UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE 13D
(Amendment No.3)
Under the Securities Exchange Act of 1934
Community Care Services, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
0002039081
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(CUSIP Number)
Alan J. Landauer
LTTR Home Care, LLC
99 Calvert Street
P.O. Box 839
Harrison, New York 10528
914-835-4200
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 14, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Exchange Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
<PAGE>
CUSIP 0002039081 13D Page 2 of 19
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LTTR Home Care LLC; ID Number: BTF6529122
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
N/A
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
BK
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2 (e) |_|
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CITIZENSHIP OR PLACE OF ORGANIZATION
6 New York
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 2,126,250
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON 9 SOLE DISPOSITIVE POWER
WITH
2,126,250
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,126,250
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES* |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 29.46%
Based upon 7,217,851 shares of common stock outstanding at the close
of business on June 15, 1999 as reported in the Issuer's preliminary
proxy statement filed with the SEC on June 17, 1999.
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TYPE OF REPORTING PERSON*
14 OO
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP 0002039081 13D Page 3 of 19
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Landauer Hospital Supplies Inc.; ID Number: 135640670
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A
GROUP* (a) |_|
N/A (b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2 (e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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NUMBER OF 7 SOLE VOTING POWER
SHARES 2,091,450
BENEFICIALLY ------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 0
EACH ------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER 0
PERSON
WITH ------------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,091,450
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES* |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 28.98%
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14 Based upon 7,217,851 shares of common stock outstanding at the close
of business on June 15, 1999 as reported in the Issuer's preliminary
proxy statement filed with the SEC on June 17, 1999.
TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP 0002039081 13D Page 4 of 19
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alan J. Landauer
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
N/A
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
BK, PF
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2 (e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 4,279,700
OWNED BY ----------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON ----------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
2,188,250
----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,279,700
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES* |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 59.29%
Based upon 7,217,851 shares of common stock outstanding at the close
of business on June 15, 1999 as reported in the Issuer's preliminary
proxy statement filed with the SEC on June 17, 1999.
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
Page 5 of 19
This amendment to Schedule 13D is being filed by LTTR Home
Care, LLC ("LTTR") and Alan J. Landauer pursuant to Section 13(d)(2) of the
Exchange Act and by Landauer Hospital Supplies Inc. ("LHS") pursuant to 13(d)(1)
of the Exchange Act with respect to ownership of shares of common stock, par
value $.01 par share (the "Common Stock") of Community Care Services, Inc., a
New York corporation (the "Issuer"). Unless otherwise indicated, information set
forth in the previous filings remain unchanged.
ITEM 2 IDENTITY AND BACKGROUND
Pursuant to Rule 13d-1(k)(2) of Regulation 13D-G of the Rules
and Regulations of the Exchange Act, this 13D is being filed jointly on behalf
of the following persons: (i) Alan J. Landauer; (ii) LTTR; and (iii) LHS. The
information regarding LHS is set forth below. The identity and background of
Alan J. Landauer and LTTR remain unchanged from the previous filings.
Name of person filing: Landauer Hospital Supplies Inc.
Place of organization: New York
Principal business: LHS is engaged in the sale
and rental of durable medical
equipment to home care patients.
Address of principal office: 99 Calvert Street
P.O. Box 839
Harrison, New York 10528
Criminal proceedings: None
Civil proceedings: None
Officers: The names and titles of the officers
and directors of LHS and their
business address and principal
occupations are set forth below.
Each individual listed below is a
United States Citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
Alan J. Landauer President and director
LTTR Home Care, LLC of LHS; Sole member
99 Calvert Street and Managing Director of
P.O. Box 839 LTTR.
Harrison, New York 10528
Gail A. Landauer Secretary and director of
LTTR Home Care, LLC LHS.
99 Calvert Street
P.O. Box 839
Harrison, New York 10528
</TABLE>
During the past 5 years, the two individuals listed above have
not been (i) convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgement, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to United States
federal or state securities laws or finding any violations with respect to such
laws.
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Page 6 of 19
ITEM 4 PURPOSE OF TRANSACTION
(a) - (j) LHS entered into the Shareholders' Agreement, dated June 14, 1999 (the
"Shareholders' Agreement") by and among LHS and Dean L. Sloane, Mary Sloane,
Craig V. Sloane, The Sloane Family Foundation and DMJ Management Group, Inc.
