA SOUTHEAST CORPORATION
and
XXXXX XXXXXXXX
TABLE OF CONTENTS
Page
1. THE MERGER.............................................................1
1.1 The Merger.......................................................1
1.2 Effective Time...................................................1
1.3 Articles of Incorporation and By-laws of Surviving Corporation...2
1.4 Effect of Merger.................................................2
1.5 Manner of Conversion.............................................2
1.6 Delivery of Certificates.........................................3
1.7 Closing..........................................................3
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER......................3
2.1 Due Organization.................................................3
2.2 Authorization....................................................4
2.3 Capital Stock of the Company.....................................4
2.4 Subsidiaries.....................................................4
2.5 Financial Statements.............................................4
2.6 Liabilities and Obligations......................................5
2.7 Accounts and Notes Receivable....................................5
2.8 Permits and Intangibles..........................................6
2.9 Environmental Matters............................................6
2.10 Personal Property................................................7
2.11 Significant Customers; Material Contracts and Commitments........7
2.12 Real Property....................................................8
2.13 Insurance........................................................9
2.14 Compensation; Employment Agreements; Organized Labor Matters.....9
2.15 Employee Benefit Plans...........................................9
2.16 Conformity with Law; Litigation.................................10
2.17 Taxes...........................................................11
2.18 No Violations; All Required Consents Obtained...................12
2.19 Absence of Changes..............................................13
2.20 Powers of Attorney..............................................14
2.21 Competing Lines of Business; Related-party Transactions.........14
2.22 Disclosure......................................................15
2.23 Certain Business Practices......................................15
2.24 Notice to Bargaining Agents.....................................15
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2.25 Notices and Consents............................................15
2.26 Financial Matters...............................................15
2.27 Year 2000 Compliance............................................15
2.28 Reliance Upon Oral Representations..............................15
3. REPRESENTATIONS OF LANDCARE AND NEWCO.................................16
3.1 Due Organization................................................16
3.2 Authorization...................................................16
3.3 No Violations...................................................16
3.4 Validity of Obligations.........................................16
3.5 Prospectus......................................................17
3.6 Disclosure......................................................17
3.7 Reliance Upon Oral Representations..............................17
3.8 Liabilities.....................................................17
4. DELIVERIES............................................................17
4.1 Instruments of Transfer.........................................17
4.2 Certificate of Merger...........................................18
4.3 Good Standing Certificates......................................18
4.4 Indebtedness to Company.........................................18
4.5 Resignations of Directors and Officers..........................18
4.6 Employment Agreement............................................18
5. POST-CLOSING COVENANTS................................................18
5.1 Future Cooperation; Further Assurances..........................18
5.2 Expenses........................................................18
5.3 Certain Agreements..............................................19
5.4 Preparation and Filing of Tax Returns...........................19
5.5 Stockholder Guarantees..........................................19
5.6 Stock Options...................................................20
6. INDEMNIFICATION.......................................................20
6.1 Survival of Stockholder's Representations and Warranties. .....20
6.2 General Indemnification by the Stockholder......................20
6.3 Specific Indemnification by the Stockholder.....................20
6.4 Indemnification by LandCARE.....................................21
6.5 Third Person Claims.............................................21
6.6 Method of Payment...............................................22
7. NONCOMPETITION........................................................22
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7.1 Prohibited Activities...........................................22
7.2 Equitable Relief................................................23
7.3 Reasonable Restraint............................................23
7.4 Severability; Reformation.......................................23
7.5 Independent Covenant............................................23
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.............................24
8.1 General.........................................................24
8.2 Equitable Relief................................................24
8.3 Survival........................................................25
9 INTENDED TAX TREATMENT ...............................................25
9.1 Tax-Free Reorganization.........................................25
9.2 Restrictions on Resale..........................................25
10 SECURITIES LAW MATTERS................................................25
10.1 Economic Risk; Sophistication...................................25
10.2 Compliance with Law.............................................26
11. GENERAL...............................................................26
11.1 Successors and Assigns..........................................26
11.2 Entire Agreement................................................26
11.3 Counterparts....................................................26
11.4 Brokers and Agents..............................................26
11.5 Notices.........................................................26
11.6 Governing Law...................................................27
11.7 Survival of Representations and Warranties......................27
11.8 Effect of Investigation.........................................27
11.9 Exercise of Rights and Remedies.................................27
11.10 Time............................................................28
11.11 Reformation and Severability....................................28
11.12 Remedies Cumulative.............................................28
11.13 Captions........................................................28
11.14 Press Releases and Public Announcements.........................28
11.15 No Third-Party Beneficiaries....................................28
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SCHEDULES
SCHEDULE 2.1. Due Organization
SCHEDULE 2.3. Capital Stock of the Company
SCHEDULE 2.4. Subsidiaries
SCHEDULE 2.5. Financial Statements
SCHEDULE 2.6. Liabilities and Obligations
SCHEDULE 2.7. Accounts and Notes Receivable
SCHEDULE 2.8. Permits and Intangibles
SCHEDULE 2.9. Environmental Matters
SCHEDULE 2.10. Personal Property
SCHEDULE 2.11. Significant Customers; Material Contracts and Commitments
SCHEDULE 2.12. Real Property
SCHEDULE 2.13. Insurance
SCHEDULE 2.14. Compensation; Employment Agreements; Organized Labor Matters
SCHEDULE 2.15. Employee Benefit Plans
SCHEDULE 2.16. Conformity with Law; Litigation
SCHEDULE 2.17. Taxes
SCHEDULE 2.18. No Violations; No Consents Required
SCHEDULE 2.19. Absence of Changes
SCHEDULE 2.20. Powers of Attorney
SCHEDULE 2.21. Competing Lines of Business; Related Party Transactions
SCHEDULE 2.25. Notices and Consents
SCHEDULE 4.3. Persons Entering into Employment Agreements
SCHEDULE 4.5. Leases
SCHEDULE 5.3. Certain Agreements
SCHEDULE 9.2. Restrictions on Resale
ANNEXES
Annex I - Form of Employment Agreement
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of August __, 1998 by and among LandCARE USA, Inc., a Delaware
corporation ("LandCARE"), ARTSE Acquisition Corp., a Georgia corporation and
wholly owned subsidiary of LandCARE ("Newco"), Arteka Southeast Corporation, a
Georgia corporation (the "Company"), and Xxxxx Xxxxxxxx (the "Stockholder"). The
Stockholder is the only holder of capital stock of the Company.
WHEREAS, the respective Boards of Directors of Newco and the Company
(collectively called the "Constituent Corporations") deem it advisable and in
the best interests of the Constituent Corporations and their respective
stockholders that Newco merge with and into the Company pursuant to this
Agreement and the applicable provisions of the laws of the State of Georgia (the
"State of Incorporation"); and
WHEREAS, the Boards of Directors of the Constituent Corporations have
approved and adopted this Agreement as a plan of reorganization under Section
368 of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, on the date hereof the parties are consummating the transactions
described herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. THE MERGER
1.1 THE MERGER. On the terms and subject to the conditions of this
Agreement, at the Effective Time (as defined below), Newco shall be merged with
and into the Company (the "Merger") and the separate existence of Newco shall
cease, all in accordance with the provisions of the law of the State of
Incorporation. The Company shall be the surviving corporation in the Merger and
is sometimes hereinafter called the "Surviving Corporation."
1.2 EFFECTIVE TIME. The Merger shall become effective at such time (the
"Effective Time") as a certificate of merger, in a form appropriate for filing,
is filed with the Secretary of State (or other appropriate authority) of the
State of Incorporation (the "Merger Filing"). The Merger Filing shall be made
simultaneously with or as soon as practicable after the execution and delivery
of this Agreement.
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1.3 ARTICLES OF INCORPORATION AND BY-LAWS OF SURVIVING CORPORATION. At the
Effective Time, the Articles of Incorporation of the Company then in effect
shall be the Articles of Incorporation of the Surviving Corporation, and the
By-laws of Newco then in effect shall become the By-laws of the Surviving
Corporation.
1.4 EFFECT OF MERGER. At the Effective Time, the effect of the Merger
shall be as provided in the law of the State of Incorporation. Except as herein
specifically set forth, the identity, existence, purposes, powers, objects,
franchises, privileges, rights and immunities of the Company shall continue
unaffected and unimpaired by the Merger and the corporate franchises, existence
and rights of Newco shall be merged with and into the Company, and the Company,
as the Surviving Corporation, shall be fully vested therewith. At the Effective
Time, the separate existence of Newco shall cease and, in accordance with the
terms of this Agreement, the Surviving Corporation shall possess all the rights,
privileges, immunities and franchises, of a public, as well as of a private,
nature, and all property, real, personal and mixed, and all debts due on
whatever account, including subscriptions to shares, and all taxes, including
those due and owing and those accrued, and all other choses in action, and all
and every other interest of or belonging to or due to the Company and Newco
shall be taken and deemed to be transferred to, and vested in, the Surviving
Corporation without further act or deed; and all property, rights and
privileges, powers and franchises and all and every other interest shall be
thereafter as effectually the property of the Surviving Corporation as they were
of the Company and Newco; and the title to any real estate, or interest therein,
whether by deed or otherwise, under the laws of the State of Incorporation
vested in the Company and Newco, shall not revert or be in any way impaired by
reason of the Merger. Except as otherwise provided herein, the Surviving
Corporation shall thenceforth be responsible and liable for all the liabilities
and obligations of the Company and Newco and any claim existing, or action or
proceeding pending, by or against the Company or Newco may be prosecuted as if
the Merger had not taken place, or the Surviving Corporation may be substituted
in their place. Neither the rights of creditors nor any liens upon the property
of the Company or Newco shall be impaired by the Merger, and all debts,
liabilities and duties of the Company and Newco shall attach to the Surviving
Corporation, and may be enforced against the Surviving Corporation to the same
extent as if said debts, liabilities and duties had been incurred or contracted
by such Surviving Corporation.
