SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 29, 1996
LANDMARK INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
NEVADA
(State or other jurisdiction of incorporation)
0-26578 33-0662114
(Commission File Number) (IRS Employer Identification No.)
1720 East Garry, Suite 201, Santa Ana, California 92705
(Address of principal executive offices) (Zip Code)
1020 Prospect Street, Suite 200, La Jolla California 92037
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(Former address)
Registrant's telephone number, including area code: (714) 475-4500
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Item 1. Change in Control of Registrant.
Item 2. Acquisition or Disposition of Assets.
In an 8-K dated November 29, 1996, Landmark International, Inc.
(the "Registrant") announced that it had acquired La Jolla Securities
Corporation ("LJSC"), a member of the National Association of Securities
Dealers, Inc. ("NASD") pursuant to an Agreement and Plan of Reorganization (the
"Agreement") between the Registrant and LJSC dated November 29, 1996. On
December 31, 1996 the Registrant and LJSC mutually agreed to rescind the
Agreement, on the basis that compliance with the complexities of the SEC and
NASD regulations applicable to a publicly held brokerage firm was too costly to
a smaller broker dealer.
In connection with the recission Messrs. Craig and Bruce Biddick
resigned as officers and directors of the Registrant, resulting in Mr. William
Kettle as the sole executive officer and director.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits
2. Plan of acquisition, reorganization, arrange-
ment, liquidation or succession.
2.1. Agreement and Plan of Reorganization,
dated November 29, 1995 between the
Registrant and La Jolla Securities Corpo-
ration.
2.2 Mutual Recission of document included at
Exhibit 2.1 dated December 31, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Dated: January 8, 1997LANDMARK INTERNATIONAL, INC.
By:
President
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of November 29, 1996,
between LANDMARK INTERNATIONAL, INC., a California corporation ("LMKI"), 1720 E.
Garry, Suite 201, Santa Ana, California 92705 and LA JOLLA SECURITIES, INC., a
California corporation ("LJSI"), 1020 Prospect Street, Suite 200, La Jolla,
California
92037.
WHEREAS, the officers of LMKI and LJSI have negotiated and deem it
advisable and in the best interests of their respective stockholders to
consummate the business combination transaction provided for herein in which
LJSI would be acquired by LMKI on the terms and subject to the conditions
contained in this Agreement; and
WHEREAS, for Federal income tax purposes, it is intended that the
acquisition shall qualify as a reorganization under Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, and agreements set forth herein, THE
PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
REORGANIZATION
1.1 Reorganization. Subject to all of the terms and
conditions of this Agreement, at Closing, LJSI shall be acquired by
LMKI.
1.2 Operating Divisions. Upon the signing of this Agreement, the wholly
owned subsidiary of LMKI, S.T.M. COMMUNICATIONS, INC., shall become the
operating entity for the telecommunication business. All contracts with GTE and
Pacific Bell shall become the exclusive property of S.T.M. COMMUNICATIONS, INC.
All assets and liabilities relating to the operational aspects of the
telecommunication business shall become the property of S.T.M. COMMUNICATIONS,
INC. LMKI shall retain the following assets: Certificate of Deposit in the
Gemini Capital Fund $950,000.00, Barter Exchange Certificates $900,000.00, and
Note Receivable - Mesa Valley LLC $3,200,000.00. S.T.M. COMMUNICATIONS, INC.,
shall indemnify LMKI and LJSI against any and all liabilities arising from the
part or present telecommunication side of the business. CHAPMAN TRUST shall
surrender its 7,500,000 shares in LMKI in exchange for 7,500,000 shares in STMC.
LMKI shall tender to STMC $500,000.00 less before mentioned telecommunication
related expenses paid by LMKI, in exchange for 833,333 shares of STMC. The part
of the agreement is contingent upon the full funding of the $500,000.00 from the
sale of the $3,000,000.00 Private Placement of LMKI or at the discretion of both
parties.