(the "Sloane Group") at the same time as LHS entered into an Agreement and Plan
of Merger, dated June 14, 1999 (the "Merger Agreement") by and among LHS, LHS
Merger Sub, Inc. (the "Merger Sub") and the Issuer. For a description of the
Shareholders' Agreement, see Item 6 hereof.
The Merger Agreement provides for the merger of the Merger Sub
with and into Issuer with Issuer being the surviving corporation and a
wholly-owned subsidiary of LHS (the "Merger"). Subject to the terms and
conditions of the Merger Agreement, upon consummation of the Merger, each share
of Common Stock will be converted into the right to receive $1.20 per share in
cash. Upon consummation of the Merger the directors and officers of the Merger
Sub will become the directors and officers of the Issuer.
Under the terms of the Shareholders' Agreement, members of the
Sloane Group are obligated to vote their shares of Common Stock (the "Shares")
in favor of the Merger and have granted LHS an irrevocable proxy to vote the
Shares in favor of the Merger.
ITEM 5 INTERESTS IN SECURITIES OF THE ISSUER
LHS
The percent of class is based upon 7,217,851 shares of Common
Stock outstanding at the close of business on June 15, 1999 as reported in the
Issuer's preliminary proxy statement filed with the SEC on June 17, 1999. LHS
has been granted irrevocable proxy to vote 2,091,450 shares in favor of the
Merger pursuant to the Shareholders' Agreement.
(a) Amount beneficially owned 2,091,450
Percent of class 28.98%
(b) Number of shares as to which
such person has
(i) Sole power to vote or to
direct the vote . . . . . . . . . . 2,091,450
(ii) Shared power to vote or to
direct the vote . . . . . . . . . . 0
(iii) Sole power to dispose or to
direct disposition of . . . . . . . 0
(iv) Shared power to dispose or to
direct disposition of . . . . . . . 0
(c) See Item 6 for a description of the Shareholders' Agreement.
ALAN J. LANDAUER
The percent of class is based upon 7,217,851 shares
of Common Stock outstanding at the close of business on June
15, 1999 as reported in the Issuer's preliminary proxy
statement filed with the SEC on June 17, 1999. Mr. Landauer is
the sole member and Managing Director of LTTR, and the
president, sole shareholder and director of LHS. Mr Landauer
is filing this joint statement with LTTR and LHS as a result
of his membership interests and positions in such companies
and by which he may be deemed to have the power to exercise or
direct the exercise of voting
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Page 7 of 19
and/or dispositive power that (i) LTTR has with respect to
2,126,250 shares of Common Stock owned by LTTR and (ii) LHS
has with respect to the 2,091,450 shares of Common Stock for
which LHS has been granted an irrevocable proxy to vote such
shares in favor of the Merger pursuant to the Shareholders'
Agreement. Mr. Landauer also owns of record 62,000 shares of
Common Stock.
(a) Amount beneficially owned 4,279,700
Percent of class 59.29%
(b) Number of shares as to which
such person has
(i) Sole power to vote or to
direct the vote . . . . . . . . . . 4,279,700
(ii) Shared power to vote or to
direct the vote . . . . . . . . . . 0
(iii) Sole power to dispose or to
direct disposition of . . . . . . . 2,188,250
(iv) Shared power to dispose or to
direct disposition of . . . . . . . 0
(c) See Item 6 for a description of the Shareholders' Agreement.
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF ISSUER.
As discussed in Item 4 above, LHS and the Sloane Group entered
into the Shareholders' Agreement which requires members of the Sloane Group to
vote the Shares (i) in favor of the Merger, (ii) against any action or agreement
that would result in a breach by the Issuer of the Merger Agreement and (iii)
against certain specified actions which are intended, or could reasonably be
expected to impede, interfere with, delay, postpone, discourage or materially
adversely affect the Merger or the transactions contemplate by the Merger
Agreement or the Shareholders' Agreement.
The Shareholders' Agreement also provides LHS with an
irrevocable proxy to vote the Shares in the manner described above.
The Shareholders' Agreement will terminate upon the first to
occur of (i) consummation of the Merger, (ii) the termination of the Merger
Agreement, or (iii) December 14, 1999.
The foregoing description is qualified in its entirety by
reference to the Shareholders' Agreement among LHS and members of the Sloane
Group which is attached hereto as Exhibit (b) and incorporated herein by
reference in its entirety.
ITEM 7 EXHIBITS
(a) Joint Filing Agreement
(b) Shareholders' Agreement dated June 14, 1999, by and between Landauer
Hospital Supplies Inc. and Dean L. Sloane, Mary Sloane, Craig V.
