<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 8, 1999
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------------
LANDAUER, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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Delaware 06-1218089
(State of Incorporation) (I.R.S. Employer Identification Number)
2 Science Road
Glenwood, Illinois 60425-1586
(708) 755-7000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
---------------------
Brent A. Latta
President and
Chief Executive Officer
Landauer, Inc.
2 Science Road
Glenwood, Illinois 60425-1586
(708) 755-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Larry A. Barden
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-7785
---------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined in
light of market conditions.
<PAGE>
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------
Common Stock, $.10 par value 300,000 shares $29.34375 $8,803,125.00 $2,447.27
============================================================================================================
</TABLE>
(1) Maximum number of shares which may be offered.
(2) The price per share, estimated solely for purposes of calculating the
registration fee pursuant to Rule 457(c), is based on the average of the
high and low prices per share as reported on the American Stock Exchange on
February 4, 1999.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
===============================================================================
<PAGE>
The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an
offer to sell these securities and it is not an offer to buy these securities in
any state where the offer or sale of these securities is not permitted.
SUBJECT TO COMPLETION,
FEBRUARY 8, 1999
PROSPECTUS
300,000 SHARES
LANDAUER, INC.
COMMON STOCK ($.10 PAR VALUE)
Our common stock is listed on the American Stock Exchange under the
trading symbol "LDR." On February 4, 1999, the last reported sale price of our
common stock on the American Stock Exchange was $29.25 per share.
---------------------
Dr. Marvin G. Schorr, the selling shareholder, may offer and sell from time
to time up to a maximum 300,000 shares of Landauer, Inc. common stock with this
prospectus. As of the date of this prospectus, Dr. Schorr is the Chairman of
the Board of Landauer. Landauer will not receive any proceeds from the sale of
the shares by Dr. Schorr.
Dr. Schorr may offer the shares of common stock through public or private
transactions, on or off the American Stock Exchange, at prevailing market prices
or at privately negotiated prices.
---------------------
INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 3 TO READ ABOUT CERTAIN RISKS THAT INVESTORS SHOULD CONSIDER
BEFORE BUYING SHARES OF THE COMMON STOCK.
---------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the Landauer shares offered or sold
under this prospectus. These organizations have also not determined if this
prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is February [ ], 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Where You Can Find More Information. . . . . . . . . . . . . . . . . . . . . . 4
About Landauer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Selling Shareholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . 6
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
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FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements. We have based
these forward-looking statements on our current expectations and projections
about future events. These forward-looking statements are subject to various
risks, uncertainties and assumptions (including the following), many of which
are beyond our control:
- Our anticipated growth strategies.
- Our intention to implement new services.
- Anticipated trends in our business.
- Our ability to continue to maintain service quality.
- Our ability to operate effectively in international markets.
- Our ability to respond effectively to technological and regulatory
changes.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus may not occur.
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<PAGE>
RISK FACTORS
An investment in our common stock involves certain risks. In addition to
carefully reviewing the information contained in this prospectus, investors in
our common stock are encouraged to read the information contained in the reports
we file with the Securities and Exchange Commission that are incorporated by
reference herein. Prospective investors should particularly consider the
following factors:
WE OPERATE IN MATURE AND COMPETITIVE MARKETS
We derive most of our revenues from providing customers with dosimetry
services which monitor occupational and environmental radiation exposure. The
radiation dosimetry service market is a relatively mature market that is
experiencing modest rates of growth. Revenue growth in recent years has
resulted primarily from selective price increases, the addition of certain new
customer accounts and our ability to offer certain value-added services. Demand
for our services can be adversely affected by regulatory changes and cost
containment initiatives affecting the health care industry. In addition, the
market for radiation dosimetry services is highly competitive and companies
providing such services often attempt to add new accounts by lowering prices.
If we encounter increased price competition from other dosimetry providers or
from new entrants into the market, we may lose accounts or need to lower our
prices to maintain existing accounts. Such occurrences could adversely affect
our results of operations.
OUR LUXEL SERVICE IS STILL BEING INTRODUCED
In 1998, we introduced our Luxel service, which utilizes a new proprietary
technology which we believe will provide enhanced measurement performance. We
have not fully completed the roll-out of this new service, nor has the service
been in the marketplace long enough for us to evaluate fully customer acceptance
of such services and any difficulties or problems which we may experience in
using this technology. If, for example, the monitoring badges used with the
service are not able to be read with consistent accuracy, the service will not
provide the performance enhancement we anticipated. Such unforseen problems
with the service could have a significant impact on our business operations and
our market share.
YEAR 2000 DATE CONVERSION ISSUES COULD AFFECT OUR OPERATIONS
We are in the process of coordinating the further identification,
evaluation and implementation of changes to computer systems and applications
necessary to achieve a year 2000 date conversion with no effect on services to
clients or disruption to business operations. We have identified major areas of
potential business impact, and have taken initial conversion efforts. We are
also communicating with clients to identify and coordinate year 2000 conversion
issues. While we expect that our year 2000 conversion project will be completed
on a timely basis and within the anticipated budget of approximately
$2,100,000, which will be charged to expense as incurred except for that portion
which properly represents a capital expenditure, no assurance can be given in
that regard or that third-party computer systems and applications will not
experience problems associated with the recognition and processing of the year
2000 and beyond.