1.5 MANNER OF CONVERSION. The manner of converting the shares of (i)
outstanding capital stock of the Company ("Company Stock") and (ii) issued and
outstanding capital stock of Newco ("Newco Stock") immediately prior to the
Effective Time, respectively, into shares of (x) LandCARE Stock (as defined
below) and (y) common stock of the Surviving Corporation, respectively, shall be
as follows:
As of the Effective Time:
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1. Each share of Company Stock issued and outstanding
immediately prior to the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, automatically shall be converted into
Three Thousand (3,000) shares of common stock, par value $.01 per share, of
LandCARE ("LandCARE Stock");
2. All shares of Company Stock, if any, that are held by the
Company as treasury stock shall be canceled and retired, and no shares of
LandCARE Stock or other consideration shall be delivered or paid in exchange
therefor; and
3. Each share of Newco Stock issued and outstanding
immediately prior to the Effective Time, shall, by virtue of the Merger and
without any action on the part of LandCARE, automatically be converted into one
fully paid and non-assessable share of common stock of the Surviving
Corporation, which shall constitute all of the issued and outstanding shares of
common stock of the Surviving Corporation, and shall be owned by LandCARE,
immediately after the Effective Time.
1.6 DELIVERY OF CERTIFICATES. At the Closing, (i) the Stockholder shall
deliver to LandCARE the certificates representing the Company Stock, duly
endorsed in blank by the Stockholder, or accompanied by blank stock powers, and
with all necessary transfer tax and other revenue stamps, acquired at the
Stockholder's expense, affixed and canceled, and (ii) LandCARE shall cause its
stock transfer agent to deliver to the Stockholder certificates representing the
LandCARE Stock as described above. The Stockholder agrees promptly to cure any
deficiencies with respect to the endorsement of the stock certificates or other
documents of conveyance with respect to such Company Stock or with respect to
the stock powers accompanying any Company Stock.
1.7 CLOSING. The transactions contemplated by this Agreement are being
consummated on the date hereof, and the date hereof is sometimes herein called
the "Closing Date."
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to LandCARE as follows.
2.1 DUE ORGANIZATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Incorporation, and
has all requisite power and authority to carry on its business as it is now
being conducted. The Company is duly qualified to do business and is in good
standing in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary,
except where the failure to be so authorized or qualified would not have a
material adverse effect on the business, assets, operations or condition
(financial or otherwise) of the Company (as used herein with respect to the
Company, or with respect to any other person, a "Material Adverse Effect").
SCHEDULE 2.1 sets forth a list of all jurisdictions in which the Company is
authorized or qualified to do business. True, complete and correct copies of the
Articles of Incorporation and By-laws, each as amended, of the
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Company (the "Charter Documents") are all attached to SCHEDULE 2.1. The stock
records of the Company, a copy of which is attached to SCHEDULE 2.1, are correct
and complete in all material respects. All records of all proceedings of the
Board of Directors and Stockholder of the Company have been made available to
LandCARE.
2.2 AUTHORIZATION. (i) The representative of the Company executing this
Agreement has the authority to enter into and bind the Company to the terms of
this Agreement and (ii) the Company has the full legal right, power and
authority to enter into this Agreement and the transactions contemplated hereby,
all of which have been approved by the Stockholder and the Board of Directors of
the Company. This Agreement has been validly executed and delivered by the
Company and the Stockholder and constitutes the legal, valid and binding
obligation of each of them, enforceable in accordance with its terms.
2.3 CAPITAL STOCK OF THE COMPANY. The authorized capital stock of the
Company consists solely of 100,000 shares of common stock, with no par value, of
which 1,000 shares are issued and outstanding and constitute all of the issued
and outstanding shares of Company Stock (the "Shares"). All of the Shares are
owned of record and beneficially by the Stockholder and are owned free and clear
of all liens, security interests, pledges, charges, voting trusts, restrictions,
encumbrances and claims of every kind except as set forth on SCHEDULE 2.3. All
of the Shares have been duly authorized and validly issued, are fully paid and
nonassessable, and were offered, issued, sold and delivered by the Company in
compliance with all applicable state and federal laws governing the issuance of
securities. None of the Shares were issued in violation of any preemptive rights
or similar rights of any person. Except as set forth on SCHEDULE 2.3, no option,
warrant, call, conversion right or commitment of any kind exists which obligates
the Company to issue any additional shares of its capital stock or obligates the
Stockholder to transfer any of the Shares to any person except pursuant to this
Agreement.
2.4 SUBSIDIARIES. Except as set forth on SCHEDULE 2.4, the Company has no
subsidiaries or d/b/a names and has not conducted business under any other name
except its legal name as set forth in its Charter Documents. Except as set forth
in SCHEDULE 2.4, the Company does not own, of record or beneficially, or
control, directly or indirectly, any capital stock, securities convertible into
capital stock or any other equity interest in any corporation, association or
other business entity, and the Company is not, directly or indirectly, a
participant in any joint venture, partnership or other non-corporate entity.
2.5 FINANCIAL STATEMENTS. Complete and correct copies of the following
financial statements are attached as SCHEDULE 2.5:
(i) The balance sheets of the Company as of December 31, 1998 (the
"Balance Sheet Date") and any related statements of operations,
stockholder's equity and cash flows
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for the three-year period then ended, together with any related notes and
schedules (the "Year-end Financial Statements"); and
(ii) The balance sheet (the "Interim Balance Sheet") of the Company
as of July 31, 1998 (the "Interim Balance Sheet Date") and the related
statements of operations for the period then ended for 1998 (the "Interim
Financial Statements"). (The Year-end Financial Statements and the Interim
Financial Statements are herein collectively called the "Financial
Statements".)
The Financial Statements have been prepared from the books and records of
the Company in conformity with generally accepted accounting principles applied
on a basis consistent with preceding years and throughout the periods involved
("GAAP") and present fairly the financial position and results of operations of
the Company as of the dates of such statements and for the periods covered
thereby. The books of account of the Company have been kept in a materially
accurate manner and in the ordinary course of business, the transactions entered
therein represent bona fide transactions, and the revenues, expenses, assets and
liabilities of the Company have been properly recorded therein in all material
respects.
2.6 LIABILITIES AND OBLIGATIONS. Except as and to the extent disclosed and
adequately provided for in the Financial Statements or on SCHEDULE 2.6 hereto,
the Company has no liabilities or obligations of any kind, whether accrued,
absolute, secured or unsecured, contingent or otherwise. Except and to the
extent disclosed on SCHEDULE 2.6, there are no claims, liabilities or
obligations, nor, to the Stockholder's knowledge after due inquiry, any
reasonable basis for assertion against the Company, of any claim, liability or
obligation, of any nature whatsoever. Except as expressly set forth on SCHEDULE
2.6, to the knowledge of the Stockholder upon due inquiry, all of the contingent
liabilities of the Company listed on SCHEDULE 2.6 are covered by the Company's
insurance policies, and no such liability will exceed the policy limits of such
insurance policies. SCHEDULE 2.6 contains a reasonable estimate of the maximum
amount which may be payable with respect to known liabilities which are not
fixed. For each such known liability for which the amount is not fixed, SCHEDULE
2.6 includes a summary description of each known liability, together with copies
of all material documentation relating thereto.
2.7 ACCOUNTS AND NOTES RECEIVABLE. SCHEDULE 2.7 sets forth an accurate
list of the accounts and notes receivable of the Company, as of the most recent
date practicable (which date is set forth thereon), showing amounts due in
30-day aging categories. Except to the extent reflected on SCHEDULE 2.7, all
such accounts, notes and other receivables were incurred in the ordinary course
of business, are stated in accordance with GAAP and, to the Stockholder's
knowledge upon due inquiry, are collectible in the amounts shown on SCHEDULE
2.7, net of reserves reflected in the balance sheet as of the Balance Sheet
Date.