Sloane, The Sloane Family Foundation and DMJ Management Group, Inc.
<PAGE>
Page 8 of 19
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Date: July 02, 1999
LTTR HOME CARE, LLC
By:\s\ Alan J. Landauer
-----------------------------------
Alan J. Landauer
Managing Director
LANDAUER HOSPITAL SUPPLIES INC.
By:\s\ Alan J. Landauer
-----------------------------------
Alan J. Landauer
President and Chairman of the Board
ALAN J. LANDAUER
\s\ Alan J. Landauer
-----------------------------------
Alan J. Landauer
<PAGE>
Page 9 of 19
JOINT FILING AGREEMENT Exhibit A
In accordance with Rule 13d-1(k) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing of
a Statement of Schedule 13D (including amendments thereto) with respect to the
common stock, par value $0.01, of Community Care Services, Inc., a New York
corporation, and further agrees that this Joint Filing Agreement be included as
an Exhibit to such filings provided that, as contemplated by Section
13d-1(k)(1)(ii), no person shall be responsible for the completeness or accuracy
of the information concerning the other persons making the filing, unless such
person knows or has reason to believe that such information is inaccurate. This
Joint Filing may be executed in any number of counterparts, all of which
together shall constitute one and the same instrument.
LTTR HOME CARE, LLC
By:\s\ Alan J. Landauer
-----------------------------------
Alan J. Landauer
Managing Director
LANDAUER HOSPITAL SUPPLIES INC.
By:\s\ Alan J. Landauer
-----------------------------------
Alan J. Landauer
President and Chairman of the Board
ALAN J. LANDAUER
By:\s\ Alan J. Landauer
-----------------------------------
Alan J. Landauer
<PAGE>
Page 10 of
SHAREHOLDERS' AGREEMENT Exhibit B
This Agreement is dated as of June 14, 1999, by and between Landauer
Hospital Supplies Inc., a New York corporation (the "Buyer"), and Dean L.
Sloane, Mary Sloane, Craig V. Sloane, and The Sloane Family Foundation and DMJ
Management Group, Inc., (each, a "Shareholder" and collectively, the "Sloane
Group").
Concurrently herewith, the Buyer and Community Care Services, Inc. (the
"Company") are entering into the Merger Agreement, pursuant to which LHS Merger
Sub Inc., a wholly owned subsidiary of Buyer ("Transitory Subsidiary") will
merge with and into the Company with the shareholders of the Company receiving
the Merger Consideration therefor.
As an inducement and a condition to Buyer entering into the Merger
Agreement, the Buyer requires that the Shareholders enter into, and the
Shareholders have agreed to enter into, this Agreement with the Buyer.
In order to implement the foregoing and in consideration of the mutual
agreements contained herein, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not defined shall
have the meaning set forth in the Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"). The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"COMPANY COMMON STOCK" means the common stock, $.01 par value per
share, of the Company.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") means the possession, directly or indirectly or as a trustee or
executor, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of stock, as a trustee or
executor, by contract or credit arrangement or otherwise.
"EXISTING SHARES" has the meaning ascribed thereto in ss.2(a)(i).
"LETTER AGREEMENT" means the agreement dated April 5, 1999 by and among
LTTR Home Care, LLC, an affiliate of the Buyer, and the members of the Sloane
Group.
"PERMITTED TRANSFEREE" means in the case of any Shareholder, (a) a
spouse or lineal descendent (including by adoption and stepchildren), heir,
executor, testamentary trustee or legatee
<PAGE>
Page 11 of 19
of such Shareholder or (b) any trust or estate the beneficiaries of which, or
any corporation, limited liability company or partnership, the shareholders,
members or partners of which include only the Persons described in clause (a)
above or corporation wholly owned by such Persons.
"SHARES" means the Existing Shares, together with any shares of Company
Common Stock acquired of record or beneficially by any Shareholder after the
date hereof and prior to the Termination Date, upon any change in the Company
Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like.
"SLOANE GROUP" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"SHAREHOLDER" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"TERMINATION DATE" has the meaning ascribed thereto in ss.9 of this
Agreement.
"TRUSTEE" has the meaning ascribed thereto in ss.2(a)(i) at this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each Shareholder
hereby, severally and not jointly, represents and warrants to the Buyer as
follows:
(a) (i) such Shareholder is either (A) the record holder or
beneficial owner of or (B) trustee of a trust that is the record holder or
beneficial owner of, and whose beneficiaries are the beneficial owners (such
trustee, a "Trustee") of the number of shares of Company Common Stock set forth
opposite such Shareholder's name on Schedule 1 hereto (the "Existing Shares").
(ii) On the date hereof, the Existing Shares set
forth opposite such Shareholder's name on Schedule 1 hereto
constitute all of the outstanding shares of Company Common
Stock owned of record or beneficially by such Shareholder.
Such Shareholder does not have record or beneficial ownership
of any Shares not set forth in Schedule 1 hereto.
(iii) Such Shareholder has sole power of disposition
with respect to all of the Existing Shares set forth opposite
such Shareholder's name on Schedule 1 hereto and sole voting
power with respect to the matters set forth in ss.4 hereof and
sole power to demand dissenter's or appraisal rights, in each
case with respect to all of the Existing Shares set forth
opposite such Shareholder's name on Schedule 1 hereto, with no
restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
(b) Such Shareholder has the legal capacity, power and
authority to enter into and perform all of such Shareholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
such Shareholder will not violate any other agreement to which such Shareholder
is a party or by which such Shareholder is bound including, without limitation,
any trust agreement, voting agreement, shareholders agreement, voting trust,
partnership or other agreement. This Agreement has been duly and validly
executed and delivered by such Shareholder and constitutes a valid and binding
agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except as limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditor's rights
generally, (b) general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law,
<PAGE>
Page 12 of 19
and to the discretion of the court before which any proceeding therefore may be
brought, or (c) public policy considerations or court decisions which may limit
the rights of the parties thereto for indemnification. All necessary consents of
any beneficiary of or holder of interest in any trust of which a Shareholder is
Trustee to the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been obtained. If such Shareholder is
married and such Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Shareholder's spouse, enforceable against such person in
accordance with its terms.
(c) (i) No filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated hereby and (ii) neither the
execution and delivery of this Agreement by such Shareholder nor the
consummation by such Shareholder of the transactions contemplated hereby nor
compliance by such Shareholder with any of the provisions hereof shall (x)
conflict with or result in any breach of any applicable trust, partnership
agreement or other agreements applicable to such Shareholder, (y) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which such Shareholder is a party or by which such
Shareholder or any of such Shareholder's properties or assets may be bound or
(z) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to such Shareholder or any of such Shareholder's
properties or assets.
(d) Such Shareholder's Shares and the certificates
representing such Shares are now and at all times during the term hereof will be
held by such Shareholder, or by a nominee or custodian for the benefit of such
Shareholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder.
(e) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Shareholder in his
or her capacity as such.
(f) Each Shareholder understands and acknowledges that the
Buyer is entering into the Merger Agreement in reliance upon such Shareholder's
execution and delivery of this
Agreement with the Buyer.
(g) No Shareholder has breached any of the provisions of the
Letter Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby
represents and warrants to the Shareholders as follows:
(a) The Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The Buyer has all necessary power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by the Buyer of this Agreement
and the consummation by the Buyer of the transactions
<PAGE>
Page 13 of 19
contemplated hereby have been duly and validly authorized and approved by all
required corporate action. This Agreement has been duly executed and delivered
by the Buyer, and (assuming due authorization, execution and delivery by the
Shareholders) constitutes a valid and binding obligation of the Buyer,
enforceable against it in accordance with its terms, except as limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditor's rights generally, (b) general principles of equity,
whether such enforceability is considered in a proceeding in equity or at law,
and to the discretion of the court before which any proceeding therefor may be
brought, or (c) public policy considerations or court decisions which may limit
the rights of the parties thereto for indemnification.
(c) The execution and delivery of this Agreement does not, and
the consummation by the Buyer of the transactions contemplated by this Agreement
and compliance by the Buyer with the provisions of this Agreement will not,
conflict with, or result in any breach or violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of or "put" right with respect to any
obligation or to loss of a material benefit under, or result in the creation of
any lien upon any of the properties or assets of the Buyer under, (i) the
articles of organization of the Buyer, (ii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to the Buyer or its properties or
assets or (iii) any judgment, order, decree, statute, law, ordinance, rule,
regulation or arbitration award applicable to the Buyer or its properties or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, or notice to, any state or federal public body or
authority is required by or with respect to the Buyer in connection with the
execution and delivery of this Agreement by the Buyer or the consummation by the
Buyer of any of the transactions contemplated by this Agreement.
4. AGREEMENT TO VOTE; PROXY
(a) Each Shareholder hereby agrees that, until the Termination
Date (as defined in Section 9), at any meeting of the shareholders of the
Company, however called, or in connection with any written consent of the
Company's shareholders, such Shareholder shall vote (or cause to be voted) the
Shares held of record or beneficially by him (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
of the terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance hereof and
thereof; (ii) against any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement; and (iii) against the following actions
(other than the Merger and the transactions contemplated by the Merger Agreement
or any such actions identified in writing by the Buyer in advance): (A) any
extraordinary corporate transaction, including, without limitation, a merger,
consolidation or other business combination involving the Company or its
Subsidiaries; (B) a sale, lease or transfer of a material amount of assets of
the Company or its Subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or its Subsidiaries; (C) any change in
the majority of the board of directors of the Company; (D) any material change
in the present capitalization of the Company or any amendment of the Company's
certificate of incorporation or by-laws; (E) any other material change in the
Company's corporate structure or business; or (F) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or materially adversely affect the Merger or the
transactions contemplated by the Merger Agreement or this Agreement. No
Shareholder shall enter into any agreement or understanding with any person or
entity to vote or give instructions in any manner inconsistent with clauses (i),
(ii) or (iii) of the preceding sentence.
<PAGE>
Page 14 of 19
(b) EACH SHAREHOLDER HEREBY GRANTS TO, AND APPOINTS,
THE BUYER AND ANY DESIGNEE OF THE BUYER, EACH OF THEM INDIVIDUALLY, SUCH
SHAREHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS SET
FORTH IN ss. 4 (a) ABOVE. EACH SHAREHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE
(UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY SUCH SHAREHOLDER WITH RESPECT TO SUCH SHAREHOLDER'S SHARES.
5. CERTAIN COVENANTS OF SHAREHOLDERS. Except in accordance with the
terms of this Agreement, each Shareholder hereby covenants and agrees as
follows:
(a) Prior to the Termination Date, no Shareholder shall, in
his capacity as such, directly or indirectly (including through advisors, agents
or other intermediaries), solicit (including by way of furnishing information)
or respond to any inquiries or the making of any proposal by any person or
entity (other than the Buyer or any Affiliate thereof) with respect to the
Company that constitutes or could reasonably be expected to lead to or encourage
the submission of any proposal or offer from any Person relating to the
acquisition of all or substantially all of the capital stock or assets of any of
the Company and its Subsidiaries (including any acquisition structured as a
merger, consolidation or share exchange); PROVIDED, HOWEVER, that the foregoing
shall not restrict such Shareholder from taking any actions in such
Shareholder's capacity as a director of the Company. If any Shareholder in his
capacity as such receives any such inquiry or proposal, then such Shareholder
shall promptly inform the Buyer of the material terms and conditions, if any, of
such inquiry or proposal and the identity of the person making it. Each
Shareholder, in his capacity as such, will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any of the foregoing.
(b) Prior to the Termination Date, no Shareholder shall,
directly or indirectly (i) except pursuant to the terms of the Merger Agreement
or this Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, enforce or permit the execution of the
provisions of any redemption agreement with the Company or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, or exercise any discretionary powers to
distribute, any or all of such Shareholder's Shares or any interest therein,
including any trust income or principal, except in each case to a Permitted
Transferee who is or agrees to become bound by this Agreement; (ii) except as
contemplated hereby, grant any proxies or powers of attorney with respect to any
Shares, deposit any Shares into a voting trust or enter into a voting agreement
with respect to any Shares; or (iii) take any action that would make any
representation or warranty of such Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Shareholder from
performing such Shareholder's obligations under this Agreement.
(c) Each Shareholder hereby (i) waives any rights of appraisal
or rights to dissent from the Merger that such Shareholder may have and (ii)
agrees not to exercise any such rights.
6. FURTHER ASSURANCES. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
<PAGE>
Page 15 of 19
7. CERTAIN EVENTS. Each Shareholder agrees that this Agreement and the
obligations hereunder shall attach to such Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Shareholder's heirs, guardians, administrators or
successors or as a result of any divorce.
8. STOP TRANSFER. Each Shareholder agrees with, and covenants to, the
Buyer that he shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Shareholder's Shares, unless such transfer is made
in compliance with this Agreement.