1.3 Conversion of Shares and Assumption of Options. LMKI
agrees to issue 7,500,000 fully paid and nonassessable shares of
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its common stock in exchange for all of the shares of LJSI that have been issued
and are outstanding. These shares will be the shares reissued per this "Plan of
Reorganization." No additional shares will be issued from LMKI for this
transaction. The common stock will be issued directly to the shareholders of
LJSI in the amounts shown on Exhibit 1.3 hereof effective at the Closing. LMKI
will not assume responsibility for or reserve shares for any unexercised stock
options previously issued by LJSI.
1.4 Exemption from Registration. The parties hereto intend that the
common stock to be issued by LMKI to LJSI shareholders shall be exempt from the
registration requirements of the Securities Act of 1933, as amended (the "Act"),
pursuant to Section 4 and/or 3 of the Act and the rules and regulations
promulgated thereunder. Such securities will be restricted under Rule 144 of the
Securities Act of 1933, and as such cannot be resold in any public market except
in compliance with such Rule, or any exemption thereof.
1.5 Status of Shares Deliverable. The shares of stock of LMKI
deliverable pursuant to this Agreement, when issued and delivered as provided in
this Agreement, will be validly issued and outstanding shares of voting Common
Stock of LMKI, fully paid and nonassessable.
1.6 LJSI will fund a Private Placement Memorandum for LMKI. Of the
proceeds collected, $500,000.00 will be allocated to S.T.M. COMMUNICATIONS, INC.
for their sole use and to be used entirely at their discretion in the operation
and promotion of that business. Fifty percent (50%) of all funds collected from
the Private Placement Memorandum beginning December 1, 1996, shall be first sent
to the wholly owned subsidiary called S.T.M. COMMUNICATIONS, INC. The Private
Placement Memorandum shall be fully funded for the subsidiary within 120 days of
this Agreement. CHAPMAN TRUST shall have the exclusive right to acquire 100% of
the S.T.M. COMMUNICATIONS, INC. business for 10% equity in a newly formed
corporation whose intent is to go public via a Regulation D 504 offering. This
acquisition shall occur within 30 days of the full funding of $500,000.00 for
S.T.M. COMMUNICATIONS, INC. During this interim, CHAPMAN TRUST shall retain one
sear on the newly elected Board of Directors of LMKI and shall control 50% of
the voting rights of the stock in LMKI. No new shares shall be issued that would
cause a dilution effect of the present shares issued to LJSI under the terms of
this Agreement.
1.7 Dissenting Shareholders. Any shareholder of LMKI or LJSI who shall
have lawfully dissented from the reorganization in accordance with applicable
state law, and who shall have timely demanded payment of the value of his shares
and submitted such shares for endorsement as provided in such applicable law,
shall thereafter have only such rights as are provided a dissenting shareholder
in accordance with said applicable law and shall have no other rights under this
Agreement.
ARTICLE 2
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REPRESENTATIONS AND WARRANTIES OF LJSI
LJSI hereby represents and warrants to LMKI that tot the best of its
knowledge:
2.1 Organization and Good Standing. LJSI is a corporation duly
organized, validly existing, and in good standing under the laws of California,
has all necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and is duly qualified to do business
as a corporation and is in good standing in each of the states in which the
failure to qualify would have a material adverse effect on its business or
properties.
2.2 Capitalization. The authorized capital stock of LJSI consists of
10,000 shares of $1.00 par value common stock of which 10,000 shares will be
issued and outstanding as of Closing. There are no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating LJSI to issue or to transfer from treasury or to
repurchase any shares of its capital stock of any class.
2.3 Subsidiaries. As of the date hereof, LJSI does not have any
subsidiaries or own any interest in any other enterprise (whether or not such
enterprise is a corporation), except as disclosed in Exhibit 2.3.
2.4 Financial Statements. Exhibit 2.4 consists of the
financial statements of LJSI prepared by management as of October
31, 1996 containing the Balance Sheet and the related Statements of
Operations, Changes in Stockholders' Equity and Changes in
Financial Position for the period then ended.
2.5 Absence of Certain Changes. Since the date of the most recent
Balance Sheet set forth in Exhibit 2.4 hereof, there has not been any change in
the financial condition, or operations of LJSI which, individually or in the
aggregate, has been materially adverse, except as disclosed in Exhibit 2.5.