WE ARE EXPANDING INTERNATIONALLY
We are currently in the process of expanding our international operations.
We recently announced the establishment of joint ventures in Brazil and China
and expect to evaluate other expansion opportunities in the near future.
Pursuit of these opportunities will require us to operate in countries where we
do not have
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prior experience and in which we will rely, to a large extent, on the
management and services of third parties. Our international operations
present many of the same risks associated with our U.S. operations, but also
may have additional risks, such as:
- unexpected changes in regulatory requirements,
- heightened risks of political and economic instability,
- difficulties in managing international operations,
- potentially adverse tax consequences,
- foreign currency fluctuations,
- enhanced accounting and control expenses, and
- the burden of complying with a wide variety of foreign laws.
WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available over the Internet at the SEC's web site at http://www.sec.gov. You
may also read and copy any documents we file at the SEC's public reference
rooms in Washington D.C., New York, New York and Chicago, Illinois. Please
call the SEC at 1-800-SEC-0330 for more information on the public reference
rooms and their copy charges. You may also inspect our SEC reports and other
information at the American Stock Exchange, 86 Trinity Place, New York, New
York 10006.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to these documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until the selling shareholder sells all of the shares.
This prospectus is part of a registration statement we filed with the SEC
(Registration No. 333- _______ ).
- Annual report on Form 10-K for the fiscal year ended September 30,
1998
You may request copies of these filings, at no cost, by writing or
telephoning our corporate secretary at the following address:
James M. O'Connell
Vice President Finance, Treasurer
and Secretary
2 Science Road
Glenwood, Illinois 60425-1586
(708) 755-7000.
You should rely only on the information incorporated by reference or
provided by us in this prospectus or any supplement. We have not authorized
anyone else to provide you with different information. Dr. Schorr will not
make an offer of these shares in any state where the offer is not permitted.
You should not assume that the information in this prospectus or any
supplement is accurate as of any date other than the date on the front of
those documents.
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ABOUT LANDAUER
Landauer, Inc., is a Delaware corporation, organized in 1987 to carry
on the radiation monitoring business previously carried on by Tech/Ops, Inc.,
our predecessor. On February 1991, we changed our name from Tech/Ops
Landauer, Inc. to Landauer, Inc.
We are a leading provider of dosimetry services which monitor
occupational and environmental radiation exposure. Our service consists
primarily of providing clients on a regular basis with optically stimulated
luminescent photographic film and thermoluminescent badges that can be worn
by client personnel to measure exposure to x-rays, gamma radiation and other
penetrating ionizing radiation. Our clients include hospitals, medical and
dental offices, universities and national laboratories, nuclear power plants
and other industries in which radiation poses a potential threat to
employees.
While most of our revenues are derived from clients in the United
States, we also provide our radiation monitoring services to clients in the
United Kingdom, Canada and Japan. In 1998, we purchased a 75% interest in
the leading dosimetry service provider in Brazil, named SAPRA-Landauer,
purchased radiation monitoring services previously operated by REM and
established Beijing-Landauer, a 70% Landauer-owned joint venture in China.
Our dosimetry services include:
- the manufacture of various types of radiation detection monitors;
- the distribution and collection of monitors to and from clients; and
- the analysis and reporting of exposure findings.
In 1998, we introduced our Luxel service, which utilizes our new
proprietary, optically stimulated luminescent technology. The Luxel service
is expected to provide enhanced radiation measurement performance and
customer benefits as well as cost and quality improvements.
USE OF PROCEEDS
Landauer will not receive any proceeds from the sale of shares of common
stock by Dr. Schorr.
SELLING SHAREHOLDER
Pursuant to this prospectus, Dr. Schorr may offer and sell from time to
time up to 300,000 shares of common stock. Dr. Schorr, who is 73 years old,
has advised us that he is offering the shares to diversify his holdings and
for estate planning purposes.
Dr. Schorr has served as the Chairman of the Board of Directors of
Landauer since January 1988; however, he has advised the Board that, while
he intends to remain a director of Landauer, he does not intend to continue
to serve as Chairman. As of December 31, 1998, Dr. Schorr beneficially
owned 571,556 shares of Landauer common stock. Before the offering Dr.
Schorr will own 6.6% of the common stock. Assuming
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he sells all of his offered shares, Dr. Schorr will own 3.1% after the
offering. Dr. Schorr acquired his offered shares primarily in connection
with the Plan of Reorganization and Dissolution of Tech/Ops, Inc. in January
1988. At the time of reorganization and dissolution of Tech/Ops,Inc.,
Dr. Schorr was Chairman of the Board of Directors of Tech/Ops, Inc. In the
reorganization and dissolution transaction, Tech/Ops, Inc. transferred its
personnel dosimetry business to us and our shares were distributed to the
former stockholders of Tech/Ops, Inc.
DESCRIPTION OF CAPITAL STOCK
The following statements are brief summaries of certain provisions of the
Company's Certificate of Incorporation, as amended (incorporated by reference as
an Exhibit to the registration statement).
