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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Henry Schein, Inc.; Kirk Randal J

Date:

2002

Size:

160KB total

Price:

$45

ID:

#2425868

► Plans ► Agreements ► Agreements & Plans of Merger
► Healthcare ► Medical Equipment & Supplies

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

NOVITRON INTERNATIONAL, INC.,

SPECTRAN HOLDINGS, INC.,

THE STOCKHOLDERS REPRESENTATIVE

AND

LANDMARK SCIENTIFIC, INC.

Dated as of August 21, 2002


ARTICLE I DEFINITIONS		2
Section 1.1. Accounts Payable		2
Section 1.2. Accounts Receivable		2
Section 1.3. Affiliate		2
Section 1.4. Aggregate Parent Shares		2
Section 1.5. Agreement		2
Section 1.6. Business		2
Section 1.7. Certificate of Merger		2
Section 1.8. Closing		2
Section 1.9. Closing Date		3
Section 1.10. Code		3
Section 1.11. Common Certificates		3
Section 1.12. Confidentiality Agreement		3
Section 1.13. Contracts		3
Section 1.14. DGCL		3
Section 1.15. Dissenting Shares		3
Section 1.16. DOL		3
Section 1.17. Effective Time		3
Section 1.18. Environmental Claim		3
Section 1.19. Environmental Laws		3
Section 1.20. ERISA		3
Section 1.21. Exchange Act		4
Section 1.22. GAAP		4
Section 1.23. Governance Agreement		4
Section 1.24. Governmental Authority		4
Section 1.25. Intellectual Property		4
Section 1.26. IRS		4
Section 1.27. Kirk Shares		4
Section 1.28. Knowledge of Landmark		5
Section 1.29. Knowledge of Parent		5
Section 1.30. Landmark		5
Section 1.31. Landmark Beneficiary		5
Section 1.32. Landmark Benefit Plans		5
Section 1.33. Landmark Common Stock		5
Section 1.34. Landmark Contracts		5
Section 1.35. Landmark Disclosure Schedule		5
Section 1.36. Landmark Dissenting Holder		5
Section 1.37. Landmark ERISA Affiliate		5
Section 1.38. Landmark Financial Statements		5
Section 1.39. Landmark Share or Landmark Shares		6
Section 1.40. Landmark Stockholder Approval		6
Section 1.41. Landmark Stockholders		6
Section 1.42. Law		6
Section 1.43. Lien		6
Section 1.44. Material Adverse Effect		6
Section 1.45. Merger		6

Section 1.46. Merger Consideration.		6
Section 1.47. Merger Subsidiary.		6
Section 1.48. Merger Subsidiary Common Stock.		7
Section 1.49. Nasdaq.		7
Section 1.50. Parent.		7
Section 1.51. Parent Beneficiary		7
Section 1.52. Parent Benefit Plans.		7
Section 1.53. Parent Common Stock.		7
Section 1.54. Parent ERISA Affiliate.		7
Section 1.55. Parent Financial Statements.		7
Section 1.56. Parent Preferred Stock.		7
Section 1.57. Parent Proxy Statement/Prospectus.		7
Section 1.58. Parent SEC Documents.		8
Section 1.59. Parent Special Meeting.		8
Section 1.60. Parent Stockholder Approval.		8
Section 1.61. Permits.		8
Section 1.62. Permitted Liens.		8
Section 1.63. Person.		8
Section 1.64. Prime Rate.		8
Section 1.65. Registration Statement.		8
Section 1.66. Retained Assets		9
Section 1.67. SEC.		9
Section 1.68. Securities Act.		9
Section 1.69. Stockholders Representative.		9
Section 1.70. Subsidiary.		9
Section 1.71. Surviving Corporation.		9
Section 1.72. Tax; Taxes.		9
Section 1.73. Tax Return.		9
Section 1.74. 25% Parent Stock Dividend.		9
Section 1.75. Unaudited Landmark Financial Statements.		10

ARTICLE II THE MERGER		10
Section 2.1. The Merger.		10
Section 2.2. Certificate of Incorporation and Bylaws.		10
Section 2.3. Board of Directors.		10
Section 2.4. Management.		11
Section 2.5. Effect on Capital Stock.		11
Section 2.6. Exchange of Common Certificates.		12
Section 2.7. Appointment of Stockholders Representative		13
Section 2.8. Anti-Dilution Provisions.		14