2.6 Absence of Undisclosed Liabilities. LJSI, as of the date hereof, is
not subject to any material debt, liability, or obligation of any nature,
whether accrued, absolute, contingent, or otherwise, and whether due or to
become due, that is not reflected in the financial statements specified in
Exhibit 2.4 or as otherwise disclosed in Exhibit 2.5 hereof.
2.7 Taxes and Assessments. Except as described in Exhibit 2.7 hereof,
within the times and in the manner prescribed by law, LJSI has filed all
federal, state and local tax returns required by law or has filed proper
extensions, and has paid all taxes, assessments, and penalties due and payable
other than those presently payable without penalty or interest. The provisions
for taxes, if any, reflected in the balance sheet included in Exhibit 2.4 are
adequate for any and all federal, state, country and local taxes for the period
ending on the date of that balance sheet for all prior periods, whether or not
disputed. There are no present
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disputes as to taxes of any nature payable by LJSI provided, however, various
returns remain subject to audit.
2.8 Investigation of Financial Condition. Subject to provisions
regarding confidentiality, LMKI and/or its attorneys and accountants shall have
the opportunity to meet with LJSI attorneys and accountants to discuss the
business and financial condition of LJSI, and LJSI shall make available to LMKI
and/or its attorneys and accountants all books and records of LJSI once
reasonable notice of such request has been given.
2.9 Trade Names and Rights. LJSI owns or has the right to use all
patents, trademarks, service marks, trade names, inventions, processes,
know-how, trade secrets, copyrights, licenses and other rights necessary to its
business as now conducted or proposed to be conducted, including without
limitation, those set forth on Exhibit 2.9 hereof, and to the best knowledge of
LJSI is not infringing upon or otherwise acting adversely to the right to
claimed right of any person under or with respect to any of the foregoing.
2.10 Compliance with Laws. LJSI has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
(including, without limitation, any applicable building, zoning, or other law,
ordinance, or regulation) affecting its properties or the operation of its
business.
2.11 Litigation. LJSI is not a party to any suit, action, arbitration,
or legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of LJSI, threatened against or affecting LJSI
or its business, assets, or financial condition, except as set forth in Exhibit
2.11 hereof. LJSI is not in default with respect to any order, writ, injunction,
or decree or any federal, state, local, or foreign court, department agency, or
instrumentality applicable to it. LJSI is not engaged in any legal action to
recover monies due to it, except as set forth in Exhibit 2.11 hereof.
2.12 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by LJSI and the performance by LJSI of its obligations hereunder
will not cause, constitute, or conflict with our result in (i) any breach or
violation of any of the provisions of or constitute a default under any license,
indenture, mortgage, charter, instrument, articles of incorporation, bylaw, or
other agreement or instrument to which LJSI is a party, or by which it may be
bound, nor will any consents or authorizations or any party other than those
hereto be required, (ii) an event that would permit any party to any agreement
or instrument to terminate it or to accelerate the maturity of any indebtedness
or other obligation of LJSI, or (iii) an event that would result in the creation
or imposition of any lien, charge, or encumbrance on any asset of LJSI.
2.13 Property and Assets. LJSI has good and marketable title
to all of its property and assets, real, personal, mixed or
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intangible, reflected on its most recent Balance Sheet, free and clear of any
and all liens, claims and encumbrances of any nature, for or description, except
as described in Exhibit 2.13 hereof.
2.14 Contracts and Agreements. Except as listed in Exhibit 2.14 hereof,
LJSI is not a party to any oral or written agreement, arrangement, commitment,
or potential obligation which individually, or collectively, materially affect
LJSI or its business.
2.15 Defaults. LJSI has performed in all material respects all of the
material obligations required to be performed to date, and is not in default in
any material respect under any agreements, leases, contracts or other documents
to which it is a party, the effect of which, in the aggregate, would have a
material adverse effect on the business, financial condition or results of
operations of LJSI. To the knowledge of LJSI, no party with whom LJSI has an
agreement which is of material importance to LJSI is in material default
thereunder.