GENERAL
The Company's Certificate of Incorporation currently authorizes the
issuance of 20 million shares of common stock and 1 million shares of preferred
stock in series. As of the date of this prospectus, 8,654,009 shares of common
stock were issued and outstanding and no shares of preferred stock were
outstanding.
PREFERRED STOCK
The Company's Board of Directors is authorized to provide for the issuance
of shares of preferred stock, in one or more series, and to fix for each series
such voting powers, designations, limitations or restrictions as are stated in
the resolution adopted by the Board providing for the issuance of such series
and as permitted by the Delaware General Corporation Law.
DIVIDEND RIGHTS
Holders of common stock are entitled to dividends when and as declared by
the Board of Directors; provided, however that Landauer has paid or declared and
set apart for payment any dividends on any outstanding shares of preferred stock
from the same dividend period.
VOTING RIGHTS
Holders of common stock are entitled to one vote for each share on all
matters on which shareholders are entitled to vote. The holders of common stock
have exclusive voting power for the election of directors and for all other
matters except as otherwise provided by law or by resolutions providing for the
issue of a series of preferred stock.
LIQUIDATION RIGHTS
Upon any liquidation, dissolution or winding-up of Landauer, the holders of
the preferred stock are entitled to receive their full preferential amount,
before any amounts or remaining assets shall be paid or distributed to the
holders of common stock.
NO PREEMPTIVE RIGHTS
No holder of any shares of common stock has any preemptive right to
subscribe to any securities of Landauer of any kind or class.
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TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is American Stock
Transfer Company.
PLAN OF DISTRIBUTION
Dr. Schorr may offer the shares at various times in one or more of the
following transactions:
- to underwriters who will acquire the shares for their own account and
resell them in one or more transactions;
- in ordinary brokerage transactions (including block trades) on the
American Stock Exchange;
- in special offerings, negotiated transactions or secondary
distributions;
- in private sales; or
- in a combination of any of the above transactions.
Dr. Schorr may sell the shares at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or at fixed prices.
Dr. Schorr may use broker-dealers to sell the shares. If this happens, the
broker-dealers will either receive discounts or commissions from Dr. Schorr, or
they will receive commissions from purchasers of shares for whom they acted as
agent. If required, a supplement to this prospectus will set forth the
applicable commission or discount, if any, and the names of any underwriters,
brokers, dealers or agents involved in the sale of shares. Dr. Schorr and any
underwriters, brokers, dealers or agents that participate in the distribution of
the common stock offered hereby may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended, and any profit on the sale of
shares by them and any discounts, commissions, concessions and other
compensation received by such underwriter, broker, dealer or agent may be deemed
to be underwriting discounts and commissions under such Act.
Pursuant to a Registration Agreement between Landauer and Dr. Schorr, we
have agreed to pay certain expenses associated with the preparation and filing
of the registration statement and this prospectus relating to the offering of
shares by Dr. Schorr. We currently estimate that such expenses will be
approximately $24,000. We have also agreed to indemnify Dr. Schorr for certain
liabilities under the Securities Act of 1933, as amended, or to contribute to
payments made in respect thereof.
We will supply Dr. Schorr and the American Stock Exchange with reasonable
quantities of copies of this prospectus.
LEGAL MATTERS
For the purpose of this offering, the law firm of Sidley & Austin,
Chicago, Illinois will issue an opinion to us on the validity of the issuance of
the offered shares.
7
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EXPERTS
Arthur Andersen LLP, independent public accountants, audited our
consolidated financial statements and schedules incorporated by reference in
this prospectus and in the registration statement. These documents are
incorporated by reference in reliance upon the authority of Arthur Andersen LLP
as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by the Company in connection with
the offering and distribution of the Common Stock registered hereunder are as
follows:
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee . . . . . . . $ 2,447.27
Legal fees and expenses . . . . . . $15,000.00*
Accounting fees and expenses . . . $ 3,000.00*
Miscellaneous . . . . . . . . . . . $ 3,552.73*
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Total fees and expenses . . . . $24,000.00
</TABLE>
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* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation of the Company, as amended, provides that
no director of the Company shall be personally liable to the Company or its
shareholders for monetary damages for any breach of fiduciary duty as a
director, except for liability: (i) for any breach of the director's duty of
loyalty to the Company or its shareholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law (involving
certain unlawful dividends or stock purchases or redemptions) or (iv) for any
transaction from which the director derived an improper personal benefit. The
Certificate of Incorporation also provides that any repeal or modification of
such provisions shall not adversely affect any right or protection of a director
of the Company for any act or omission occurring prior to the date when such
repeal or modification became effective.