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2.8 PERMITS AND INTANGIBLES. The Company holds all licenses, franchises,
permits and other governmental authorizations required or necessary in
connection with the conduct of the Company's business, except where the failure
to hold such would not have a Material Adverse Effect on the Company. SCHEDULE
2.8 sets forth an accurate list and summary description of all such licenses,
franchises, permits and other governmental authorizations, including permits,
titles (including licenses, franchises, certificates, trademarks, trade names,
patents, patent applications and registered copyrights owned or held by the
Company or any of its employees (including interests in software or other
technology systems, programs and intellectual property) (collectively, the
"Intangible Assets") (it being understood and agreed that a list of all
environmental permits and other environmental approvals is set forth on SCHEDULE
2.9). The Intangible Assets and other governmental authorizations listed on
SCHEDULES 2.8 and 2.9 are valid, and the Company has not received any notice
that any person intends to cancel, terminate or not renew any such Intangible
Assets or other governmental authorization. The Company has conducted and is
conducting its business in compliance in all material respects with the
requirements, standards, criteria and conditions set forth in the Intangible
Assets and other governmental authorizations listed on SCHEDULES 2.8 and 2.9 and
is not in violation of any of the foregoing. Except as specifically set forth on
SCHEDULE 2.8 or 2.9, the transactions contemplated by this Agreement will not
result in a material default under or a material breach or material violation
of, or adversely affect the rights and benefits afforded to the Company by, any
such Intangible Assets or other governmental authorizations.
2.9 ENVIRONMENTAL MATTERS. The Company has complied with and is in
compliance with all federal, state, local and foreign statutes (civil and
criminal), laws, ordinances, regulations, rules, notices, permits, judgments,
orders and decrees applicable to any of them or any of their respective
properties, assets, operations and businesses relating to environmental
protection (collectively "Environmental Laws"), including, without limitation,
Environmental Laws relating to air, water, land and the generation, storage,
use, handling, transportation, treatment or disposal of Hazardous Wastes,
Hazardous Materials and Hazardous Substances (including petroleum and petroleum
products) (as such terms are defined in any applicable Environmental Law) except
to the extent that noncompliance with any Environmental Laws, either singly or
in the aggregate, has not had and will not have a Material Adverse Effect on the
Company or any of its operations. The Company has obtained and adhered to all
necessary permits and other approvals required pursuant to any applicable
Environmental Laws including, without limitation, such permits or approvals as
are necessary to treat, transport, store, dispose of and otherwise handle
Hazardous Wastes, Hazardous Materials and Hazardous Substances, a list of all of
which permits and approvals is set forth on SCHEDULE 2.9. The Company has
reported to the appropriate authorities, to the extent required by all
Environmental Laws, all past and present sites owned and operated by the Company
where Hazardous Wastes, Hazardous Materials or Hazardous Substances have been
treated, stored, disposed of or otherwise handled. There have been no releases
or threats of releases (as defined in Environmental Laws) at, from, in, under or
on any property owned or operated by the Company except as permitted by
Environmental Laws. There is no on-site or off-site location to which the
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Company has transported or disposed of Hazardous Wastes, Hazardous Materials or
Hazardous Substances or arranged for the transportation of Hazardous Wastes,
Hazardous Materials or Hazardous Substances which is the subject of any federal,
state, local or foreign enforcement action or any other investigation which
could lead to any claim against the Company or LandCARE for any clean-up cost,
remedial work, damage to natural resources, property damage or personal injury,
including, but not limited to, any claim under (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (ii)
the Resource Conservation and Recovery Act, as amended, (iii) the Hazardous
Materials Transportation Act, as amended, or (iv) comparable state or local
statutes and regulations. The Company has no contingent liability in connection
with any release of any Hazardous Waste, Hazardous Material or Hazardous
Substance into the environment.
2.10 PERSONAL PROPERTY. SCHEDULE 2.10 sets forth an accurate list of (a)
all personal property included in "plant, property and equipment" or any similar
category on the balance sheet of the Company, (b) all other tangible personal
property items owned by the Company with an individualized fair market value in
excess of $5,000, and (c) all leases and agreements with respect to personal
property, copies of which have been delivered to LandCARE. SCHEDULE 2.10
indicates which of such Company-related assets are currently owned, or were
formerly owned, by the Stockholder or, to the knowledge of the Stockholder upon
due inquiry, any affiliate of the Company or the Stockholder. Except as set
forth on SCHEDULE 2.10, (i) all material personal property used by the Company
in its business is either owned by the Company or leased by the Company pursuant
to a lease included on SCHEDULE 2.10, (ii) all of the personal property listed
on SCHEDULE 2.10 is in good working order and condition, ordinary wear and tear
excepted and (iii) all leases and agreements included on SCHEDULE 2.10 are in
full force and effect and constitute valid and binding agreements of the parties
(and their successors) thereto in accordance with their respective terms. Except
as set forth on SCHEDULE 2.10, the Company has good and marketable title to said
personal property, subject to no security interest, pledge, lien, claim,
conditional sales agreement, encumbrance, charge or restriction on transfer.
2.11 SIGNIFICANT CUSTOMERS; MATERIAL CONTRACTS AND COMMITMENTS. SCHEDULE
2.11 sets forth a list of (i) all customers representing 1% or more of the
Company's revenues in its last full fiscal year ("Significant Customers"), and
(ii) all material contracts, commitments and similar agreements to which the
Company is a party or by which it or any of its properties are bound (including,
but not limited to, contracts with Significant Customers, joint venture or
partnership agreements, contracts with any labor organizations, strategic
alliances and options to purchase land). True, complete and correct copies of
such agreements have been delivered to LandCARE. Except as described on SCHEDULE
2.11, (i) none of the Significant Customers have canceled or substantially
reduced or, to the knowledge of the Company, are currently attempting or
threatening to cancel a contract or substantially reduce utilization of the
services provided by the Company, and (ii) the Company has complied in all
material respects with all commitments and obligations pertaining to
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it, and is not in material default under any contracts or agreements listed on
SCHEDULE 2.11 and no notice of default under any such contract or agreement has
been received. The transactions contemplated by this Agreement will not result
in a default under or a breach or violation of, or adversely affect the rights
and benefits afforded to the Company by, any such contracts or agreements.
SCHEDULE 2.11 also includes a summary description of all plans or projects
relating to the Company's business involving the opening of new operations,
expansion of existing operations, the acquisition of any property, business or
assets requiring, in any event, the payment of more than $50,000 in the
aggregate.
2.12 REAL PROPERTY. SCHEDULE 2.12 includes a list of all real property
owned or leased by the Company at the date hereof (the "Real Property"), and all
other real property, if any, used by the Company in the conduct of its business.
True, complete and correct copies of all leases and agreements with respect to
Real Property leased by the Company have been delivered to LandCARE, and an
indication as to which such properties, if any, are currently owned, or were
formerly owned, by the Stockholder or which such properties, to the knowledge of
the Stockholder upon due inquiry, are currently owned, or were formerly owned,
by any affiliate of the Company or the Stockholder is included in SCHEDULE 2.12.
All leases relating to Real Property leased by the Company from the Stockholder
or, to the knowledge of the Stockholder upon due inquiry, leased by the Company
from any affiliate of the Stockholder have been terminated. Except as set forth
on SCHEDULE 2.12, all of such leases included on SCHEDULE 2.12 are in full force
and effect and constitute valid and binding agreements of the parties (and their
successors) thereto in accordance with their respective terms. Except as set
forth on SCHEDULE 2.12, there are no leases, tenancy agreements, easements,
covenants, restrictions or any other instruments, agreements or arrangements
which create in or confer on any party, other than the Company, the right to
occupy or possess all or any portion of the Real Property or create in or confer
on any such party any right, title or interest in or to the Real Property or any
portion thereof or any interest therein; no party other than the Company
occupies or possesses the Real Property or any portion thereof; there is legal
and adequate ingress and egress between each tract of Real Property and an
adjacent (or, if none, the closest) public roadway; the Real Property is
properly zoned in order to allow its current use in the Company's businesses;
and there are no claims or demands pending or threatened by any party against
the Real Property which, if valid, would create in, or confer on, any party
other than the Company, any right, title or interest in or to the Real Property
or any portion thereof. None of the buildings, structures or improvements
described on SCHEDULE 2.12, or the operation or maintenance thereof as now
operated or maintained, contravenes, in any material respect, any zoning
ordinance or other administrative regulation or violates any restrictive
covenant or any provision of law, the effect of which would materially interfere
with or prevent their continued use for the purposes for which they are now
being used or would adversely affect the value thereof or the interest of the
Company therein. The Stockholder has furnished to LandCARE a true and correct
copy of all owner's policies of title insurance and surveys pertaining to the
real property owned by the Company.
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2.13 INSURANCE. SCHEDULE 2.13 sets forth an accurate list as of the date
hereof of all insurance policies now carried by the Company and an accurate list
of all insurance loss runs and workers compensation claims received for the past
three policy years. True, complete and correct copies of all insurance policies
currently in effect have been delivered to LandCARE. Such insurance policies
evidence all of the insurance that the Company is required to carry pursuant to
all of its contracts and other agreements and pursuant to all applicable laws,
and provide adequate coverage against the risks involved in the Company's
business. Except as set forth on SCHEDULE 2.13, none of such policies is a
"claims made" policy.
2.14 COMPENSATION; EMPLOYMENT AGREEMENTS; ORGANIZED LABOR MATTERS.
SCHEDULE 2.14 sets forth an accurate list showing all officers, directors and
key employees of the Company, listing all employment agreements with such
officers, directors and key employees and the rate of compensation (and the
portions thereof attributable to salary, bonus and other compensation,
respectively) of each of such persons as of the Balance Sheet Date. Except as
set forth on SCHEDULE 2.14, since the Balance Sheet Date, there have been no
increases in the base compensation payable or any special bonuses to any
officer, director, key employee or other employee.
Except as set forth on SCHEDULE 2.14, (i) the Company is not bound by or
subject to (and none of its respective assets or properties is bound by or
subject to) any arrangement with any labor union, (ii) no employees of the
Company are represented by any labor union or covered by any collective
bargaining agreement, (iii) to the knowledge of the Company, no campaign to
establish such representation is in progress and (iv) there is no pending or, to
the best of the Company's knowledge, threatened, labor dispute involving the
Company and any group of its employees. The Company has not experienced any
labor interruptions over the past five years.
2.15 EMPLOYEE BENEFIT PLANS. SCHEDULE 2.15 sets forth an accurate schedule
showing all employee benefit plans of Company, including all agreements or
arrangements (other than agreements or arrangements set forth on SCHEDULE 2.14)
containing "golden parachute" or other similar provisions, and deferred
compensation agreements, together with true, complete and correct copies of such
plans, agreements and any trusts related thereto, and classifications of
employees covered thereby as of the Balance Sheet Date. Except for the employee
benefit plans, if any, described on SCHEDULE 2.15, the Company does not sponsor,
maintain or contribute to any plan, program, fund or arrangement that
constitutes an "employee pension benefit plan," nor does the Company have any
obligation to contribute to or accrue or pay any benefits under any deferred
compensation or retirement funding arrangement on behalf of any employee or
employees (such as, for example, and without limitation, any individual
retirement account or annuity, any "excess benefit plan" (within the meaning of
Section 3(36) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), or any non-qualified deferred compensation arrangement). For the
purposes of this Agreement, the term "employee pension benefit plan" shall have
the same meaning as is given that term in Section 3(2) of ERISA. The Company has
not sponsored,
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maintained or contributed to any employee pension benefit plan and is not
required to contribute to any retirement plan pursuant to the provisions of any
collective bargaining agreement establishing the terms and conditions of
employment of any of the Company's employees other than the plans set forth on
SCHEDULE 2.15.
The Company is not now, and will not as a result of its past activities
become, liable to the Pension Benefit Guaranty Corporation (the "PBGC") or to
any multi employer employee pension benefit plan under the provisions of Title
IV of ERISA. All employee benefit plans listed on SCHEDULE 2.15 and the
administration thereof are in substantial compliance with their terms and all
applicable provisions of ERISA and the regulations issued thereunder, as well as
with all other applicable federal, state and local statutes, ordinances and
regulations. All accrued contribution obligations of the Company with respect to
any plan listed on SCHEDULE 2.15 have either been fulfilled in their entirety or
are fully reflected on the balance sheet of the Company as of the Balance Sheet
Date. All plans listed on SCHEDULE 2.15 that are intended to qualify (the
"Qualified Plans") under Section 401(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), are, and have been, so qualified and have been determined
by the Internal Revenue Service to be so qualified. Except as disclosed on
SCHEDULE 2.15, all reports and other documents required to be filed with any
governmental agency or distributed to plan participants or beneficiaries have
been timely filed or distributed, and the most recent copies thereof are
included as part of SCHEDULE 2.15. Neither the Stockholder, nor any plan listed
in SCHEDULE 2.15 nor the Company has engaged in any transaction prohibited under
the provisions of Section 4975 of the Code or Section 406 of ERISA. No plan
listed on SCHEDULE 2.15 has incurred an accumulated funding deficiency, as
defined in Section 412(a) of the Code and Section 302(1) of ERISA; and the
Company has not incurred any liability for excise tax or penalty due to the
Internal Revenue Service or any liability to the PBGC by reason thereof. There
have been no terminations, partial terminations or discontinuance of
contributions to any such Qualified Plan intended to qualify under Section
401(a) of the Code without notice to and approval by the Internal Revenue
Service; no plan listed on SCHEDULE 2.15 subject to the provisions of Title IV
of ERISA has been terminated; there have been no "reportable events" (as that
phrase is defined in Section 4043 of ERISA) with respect to any such plan listed
on SCHEDULE 2.15; the Company has not incurred liability under Section 4062 of
ERISA; and no circumstances exist pursuant to which the Company could have any
direct or indirect liability whatsoever (including, but not limited to, any
liability to any multi employer plan or the PBGC under Title IV of ERISA or to
the Internal Revenue Service for any excise tax or penalty, or being subject to
any statutory lien to secure payment of any such liability) with respect to any
plan now or heretofore maintained or contributed to by any entity other than the
Company that is, or at any time was, a member of a "controlled group" (as
defined in Section 412(n)(6)(B) of the Code) that includes the Company.
2.16 CONFORMITY WITH LAW; LITIGATION. Except as set forth on SCHEDULE
2.16, there are no claims, actions, suits or proceedings pending or, to the best
knowledge of the Stockholder, threatened, against or affecting the Company (as
any of its officers and directors in their capacities
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as such), at law or in equity, or before or by any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality having jurisdiction over the Company. Except as set forth on
SCHEDULE 2.16, no notice of any claim, action, suit or proceeding, whether
pending or threatened, has been received by the Company during the last five
years and, to the knowledge of the Stockholder, there is no basis for any such
claim, action, suit or proceeding that would have a Material Adverse Effect on
the Company. Except as set forth on SCHEDULE 2.16, there are no outstanding
judgments, orders, writs, injunctions or decrees against the Company. Except as
set forth on SCHEDULE 2.16, the Company has conducted and now conducts its
business in material compliance with all laws, regulations, writs, injunctions,
decrees and orders applicable to the Company or its assets. The Company is not
in violation of any material law or regulation or any order of any court or
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality having jurisdiction over any of them. The
Company has conducted and is conducting its business in substantial compliance
with the requirements, standards, criteria and conditions set forth in
applicable federal, state and local statutes, ordinances, permits, licenses,
orders, approvals, variances, rules and regulations, including all such permits,
licenses, orders and other governmental approvals set forth on SCHEDULES 2.8 and
2.9.
2.17 TAXES. For purposes of this Agreement, the term "Taxes" shall mean
all taxes, charges, fees, levies or other assessments, including, without
limitation, income, gross receipts, excise, property, sales, withholding, social
security, unemployment, occupation, use, service, license, payroll, franchise,
transfer and recording taxes, fees and charges, imposed by the United States or
any state, local or foreign government or subdivision or agency thereof ("Taxing
Authority"), whether computed on a separate, consolidated, unitary, combined or
any other basis; and such term shall include any interest, fines, penalties or
additional amounts attributable to or imposed with respect to any such taxes,
charges, fees, levies or other assessments. As used herein, the term "Company
Subsidiaries" means the subsidiaries, if any, of the Company; it being
understood that there may be no such subsidiaries.
All Tax returns ("Returns") required to be filed with respect to any Tax
for which any of the Company and the Company Subsidiaries (if any) is liable
have been duly and timely filed with the appropriate Taxing Authority, each Tax
shown to be payable on each such Return has been paid, each Tax owing or owed by
the Company or a Company Subsidiary by assessment has been timely paid in the
amount assessed, and adequate reserves have been established on the consolidated
books of the Company and the Company Subsidiaries for all Taxes for which any of
the Company and the Company subsidiaries is liable, but the payment of which is
not yet due. Neither the Company nor any Company Subsidiary is, or ever has
been, liable for any Tax payable by reason of the income or property of a person
or entity other than the Company or a Company Subsidiary. Each of the Company
and the Company Subsidiaries has timely filed true, correct and complete
declarations of estimated Tax in each jurisdiction in which any such declaration
is required to be filed by it. No Liens for Taxes exist upon the assets of the
Company or any Company Subsidiary except Liens for
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Taxes which are not yet due. Neither the Company nor any Company Subsidiary is,
or ever has been, subject to Tax in any jurisdiction outside the United States.
Except as set forth on SCHEDULE 2.17, no litigation with respect to any Tax for
which the Company or any Company Subsidiary is asserted to be liable is pending
or, to the knowledge of the Company or the Stockholder, threatened, and no basis
which the Company or any Stockholder believes to be valid exists on which any
claim for any such Tax can be asserted against the Company or any Company
Subsidiary. There are no requests for rulings or determinations in respect of
any Taxes pending between the Company or any Company Subsidiary and any Taxing
Authority. No extension of any period during which any Tax may be assessed or
collected and for which the Company or any Company Subsidiary is or may be
liable has been granted to any Taxing Authority. Neither the Company nor any
Company Subsidiary is or has been party to any tax allocation or sharing
agreement other than by virtue of premises leases, through which real property
taxes may be effectively shared among tenants of the building of which the
Company's premises is a part. All amounts required to be withheld by any of the
Company and the Company Subsidiaries and paid to governmental agencies for
income, social security, unemployment insurance, sales, excise, use and other
Taxes have been collected or withheld and paid to the proper Taxing Authority.
The Company and each Company Subsidiary have made all deposits required by law
to be made with respect to employees' withholding and other employment Taxes.
Neither the Company nor the Stockholder is a "foreign person," as that term is
referred to in Section 1445(f)(3) of the Code. The Company has not filed a
consent pursuant to Section 341 (f) of the Code or any comparable provision of
any other tax statute and has not agreed to have Section 341 (f)(2) of the Code
or any comparable provision of any other Tax statute apply to any disposition of
an asset. The Company has not made, is not obligated to make and is not a party
to any agreement that could require it to make any payment under Section 280G of
the Code that is not deductible. To the Stockholder's knowledge upon due
inquiry, no asset of the Company or of any Company Subsidiary is subject to any
provision of applicable law which eliminates or reduces the allowance for
depreciation or amortization with respect to that asset below the allowance
generally available to an asset of its type. No accounting method changes of the
Company or of any Company Subsidiary exist or are proposed or threatened which
could give rise to an adjustment under Section 481 of the Code. The Company uses
the accrual method of accounting for income tax purposes, and the Company's
methods of accounting have not changed in the past five years. The Company is
not an investment company as defined in Section 351(e)(1) of the Code.
2.18 NO VIOLATIONS; ALL REQUIRED CONSENTS OBTAINED. The Company is not in
violation of any of its Charter Documents. Neither the Company nor, to the
knowledge of the Stockholder, any other party thereto is in material default
under any lease, instrument, license, permit or material agreement to which the
Company is a party or by which its properties are bound (the "Material
Documents"). Except as set forth on SCHEDULE 2.18, (a) the execution of this
Agreement by the Company and the Stockholder and the performance by the Company
and the Stockholder of their obligations hereunder and the consummation of the
transactions contemplated hereby will not result in any violation or breach or
constitute a default under any of the terms or provisions of the Material
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Documents or the Charter Documents, and (b) at and after the Closing Date the
Surviving Corporation will be entitled to the rights and benefits under the
Material Documents to which the Company is entitled immediately prior to the
Closing. Except as set forth on SCHEDULE 2.18 (and except for consents already
obtained), none of the Material Documents requires notice to, or the consent or
approval of, any governmental agency or other third party with respect to any of
the transactions contemplated hereby in order to remain in full force and
effect, and consummation of the transactions contemplated hereby will not give
rise to any right to termination, cancellation or acceleration or loss of any
right or benefit. Except as set forth on SCHEDULE 2.18, none of the Material
Documents prohibits the use or publication of the name of any other party to
such Material Document, and none of the Material Documents prohibits or
restricts the Surviving Corporation or will prevent or restrict the Company or
LandCARE from freely providing services to any person.
2.19 ABSENCE OF CHANGES. Since the Interim Balance Sheet Date, the Company
has conducted its operations in the ordinary course of business and, except as
set forth on SCHEDULE 2.19, there has not been:
(i) any change in the business, assets, liabilities or financial
condition of the Company which would have a Material Adverse Effect;
(ii) any damage, destruction or loss (whether or not covered by
insurance) affecting any of the material assets of the Company or the
business of the Company which would have a Material Adverse Effect;
(iii) any change in the authorized capital of the Company or its
outstanding securities or any change in its ownership interests or any
grant of any options, warrants, calls, conversion rights or commitments;
(iv) any declaration or payment of any dividend or distribution with
respect to the capital stock or any direct or indirect redemption,
purchase or other acquisition of any of the capital stock of the Company;
(v) any increase or commitment to increase the compensation, bonus,
sales commissions or fee arrangement payable or to become payable by the
Company to any of its officers, directors, stockholders, employees,
consultants or agents;
(vi) any work interruptions, labor grievances or claims filed, or
any event or condition of any character that would have a Material Adverse
Effect on the business of the Company;
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(vii) any sale or transfer, or any agreement to sell or transfer,
any material assets, property or rights (other than to subcontractors in
the normal course of business) of the Company to any person;
(viii)any cancellation, or agreement to cancel, any indebtedness or
other obligation owing to the Company;
(ix) any plan, agreement or arrangement granting any preferential
rights to purchase or acquire any interest in any of the assets, property
or rights of the Company or requiring consent of any party to the transfer
and assignment of any such assets, property or rights;
(x) except as contemplated in that certain Assignment and Assumption
Agreement by and between the Company and Arteka Natural Green Corporation
attached as part of SCHEDULE 2.6, any purchase or acquisition of, or
agreement, plan or arrangement to purchase or acquire, any property,
rights or assets outside of the ordinary course of the Company's business;
(xi) any waiver of any material rights or claims of the Company;
(xii) any amendment or termination of any contract, agreement,
license, permit or other right to which the Company is a party which would
have a Material Adverse Effect;
(xiii)any contract, commitment or liability entered into or incurred
or any capital expenditures made except in the normal course of business
consistent with past practice in an individual amount not in excess of
$10,000 and in an aggregate amount not in excess of $50,000; or
(xiv) any transaction by the Company outside the ordinary course of
its business.
2.20 POWERS OF ATTORNEY. SCHEDULE 2.20 sets forth a schedule as of the
date of this Agreement of the name of each person, corporation, firm or other
entity holding any general or special power of attorney from the Company and a
description of the terms of each such power.
2.21 COMPETING LINES OF BUSINESS; RELATED-PARTY TRANSACTIONS. Except as
set forth on SCHEDULE 2.21, neither the Stockholder nor, to the knowledge of the
Stockholder upon due inquiry, any other affiliate of the Company owns, directly
or indirectly, any interest in, or is an officer, director, employee or
consultant of or otherwise receives remuneration from, any business which is a
competitor, lessor, lessee, customer or supplier of the Company. Except as set
forth on SCHEDULE 2.21, no officer, director or stockholder of the Company has,
nor during the period
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beginning January 1, 1995 through the date hereof had, any interest in any
property, real or personal, tangible or intangible, used in or pertaining to the
Company's business.
2.22 DISCLOSURE. The Stockholder has provided LandCARE with all the
information that LandCARE has requested in analyzing whether to consummate the
transactions contemplated hereby. None of the information so provided nor any
representation or warranty of the Stockholder contained in this Agreement
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading. There is no fact
known to the Stockholder at the date hereof which has specific application to
the Company or its business or assets (other than general economic or industry
conditions) which, within one year after the Closing Date, would have a Material
Adverse Effect on the Company or its business or assets, or the condition
(financial or otherwise) or results of operations of the Company, which has not
been specifically disclosed in the Schedules hereto.
2.23 CERTAIN BUSINESS PRACTICES. Neither the Company nor any person acting
on behalf of the Company has given or offered anything of value to any
governmental official, political party or candidate for government office nor
has it or any of them otherwise taken any action which would cause the Company
to be in violation of the Foreign Corrupt Practices Act of 1977, as amended, or
any law of similar effect.
2.24 NOTICE TO BARGAINING AGENTS. The Company has satisfied any
requirement for notice of the transactions contemplated by this Agreement under
applicable collective bargaining agreements.
2.25 NOTICES AND CONSENTS. Except as set forth on SCHEDULE 2.25, no
material agreement to which the Company is a party requires the Company to
either give notices to third parties or obtain any third party consents in order
to consummate the transactions contemplated hereby.
2.26 FINANCIAL MATTERS. Since the Interim Balance Sheet Date, there has
been no material increase in the Company's cash requirements.
2.27 YEAR 2000 COMPLIANCE. The properties and assets of the Company,
including, but not limited to, computer hardware, microprocessor driven
equipment, software and data, owned or used by the Company will accurately
process date and time data after December 31, 1999, and the Company will suffer
no loss of functional ability when processing dates and related data outside the
1900-1999 year range.
2.28 RELIANCE UPON ORAL REPRESENTATIONS. The Company and the Stockholder
each represent and warrant: (a) that each has been fully informed by his or its
legal counsel and by his or its own independent judgment of the terms,
conditions and effects of this Agreement; (b) that each
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has been represented by independent legal counsel of his or its choice
throughout all negotiations preceding the execution of this Agreement and has
received the advice of his or its attorney in entering into this Agreement; (c)
that no promise or inducement has been offered or made to him or it except as
expressly stated in this Agreement; and (d) that this Agreement is executed
without reliance on any oral statement or oral representation by any other party
or any other party's agent or attorney.
3. REPRESENTATIONS OF LANDCARE AND NEWCO
Each of LandCARE and Newco represents and warrants as follows:
3.1 DUE ORGANIZATION. Each of LandCARE and Newco is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
the State of Incorporation, respectively, and has all requisite corporate power
and authority to carry on its business as it is now being conducted. Each of
LandCARE and Newco is duly qualified and is in good standing to do business in
each jurisdiction in which the nature of its business or the ownership or
leasing of its properties makes such qualification necessary, except where the
failure to be so authorized or qualified would not have a Material Adverse
Effect on LandCARE.
3.2 AUTHORIZATION. (i) The representatives of each of LandCARE and Newco
executing this Agreement have the authority to enter into and bind each of
LandCARE and Newco, respectively, to the terms of this Agreement and (ii) each
of LandCARE and Newco has the full legal right, power and authority to enter
into this Agreement and the transactions contemplated hereby, all of which have
been duly authorized by all necessary corporate action and no other corporate
proceedings on the part of either of LandCARE or Newco is necessary to authorize
this Agreement or to consummate the transactions contemplated hereby.
3.3 NO VIOLATIONS. The execution of this Agreement and the performance of
the obligations hereunder and the consummation of the transactions contemplated
hereby will not result in any violation or breach or constitute a default under
any of the terms or provisions of the Restated Certificate of Incorporation, as
amended, or Bylaws, as amended, of LandCARE. The execution of this Agreement and
the performance of the obligations hereunder and the consummation of the
transactions contemplated hereby will not result in any violation or breach or
constitute a default under any of the terms or provisions of the Certificate of
Incorporation or Bylaws of Newco.
3.4 VALIDITY OF OBLIGATIONS. The execution and delivery of this Agreement
by each of LandCARE and Newco and the performance of the transactions
contemplated hereby have been duly and validly authorized by the respective
Board of Directors of each of LandCARE and Newco and this
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Agreement has been duly and validly authorized by all necessary corporate action
and is a legal, valid and binding obligation of LandCARE and Newco.
3.5 PROSPECTUS. The Prospectus delivered to the Stockholder, receipt of
which is hereby acknowledged, does not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, and same may be relied upon by the Stockholder in connection with
the transactions contemplated by this Agreement.
3.6 DISCLOSURE. LandCARE has provided the Stockholder with all the
information that the Stockholder has requested in writing analyzing whether to
consummate the transactions contemplated hereby. None of the information so
provided nor any representation or warranty of LandCARE contained in this
Agreement contains any untrue statement or omits to state a material fact
necessary in order to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. There is no fact which
has specific application to LandCARE or its business or assets (other than
general economic or industry conditions) which would have a Material Adverse
Effect or, so far as LandCARE can reasonably foresee, threatens to have a
Material Adverse Effect, on LandCARE or its business or assets, or the condition
(financial or otherwise), results of operations or prospects of LandCARE, which
has not been described in the Schedules hereto.
3.7 RELIANCE UPON ORAL REPRESENTATIONS. Each of LandCARE and Newco
represents and warrants: (a) that it has been fully informed by its legal
counsel and by its own independent judgment of the terms, conditions and effects
of this Agreement; (b) that it has been represented by independent legal counsel
of its choice throughout all negotiations preceding the execution of this
Agreement and has received the advice of its attorney in entering into this
Agreement; (c) that it is fully satisfied with the terms of this Agreement; (d)
that no promise or inducement has been offered or made to it except as expressly
stated in this Agreement; and (e) that this Agreement is executed without
reliance on any oral statement or oral representation by any other party or any
other party's agent or attorney.
3.8 LIABILITIES. Each of LandCARE and Newco covenants and acknowledges
that the Surviving Corporation, not the Stockholder, shall be responsible for
any liabilities of the Company shown on the Financial Statements.
4. DELIVERIES
4.1 INSTRUMENTS OF TRANSFER. The Stockholder is delivering to LandCARE
certificates representing all of the Shares, duly endorsed (or accompanied by
duly executed stock powers).
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4.2 CERTIFICATE OF MERGER. The appropriate parties hereto are executing
and delivering for filing with the appropriate authorities a certificate of
merger or similar document for purposes of effecting the Merger.
4.3 GOOD STANDING CERTIFICATES. The Stockholder is delivering to LandCARE
certificates, dated as of a date no earlier than ten days prior to the date
hereof, duly issued by the appropriate governmental authority in the State of
Incorporation and in each state in which the Company is authorized to do
business, showing the Company to be in good standing and authorized to do
business therein.
4.4 INDEBTEDNESS TO COMPANY. The Stockholder and its Affiliates are
repaying any outstanding indebtedness they have to the Company.
4.5 RESIGNATIONS OF DIRECTORS AND OFFICERS. The Stockholder is delivering
to LandCARE the resignations of all directors and officers of the Company.
4.6 EMPLOYMENT AGREEMENT. The Company and the Stockholder are entering
into an Employment Agreement in the form attached hereto as Annex I.
5. POST-CLOSING COVENANTS
The parties to this Agreement further covenant and agree as follows:
5.1 FUTURE COOPERATION; FURTHER ASSURANCES. The Stockholder, the Surviving
Corporation and LandCARE shall each deliver or cause to be delivered to the
other following the date hereof such additional instruments as the other may
reasonably request for the purpose of effecting the Merger and fully carrying
out the intent of this Agreement. LandCARE shall provide the Stockholder
reasonable access to the books and records of the Surviving Corporation after
the Closing Date for purposes of tax compliance and any other reasonable
purpose.
5.2 EXPENSES. LandCARE will pay the fees, expenses and disbursements of
LandCARE and its agents, representatives, financial advisors, accountants and
counsel incurred in connection with the execution, delivery and performance of
this Agreement. The Stockholder will pay the fees, expenses and disbursements of
the Stockholder and its agents, representatives, financial advisors, accountants
and counsel incurred in connection with the execution, delivery and performance
of this Agreement. The Stockholder shall pay any sales, use, transfer, real
property transfer, recording, stock transfer and other similar taxes and fees
("Transfer Taxes") imposed in connection with the Merger. The Stockholder shall
file all necessary documentation and returns with respect to such Transfer
Taxes. In addition, the Stockholder acknowledges that the Stockholder, and not
the
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Surviving Corporation or LandCARE, will pay all taxes (income or otherwise), if
any, due upon and solely by reason of the Stockholder's receipt of the
consideration payable pursuant to this Agreement.
5.3 CERTAIN AGREEMENTS. Upon the request of LandCARE at any time after the
Closing, the Stockholder and the Company shall terminate any existing agreements
to which the Company and the Stockholder or any of her affiliates are parties,
except for this Agreement and the agreements set forth on SCHEDULE 5.3.
5.4 PREPARATION AND FILING OF TAX RETURNS.
(a) The Stockholder shall file or cause to be filed all Tax Returns
for all taxable periods that end on or before the Closing Date, but in each case
only after LandCARE has reviewed such filings and consented thereto.
(b) LandCARE shall file or cause to be filed all Tax Returns for all
taxable periods ending after the Closing Date.
(c) Each party hereto shall, and shall cause its subsidiaries and
affiliates to, provide to each of the other parties hereto such cooperation and
information as any of them reasonably may request in filing any Tax Returns,
amended Tax Returns or claim for refund, determining a liability for Taxes or a
right to refund of Taxes or in conducting any audit or other proceeding with
respect to Taxes. Such cooperation and information shall include providing
copies of all relevant portions of relevant Tax Returns, together with relevant
accompanying schedules and relevant work papers, relevant documents relating to
rulings or other determinations by Taxing Authorities and relevant records
concerning the ownership and Tax basis of property, which such party may
possess. Each party shall make its employees reasonably available on a mutually
convenient basis at the reasonable cost of the requesting party to assist in the
explanation of any documents or information so provided. Subject to the
preceding sentence, each party required to file tax returns pursuant to this
Agreement shall bear all costs of filing such tax returns.
5.5 STOCKHOLDER GUARANTEES Notwithstanding anything else herein, LandCARE
agrees to hold harmless and to indemnify the Stockholder or her affiliates from
any loss, damage, claim, liability or obligation arising after the Effective
Time from any guarantee (personal or otherwise) by the Stockholder of any
liability or obligation of the Company (contingent or otherwise), and agrees to
cause the unconditional release of the Stockholder and her affiliates from such
guarantees and all the obligations thereunder within ninety (90) days after the
Effective Time.
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5.6 STOCK OPTIONS. LandCARE hereby covenants and agrees to recommend to
the Compensation Committee of its Board of Directors the issuance of 2,000 stock
options to Xxxxx Xxxxxxx. The options shall be issued pursuant to the LandCARE
1998 Long-Term Incentive Plan.
6. INDEMNIFICATION
The Stockholder and LandCARE each make the following covenants that are
applicable to them, respectively:
6.1 SURVIVAL OF STOCKHOLDER'S REPRESENTATIONS AND WARRANTIES.
(a) The representations and warranties of the Stockholder made in
this Agreement herewith shall survive the Closing until the expiration of the
periods prescribed by the applicable statutes of limitations (including any
extensions thereof) relating thereto; provided, however, that representations
and warranties and indemnification provisions with respect to which a claim is
made within the survival period shall survive until such claim is finally
determined and paid.
(b) The representations and warranties of LandCARE made in this
Agreement shall survive the Closing for a period of one year following the
Closing Date; provided, however, that representations and warranties with
respect to which a claim is made within such one-year period shall survive until
such claim is finally determined and paid.
(c) The date on which a representation or warranty expires as
provided herein is herein called the "Expiration Date." No claim for
indemnification may be made with respect to a representation or warranty after
the Expiration Date, other than claims based on fraud.
6.2 GENERAL INDEMNIFICATION BY THE STOCKHOLDER. The Stockholder covenants
and agrees that it will indemnify, defend, protect, and hold harmless the
Surviving Corporation, LandCARE and its subsidiaries and all of their officers,
directors, employees, stockholders, agents, representatives and affiliates at
all times from and after the date of this Agreement until the Expiration Date
from and against all claims, damages actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including specifically, but
without limitation, reasonable attorneys' fees and expenses of investigation)
(collectively "Damages") incurred by such indemnified person as a result of or
incident to (i) any breach of any representation or warranty of the Stockholder
set forth herein, and (ii) any breach or nonfulfillment of any covenant or
agreement by the Company or the Stockholder under this Agreement.
6.3 SPECIFIC INDEMNIFICATION BY THE STOCKHOLDER. In addition to the
indemnification provided for in Section 6.2, the Stockholder covenants and
agrees that he will indemnify, defend, protect and hold harmless the Company and
LandCARE and each of their respective subsidiaries,
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officers, directors, employees, stockholders, agents, representatives and
affiliates from and against all Damages incurred by any of them in connection
with: (a) violations or alleged violations of any applicable federal, state,
local, or other laws, regulations, ordinances, or orders of any governmental
entity which govern the protection of the environment or human health and safety
("Environmental Laws") relating in any way to any action or omission of the
Company or any predecessor of the Company to the extent the facts, events, or
conditions giving rise to such violation or alleged violation occurred or
existed on or before the Effective Date; (b) the actual or alleged presence,
emanation, migration, disposal, release, or threatened release (collectively,
"Releases") of any oil, petroleum product, hazardous material, or hazardous
substance as such terms are defined by Environmental Laws (collectively,
"Hazardous Substances") at, under, to, or from any property or facility which
presently is or previously was owned, leased, operated, or otherwise used by the
Company or any predecessor of the Company to the extent that said actual or
alleged Release occurred or is alleged to have occurred on or before the
Effective Date; and (c) the actual or alleged Release of any Hazardous
Substances at any location or facility whatsoever to the extent such Hazardous
Substances were generated by, or were arranged for disposal at such location or
facility by, the Company or any predecessor of the Company on or before the
Effective Date.
6.4 INDEMNIFICATION BY LANDCARE. LandCARE covenants and agrees that it
will indemnify, defend, protect and hold harmless the Stockholder from and
against all Damages incurred by the Stockholder as a result of (i) any breach of
any representation or warranty of LandCARE set forth herein from and after the
date hereof until the Expiration Date; (ii) any breach or nonfulfillment of any
covenant or agreement by LandCARE under this Agreement from and after the date
hereof until the Expiration Date; (iii) the operation of the Surviving
Corporation from and after the Closing Date until the expiration of the periods
prescribed by the applicable statutes of limitations, except to the extent any
such Damages are attributable to the actions of the Stockholder, in her
capacities as such or otherwise; and (iv) any debt or liability of the Surviving
Corporation from and after the Closing Date until the expiration of the periods
prescribed by the applicable statutes of limitations (including, without
limitation, payment or performance bonds, guarantees, and Company debt to First
Minnetonka City Bank). LandCARE covenants and agrees that it will indemnify,
defend, protect and hold harmless Xxxxx Xxxxxx at all times from and after the
date of this Agreement until the expiration of the periods prescribed by the
applicable statutes of limitations from and against all Damages incurred by
Xxxxx Xxxxxx as a result of any debt or liability of the Surviving Corporation
(including, without limitation, payment or performance bonds, guarantees, and
Company debt to First Minnetonka City Bank).
6.5 THIRD PERSON CLAIMS. Promptly after any party hereto (the "Indemnified
Party") has received notice of or has knowledge of any claim by a person not a
party to this Agreement ("Third Person") or the commencement of any action or
proceeding by a Third Person that may give rise to a right of indemnification
hereunder, such Indemnified Party shall give to the party obligated to provide
indemnification hereunder (an "Indemnifying Party") written notice of such claim
or the
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commencement of such action or proceeding; provided, however, that the failure
to give such notice will not relieve such Indemnifying Party from liability
under this Section with respect to such claim, action or proceeding, except to
the extent that the Indemnifying Party has been actually prejudiced as a result
of such failure. The Indemnifying Party (at its own expense) shall have the
right and shall be given the opportunity to assume the defense of such claim,
suit or proceedings, and may select counsel for the Indemnified Party, such
counsel to be reasonably satisfactory to the Indemnified Party. The Indemnified
Party shall not, except at its own cost, make any settlement with respect to any
such claim, suit or proceeding without the prior consent of the Indemnifying
Party, which consent shall not be unreasonably withheld or delayed. It is
understood and agreed that in situations where failure of the Indemnifying Party
to settle a claim expeditiously could have an adverse effect on the Indemnified
Party, the failure of the Indemnifying Party to act upon the Indemnified Party's
request for consent to such settlement within ten business days of the
Indemnifying Party's receipt of notice thereof from the Indemnified Party shall
be deemed to constitute consent by the Indemnifying Party of such settlement for
purposes of this Section.
6.6 METHOD OF PAYMENT. All claims for indemnification shall be paid in
cash. If LandCARE reasonably believes that it or any other Indemnified Party has
suffered, or will suffer, Damages for which it or any other Indemnified Party
would be entitled to indemnification pursuant to this Agreement, LandCARE may,
at its sole option and by notice in writing to the Stockholder, elect to
withhold payment of an amount equal to the amount of such Damages from any
amounts owing by LandCARE to the Stockholder.
7. NONCOMPETITION
7.1 PROHIBITED ACTIVITIES. As partial consideration for the execution,
delivery and performance of this Agreement by LandCARE, the Stockholder will
not, for a period of two years following the Closing Date, for any reason
whatsoever, directly or indirectly, for himself or on behalf of or in
conjunction with any other person, persons, company, partnership, corporation or
business of whatever nature:
(i) own, manage, operate, join, control, consult or advise (whether
or not compensated for such consultation or advice), or participate in, or
render assistance to, or derive any benefit whatever from, any business
offering services or products in direct competition with the Surviving
Corporation within 100 miles of where the Company conducted business at
any time within one year prior to the Closing Date (the "Territory");
(ii) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a sales or managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or as a sales
representative, in any business offering services or products in direct
competition with the Surviving Corporation or LandCARE within the
Territory;
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(iii) call upon any person who is, at that time, an employee of
LandCARE or any of its subsidiaries (including the Surviving Corporation)
for the purpose or with the intent of enticing such employee away from or
out of the employ of LandCARE or any of its subsidiaries (including the
Surviving Corporation);
(iv) call upon any person or entity which is, at that time, or which
has been, within one year prior to the Closing Date, a customer of
LandCARE, the Company or any of LandCARE's subsidiaries (including the
Surviving Corporation) for the purpose of soliciting or selling products
or services in direct competition with LandCARE or any of its subsidiaries
(including the Company) within the Territory.
Notwithstanding the above, the foregoing covenants shall not be deemed to
prohibit the Stockholder from acquiring as a passive investor with no
involvement in the operations or management of the business, not more than two
percent (2%) of the capital stock of a competing business whose stock is
publicly traded on a national securities exchange or over-the-counter market.
The provisions of this Section are independent of the noncompetition
provisions contained in any consulting or employment agreement to which the
Stockholder may be or may become a party in connection with the transactions
contemplated hereby. All such provisions are intended to be observed and
enforced in accordance with their terms.
7.2 EQUITABLE RELIEF. Because of the difficulty of measuring economic
losses to LandCARE as a result of a breach of the foregoing covenant, and
because of the immediate and irreparable damage that could be caused to LandCARE
for which it would have no other adequate remedy, the Stockholder agrees that
the foregoing covenant may be enforced by LandCARE in the event of breach by the
Stockholder, by injunctions, restraining orders and other equitable actions.
7.3 REASONABLE RESTRAINT. It is agreed by the parties hereto that the
foregoing covenants in this Section impose a reasonable restraint on the
Stockholder.
7.4 SEVERABILITY; REFORMATION. The covenants in this Section are severable
and separate, and the unenforceability of any specific covenant shall not affect
the provisions of any other covenant. Moreover, in the event any court of
competent jurisdiction shall determine that the scope, time or territorial
restrictions set forth are unreasonable, then it is the intention of the parties
that such restrictions be enforced to the fullest extent which the court deems
reasonable, and the Agreement shall thereby be reformed.
7.5 INDEPENDENT COVENANT. The Stockholder acknowledges that his covenants
set forth in this Section are material conditions to LandCARE's willingness to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. All of the covenants in this
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Section shall be construed as an agreement independent of any other provision in
this Agreement, and the existence of any claim or cause of action of the
Stockholder against LandCARE or any subsidiary thereof, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by LandCARE of such covenants. It is specifically agreed that the period of two
years stated at the beginning of this Section, during which the agreements and
covenants of the Stockholder made in this Section shall be effective, shall be
computed by excluding from such computation any time during which the
Stockholder is in violation of any provision of this Section. The covenants
contained in Section shall not be affected by any breach of any other provision
hereof by any party hereto.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
8.1 GENERAL. The Stockholder recognizes and acknowledges that he has had
access to certain customer lists, confidential information of the Company, such
as operational policies, pricing and cost policies, and other information, that
will be valuable, special and unique assets of the Surviving Corporation and
LandCARE after the Closing Date. The Stockholder agrees that he will not
disclose such confidential information, or any confidential information of the
Surviving Corporation or LandCARE to which they may have access in the future,
to any person, firm, corporation, association or other entity for any purpose or
reason whatsoever, except (a) to authorized representatives of LandCARE, (b)
following the Closing, such information may be disclosed by the Stockholder as
may be required in the course of performing his duties for the Surviving
Corporation and (c) to counsel and other advisers, provided that such advisers
(other than counsel) agree to the confidentiality provisions of this Section,
unless (i) such information becomes known to the public generally through no
fault of the Stockholder, or (ii) disclosure is required by law or the order of
any governmental authority, provided, that prior to disclosing any information
pursuant to this clause (ii), the Stockholder shall give prior written notice
thereof to LandCARE and provide LandCARE with the opportunity to contest such
disclosure. In the event of a breach or threatened breach by the Stockholder of
the provisions of this Section, LandCARE shall be entitled to injunctive or
other equitable relief restraining the Stockholder from disclosing, in whole or
in part, such confidential information. Nothing herein shall be construed as
prohibiting LandCARE from pursuing any other available remedy for such breach or
threatened breach, including the recovery of damages.
8.2 EQUITABLE RELIEF. Because of the difficulty of measuring economic
losses as a result of the breach of the foregoing covenants, and because of the
immediate and irreparable damage that would be caused for which LandCARE would
have no other adequate remedy, the Stockholder agrees that the foregoing
covenants may be enforced against him by injunctions, restraining orders and
other appropriate equitable relief.
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8.3 SURVIVAL. The obligations of the parties under this Section shall
survive the termination of this Agreement for an unlimited time with respect to
proprietary information and a period of five years with respect to
non-proprietary information.
9 INTENDED TAX TREATMENT
9.1 TAX-FREE REORGANIZATION. The parties are entering into this Agreement
with the intention that the Merger qualify as a tax-free reorganization for
federal income tax purposes, except to the extent of any "boot" received, and
the parties will not take any actions that disqualify the Merger for such
treatment. The Stockholder represents, warrants and covenants that:
(i) the Company operates at least one historic business line, or
owns at least a significant portion of its historic business assets, in each
case within the meaning of Reg. 1.368-1(d) under the Code; and
(ii) the Stockholder has no present plan, intention or arrangement
to dispose of any of the LandCARE Stock to be received in the Merger that would
reduce the fair value of the LandCARE Stock (measured as of the Effective Time)
retained by the Stockholder to an amount less than 51% of the fair value of the
Company Stock held by the Stockholder immediately prior to the Effective Time.
9.2 RESTRICTIONS ON RESALE. The Stockholder agrees that he will not sell,
offer to sell, or otherwise transfer or dispose of, any shares of the LandCARE
Stock received by the Stockholder, engage in put, call, short-sale, straddle or
similar transactions, or in any other way reduce the Stockholder's risk of
owning shares of LandCARE Stock prior to the date two years after the Closing
Date except as set forth below, and agrees that the certificates evidencing the
LandCARE Stock to be received by the Stockholder will bear a legend evidencing
this restriction. After the date one year after the Closing Date the Stockholder
may sell such shares pursuant to the LandCARE Liquidity Plan attached hereto as
SCHEDULE 9.2. After the date two years after the Closing Date, neither the
restrictions set forth herein nor the provisions of the LandCARE Liquidity Plan
shall restrict the Stockholder from selling or otherwise disposing of any of
such shares of LandCARE Stock.
10 SECURITIES LAW MATTERS
10.1 ECONOMIC RISK; SOPHISTICATION. The Stockholder acknowledges and
confirms that he has received and reviewed a Prospectus from LandCARE relating
to his acquisition of shares of LandCARE Stock hereunder. The Stockholder (A)
has such knowledge, sophistication and experience in business and financial
matters that he is capable of evaluating the merits and risks of an investment
in the shares of LandCARE Stock, (B) fully understands the nature, scope and
duration
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of any limitations on transfer of LandCARE Stock described in this Agreement and
(C) can bear the economic risk of an investment in the shares of LandCARE Stock.
10.2 COMPLIANCE WITH LAW. The Stockholder covenants that none of the
LandCARE Stock acquired by the Stockholder hereunder will be offered, sold,
assigned, hypothecated, transferred or otherwise disposed of by the Stockholder
except in full compliance with all applicable securities laws.
11. GENERAL
11.1 SUCCESSORS AND ASSIGNS. This Agreement and the rights of the parties
hereunder may not be assigned (except by operation of law) and shall be binding
upon and shall inure to the benefit of the parties hereto, the successors of
LandCARE and Newco, and the heirs and legal representatives of the Stockholder.
11.2 ENTIRE AGREEMENT. This Agreement (including the schedules, exhibits
and annexes attached hereto) and the documents delivered pursuant hereto
constitute the entire agreement and understanding among the Stockholder, the
Company, Newco and LandCARE, and supersede any prior agreement and understanding
relating to the subject matter of this Agreement. This Agreement, upon
execution, constitutes a valid and binding agreement of the parties hereto,
enforceable in accordance with its terms, and may be modified or amended only by
a written instrument executed by the parties hereto as then constituted.
11.3 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument. The signatures to
this Agreement need not all be on a single copy of this Agreement, and may be
facsimiles rather than originals, and shall be fully as effective as though all
signatures were originals on the same copy.
11.4 BROKERS AND AGENTS. Each party represents and warrants that it
employed no broker or agent in connection with this transaction and agrees to
indemnify the other parties hereto against all loss, cost, damages or expense
arising out of claims for fees or commission of brokers employed or alleged to
have been employed by such indemnifying party.
11.5 NOTICES. All notices and communications required or permitted
hereunder shall be in writing and may be given by depositing the same in United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, or by delivering the same
in person to an officer or agent of such party, or by confirmed facsimile, as
follows:
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If to LandCARE, addressed to it at:
LandCARE USA, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: General Counsel
Facsimile No. (000) 000-0000
If to the Company, addressed to it at:
Arteka Southeast Corporation
0000 Xxxxxxx Xxxx X.X.
Xxxxxxx, Xxxxxxx 00000
If to the Stockholder, addressed to her at the Company's address, in
either such case with a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
XxXxxxxxxx Xxxxxxxx, LLP
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
or to such other address as any party hereto shall specify pursuant to this
Section from time to time.
11.6 GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Georgia without regard to its principles governing
conflicts of laws.
11.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements of the parties made herein and at the time
of the Closing or in writing delivered pursuant to the provisions of this
Agreement shall survive the consummation of the transactions contemplated hereby
and any examination on behalf of the parties.
11.8 EFFECT OF INVESTIGATION. No investigation by the parties hereto in
connection with this Agreement or otherwise shall affect the representations and
warranties of the parties contained herein or in any certificate or other
document delivered in connection herewith and each such representation and
warranty shall survive such investigation.
11.9 EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy accruing
to any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or
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remedy, nor shall it be construed as a waiver of or acquiescence in any such
breach or default, or of any similar breach or default occurring later; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default occurring before or after that waiver.
11.10 TIME. Time is of the essence with respect to this Agreement.
11.11 REFORMATION AND SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
11.12 REMEDIES CUMULATIVE. No right, remedy or election given by any term
of this Agreement shall be deemed exclusive but each shall be cumulative with
all other rights, remedies and elections available at law or in equity.
11.13 CAPTIONS. The headings of this Agreement are inserted for
convenience only, and shall not constitute a part of this Agreement or be used
to construe or interpret any provision hereof.
11.14 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other party; provided,
however, that LandCARE may issue a press release in accordance with its
customary practices without such approval and any party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities.
11.15 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than the parties and their respective
successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
LANDCARE USA, INC.
By: /s/ XXXXXXX X. XXXXXXX
Name: XXXXXXX X. XXXXXXX
Title: Sr. Vice President
ARTSE ACQUISITION CORP.
By: /s/ XXXXXXX X. XXXXXXX
Name: XXXXXXX X. XXXXXXX
Title: President
ARTEKA SOUTHEAST CORPORATION
By: /s/ XXXXX X. XXXXXXXX
Name: XXXXX X. XXXXXXXX
Title: President
/s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