2.16 Material Facts. None of the representations and warranties made by
LJSI herein, or in any certificate to be furnished by LJSI at Closing contains
or will contain any untrue statement of material fact, or omit to state any
material fact necessary in order to make the statements contained therein not
misleading.
2.17 Indemnification. LJSI agrees to indemnify, defend and hold LMKI
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, and reasonable attorney fees, that any of them
shall incur or suffer, which arise out of, result from or relate to any breach
of, or failure by LJSI to perform any of its representations, warran- ties,
covenants or agreements in this Agreement or in any instrument to be furnished
by LJSI under this Agreement at Closing.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF LMKI
LMKI represents and warrants to LJSI that:
3.1 Organization and Good Standing. LMKI is a corporation duly
organized, validly existing, and in good standing under the laws of California,
has all necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and is duly qualified to do business
as a foreign corporation and is in good standing in each of the states in which
the failure to qualify would have a material adverse effect on its business or
properties.
3.2 Capital. The authorized capital stock of LMKI consists
of 50,000,000 shares of no par value common stock of which
11,800,000 are currently issued and outstanding. All of the issued
and outstanding shares are duly and validly issued, fully paid and
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nonassessable. There are no outstanding subscriptions, options, rights,
warrants, convertible securities, or other agreements or commitments obligating
LMKI to issue or to transfer from treasury any additional shares of its capital
stock of any class except as noted in Exhibit 2.5.
3.3 Subsidiaries. Other than S.T.M. COMMUNICATIONS, INC.,
LMKI does not have any subsidiaries or own any interest in any
other enterprise (whether or not such enterprise is a corporation).
3.4 Taxes and Assessments. Except as described in Exhibit 3.4 hereon,
within the times and in the manner prescribed by law, LMKI has filed all
federal, state and local tax returns required by law or has filed proper
extensions, and has paid all taxes, assessments, and penalties die and payable
other than those presently payable without penalty or interest.
3.5 Compliance with Laws. LMKI has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
(including, without limitation, any applicable building, zoning, or other law,
ordinance, or regulation) affecting its properties or the operation of its
business.
3.6 Litigation. LMKI is not a party to any suit, action, arbitration,
or legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of LMKI, threatened against or affecting LMKI
or its business, assets, or financial condition, except as set forth in Exhibit
3.6 hereof. LMKI is not in default with respect to any order, writ, injunction,
or decree of any federal, state, local, or foreign court, department agency, or
instrumentality applicable to it. LMKI is not engaged in any legal action to
recover monies due to it, except as set forth in Exhibit 3.6 hereof.
3.7 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by LMKI and the performance by LMKI of their obligations
hereunder will not cause, constitute, or conflict with our result in (i) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, or other agreement or instrument to which LMKI is a party,
or by which it may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (ii) an event that would permit any
party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of LMKI, or (ii) an event that
would result in the creation of imposition of any lien, charge, or encumbrance
on any asset of LMKI.
3.8 Property and Assets. LMKI has good and marketable title to all of
its property and assets, real, personal, mixed or intangible, free and clear or
any and all liens, claims and encumbrances of any nature, form or description,
except as described in Exhibit 3.8 hereof.
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3.9 Contracts and Agreements. LMKI is not a party to any oral or
written agreement, arrangement, commitment, or potential obligation which
individually, or collectively, materially affect LMKI or its business.
3.10 Defaults. LMKI has performed in all material respects all of the
material obligations required to be performed to date, and is not in default in
any material respect under any agreements, leases, contracts or other documents
to which it is a party, the effect of which, in the aggregate, would have a
material adverse effect on the business, financial condition or results of
operations of LMKI. To the knowledge of LMKI, no party with whom LMKI has an
agreement which is of material importance to LMKI is in material default
thereunder.
3.11 Material Facts. None of the representations and warranties made by
LMKI herein, or in any certificate to be furnished by LMKI at Closing contains
or will contain any untrue statement of material fact, or omit to state any
material fact necessary in order to make the statements contained therein not
misleading.