ARTICLE III STOCKHOLDER APPROVAL; EFFECTIVE TIME; CLOSING		15
Section 3.1. Stockholder Approval.		15
Section 3.2. Effective Time.		15
Section 3.3. Time and Place of Closing.		15


ARTICLE IV REPRESENTATIONS AND WARRANTIES OF LANDMARK		15
Section 4.1. Organization and Authority of Landmark.		16
Section 4.2. Capitalization.		16
Section 4.3. Authority Relative to this Agreement; Recommendation.		16
Section 4.4. Consents and Approvals; No Violations.		17
Section 4.5. Title to and Condition of Assets.		17
Section 4.6. Absence of Certain Events.		17
Section 4.7. Subsidiaries.		18
Section 4.8. Financial Statements.		18
Section 4.9. Litigation.		19
Section 4.10. Employee Benefit Plans Matters.		19
Section 4.11. Labor Matters.		21
Section 4.12. Tax Matters.		22
Section 4.13. Compliance with Law.		23
Section 4.14. Fees and Expenses of Brokers and Others.		23
Section 4.15. Absence of Undisclosed Liabilities.		23
Section 4.16. Environmental Laws and Regulations.		23
Section 4.17. Intellectual Property.		24
Section 4.18. Insurance.		25
Section 4.19. Books and Records.		25
Section 4.20. Accounts Receivable and Accounts Payable.		25
Section 4.21. Material Contracts.		26
Section 4.22. Real or Personal Property.		27
Section 4.23. Vote Required.		27
Section 4.24. Full Disclosure.		27

ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY		27
Section 5.1. Organization and Authority of the Parent.		27
Section 5.2. Capitalization.		28
Section 5.3. Authority Relative to this Agreement.		28
Section 5.4. Consents and Approvals; No Violations.		28
Section 5.5. SEC Documents.		29
Section 5.6. Fees and Expenses of Brokers and Others.		30
Section 5.7. Absence of Certain Events.		30
Section 5.8. Compliance with Law.		31
Section 5.9. Absence of Undisclosed Liabilities.		31
Section 5.10. Environmental Laws and Regulations.		31
Section 5.11. Vote Required; Board Approval.		32
Section 5.12. Parent Proxy Statement/Prospectus.		32
Section 5.13. Litigation.		32
Section 5.14. Employee Benefit Plans Matters.		32
Section 5.15. Tax Matters.		34
Section 5.16. Listing.		35
Section 5.17. Full Disclosure.		35

iii


ARTICLE VI COVENANTS RELATING TO CONDUCT OF BUSINESS		36
Section 6.1. Conduct of Business of Landmark		36
Section 6.2. Conduct of Business of Parent		37

ARTICLE VII ADDITIONAL AGREEMENTS		38
Section 7.1. Parent Stockholder Meeting		38
Section 7.2. The Parent Proxy Statement/Prospectus		39
Section 7.3. Nasdaq Listing		40
Section 7.4. Access to Information		40
Section 7.5. Reasonable Efforts; Notification		41
Section 7.6. Rees and Expenses		41
Section 7.7. Public Announcements		42
Section 7.8. Insurance		42
Section 7.9. Agreement to Defend		42
Section 7.10. Amendment of Schedules		43
Section 7.11. Reorganization Status		43
Section 7.12. Other Actions		43

ARTICLE VIII CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER		43
Section 8.1. Conditions Precedent to Obligations of Parent and Merger Subsidiary		43
Section 8.2. Conditions Precedent to Obligations of Landmark		45

ARTICLE IX TERMINATION; AMENDMENT; WAIVER		47
Section 9.1. Termination		47
Section 9.2. Effect of Termination		48
Section 9.3. Amendment		48
Section 9.4. Extension; Waiver		48
Section 9.5. Procedure for Termination, Amendment, Extension or Waiver		48

ARTICLE X MISCELLANEOUS		48
Section 10.1. Entire Agreement; Assignment		48
Section 10.2. Enterpretation		49
Section 10.3. Notices		49
Section 10.4. Governing Law		50
Section 10.5. Parties in Interest		50
Section 10.6. Counterparts		51
Section 10.7. Severability		51