Under Section 145 of the Delaware General Corporation Law, a corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding (i) if such person acted in good
faith and in a manner that such person reasonably believed to be in or not
opposed to the best interests of the corporation and (ii) with respect to any
criminal action or proceeding, if such person had no reasonable cause to believe
such conduct was unlawful. A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the
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extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnification
for such expenses which the Court of Chancery or such other court shall deem
proper. Any indemnification discussed above (unless ordered by a court) shall
be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth above. Such determination shall be
made (1) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum or (2) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the shareholders. To the extent that
any person has been successful on the merits or otherwise in defending any
action, suit or proceeding referred to above, or in defense of any claim,
issue or matter therein, such person is entitled to indemnification for
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith. Expenses (including attorneys' fees) incurred
by an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it is ultimately determined that such officer or
director is not entitled to be indemnified by the corporation as authorized
in Section 145 of the Delaware General Corporation Law. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate. The indemnification and advancement of expenses provided for, or
granted pursuant to, Section 145 of the Delaware General Corporation Law is
not exclusive of any other rights of indemnification or advancement of
expenses to which those seeking indemnification or advancement of expenses
may be entitled, and a corporation may purchase and maintain insurance
against liabilities asserted against any former or current director, officer,
employee or agent of the corporation, or a person who is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
whether or not the power to indemnify such person is provided by Section 145
of the Delaware General Corporation Law.
The Bylaws of the Company provide that (i) the Company is required to
indemnify any person who was or is a party, or has been threatened to be made
a party, to any threatened, pending or completed civil, criminal,
administrative or investigative proceeding or action by reason of that
person's participation as a director or officer of the Company or because
that person was serving at the request of the Company as a director or
officer of another company; (ii) the Company is required to indemnify any
officer or director of the Company, or any officer or director of another
company who served in such capacity at the request of the Company , who was
or is a party, or has been threatened to be made a party, to any threatened,
pending or completed action or suit by the Company against that officer or
director; provided that such officer or director acted in good faith and in a
manner reasonably believed to be in the best interest of the Company; (iii)
the Company may advance expenses to its officers and directors as incurred,
provided that they undertake to repay the amount advanced if it is ultimately
determined that they are not entitled to indemnification; (iv) the
indemnification provisions outlined in the Bylaws do not preclude any
individual from seeking indemnity or an advancement of expenses under any
other by-law, agreement, contract, vote of shareholders or disinterested
directors, or pursuant to the direction of any court of competent
jurisdiction. In addition, the Bylaws provide that the Company may purchase
and maintain liability insurance for any person who is or was a director of
the Company, or who is or was serving at the request of the Company on
another corporation, partnership, joint venture, trust or other enterprise,
against any causes of action that might be asserted against such person by
reasons of their actions as such officer or director.
The Company is a party to indemnification agreements with each of its
directors, each of which provides for indemnification of its directors and
officers against certain liabilities incurred in their capacities as such,
which may include liabilities under the Securities Act.
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The Company also maintains a directors' and officers' liability insurance
policy which provides for indemnification of its directors and officers against
certain liabilities incurred in their capacities as such, which may include
liabilities under the Securities Act.
ITEM 16. EXHIBITS.
The following is a list of Exhibits included as part of this Registration
Statement. Items marked with an asterisk are filed herewith.
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
3.1 Certificate of Incorporation of the Company, as amended through
February 4, 1993 (incorporated by reference to Exhibit 3(a) to the
Annual Report on Form 10-K for the fiscal year ended September 30,
1993).
3.2 By-laws of the Company (incorporated by reference to Exhibit 3(b)
to the Annual Report on Form 10-K for the fiscal year ended
September 30, 1992).
*5.1 Opinion of Sidley & Austin.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Sidley & Austin (contained in Exhibit 5.1 hereto).
*24.1 Powers of Attorney (included on signature pages).
*99.1 Registration Agreement dated as of February 8, 1999 between the
Company and Marvin G. Schorr
</TABLE>
____________________
* filed herewith
ITEM 17. UNDERTAKINGS.
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
Section 1. To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering
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range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Section 2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Section 3. To remove from registration by means of a post-effective
amendment to the Registration Statement any of the securities being registered
which remain unsold at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Policy Regarding Indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the village of Glenwood, State of Illinois, on this 3rd day of
February 1999.
LANDAUER, INC.
By: /s/ Brent A. Latta
-----------------------------------------
Brent A. Latta
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brent A. Latta and James M. O'Connell and each of
them, his or her true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement (including post-effective amendments), and any
registration statement for the same offering covered by this Registration
Statement that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Brent A. Latta President and Chief Executive February 3, 1999
- ------------------------- Officer (Principal Executive
Brent A. Latta Officer) and Director
/s/ James M. O'Connell Vice President Finance, February 3, 1999
- ------------------------- Treasurer, Secretary
James M. O'Connell (Principal Financial
and Accounting Officer)
/s/ Robert J. Cronin Director February 3, 1999
- -------------------------
Robert J. Cronin
/s/ Gary D. Eppen Director February 3, 1999
- -------------------------
Gary D. Eppen
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Thomas M. Fulton Director February 3, 1999
- -------------------------
Thomas M. Fulton
/s/ Richard R. Risk Director February 3, 1999
- -------------------------
Richard R. Risk
/s/ Paul B. Rosenberg Director February 3, 1999
- -------------------------
Paul B. Rosenberg
/s/ Marvin G. Schorr Director February 3, 1999
- -------------------------
Marvin G. Schorr
/s/ Michael D. Winfield Director February 3, 1999
- -------------------------
Michael D. Winfield
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
The following is a list of Exhibits included as part of this Registration
Statement. Items marked with an asterisk are filed herewith.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
3.1 Certificate of Incorporation of the Company, as amended through
February 4, 1993 (incorporated by reference to Exhibit 3(a) to the
Annual Report on Form 10-K for the fiscal year ended September 30,
1993).
3.2 By-laws of the Company (incorporated by reference to Exhibit 3(b) to
the Annual Report on Form 10-K for the fiscal year ended September 30,
1992).
*5.1 Opinion of Sidley & Austin.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Sidley & Austin (contained in Exhibit 5.1 hereto).
*24.1 Powers of Attorney (included on signature pages).
*99.1 Registration Agreement dated as of February 8, 1999 between the
Company and Marvin G. Schorr.
</TABLE>
____________________
* filed herewith
II-7
<PAGE>
EXHIBIT 5.1
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
TELEPHONE 312: 853-7000
FACSIMILE 312: 853-7036
February 8, 1999
Landauer, Inc.
2 Science Road
Glenwood, Illinois 60425-1586
Re: Landauer, Inc.
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the
"Registration Statement") being filed by Landauer, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the sale and transfer of up to 300,000 shares (the "Shares") of
common stock, par value $.10 per share, of the Company by Dr. Marvin G.
Schorr, the Chairman of the Board of the Company.
We are familiar with the proceedings to date with respect to the
proposed sale and transfer of the Shares and have examined such records,
documents and questions of law, and have satisfied ourselves as to such
matters of fact, as we have considered relevant and necessary as a basis for
this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Delaware.
2. The Shares are legally issued, fully paid and nonassessable.
We do not find it necessary for the purposes of this opinion to
cover, and accordingly we express no opinion as to, the application of the
securities or "Blue Sky" laws of the various states to the sale and transfer
of the Shares.
<PAGE>
Landauer, Inc.
February 8, 1999
Page 2
This opinion is limited to the General Corporation Law of the State
of Delaware and the laws of the United States of America..
We hereby consent to the filing of this opinion as an Exhibit to
the Registration Statement and to all references to our firm included in or
made a part of the Registration Statement.
Very truly yours,
/s/ Sidley & Austin
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated
October 31, 1998 included in Landauer, Inc.'s Form 10-K for the year ended
September 30, 1998 and all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Chicago, Illinois
February 8, 1999
<PAGE>
EXHIBIT 99.1
REGISTRATION AGREEMENT
DATED AS OF FEBRUARY 8, 1999
BETWEEN
LANDAUER, INC.
AND
MARVIN G. SCHORR
<PAGE>
REGISTRATION AGREEMENT
REGISTRATION AGREEMENT (this "Agreement") dated as of February 8, 1999
between Landauer, Inc. (the "Company") and Marvin G. Schorr (the "Holder").
WITNESSETH
WHEREAS, the Company has agreed to Register Shares of the Holder;
WHEREAS, the parties hereto hereby desire to set forth the Holders'
rights and the Company's obligations to cause the registration of the Shares
pursuant to the Securities Act;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS AND USAGE.
As used in this Agreement:
1.1. DEFINITIONS.
AGENT. "Agent" means the principal placement agent on any
agented placement of Shares.
COMMISSION. "Commission" shall mean the Securities and
Exchange Commission.
COMMON STOCK. "Common Stock" shall mean the common stock, par
value $.10 per share, of the Company.
EXCHANGE ACT. "Exchange Act" shall mean the Securities
Exchange Act of 1934.
HOLDER. "Holder" shall have the meaning set forth in the first
paragraph.
PERSON. "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or other
agency or political subdivision thereof.
REGISTER, REGISTERED AND REGISTRATION. "Register",
"registered", and "registration" shall refer to a registration effected by
preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering by the
Commission of effectiveness of such registration statement or document.
REGISTRATION EXPENSES. "Registration Expenses" shall have the
meaning set forth in SECTION 4.1.
-1-
<PAGE>
REGISTRATION STATEMENT. "Registration Statement" shall have
the meaning set forth in SECTION 2.1.
SECURITIES ACT. "Securities Act" shall mean the Securities Act
of 1933.
SHARES. "Shares" shall mean up to 300,000 shares of Common
Stock held by the Holder on the date of this Agreement.
TRANSFER. "Transfer" shall mean and include the act of
selling, giving, transferring, creating a trust (voting or otherwise),
assigning or otherwise disposing of (other than pledging, hypothecating or
otherwise transferring as security) (and correlative words shall have
correlative meanings); PROVIDED HOWEVER, that any transfer or other
disposition upon foreclosure or other exercise of remedies of a secured
creditor after an event of default under or with respect to a pledge,
hypothecation or other transfer as security shall constitute a "Transfer".
UNDERWRITERS' REPRESENTATIVE. "Underwriters' Representative"
shall mean, with respect to any underwritten offering of Shares, the managing
underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
VIOLATION. "Violation" shall have the meaning set forth in
SECTION 5.1.
1.2. USAGE.
(i) References to a Person are also references to its
assigns and successors in interest.
(ii) References to Shares "owned" by the Holder shall
include Shares beneficially owned by the Holder but which are held of record
in the name of a nominee, trustee, custodian, or other agent.
(iii) References to a document are to it as amended,
waived and otherwise modified from time to time and references to a statute
or other governmental rule are to it as amended and otherwise modified from
time to time (and references to any provision thereof shall include
references to any successor provision).
(iv) References to Sections are to sections hereof,
unless the context otherwise requires.
(v) The definitions set forth herein are equally
applicable both to the singular and plural forms and the feminine, masculine
and neuter forms of the terms defined.
(vi) The term "including" and correlative terms shall
be deemed to be followed by "without limitation" whether or not followed by
such words or words of like import.
-2-
<PAGE>
(vii) The term "hereof" and similar terms refer to this
Agreement as a whole.
(viii) The "date of" any notice or request given
pursuant to this Agreement shall be determined in accordance with SECTION 8.
SECTION 2. REGISTRATION PROCEDURES. To effect the registration of
the Shares, the Company shall, as expeditiously as practicable:
2.1. Prepare and file with the Commission a registration
statement on Form S-3 with respect to the Shares (the "Registration
Statement") and use the Company's reasonable efforts to cause such
registration statement to become effective.
2.2. Prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of the
Securities Act and rules thereunder with respect to the disposition of the
Shares. If the registration is for an underwritten offering, the Company
shall amend the Registration Statement or supplement the prospectus thereto
whenever required by the terms of the underwriting agreement entered into
pursuant to SECTION 3.2 and to include the names of the underwriters and the
planned methods of distribution. Pending such amendment or supplement the
Holder shall cease making offers or Transfers of Shares pursuant to the prior
prospectus. The Company shall maintain the effectiveness of the Registration
Statement until the earlier of (i) ninety (90) days after the Holder is no
longer a director of the Company, or (ii) until all of the Shares are sold.
In the event that any Shares included in the Registration Statement remain
unsold at the end of the period during which the Company is obligated to use
reasonable efforts to maintain the effectiveness of such registration
statement, the Company may file a post-effective amendment to such
registration statement for the purpose of removing such Shares from
registered status.
2.3. Furnish to the Holder, without charge, such numbers of
copies of the Registration Statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and
any amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other
related documents as the Holder may reasonably request in order to facilitate
the disposition of the Shares.
2.4. Use the Company's reasonable efforts (i) to register and
qualify the Shares under such other securities or Blue Sky laws of such
states or jurisdictions as shall be reasonably requested by the Underwriters'
Representative or Agent, and (ii) to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of
the offer and Transfer of any of the Shares in any jurisdiction, at the
earliest possible moment; PROVIDED, HOWEVER, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
-3-
<PAGE>
2.5. In the event of any underwritten or agented offering,
enter into and perform the Company's obligations under an underwriting or
agency agreement (including indemnification and contribution obligations of
underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering. The Company
shall also cooperate with the Holder, and the Underwriters' Representative or
Agent for such offering in the marketing of the Shares, including making
available the Company's officers, accountants, counsel, premises, books and
records for such purpose, but the Company shall not be required to incur any
material out-of-pocket expense pursuant to this sentence.
2.6. Promptly notify the Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith (and take
all reasonable actions required to prevent the entry of such stop order or to
remove it if entered).
2.7. Make available for inspection by the Holder, any
underwriter participating in such offering and the representatives of the
Holder and underwriter, all financial and other information as shall be
reasonably requested by them, and provide the Holder, any underwriter
participating in such offering and the representatives of the Holder and
underwriter the reasonable opportunity to discuss the business affairs of the
Company with its principal executives and independent public accountants who
have certified the audited financial statements included in the Registration
Statement, in each case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; PROVIDED, HOWEVER, that
information that the Company determines, in good faith, to be confidential
and which the Company advises such Person in writing, is confidential shall
not be disclosed unless such Person signs a confidentiality agreement
reasonably satisfactory to the Company or the Holder agrees to be responsible
for such Person's breach of confidentiality on terms reasonably satisfactory
to the Company.
2.8. In the event of any underwritten offering, use the
Company's reasonable efforts to obtain a so-called "comfort letter" from its
independent public accountants, and legal opinions of counsel to the Company
addressed to the Underwriters' Representative, in customary form and covering
such matters of the type customarily covered by such letters. The Company
shall furnish to the Holder a signed counterpart of any such comfort letter
or legal opinion. Delivery of any such opinion or comfort letter shall be
subject to the Holder furnishing such written representations or
acknowledgments as are customarily provided by selling shareholders who
request or receive such comfort letters or opinions.
2.9. Provide and cause to be maintained a transfer agent and
registrar for the Shares from and after a date not later than the effective
date of the Registration Statement.
2.10. Use reasonable efforts to cause the Shares covered by
the Registration Statement (i) to be listed on a securities exchange or
included for quotation in a recognized trading market for a reasonable period
of time after the offering, and (ii) to be registered with or approved by
such other United States or state governmental agencies or authorities as may
be necessary by virtue of the business and operations of the Company to
enable the Holder to consummate the disposition of the Shares.
-4-
<PAGE>
SECTION 3. HOLDERS' OBLIGATIONS. 3.1. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
this Agreement with respect to the Shares of the Holder that the Holder shall:
(a) Furnish to the Company such information regarding the
Holder, the number of the shares of Common Stock owned by the Holder, and the
intended method of disposition of such securities as shall be required to
effect the registration of the Shares, and to cooperate with the Company in
preparing such registration; and
(b) In the case of an underwritten offering, execute the
underwriting agreement agreed to by the Company and the Holder.
3.2. Upon the completion of the sale of the Shares pursuant to
this Agreement, the Holder shall promptly notify the Company of such
completion.
SECTION 4. EXPENSES OF REGISTRATION. Expenses in connection with
registration of the Shares shall be allocated and paid as follows:
4.1. The Company shall bear and pay all expenses incurred in
connection with the registration, filing, or qualification of the Shares,
including all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or
blue sky laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the reasonable fees and disbursements of
counsel for the Company, and of the Company's independent public accountants,
(the "Registration Expenses") (which right may be Transferred to any Person
to whom Shares are Transferred as permitted by SECTION 7), but excluding
underwriting discounts and commissions relating to the Shares (which shall be
paid by the Holder).
4.2. Any failure of the Company to pay any Registration
Expenses as required by this SECTION 5 shall not relieve the Company of its
obligations under this Agreement.
SECTION 5. INDEMNIFICATION; CONTRIBUTION. Upon the registration
of the Shares pursuant to this Agreement:
5.1. To the extent permitted by applicable law, the Company
shall indemnify and hold harmless the Holder, each Person, if any, who
controls the Holder within the meaning of the Securities Act, and each
officer, director, partner, and employee of the Holder and such controlling
Person, against any and all losses, claims, damages, liabilities and expenses
(joint or several), including attorneys' fees and disbursements and expenses
of investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may become subject under the Securities Act, the Exchange Act or
other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, including any
preliminary prospectus or final prospectus contained therein, or any
amendments or supplements thereto;
-5-
<PAGE>
(ii) The omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading; or
(iii) Any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any applicable state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any applicable state securities law;
PROVIDED, HOWEVER, that the indemnification required by this SECTION 5.1
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or expense if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or expense to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished to the Company by the indemnified party expressly for
use in connection with such registration; PROVIDED, FURTHER, that the
indemnity agreement contained in this SECTION 5 shall not apply to any
underwriter to the extent that any such loss is based on or arises out of an
untrue statement or alleged untrue statement of a material fact, or an
omission or alleged omission to state a material fact, contained in or
omitted from any preliminary prospectus if the final prospectus shall correct
such untrue statement or alleged untrue statement, or such omission or
alleged omission, and a copy of the final prospectus has not been sent or
given to such person at or prior to the confirmation of sale to such person
if such underwriter was under an obligation to deliver such final prospectus
and failed to do so. The Company shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Holder.
5.2. To the extent permitted by applicable law, the Holder
shall indemnify and hold harmless the Company, each of its directors, each of
its officers who shall have signed the Registration Statement, each Person,
if any, who controls the Company within the meaning of the Securities Act,
and each officer, director, partner or employee of such controlling Person,
against any and all losses, claims, damages, liabilities and expenses (joint
and several), including attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may otherwise become subject under the Securities Act, the Exchange
Act or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished by the
Holder expressly for use in connection with the registration of the Shares;
PROVIDED, HOWEVER, that (x) the indemnification required by this SECTION 5.2
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or expense if settlement is effected without the consent of
the Holder, which consent shall not be unreasonably withheld, and (y) in no
event shall the amount of any indemnity under this SECTION 5.2 exceed the
gross proceeds from the applicable offering received by the Holder.
-6-
<PAGE>
5.3. Promptly after receipt by an indemnified party under
this SECTION 5 of notice of the commencement of any action, suit, proceeding,
investigation or threat thereof made in writing for which such indemnified
party may make a claim under this SECTION 5, such indemnified party shall
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an
indemnified party shall have the right to retain its own counsel, with the
fees and disbursements and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time following
the commencement of any such action, if materially prejudicial to its ability
to defend such action, shall relieve such indemnifying party of any liability
to the indemnified party under this SECTION 5 but shall not relieve the
indemnifying party of any liability that it may have to any indemnified party
otherwise than pursuant to this SECTION 5. Any fees and expenses incurred by
the indemnified party (including any fees and expenses incurred in connection
with investigating or preparing to defend such action or proceeding) shall be
paid to the indemnified party, as incurred, within thirty (30) days of
written notice thereof to the indemnifying party (regardless of whether it is
ultimately determined that an indemnified party is not entitled to
indemnification hereunder). Any such indemnified party shall have the right
to employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding, or (iii) the named parties to any such action, claim or
proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to
it which are different from or in addition to those available to the
indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party
could not faithfully represent the indemnified party (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection
with any one such action, claim or proceeding or separate but substantially
similar or related actions, claims or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such
indemnified parties, unless in the reasonable judgment of such indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such action, claim or
proceeding, in which event the indemnifying party shall be obligated to pay
the fees and expenses of such additional counsel or counsels). No
indemnifying party shall be liable to an indemnified party for any settlement
of any action, proceeding or claim without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
-7-
<PAGE>
5.4. If the indemnification required by this SECTION 5 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
in this SECTION 5:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such Violation. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in SECTION
5.1 and SECTION 5.2, any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this SECTION 5.4 were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in
SECTION 5.4(i). No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
5.5. If indemnification is available under this SECTION 5,
the indemnifying parties shall indemnify each indemnified party to the full
extent provided in this SECTION 5 without regard to the relative fault of
such indemnifying party or indemnified party or any other equitable
consideration referred to in SECTION 5.4.