3.12 Indemnification. LMKI agrees to indemnify, defend and hold LJSI
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, and reasonable attorney fees, that any of them
shall incur or suffer, which arise out of, result from or relate to any breach
of, or failure by LMKI to perform any of its representations, warran-ties,
covenants or agreements in this Agreement or in any instrument to be furnished
by LMKI under this Agreement at Closing.
3.13 Public Status of Securities.
3.13.1 Certain of the outstanding common shares of LMKI have
achieved public free trading status in that they were issued pursuant to a
registered offering and were exempt from registration under the Securities Act
of 1933. Such public status of these securities allows brokers or dealers to
publish quotations for LMKI securities pursuant to Rule 15c2-11 of the
Securities Exchange Act of 1934. No order preventing or suspending the
publishing of such quotations has ever been issued by the Securities and
Exchange Commission. The Information Statement prepared pursuant to Rule
15c2-11, conformed in all material respects to the requirement of the Act and
the rules and regulations of the Commission thereunder and did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statement therein not misleading.
3.13.2 LMKI is in compliance with all applicable state blue
sky laws. No order preventing or suspending the secondary sale of LMKI
securities quotations has ever been issued by a state securities administrator.
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3.14. Trading. None of LMKI, its officers, directors, control persons
and affiliates have engaged in, or in any manner whatsoever participated in, any
transaction involving any security of LMKI except in compliance with all
applicable securities laws, including without limitation, the Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF LJSI
LJSI further represents and warrants to LMKI that:
4.1 Investment Intent. Each LJSI shareholder understands and
acknowledges that the shares of LMKI common stock (the "LMKI shares") are being
offered for exchange in reliance upon the exemption provided in Section (2) of
the Act and Rule 506 of Regulation D adopted thereunder, for nonpublic
offerings; and the Shareholder makes the following representations and
warranties with the intent that the same may be relied upon in determining the
suitability of such Shareholder as a purchaser of securities.
4.1.1 The LMKI shares are being acquired solely for the
account of each LJSI shareholder, for investment purposes only, and not with a
view to, or for sale in connection with, any distribution thereof and with no
present intention of distributing or reselling any part of the LMKI Shares.
4.12 Each LMKI shareholder agrees not to dispose of his LMKI
Shares or any portion thereof in violation of the Act, the Exchange Act, the
rules and regulations thereunder or any applicable state securities laws.
4.13 Each LMKI shareholder (together with his qualified
purchaser representative, if any) is knowledgeable and experienced in making and
evaluating investments of this nature and desires to accept the Exchange Offer
on the terms and conditions set forth herein.
4.14 Each LJSI shareholder is able to bear the economic risk
of an investment, as a result of the Exchange Offer, in the LMKI Shares.
4.2 Legend. Each LJSI shareholder agrees that the certificates
evidencing the LMKI Shares acquired pursuant to this Agreement will have the
following:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE
144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE
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COMPANY AND ITS COUNSEL, THAT SUCH REGISTRA-
TION IS NOT REQUIRED."
Such legend shall be removed (i) if the shares represented by such
certificate shall have been effectively registered under the Act or otherwise
lawfully sold in a public transaction, or (ii) if the holder of such shares
shall be provided LMKI with an opinion of counsel, in form and substance
reasonable acceptable to LMKI and its counsel and from attorneys reasonable
acceptable to LMKI and its counsel, stating that a public sale, transfer or
assignment of such shares may be made without registration.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Conditions. The respective obligations of each party
hereunder shall be subject to the satisfaction, at or before
Closing, of the following conditions.
5.1.1 Approval of Directors and Shareholders. This Agreement
and Plan of Reorganization will be submitted to the Board of Directors and
Shareholders of each party for their approval.
5.1.2 Accuracy of Representations.Except as otherwise
permitted by this Agreement, all representations and warranties by each party in
this Agreement or in any written statement that shall be delivered by any party
under this agreement at Closing shall be true and accurate on and as of Closing
as those made at that time.
5.1.3 Performance. Each party shall have performed, satisfied,
and complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before Closing.
