MERGER AGREEMENT
PREAMBLE
This Merger Agreement is made as of June 1, 1999, between Landmark
International, Inc. ("Buyer"), and MobileNetics Corporation a California
corporation ("Target").
[AGREEMENT
THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE ONE
MERGER AGREEMENT: EFFECT OF THE TRANSACTION; TERM
1. On the Effective Date, as defined in this Agreement, a merger shall take
place ("the Merger") whereby Target shall be merged with and into Buyer, and
Buyer shall be the Surviving Corporation. (The term "Surviving Corporation"
appearing in this Agreement denotes Buyer after consummation of the Merger.)
Buyer's corporate name, existence, and all its purposes, powers, and
objectives shall continue unaffected and unimpaired by the Merger, and as the
Surviving Corporation it shall be governed by the laws of the State of
California and succeed to all of Target's rights, assets, liabilities, and
obligations in accordance with the California General Corporation Law.
2. Consummation of the Merger shall be effected as soon as practicable after
all the conditions established in this Agreement have been satisfied, but in
no event later than June 1, 1999. The closing shall be held at 9:00 am., at
the offices of Landmark International, Inc., at 1720 E. Garry Street, Suite
201, Santa Ana, CA 92705, or at such other time and place as the parties may
agree. The time and date of closing are called the "Closing Date," and will
be the same day as the Effective Date.
3. The articles of incorporation of Buyer in effect on the Effective Date of
the Merger shall become the articles of incorporation of the Surviving
Corporation. From and after the Effective Date of the Merger, said articles
of incorporation, as they may be amended from time to time as provided by
law, shall be, and may be separately certified as, the articles of
incorporation of the Surviving Corporation.
4. The bylaws of Buyer in effect on the Effective Date of the Merger shall
be the bylaws of the Surviving Corporation until they are thereafter duly
altered, amended, or repealed.
5. The directors of Buyer on the Effective Date of the Merger shall be the
directors of the Surviving Corporation. They shall hold office until their
successors have been elected and qualified. The officers of Buyer on the
Effective Date of the Merger shall be the officers of Surviving Corporation.
Each shall hold office subject to the bylaws and the pleasure of the
directors of Surviving Corporation.
ARTICLE TWO
CONVERSION OF SHARES
1. On the Effective Date:
(a) Target's common stock, no par value, issued and outstanding immediately
before the Effective Date shall be converted into 10,000,000 shares of common
stock , .001 per value, of the Surviving Corporation;
(b) Each share of Buyer's common stock, .001 par value, issued and
outstanding immediately before the Effective Date (the "Buyer Common Stock"),
other than "dissenting shares" as defined in California Corporations Code
sections 1300-1312, shall by virtue of the Merger and without action on the
part of the shareholder be converted into the right to receive from and to be
paid by Buyer the following amounts per share:
2. On the Effective Date, the stock transfer books of Target shall be
closed, and thereafter no transfers of shares of Target Common Stock shall be
made or consummated.
3. Prior to or on the Effective Date:
(a) Target shall pay in cash to each holder of an outstanding option to
purchase shares of Target's stock, whether or not such option is then
exercisable, an amount equal to the excess, if any, of the per-share purchase
price under this Agreement over the per-share exercise price under each such
stock option, multiplied by the number of unexercised shares remaining
subject to such stock option; and
(b) Target shall thereupon cancel all stock options.
4. Notwithstanding anything in this Agreement to the contrary, a "dissenting
shareholder" who holds any of Target's "dissenting shares" (as those terms
are defined in California Corporations Code section 1300) outstanding
immediately prior to the Effective Date, and who has made and perfected a
demand for payment of the value of the shares ("Payment") in accordance with
California Corporations Code sections 1300-1312 ("dissenters' rights
statutes"), and who has not effectively withdrawn or lost the right to such
Payment, shall have, by virtue of the Merger and without further action on
the dissenting shareholder's part, the right to receive and be paid the
Payment and no further rights other than those provided by the dissenters'
rights statutes. Target shall give Buyer prompt written notice of all written
demands for payment, withdrawals of demand, and other written communications
received by Target pursuant to the dissenters' rights statutes. After the
amount of the Payment has been agreed upon or finally determined pursuant to
the dissenters' rights statutes, all dissenting shareholders entitled to the
Payment pursuant to the dissenters' rights statutes shall receive such
Payment from Target, and the dissenting shares shall thereupon be cancelled.