5.6. The obligations of the Company and the Holder under this
SECTION 5 shall survive the completion of any offering of Shares pursuant to
the Registration Statement and otherwise.
SECTION 6. AMENDMENT, MODIFICATION AND WAIVERS; FURTHER ASSURANCES.
6.1 This Agreement may be amended with the consent of the
Company and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company
shall have obtained the written consent of the Holder to such amendment,
action or omission to act.
6.2. No waiver of any terms or conditions of this Agreement
shall operate as a waiver of any other breach of such terms and conditions or
any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly
provides to
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the contrary, shall be construed to effect a continuing waiver of the
provisions being waived and no such waiver in any instance shall constitute a
waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for
all other purposes to require full compliance with such provision.
6.3 Each of the parties hereto shall execute all such
further instruments and documents and take all such further action as any
other party hereto may reasonably require in order to effectuate the terms
and purposes of this Agreement.
SECTION 7. ASSIGNMENT; BENEFIT. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, assigns, executors, administrators
or successors; PROVIDED, HOWEVER, that except as specifically provided herein
with respect to certain matters, neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned or delegated by
the Holder to any person who purchases such Shares from the Holder, unless
such transferee is an "affiliate" of the Company within the meaning of Rule
144(a)(1) adopted by the Commission pursuant to the Securities Act.
SECTION 8. MISCELLANEOUS.
8.1. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
GIVING REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
8.2. NOTICES. All notices and requests given pursuant to
this Agreement shall be in writing and shall be made by hand-delivery,
first-class mail (registered or certified, return receipt requested),
confirmed facsimile or overnight air courier guaranteeing next business day
delivery. Except as otherwise provided in this Agreement, the date of each
such notice and request shall be deemed to be, and the date on which each
such notice and request shall be deemed given shall be: at the time
delivered, if personally delivered or mailed; when actual confirmed receipt
is acknowledged, if sent by facsimile; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
business day delivery.
If to the Company, to:
Landauer, Inc.
2 Science Road
Glenwood, Illinois 60425
Attn: Brent A. Latta
Facsimile: (708) 755-7011
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with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attn: Larry Barden
Facsimile: (312) 853-7036
If to the Holder:
Dr. Marvin G. Schorr
Tech/Ops Corp.
24th Floor
One Beacon Street
Boston, MA 02108
Facsimile: (617) 523-0073
8.3. ENTIRE AGREEMENT; INTEGRATION. This Agreement
supersedes all prior agreements between or among any of the parties hereto
with respect to the subject matter contained herein and therein, and such
agreements embody the entire understanding among the parties relating to such
subject matter.
8.4. INJUNCTIVE RELIEF. Each of the parties hereto
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that in the event of
such a breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or
obtaining any such relief, the aggrieved party shall not be precluded from
seeking or obtaining any other relief to which it may be entitled.
8.5. SECTION HEADINGS. Section headings are for convenience
of reference only and shall not affect the meaning of any provision of this
Agreement.
8.6. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, and all of which
shall together constitute one and the same instrument. All signatures need
not be on the same counterpart.
8.7. SEVERABILITY. If any provision of this Agreement shall
be invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity and enforceability of the remaining provisions of this
Agreement, unless the result thereof would be unreasonable, in which case the
parties hereto shall negotiate in good faith as to appropriate amendments
hereto.
8.8. FILING. A copy of this Agreement and of all amendments
thereto shall be filed at the principal executive office of the Company with
the Corporate Secretary of the Company.
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8.9. TERMINATION. This Agreement may be terminated at any
time by a written instrument signed by the parties hereto. Unless sooner
terminated in accordance with the preceding sentence, this Agreement (other
than SECTION 5 hereof) shall terminate in its entirety on such date as there
shall be no Shares outstanding, PROVIDED that any Shares previously subject
to this Agreement shall not be Shares subject to this Agreement following the
sale of any such shares in an offering registered pursuant to this Agreement.
8.10. ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
8.11. NO THIRD PARTY BENEFICIARIES. Nothing herein expressed
or implied is intended to confer upon any person, other than the parties
hereto or their respective permitted assigns, successors, heirs and legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
LANDAUER, INC.
By: /s/ Brent A. Latta
-----------------------------
Name: Brent A. Latta
Title: President and CEO
/s/ Marvin G. Schorr
------------------------------
Marvin G. Schorr