9. TERMINATION. The obligations of the Shareholders and the irrevocable
proxy contained in ss.4(b) of this Agreement shall terminate upon the first to
occur of (a) six (6) months after the date hereof, (b) the Effective Time and
(c) the date the Merger Agreement is terminated in accordance with its terms
(the "Termination Date"). None of the representations, warranties, covenants or
other agreements under this Agreement shall survive the Effective Time.
10. MISCELLANEOUS.
(a) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to the Shareholders: Dean L. Sloane
Community Medical Transport, Inc.
4 Gannett Drive
White Plains, New York 10604
Phone: (914) 697-9233
Fax: (914) 697-9255
copy to: Rosenman & Colin
575 Madison Avenue
New York, New York 10022
Attn: Joseph L. Getraer
Phone: (212) 940-8820
Fax: (212) 894-5820
If to the Buyer: Landauer Hospital Supplies, Inc.
99 Calvert Street
P.O. Box 839
Harrison, New York 10528
Attn: Alan J. Landauer
Phone: (914) 835-4301
Fax: (914) 835-5394
copy to: Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
Attention: Thomas N. Talley
Phone: (212) 912-7645
Fax: (212) 432-7152
<PAGE>
Page 16 of 19
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(b) WAIVER. At any time prior to the Effective Time, any party
hereto may, with respect to any other party hereto, (i) extend the time for the
performance of any of the obligations or other acts, (ii) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (iii) waive compliance with any of the agreements
or conditions contained herein. Any such extension or waiver shall be valid if
set forth in an instrument in writing signed by the party or parties to be bound
thereby.
(c) HEADINGS. The headings contained in this Agreement are for
the convenience of reference purposes only and shall not affect in any way the
meaning or interpretation of this
Agreement.
(d) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by the Merger Agreement is not
affected in any manner adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
party hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner.
(e) ENTIRE AGREEMENT. This Agreement, including all exhibits
and schedules hereto, constitutes the entire agreement and supersedes all prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof.
(f) SUCCESSION AND ASSIGNMENT. Neither this Agreement nor any
of the rights or obligations hereunder may be assigned by any party (whether by
operation of law or otherwise) without the prior written consent of the other
party hereto. Subject to the preceding sentence, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other Person shall have any right,
benefit or obligation under this Agreement as a third party beneficiary or
otherwise.
(g) SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms. It is
accordingly agreed that the parties hereto shall be entitled to specific
performance of the terms hereof, this being in addition to any other remedy to
which they are entitled at law or in equity.
(h) RIGHTS AND REMEDIES. No failure or delay on the part of
any party hereto in the exercise of any right hereunder shall impair such right
or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
(i) DIRECTOR'S FIDUCIARY DUTY. Notwithstanding anything herein
to the contrary, no Person executing this Agreement who is, or becomes during
the term hereof, a director of the Company makes any agreement or understanding
herein in his or her capacity as such director, and the agreements set forth
herein shall in no way restrict any director in the exercise of his or her
<PAGE>
Page 17 of 19
fiduciary duties as a director of the Company. Each Shareholder has executed
this Agreement solely in such Shareholder's capacity as the record or beneficial
holder of such Shareholder's Shares or as the trustee of a trust whose
beneficiaries are the beneficial owners of such Shareholder's Shares.
(j) EXPENSES. Each party agrees to bear its own expenses in
connection with the transactions contemplated hereby.
(k) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule that would
cause the application of the laws of any jurisdiction other than the State of
New York.
(l) TRIAL BY JURY. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN.
(m) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
* * *
<PAGE>
Page 18 of 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LANDAUER HOSPITAL SUPPLIES, INC.
By: \s\ Alan J. Landauer
----------------------------------
Name: Alan J. Landauer
Title: Chairman
THE SLOANE GROUP
\s\ Dean L. Sloane
----------------------------------
Dean L. Sloane
\s\ Mary Sloane
----------------------------------
Mary Sloane
\s\ Craig V. Sloane
----------------------------------
Craig V. Sloane
The Sloane Family Foundation
By: \s\ Dean L. Sloane
----------------------------------
Dean L. Sloane, Trustee
DMJ Management Group, Inc.
By: \s\ Deane L. Sloane
----------------------------------
Dean L. Sloane, President
<PAGE>
Page 19 of 19
Schedule 1
Name Number of Shares
---- ----------------
Dean L. Sloane 1,313,000
Mary Sloane 100,000
Craig V. Sloane 428,450
The Sloane Family Foundation 175,000
DMJ Management Group, Inc. 75,000
---------
Total 2,091,450