5.1.4 Absence of Litigation. No action, suit or proceeding
before any court or any governmental body or authority, pertaining to the
transaction contemplated by this Agreement or to its consummation, shall have
been instituted or threatened against any party on or before Closing.
5.1.5 Financial Condition. On the Closing Date, except as
disclosed on the appropriate Exhibit hereof, the assets and liabilities of each
party shall not be significantly different than as shown of its most recent
audited Balance Sheet included in the appropriate Exhibit hereof.
5.2 Conditions to Obligations of LJSI. The obligations of
LJSI to effect the transaction are subject to the satisfaction of
the following conditions:
5.2.1 Officers and Directors. Effective immediately
upon Closing, the directors and officers of LMKI shall have
resigned and the board of directors of LMKI shall be lawfully
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constituted with, and the executive officers lawfully held by the persons as set
forth in Exhibit 5.2.2.
5.2.2 Bank Accounts. All cash currently in LMKI
shall be transferred to a new account known as S.T.M. COMMUNICA-
TIONS, INC.
5.2.3 Corporate Proceedings. All LMKI corporate and
other proceedings in connection with the transaction contemplated
hereby and all documents and instruments incidental to such
transactions shall be in satisfactory form and substance.
5.2.4 Records. LMKI shall have delivered to the
President as stated in Section 5.2.1, all of the books and records
of LMKI.
ARTICLE 6
CLOSING
6.1 Closing. The closing of this transaction shall be held at the
offices of LA JOLLA SECURITIES, INC., or such other place as shall be mutually
agreed upon, on such date as shall be mutually agreed upon by the parties, but
in no event later than November 29, 1996.
6.2 Documents to Be Delivered at Closing. The parties shall deliver, or
cause to be delivered, all documents or certificates called for in this
Agreement, along with such other documents or certificates as may be necessary,
in the reasonable opinion of counsel, to effectuate the transaction called for
hereunder.
6.3 Effective Time of Merger. This transaction shall be
consummated when all necessary documents are property executed,
certified and filed in accordance with applicable state laws after
Closing.
ARTICLE 7
AMENDMENT, WAIVER AND TERMINATION
7.1 Amendment. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
7.2 Waiver. Except as otherwise expressly provided herein, waiver of
any covenant, condition, or provision of this Agreement is not deemed to have
been made unless expressly made in writing and signed by the party against whom
such waiver is charged; and (i) the failure of any party to insist in any one or
more cases upon the performance of this Agreement or to exercise any option
herein contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants or condi-
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tions, (ii) the acceptance of performance of anything required by this Agreement
to be performed with knowledge of the breach or failure of a covenant, condition
or provision hereof shall not be deemed a waiver of such breach or failure, and
(iii) no waiver by any party of one breach by another party shall be construed
as a waiver with respect to any other or subsequent breach.
7.3 Termination. This Agreement may be terminated at any time prior to
the Closing Date: (i) by mutual consent of the parties; (ii) by any party in the
event it appears reasonably certain that any of the conditions precedent set
forth in Articles 6 and 7 hereof cannot be substantially satisfied or waived by
the Closing Date. In the event the Closing Date shall not have occurred on or
before November 29, 1996 this Agreement shall automatically terminate without
any action, notice or consent by any party.
7.4 Effect of Termination. In the event this Agreement is terminated or
abandoned pursuant to the foregoing provisions, this Agreement shall become void
and shall have no further force or effect, and shall not impose any liability on
the party of any party hereto.
ARTICLE 8
MISCELLANEOUS
8.1 Captions and Headings. The article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
8.2 Time of Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
8.3 Entire Agreement. This Agreement contains the entire
Agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings.
8.4 Choice of Law. Except as otherwise limited by federal law, this
Agreement shall be interpreted, construed and enforced according to the laws of
the State of California.
8.5 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.6. Notices. All notices, requests, demands and other communications
under this Agreement shall have been in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to whom
notice is to be given, or an the third business day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows:
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LMKI: LANDMARK INTERNATIONAL, INC.
1720 E. Garry, Suite 201
Santa Ana, CA 92705
LJSI: LA JOLLA SECURITIES, INC.