/ / / / /
ARTICLE THREE
TARGET'S REPRESENTATIONS AND WARRANTIES
1. Target represents and warrants to Buyer as follows:
2. Target is duly organized, validly existing, and in good standing under
the laws of California, and has the corporate power to own all of its
properties and assets and to carry on its business as it is now being
conducted. Target's board of directors has authorized the execution of this
Agreement, and Target has the corporate power and is duly authorized, subject
to the approval of this Agreement by its shareholders, to merge Buyer
Subsidiary into Target pursuant to this Agreement.
3. Target's authorized capital stock consists of _____________ shares of
common stock, without par value, of which _________________ shares are
issued and outstanding. All issued and outstanding shares have been validly
issued in full compliance with all federal and state securities laws, are
fully paid and nonassessable, and have voting rights. There are no
outstanding subscriptions, options, rights, warrants, convertible securities,
or other agreements or commitments obligating Target to issue or to transfer
from treasury any additional shares of its capital stock of any class.
4. The balance sheet ("Balance Sheet") of Target as of April 30, 1999
("Balance Sheet Date") and the related statement of profits and losses for
the year then ended, copies of which have been delivered by Target to Buyer,
fairly present the financial position of Target as of that date and the
results of operations for that year, and have been prepared in accordance
with generally accepted accounting principles applied on a basis consistent
with that of preceding years.
5. Except as may be disclosed in the Schedules to be furnished pursuant to
this Agreement, and except for the lien for any current taxes or assessments
not yet delinquent, Target owns free and clear of any liens, claims, charges,
options, or encumbrances all of the property reflected on its books at the
Balance Sheet Date and all property acquired since that date, except such
property as has been disposed of in the ordinary course of business
consistent with prior practices of Target or with Buyer's written consent.
For purposes of this paragraph, a disposition of any single asset (other than
inventories) carried on the books of Target at more than $ 2,500.00 shall be
deemed to be a disposition not in the ordinary course of business.
6. The inventories of Target reflected on the Balance Sheet, as well as all
inventory items acquired since the Balance Sheet Date that are now the
property of Target, consist of materials, supplies, finished goods, of such
quality and in such quantities as are being used and will be usable or are
being sold and will be saleable in the ordinary course of the business of
Target. These inventories exclude scrap, slow-moving items, and obsolete
items, and are valued at the lower of cost or market value, determined in
accordance with generally accepted accounting principles consistently
applied. Since the Balance Sheet Date, Target has continued to replenish
these inventories in a normal and customary manner consistent with prudent
practice prevailing in the business.
7. No officer, director, or shareholder of Target has any interest in any
property, real or personal, tangible or intangible, including copyrights,
trademarks, or trade names, used in or pertaining to the business of Target.
8. There are no liabilities of Target other than the following:
(a) Liabilities disclosed or provided for in the Balance Sheet, including the
notes to the Balance Sheet;
(b) Liabilities disclosed in the Schedules furnished; or
(c) Liabilities incurred in the ordinary course of business since the Balance
Sheet Date, none of which has been adverse to the business of Target, and
none of which is attributable to any period prior to the Balance Sheet Date.
9. Since the Balance Sheet Date there has not been:
(a) Any change in the business, results of operations, assets, financial
condition, or manner of conducting the business of Target other than changes
in the ordinary course of business, none of which has had an adverse effect
on the business, results of operations, assets, financial condition, or
prospects of Target;
(b) Any damage, destruction, or loss (whether or not covered by insurance)
adversely affecting any aspect of the business or operations of Target;
(c) Any direct or indirect redemption or other acquisition by Target of any
of Target's shares of capital stock of any class, or any declaration, setting
aside, or payment of any dividend or other distribution in respect of
Target's capital stock of any class;
(d) Any increase in the compensation payable or to become payable by Target
or any Target Subsidiary to any of its officers, employees, or agents, other
than the normal increases granted in the ordinary course of business;
(e) Any option to purchase, or other right to acquire, stock of any class of
Target or granted by Target to any person;
(f) Any employment, bonus, or deferred compensation agreement entered into
between Target or any of its directors, officers, or other employees or
consultants;
(g) Any issuance of capital stock of any class by Target;
(h) Any indebtedness incurred by Target for borrowed money or any commitment
to borrow money entered into by Target or any guaranty given by Target; or
(i) Any amendment to Target's articles of incorporation or bylaws.
10. Target has obtained all necessary permits, licenses, franchises, and
other authorizations and have complied with all laws applicable to the
conduct of their business in the manner and in the areas in which business is
presently being conducted; and all such permits, licenses, franchises, and
authorizations are valid and in full force and effect. Target has not engaged
in any activity that would cause revocation or suspension of any such
permits, licenses, franchises, or authorizations; no action or proceeding
looking to or contemplating the revocation or suspension of any of them is
pending or threatened; and no approvals or authorizations will be required
after the consummation of the Merger to permit Surviving Corporation to
continue Target's business as presently conducted.
11. Target is not a party to or subject to any judgment, decree, or order
entered in any suit or proceeding brought by any governmental agency or by
any other person, enjoining Target with respect to any business practice, the
acquisition of any property, or the conduct of business in any area.
12. During each of the past five (5) fiscal years, Target has been
adequately insured by financially sound and reputable insurers with respect
to risks normally insured against and in amounts normally carried by
companies similarly situated; all such policies are in full force and effect;
all premiums due on such policies have been fully paid; and no notice of
cancellation or termination has been received with respect to any policy.
13. No work stoppage or other labor dispute in respect to Target is pending
or threatened, and no application for certification of a collective
bargaining agent is pending or threatened.
14. Target has complied in all material respects with, and have not been
cited for any violation of, federal, state, and local environmental
protection laws and regulations; and no material capital expenditures will be
required for compliance with any federal, state, or local laws or regulations
now in force relating to the protection of the environment. As used in this
paragraph, "Hazardous Material" means any hazardous or toxic substance,
material, or waste that is regulated by any federal authority or by any state
or local authority where the substance, material, or waste is located. There
are no underground storage tanks located on any real property described in
this Agreement in which any Hazardous Material has been or is being stored,
nor has there been any spill, disposal, discharge, or release of any
Hazardous Material into, upon, or over that real property or into or upon
ground or surface water on that real property. There are no asbestos-
containing materials incorporated into the buildings or interior improvements
that are part of that real property or into other assets of Target, nor is
there any electrical transformer, fluorescent light fixture with ballasts or
other equipment containing PCBs on that real property.
15. No representation or warranty by Target in this Agreement and no
statement by Target, by any executive officer or other person or contained
in any document, certificate, or other writing furnished by or on behalf of
Target to Buyer in connection with this transaction, contains or will contain
any untrue statement of material fact, or omits or will omit to state any
material fact necessary to make it not misleading or necessary to fully
provide the information required to be provided in the document, certificate,
or other writing.
16. Target has no powers of attorney outstanding other than those issued in
the ordinary course of business with respect to insurance, tax, and customs
matters.
17. The execution and delivery of this Agreement do not, and the
consummation of the Merger will not, (1) violate any provision of Target's
articles of incorporation or bylaws; (2) violate any provision of, or result
in the acceleration of any obligation under, or result in the imposition of
any lien or encumbrance on any asset of Target pursuant to the terms of any
mortgage, note, lien, lease, franchise, license, permit, agreement,
instrument, order, arbitration award, judgment, or decree; (3) result in the
termination of any license, franchise, lease, or permit to which Target is a
party or by which Target is bound; or (4) violate or conflict with any other
restriction of any kind or character to which Target is subject. After
Target's shareholders have adopted the plan of merger as set forth in this
Agreement, Target's board of directors and shareholders will take all actions
required by law or by Target's articles of incorporation or bylaws, or
otherwise required or necessary to authorize the execution and delivery of
this Agreement and to authorize the Merger of Target with Buyer pursuant to
this Agreement.
ARTICLE FOUR
BUYER'S REPRESENTATIONS AND WARRANTIES
1. Buyer represents and warrants to Target as follows:
2. Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Nevada, and is duly organized,
validly existing, and in good standing under the laws of the State of Nevada
and California.
3. Buyer has the corporate power to execute and deliver this Agreement and
have taken (or by the Closing Date will have taken) all actions required by
law, their articles of incorporation, their bylaws, or otherwise, to
authorize the execution and delivery of this Agreement. This Agreement is a
valid and binding agreement of Buyer in accordance with its terms.
4. The execution and delivery of this Agreement do not, and the consummation
of the Merger will not, (1) violate any provision of the articles of
incorporation or bylaws of Buyer; (2) violate any provision of or result in
the acceleration of any obligation under any mortgage, note, lien, lease,
franchise, license, permit, agreement, instrument, order, arbitration award,
judgment, or decree to which Buyer is a party or by which either is bound;
(3) result in the termination of any license, franchise, lease, or permit to
which Buyer is a party or by which either is bound; or (4) violate or
conflict with any other restriction of any kind or character to which Buyer
is subject. After the boards of directors of Buyer and the shareholder(s) of
Buyer has adopted the plan of merger as set forth in this Agreement, said
boards of directors and shareholder(s) will take or will have taken all
actions required by law, their respective articles of incorporation, their
bylaws, or otherwise, to authorize the execution and delivery of this
Agreement and to authorize the Merger.
/ / / / /
ARTICLE FIVE
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
1. Buyer's obligation to consummate the Merger is subject to the
satisfaction, on or before the Closing Date, of the following conditions:
2. Each of the acts and undertakings of Buyer to be performed on or before
the Closing Date pursuant to the terms of this Agreement shall have been duly
performed.
[3. Buyer shall have furnished Target with a copy, certified by Buyer's
secretary, of (1) a resolution or resolutions duly adopted by Buyer's board
of directors authorizing and approving this Merger Agreement and directing
that it be submitted to a vote of Buyer's shareholders; and (2) a resolution
or resolutions adopting this Merger Agreement, duly approved by the holders
of at least a majority of the total number of outstanding shares of common
stock of Buyer.
4. All of the material representations and warranties of Buyer contained in
this Agreement and in the Schedules furnished shall be true in every respect
on and as of the Closing Date, with the same effect as though such
representations and warranties had been made on and as of that date; and
Target shall have received at the closing a certificate, dated the Closing
Date and executed by the president or a vice president of Buyer, containing a
representation and warranty to that effect.
5. Target shall have received the opinion of its counsel to the effect that
the transactions contemplated by this Agreement will not violate any federal
statute or any court decree or order, and that all legal matters relating to
the consummation of the transactions contemplated by this Agreement have been
or will be completed to the satisfaction of Buyer's counsel in all material
respects.
6. Target shall have received, or shall have satisfied itself that it will
receive, in form satisfactory to Target, all necessary approvals of the
transactions contemplated by this Agreement from authorities having any
jurisdiction over the business of Buyer, so that Buyer may continue to carry
on it's business as presently conducted after consummation of the Merger; and
no such approval and no license or permit granted to Buyer shall have been
withdrawn or suspended.
7. All consents of other parties to the mortgages, notes, leases,
franchises, agreements, licenses, and permits of Buyer necessary to permit
consummation of the Merger shall have been obtained.
8. At least a majority of the outstanding shares of Buyer Common Stock shall
have been voted for the adoption of the Merger set forth in this Agreement.
9. Not more than ten (10) percent of the outstanding shares of Buyer Common
Stock shall be "dissenting shares" within the definition of California
Corporations Code section 1300.
10. The Merger Agreement shall have been filed in the office of the
Secretary of State or other office of each jurisdiction in which such filings
are required in order for the Merger to become effective, or Buyer shall have
satisfied itself that all such filings will be or are capable of being made
effective as of the Closing Date.
11. Target shall have delivered the Schedules, updated through the Closing
Date.
12. In its sole and absolute discretion, Buyer shall be satisfied with any
matter reflected, listed, or disclosed in the updated Schedules which was not
reflected, listed, or disclosed in the original Schedules.
13. Each of Mr. William Kettle, Adela Maria Kettle, and Bryan Turbow shall
have entered into Employment Agreements with Landmark International, Inc.
upon terms and conditions acceptable to the parties in their sole and
absolute discretion.
ARTICLE SIX
CONDITIONS PRECEDENT TO TARGET'S OBLIGATION TO CLOSE
1. Target's obligation to consummate the Merger is subject to the
satisfaction on or prior to the Closing Date of the following conditions:
2. Each of Buyer's acts and undertakings to be performed on or before the
Closing Date pursuant to this Agreement shall have been performed.
3. Buyer shall have furnished Target with certified copies of (1)
resolutions duly adopted by the board of directors of Buyer authorizing and
approving the execution and delivery of this Merger Agreement and authorizing
the consummation of the transactions contemplated by this Agreement, and
adopting the plan of merger set forth in this Agreement.
4. The representations and warranties of Buyer contained in this Agreement
shall be true on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of that date; and
Target shall have received at the closing a certificate, dated the Closing
Date and executed on behalf of Buyer by its president or any vice president,
containing a representation and warranty to that effect.
5. At least a majority of the outstanding shares of common stock of Target
shall have been voted for the adoption of the Merger and Plan of
Reorganization contemplated by this Agreement.
ARTICLE SEVEN
SCHEDULES
As soon as practicable, but in no event later than Ten (10) days after the
date of this Agreement, Target shall deliver to Buyer Schedules as required
by this Agreement. Each such Schedule shall have been executed by or on
behalf of Target and shall be accompanied by a copy of each document referred
to in the Schedule. All Schedules shall be updated through the Closing Date;
however, the updating of the Schedules shall not relieve Target of its
responsibility to indemnify Buyer, with respect to any information not
disclosed in the original Schedules. Each matter disclosed in a Schedule
shall be taken as relating only to that specific Schedule.
ARTICLE EIGHT
BUYER'S INVESTIGATION
Prior to the Closing Date, Buyer may directly or through its representatives
make such investigation of the assets and business of Target (including,
without limitation, confirmation of its cash, inventories, accounts, accounts
receivable and liabilities, and investigation of its titles to and the
condition of its property and equipment) as Buyer deems necessary or
advisable. The investigation shall not affect (1) Target's representations
and warranties contained or provided for in this Agreement, (2) Buyer's right
to rely on those representations and warranties, or (3) Buyer's right to
terminate this Agreement as provided in this Agreement. Target shall allow
Buyer and its representatives full access, at reasonable times after the date
of execution of this Agreement, to the premises and to all the books,
records, and assets of Target, and Target's officers shall furnish to Buyer
such financial and operating data and other information with respect to the
business and properties of Target as Buyer shall from time to time reasonably
request. Buyer agrees not to disclose any confidential information obtained
in the course of its investigation or use it for any purposes other than
evaluation of Target with respect to the contemplated merger.
As soon as practicable, and in any event within Ten (10) days after the
receipt of (1) the last Schedule required to be delivered to Buyer by Target
and (2) any supporting documentation requested by Buyer, Buyer shall give
Target notice if Buyer has decided that it wishes to terminate this Agreement
based on any information contained in any of the Schedules or obtained during
the course of its investigation. The notice shall specify the information
contained in the Schedules or obtained during the investigation on which
Buyer's decision to terminate is based. Target shall have 10 days after the
receipt of the notice to review that information with Buyer. If Buyer does
not withdraw its notice within this 10-day period, then all further
obligations of Buyer and of Target under this Agreement shall terminate
without further liability of Buyer to Target or of Target to Buyer, except
their respective obligations to return documents as provided in this
Agreement. If Buyer does not advise Target within the Ten (10) day period
specified in the first sentence above that it wishes to terminate this
Agreement, Buyer shall be deemed to be satisfied with the information
relating to Target and its Subsidiaries contained in the Schedules and/or
obtained during the course of its investigation, subject to Buyer's rights
concerning the continued accuracy of Target's warranties and representations
set forth in this Agreement.
ARTICLE NINE
SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND INDEMNITIES
1. The representations, warranties, and indemnities included or provided for
in this Agreement or in any Schedule or certificate or other document
delivered pursuant to this Agreement shall survive the Closing Date for a
period of Three (3) years. No claim may be made under this Article unless
written notice of the claim is given within that three-year period.
2. Notwithstanding Buyer's investigations of Target before the Closing Date,
and notwithstanding the fact that Buyer may be deemed satisfied as to certain
matters investigated by Buyer, all as provided in this Agreement, Target
shall indemnify, defend, and hold Buyer harmless, to the maximum extent, from
and against any and all losses, liabilities, costs, expenses, judgments,
assessments, penalties, damages, deficiencies, suits, actions, claims,
proceedings, demands, and causes of action, including but not limited to
reasonable attorney fees, court costs, and related expenses, that were caused
by, arose as a result of, or arose with respect to any of the following:
(a) Any inaccuracy in any representation or warranty or any breach of any
warranty of Target under this Agreement or any Schedule, certificate,
instrument, or other document delivered pursuant to this Agreement;
(b) Any failure of Target duly to perform or observe any term, provision,
covenant, or agreement to be performed or observed by Target pursuant to this
Agreement, and any Schedule, certificate, agreement, or other document
entered into or delivered pursuant to this Agreement; or
(c) Any inaccuracy whatsoever in the Balance Sheet;
Whether such losses were known or unknown to Target provided, however, that
Buyer shall not be indemnified and held harmless unless and until such
damages, losses, and expenses exceed $10,000.00, in which event Buyer shall
be indemnified and held harmless in full. All claims under this provision
for indemnity shall be made within the time period and in the manner provided
for in this Agreement and the Escrow Agreement attached hereto as Appendix F.
ARTICLE TEN
TERMINATION
1. In addition to the termination rights provided for in this Agreement and
the transactions contemplated under this Agreement may be terminated at any
time prior to the Closing Date, either before or after the meeting of
Target's shareholders:
(a) By mutual consent of Buyer and Target;
(b) By Buyer if there has been a material misrepresentation or a material
breach of warranty in Target's representations and warranties set forth in
this Agreement or in any Schedule or certificate delivered pursuant to this
Agreement;
(c) By Target if there has been a material misrepresentation or a material
breach of warranty in Buyer's representations and warranties set forth in
this Agreement;
(d) By Buyer or Target if either party shall have determined in its sole
discretion that the transactions contemplated by this Agreement have become
inadvisable or impracticable by reason of the institution or threat of
institution, by governmental authorities (local, state, or federal) or by any
other person, of material litigation or proceedings against either or both of
the parties, it being understood and agreed that a written request by
governmental authorities for information with respect to the proposed
transactions, which information could be used in connection with such
litigation or proceedings, may be deemed by Buyer or Target to be a threat of
material litigation or proceedings, whether such request is received before
or after the date of this Agreement;
(e) By Buyer if it has determined that the business, assets, or financial
condition of Target taken as a whole, have been materially and adversely
affected, whether by reason of changes, developments, or operations in the
ordinary course of business or otherwise;
(f) By Target or by Buyer if the Closing Date referred to in this Agreement
has not occurred by June 1, 1999; and
(g) By Target if it has determined that the business, assets, or financial
conditions of Buyer taken as a whole, have been adversely affected, whether
by reason of changes, developments, or operations in the ordinary course of
business or otherwise.
2. In the event that this Agreement is terminated pursuant to this Article
Ten, or because of the failure to satisfy any of the conditions specified in
Article Five; or Article Six; all further obligations of Buyer and of Target
under this Agreement shall terminate without further liability of Buyer to
Target or Target to Buyer, except for the obligations of both parties under
Article Eight and of Buyer under Paragraph 3; of this Article Ten; provided,
however, anything in this Agreement to the contrary notwithstanding, that if
Target fails to furnish any of the Schedules referred to in Article Seven;
or fails to satisfy any of the conditions specified in Article Five, Buyer
shall nonetheless have the right, in its discretion, to proceed with the
transactions contemplated by this Agreement, and if Buyer fails to satisfy
any of the conditions specified in Article Six, Target shall nonetheless have
the right, in its discretion, to proceed with the transactions contemplated
by this Agreement.
3. In the event of the termination of this Agreement for any reason, Buyer
will return to Target all documents, work papers, and other materials
(including copies) relating to the transactions contemplated by this
Agreement, whether obtained before or after execution of this Agreement.
Buyer will not use any information so obtained for any purpose, and will take
all practicable steps to have such information kept confidential.
4. In the event of the termination of this Agreement for any reason, each
party shall bear its own costs and expenses, including attorney fees.
ARTICLE ELEVEN
PUBLIC ANNOUNCEMENT
Neither Buyer nor Target, without the consent of the other, shall make any
public announcement or issue any press release with respect to this Agreement
or the transactions contemplated by it, which consent shall not be
unreasonably withheld.
/ / / / /
ARTICLE TWELVE
MEETING OF TARGET'S SHAREHOLDERS
Target shall take all necessary steps to call a meeting of its shareholders
to be held within Ten (10) days from the date of this Agreement, which number
of days includes adequate time for the preparation and mailing of proxy
statements if applicable. In all proxy statements or other communications
with the shareholders on this subject, Target's board of directors shall
recommend to the shareholders that they adopt the plan of merger and approve
the terms of this Agreement.
ARTICLE THIRTEEN
COVENANT TO OPERATE IN THE ORDINARY COURSE
Between the date of this Agreement and the Closing Date, Target shall operate
its business only in the ordinary course and in a normal manner consistent
with past practice. During this period, Target shall not encumber any asset
or enter into any transaction or make any commitment relating to its assets
or business otherwise than in the ordinary course of its business (consistent
with its prior practices), or take any action that would render inaccurate
any representation or warranty contained in this Agreement or would cause a
breach of any other covenant under this Agreement, without first obtaining
the written consent of Buyer.
ARTICLE FOURTEEN
GOVERNING LAW; SUCCESSORS AND ASSIGNS;
COUNTERPARTS; ENTIRE AGREEMENT
This Agreement (a) shall be construed under and in accordance with the laws
of the State of California; (b) shall be binding on and shall inure to the
benefit of the parties to the Agreement and their respective successors and
assigns; (c) may be executed in one or more counterparts, all of which shall
be considered one and the same agreement, and shall become effective when one
or more counterparts shall have been signed by each of the parties and
delivered to Buyer and Target; and (d) embodies the entire agreement and
understanding, superseding all prior agreements and understandings between
Target and Buyer relating to the subject matter of this Agreement.
ARTICLE FIFTEEN
NOTICES
All notices, requests, demands, and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given on the date
of service if served personally on the party to whom notice is to be given,
or on the second day after mailing if mailed to the party to whom notice is
to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed as follows:
To Target at: 30021 Tomas Street #300, Rancho Santa Margarita, CA 92688
To Buyer at: 1720 E. Garry Street, Suite 201, Santa Ana, CA 92705
Any party may change its address for purposes of this paragraph by giving the
other parties written notice of the new address in the manner set forth
above.
ARTICLE SIXTEEN
AMENDMENTS
This Agreement may be amended only by the written agreement of all parties
hereto; provided, however, that if amended after the meeting of the
shareholders of Target, the terms regarding the conversion and per-share
price of Target's stock contained in Subparagraph (b) of Paragraph 1 of
Article Two; shall not be amended without the further approval of Target's
shareholders as required by law.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its duly authorized officers, all as of the day and
year first above written.
MobileNetics Corporation
a California corporation
By: _________________________________
Bryan Turbow, President
By:__________________________________
Landmark International, Inc.
a Nevada corporation
By:__________________________________
William Kettle, President
By:__________________________________