EXHIBITS AND SCHEDULES

EXHIBITS

Exhibit A		Agreement for Purchase of Assets

Exhibit 1.23		Governance Agreement

Exhibit 1.28		Knowledge of Landmark

Exhibit 1.29		Knowledge of Parent

Exhibit 2.1		Certificate of Merger

Exhibit 2.3		Board of Directors of Parent

Exhibit 2.4		Principal Officers of Surviving Corporation

Exhibit 4.8		Landmark Financial Statements

Exhibit 4.23		Stockholders of Landmark

DISCLOSURE SCHEDULES
Landmark Disclosure Schedule
Parent Disclosure Schedule

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of August 21, 2002, by and among NOVITRON INTERNATIONAL, INC., a Delaware corporation (Parent), SPECTRAN HOLDINGS, INC., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Subsidiary), LANDMARK SCIENTIFIC, INC., a Delaware corporation (Landmark), and RANDAL J. KIRK, in his capacity as representative of the stockholders of Landmark for the limited purposes described herein (the Stockholders Representative), recites and provides as follows:

RECITALS

WHEREAS, the respective Boards of Directors of Parent, Merger Subsidiary and Landmark have approved the merger of Merger Subsidiary with and into Landmark (the Merger) upon the terms and subject to the conditions of this Agreement and whereby each issued and outstanding share of Landmark Common Stock will be converted into shares of Parent Common Stock, as provided herein;

WHEREAS, the Board of Directors of Parent has recommended that its stockholders approve and adopt this Agreement and the transactions contemplated hereby and will submit for consideration, adoption and approval to the stockholders of Parent at the Parent Special Meeting, this Agreement together with the Certificate of Merger;

WHEREAS, the directors, executive officers and certain stockholders of Landmark identified on Exhibit 4.23 intend to execute in accordance with the applicable provisions of the DGCL and the Certificate of Incorporation and Bylaws of Landmark, a non-unanimous written consent adopting and approving this Agreement, the Merger and the transactions contemplated hereby;

WHEREAS, Landmark, Merger Subsidiary and Parent desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger;

WHEREAS, for Federal income Tax purposes, it is intended that the Merger shall constitute a reorganization within the meaning of Section 368 of the Code and the regulations promulgated thereunder; and

WHEREAS, prior to the consummation of the Merger, Landmark shall transfer the Retained Assets (as defined herein) to an Affiliate (as defined herein) of Landmark pursuant to the Agreement for Purchase of Assets, attached here to as Exhibit A.

AGREEMENT

NOW, THEREFORE, in consideration of the premises, which are incorporated into and made part of this Agreement, and of the mutual representations, warranties, covenants, agreements and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1. Accounts Payable.

Accounts Payable shall mean payables from the operations of Landmark arising in the ordinary course of the Business as of the Closing.

SECTION 1.2. Accounts Receivable.

Accounts Receivable shall mean all accounts receivable, security deposits, notes receivable, prepaids and associated rights owned by Landmark and arising in the ordinary course of the Business as of the Closing.

SECTION 1.3. Affiliate.

Affiliate shall have the meaning set forth in Rule 145 of the SEC pursuant to the Securities Act.

SECTION 1.4. Aggregate Parent Shares.

Aggregate Parent Shares shall mean the shares of Parent Common Stock constituting the Merger Consideration.

SECTION 1.5. Agreement.

Agreement shall have the meaning set forth in the preamble to this Agreement.

SECTION 1.6. Business.

Business shall mean all of the business of Landmark, including, without limitation, the business relating to the development, manufacture, marketing, and distribution of laboratory instrumentation, reagents and supplies including clinical chemistry systems and related commercial activities, but excluding the Retained Assets.

SECTION 1.7. Certificate of Merger.

Certificate of Merger shall have the meaning set forth in Section 2.1 hereof.

SECTION 1.8. Closing.

Closing shall have the meaning set forth in Section 3.3 hereof.

SECTION 1.9. Closing Date.

Closing Date shall mean the date on which the Closing occurs.

SECTION 1.10. Code.

Code shall mean the Internal Revenue Code of 1986, as amended.

SECTION 1.11. Common Certificates.

Common Certificates shall have the meaning set forth in Section 2.6(a) hereof.

SECTION 1.12. Confidentiality Agreement.

Confidentiality Agreement shall have the meaning set forth in Section 7.4 hereof.

SECTION 1.13. Contracts.

Contracts shall mean all contracts, agreements, leases, licenses, arrangements, understandings, relationships and commitments, whether written or oral (and all amendments, side letters, modifications and supplements thereto).

SECTION 1.14. DGCL.

DGCL shall mean the Delaware General Corporation Law, as amended.

SECTION 1.15. Dissenting Shares.

Dissenting Shares shall have the meaning set forth in Section 2.5(d) hereof.

SECTION 1.16. DOL.

DOL shall have the meaning set forth in Section 4.10(a).

SECTION 1.17. Effective Time.

Effective Time shall have the meaning set forth in Section 3.2 hereof.

SECTION 1.18. Environmental Claim.

Environmental Claim shall have the meaning set forth in Section 4.16(b) hereof.

SECTION 1.19. Environmental Laws.

Environmental Laws shall have the meaning set forth in Section 4.16(a) hereof.

SECTION 1.20. ERISA.

ERISA shall have the meaning set forth in Section 4.10(a) hereof.

SECTION 1.21. Exchange Act.

Exchange Act shall mean the Securities Exchange Act of 1934, as amended.

SECTION 1.22. GAAP.

GAAP shall mean generally accepted accounting principles as in effect in the United States of America at the time of the preparation of the subject financial statement.

SECTION 1.23. Governance Agreement.

Governance Agreement shall mean the Governance Agreement, dated as of the Closing Date, by and between Randal J. Kirk and Israel M. Stein, et al., attached hereto as Exhibit 1.23.

SECTION 1.24. Governmental Authority.

Governmental Authority shall mean any federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency, instrumentality or arbitration panel, or any court, in each case whether of the United States, any of its possessions or territories, or of any foreign nation.

SECTION 1.25. Intellectual Property.

Intellectual Property shall mean all intellectual property owned or licensed by Landmark as of the Effective Time (but not less than all Intellectual Property as of January 1, 2002 less that attributable to the Retained Assets), including, without limitation: (a) all inventions, patents and patent applications, (b) all registered and unregistered trademarks, service marks, trade dress, logos, trade names and brand names, and any combination of such names, including all goodwill associated therewith and all applications, registrations and renewals in connection therewith, (c) all copyrightable works, all copyrights and all applications, registrations and renewals in connection therewith, (d) all trade secrets and confidential business information (including, without limitation, ideas, research and development, know-how, compositions, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and market plans and proposals), (e) all computer software and source code (including, without limitation, hard copy and soft copy as well as all data and related documentation), (f) all websites and related content (including, without limitation, underlying software, URLs and domain names), (g) all financial models and (h) all current and past customer lists.

SECTION 1.26. IRS.

IRS shall mean the Internal Revenue Service.

SECTION 1.27. Kirk Shares.

Kirk Shares shall mean the shares of Parent Common Stock beneficially owned by Randal J. Kirk and his Affiliates immediately prior to the Parent Special Meeting.

SECTION 1.28. Knowledge of Landmark.

Knowledge of Landmark shall mean the actual knowledge, after due inquiry, of the Persons set forth in Exhibit 1.28 attached hereto.

SECTION 1.29. Knowledge of Parent.

Knowledge of Parent shall mean the actual knowledge, after due inquiry, of the Persons set forth on Exhibit 1.29 attached hereto.

SECTION 1.30. Landmark.

Landmark shall have the meaning set forth in the preamble to this Agreement.

SECTION 1.31. Landmark Beneficiary.

Landmark Beneficiary shall have the meaning set forth in Section 4.10(a) hereof.

SECTION 1.32. Landmark Benefit Plans.

Landmark Benefit Plans shall have the meaning set forth in Section 4.10(a) hereof.

SECTION 1.33. Landmark Common Stock.

Landmark Common Stock shall mean the common stock, $.01 par value per share, of Landmark.

SECTION 1.34. Landmark Contracts.

Landmark Contracts shall have the meaning set forth in Section 4.21(a) hereof.

SECTION 1.35. Landmark Disclosure Schedule.

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