1020 Prospect Street, Suite 200
La Jolla, CA 92037
8.7 Binding Effect. This Agreement shall inure to and be
binding upon the heirs, executors, personal representatives,
successors and assigns of each of the parties to this Agreement.
8.8 Assignment. Except with the written consent of the other party, the
obligations under this Agreement shall not be assignable by any party. Nothing
herein expressed or implied is intended to confer upon any person, other than
the parties hereto or their respective successors, assigns, heirs and legal
representatives, any rights, remedies, or liabilities under or by reason of this
Agreement.
8.9 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purposes of this Agreement, and shall execute such other
and further documents and take such other and further actions as may be
necessary or convenient to effect the provisions hereof.
8.10 Brokers. The parties hereto represent that a finders fee of
500,000 shares has been paid to Silver Channel Ventures, Inc. under the
Securities and Exchange Commissions provisions of a Regulation S. Each of the
parties hereto shall indemnify and hold the other harmless against any an all
claims, losses, liabilities or expenses which may be asserted against it as a
result of its dealings, arrangements or agreements with any such other broker or
person.
8.11 Announcements. Each party will consult and cooperate with each
other as to the timing and content of any announcements of the transactions
contemplated hereby to the general public or to employees, customers or
suppliers.
8.12 Expenses. Each party shall pay their respective expenses,
including legal, accounting and any other out-of-pocket expenses incurred in
connection with this transaction, whether or not the transaction contemplated
hereby is consummated.
8.13 Survival of Representations. The representations, warranties,
covenants and agreements of the parties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing provided for in it, shall
survive the Closing irrespective of any investigation made by or on behalf of
any party.
8.14 Exhibits. The Exhibits attached hereto are an integral
part of this Agreement and each such Exhibit shall be applicable as
if set forth in full in the text hereof only with respect to the
sections or this Agreement to which it is cross-referenced. Any
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material changes to the Exhibits shall be immediately disclosed to
the other party.
8.15 Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties shall be entitled
to recover reasonable attorney's fees and other costs incurred in that action or
proceeding, including the collection of a judgement resulting therefrom, in
addition to any other relief to which it or they may be entitled.
AGREED TO AND ACCEPTED as of the date first above written.
LANDMARK INTERNATIONAL, INC.
By:
LA JOLLA SECURITIES, INC.
By:
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MUTUAL RESCISSION
OF
AGREEMENT AND PLAN OF REORGANIZATION
DATED NOVEMBER 29, 1996
BETWEEN
LANDMARK INTERNATIONAL, INC.
AND
LA JOLLA SECURITIES, INC.
This MUTUAL RESCISSION AGREEMENT, dated as of December 31, 1996,
between Landmark International, Inc., a California corporation (LMKI), with
offices at 1720 E. Garry, Suite 201, Santa Ana, California 92705 and La Jolla
Securities Corp., a California corporation (LJSC), with offices at 1020 Prospect
Street, Suite
200, La Jolla, California 92037.
WHEREAS, the officers of LMKI and LJSC have deemed it
advisable and in the best interests of their respective stockholders
to rescind that "Agreement and Plan of Reorganization" dated November
29, 1996 between LMKI and LJSC. That "Agreement" specifically called
for the acquisition of LJSC as a wholly-owned subsidiary of LMKI.
FOR AND IN CONSIDERATION, of the mutual promises and
benefits to be derived by the parties, they do hereby completely,
mutually and reciprocally release, discharge, acquit and forgive each
other from all claims, contracts, actions, suits, demands,
agreements, liabilities, and proceedings of every nature and
description both at law and in equity that either party has or may
have against the other, arising from the beginning of time to this
date, including but not limited to, any claim arising from that
"Agreement and Plan of Reorganization" dated November 29, 1996.
THIS RELEASE shall be governed by the laws of the State of California
and shall be binding and inure to the benefits of the parties, their successors,
assigns and personal representatives.
Signed under seal on the date first above written.
LA JOLLA SECURITIES CORP. LANDMARK INTERNATIONAL, INC.
Bruce A. Biddick, President - CEO
William Kettle, President
Date: Date:
