<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
JUNE 5, 1995
Date of Report
(Date of earliest event reported)
LANDMARK GRAPHICS CORPORATION
(Exact name of registrant as specified in charter)
DELAWARE 0-17195 76-0029459
(State or other jurisdiction (Commission (IRS Employer
of incorporation or organization) File Number) Identification No.)
15150 MEMORIAL DRIVE
HOUSTON, TEXAS
(Address of principal executive offices)
77079-4304
(Zip Code)
(713) 560-1000
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On June 5, 1995, Landmark Graphics Corporation (the "Registrant"),
purchased all of the issued and outstanding capital stock of GeoGraphix, Inc.,
a Colorado corporation ("GeoGraphix"), pursuant to a Stock Purchase Agreement,
dated May 24, 1995 (the "Stock Purchase Agreement"), among the Registrant,
GeoGraphix, and all of the shareholders of GeoGraphix. As a result of such
acquisition (the "GeoGraphix Acquisition"), GeoGraphix became a wholly-owned
subsidiary of the Registrant.
In connection with the GeoGraphix Acquisition, the Registrant issued a
total of 653,718 shares (the "Shares") of its common stock, par value $.05 per
share, in exchange for all of the issued and outstanding shares of common stock
of GeoGraphix (the "Geographix Common Stock") in a business combination to be
accounted for as a pooling of interests. The number of Shares to be issued was
determined by negotiation between the Registrant and GeoGraphix. Prior to
commencing negotiation of the Stock Purchase Agreement, there was no material
relationship between (i) the Registrant, any of its affiliates, any of its
officers or directors, or any associate of such officers and directors, and
(ii) GeoGraphix or the shareholders of GeoGraphix.
Pursuant to a Registration Rights Agreement, dated June 5, 1995, the
Registrant has granted the former shareholders of GeoGraphix the right to
require the Registrant to register their resale of the Shares under the
Securities Act of 1933, as amended, and applicable state securities laws.
GeoGraphix, based in Denver, Colorado, develops, markets, sells and
supports a variety of computer software products for geoscientists and
engineers based on the Windows and Windows NT platforms. GeoGraphix's product
families include (i) GeoGraphix Exploration System (GES) - geoscientific data
management and mapping; (ii) Jaguar - petroleum engineering and economic
forecasting; (iii) QLA 2 - petrophysical well log analysis; and (iv) Lease Map
- - petroleum land management. GeoGraphix markets its products and services to
both larger multi-national and smaller independent oil and gas companies.
GeoGraphix sells its products through direct sales in the U.S. and
internationally, as well as through selected distributors in certain
international markets. Prior to the GeoGraphix Acquisition, there was no
public market for the securities of GeoGraphix.
GeoGraphix's products are designed to aid in geoscientific data
management and mapping, petroleum engineering and economic forecasting,
petrophysical well log analysis, and petroleum land management. GES is an
integrated set of modules which provide analysis and data management associated
with exploration and reservoir characterization, including well and seismic
data management, base mapping, surface and fault modeling, cross sectioning,
and volumetric estimation. The Jaguar engineering system provides a suite of
petroleum engineering applications which include functions for estimating
production decline, recoverable reserves, economic forecasting and reservoir
volume. The QLA 2 petrophysical system delivers well log data processing,
cross-plotting and display facilities. LeaseMap provides data management and
mapping functionality to assist the land professional in managing producing and
prospective properties.
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The Registrant's current intention is to conduct business in
substantially the same manner as it has been conducted in the past.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(A) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED.
It is impracticable to provide the required financial
statements of GeoGraphix at this time and, accordingly, this
information is not attached as a part of this report. The
required financial statements of GeoGraphix will be filed
within 60 days of the due date of this report.
(B) PRO FORMA FINANCIAL INFORMATION.
It is impracticable to provide the required pro forma
financial information at this time and, accordingly, this
information is not attached as a part of this report. The
required information will be filed within 60 days of the due
date of this report.
(C) EXHIBITS.
(2) Plan of Acquisition, Reorganization, Arrangement, Liquidation
or Succession
2.1 Stock Purchase Agreement, dated May 24, 1995, by and
among Landmark Graphics Corporation, GeoGraphix,
Inc., and all of the shareholders of GeoGraphix, Inc.
(99) Additional Exhibits
99.1 Registration Rights Agreement, dated as of June 5,
1995, among Landmark Graphics Corporation and the
former shareholders of GeoGraphix, Inc.
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SIGNATURE
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.
LANDMARK GRAPHICS CORPORATION
Date: June 19, 1995 By: /s/ William H. Seippel
William H. Seippel
Vice President, Finance and
Chief Financial Officer
-4-
<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
2.1 Stock Purchase Agreement, dated May 24, 1995, by and
among Landmark Graphics Corporation, GeoGraphix,
Inc., and all of the shareholders of GeoGraphix, Inc.
99.1 Registration Rights Agreement, dated as of June 5,
1995, among Landmark Graphics Corporation and the
former shareholders of GeoGraphix, Inc.
</TABLE>
<PAGE> 1
STOCK PURCHASE AGREEMENT
among
LANDMARK GRAPHICS CORPORATION,
GEOGRAPHIX, INC.
and the
SELLING SHAREHOLDERS
named herein
May 24, 1995
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE 1 - Purchase and Sale of GeoGraphix Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Closing Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 - Representations and Warranties of Landmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Authority Relative to this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Landmark Stock and Landmark SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Certain Corporate Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3 - Representations and Warranties of GeoGraphix and the Selling Shareholders . . . . . . . . . . . . . . . . . 5
3.1 Organization, Qualification and Corporate Power . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Capitalization and Ownership of GeoGraphix Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Authorization of Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Events Subsequent to Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 Tax Returns and Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.9 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.10 Tangible Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.11 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.12 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.13 Suppliers and Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.14 Notes; Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.15 Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.16 Condition of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.17 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.18 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.19 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.20 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.21 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.22 Legal Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.23 Certain Business Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.24 Broker's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.25 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.26 SIC Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.27 Scheduled Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
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(Continued)
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ARTICLE 4 - Conduct of Business Pending The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.1 Conduct of Business by GeoGraphix Pending the Closing . . . . . . . . . . . . . . . . . . . . . . . 18
4.2 No Other Bids for GeoGraphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.3 Lines of Business and Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.4 Accounting Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.5 Other Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 5 - Additional Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.1 Adjustments for Excess Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.3 Termination Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.4 Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.5 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.6 Taking of Necessary Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.7 Notice of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.8 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.9 Solicitation of Other GeoGraphix Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.10 Certain Transition Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.11 Release Relating to Corporate Indebtedness and Obligations . . . . . . . . . . . . . . . . . . . . . 25
5.12 Termination of Voting Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.13 Denver Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.14 Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 6 - Conditions to Closing
6.1 Conditions to Obligations of Each Party to Effect the Closing . . . . . . . . . . . . . . . . . . . 25
6.2 Additional Conditions to Landmark's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.3 Additional Conditions to GeoGraphix's and the Selling Shareholders' Obligations . . . . . . . . . . 28
ARTICLE 7 - Termination, Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.2 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.3 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.4 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 8 - Indemnification; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.1 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.2 Effect of Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.3 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.4 INDEMNIFICATION BY SELLING SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
</TABLE>
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TABLE OF CONTENTS
(Continued)
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<S> <C>
8.5 INDEMNIFICATION BY LANDMARK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.6 Limitations as to Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.7 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 9 - General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.3 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.4 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.5 Material Adverse Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.8 Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
SCHEDULE 1 Disclosure Schedule
ANNEX I List of Shareholders of GeoGraphix
ANNEX II List of Landmark SEC Documents
ANNEX III Employment Offerees
EXHIBIT A Form of Registration Rights Agreement
EXHIBIT B Form of Price Waterhouse LLP Pooling Opinion
EXHIBIT C Form of Pooling Letter of Arthur Andersen, L.L.P.
EXHIBIT D Form of Opinion of Counsel to GeoGraphix
EXHIBIT E Form of Opinion of Counsel to Landmark
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<PAGE> 5
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of May 24, 1995 (this
"Agreement"), is by and among Landmark Graphics Corporation, a Delaware
corporation ("Landmark"), GeoGraphix, Inc., a Colorado corporation
("GeoGraphix"), David L. Armitage, Gina G. Armitage, Minnowburn Corporation, a
British Virgin Islands corporation, Antrim Resources, Inc., a Nevada
corporation, and each other holder of capital stock of GeoGraphix and who shall
have executed this Agreement on or before the Closing Date (as hereinafter
defined) (collectively, the "Selling Shareholders").
RECITALS
WHEREAS, Landmark desires to purchase, and each of the Selling
Shareholders desires to sell, all the capital stock of GeoGraphix owned by such
Selling Shareholder pursuant to the terms of this Agreement; and
WHEREAS, the parties hereto intend for the purchase and sale of the
outstanding capital stock of GeoGraphix pursuant to the terms of this Agreement
(the "Acquisition") to be accounted for as a "pooling of interests."
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties and agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the conditions set forth herein, the parties
hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF GEOGRAPHIX CAPITAL STOCK
1.1 Purchase and Sale. Subject to the terms and conditions of
this Agreement, the Selling Shareholders agree to sell, assign, transfer and
deliver to Landmark at the Closing (as hereinafter defined), and Landmark
agrees to purchase from each Selling Shareholder at the Closing the number of
shares of GeoGraphix Common Stock (as hereinafter defined) set forth opposite
the name of each such Selling Shareholder on Annex I attached hereto
(collectively, the "GeoGraphix Shares").
1.2 Purchase Price. (a) In full consideration of the purchase by
Landmark of the GeoGraphix Shares, Landmark shall deliver to the Selling
Shareholders on the Closing Date that number of shares (the "Shares") of common
stock, par value $0.05 per share of Landmark (the "Landmark Common Stock")
equal to 675,000, less the result of dividing (i) $500,000 by (ii) the closing
price of the Landmark Common Stock on the National Market System of the
National Association of Securities Dealers, Inc. ("NASDAQ/NMS") on the trading
day immediately preceding the Closing Date (as herein
<PAGE> 6
defined). At the time of the consummation of the Acquisition (the "Closing"),
Landmark will issue to each Selling Shareholder the number of Shares equal to
the product of (i) the total number of Shares issuable pursuant to this
Section 1.2 and (ii) the percentage ownership of the GeoGraphix Common Stock
reflected for such Selling Shareholder on Annex I attached hereto. The Shares
to be issued pursuant to this Section 1.2 shall be subject to adjustment as set
forth in Section 5.1 of this Agreement.
(b) No fraction of a share of Landmark Common Stock will be issued
to any Selling Shareholder, but in lieu thereof, any holder of GeoGraphix
Common Stock who would otherwise be entitled to receive fractional shares will
be paid an amount in cash equal to the product of (A) the fractional share to
which such holder is otherwise entitled and (B) the Average Closing Price. For
purposes of this Agreement, the "Average Closing Price" of the Landmark Common
Stock shall be equal to the weighted average closing price of the Landmark
Common Stock on the NASDAQ/NMS during the thirty (30) business days immediately
preceding the Closing. In computing the weighted average closing price of the
Landmark Common Stock, all shares of Landmark Common Stock which trade on a
particular day will be deemed to have traded at the closing price on such day.
1.3 Closing. The Closing shall take place at 10:00 a.m. at the
offices of Winstead Sechrest & Minick P.C., located at 910 Travis Street, Suite
1700, Houston, Texas 77002-5895 on June 2, 1995, or as soon as reasonably
practicable thereafter as the conditions set forth in Article 6 have been
satisfied or waived; provided that the Closing Date shall be no later than June
15, 1995, unless Landmark, GeoGraphix and Selling Shareholders holding no less
than 80 percent of the GeoGraphix Common Stock shall mutually agree in writing.
Such date and time are herein referred to as the "Closing Date."
1.4 Closing Deliveries. At the Closing:
(a) The Selling Shareholders shall deliver to Landmark
(i) certificates representing the GeoGraphix
Shares listed opposite such Selling Shareholder's name on
Annex 1. The certificates representing the GeoGraphix Shares
shall be duly endorsed in blank, or accompanied by stock
powers duly executed in blank, by the Selling Shareholders
transferring the same, with signatures guaranteed by a
domestic commercial bank or trust company, with all necessary
transfer tax and other revenue stamps, acquired at the Selling
Shareholder's expense, affixed and cancelled. Each Selling
Shareholder agrees to cure any deficiencies with respect to
the endorsement of the certificates representing the
GeoGraphix Shares owned by such Selling Shareholder; and
(ii) such other documents, including certificates
and opinions of counsel, as may be required by this Agreement
or reasonably requested by Landmark.
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<PAGE> 7
(b) GeoGraphix shall deliver to Landmark and Landmark
shall deliver to GeoGraphix such documents, including officers'
certificates and opinions of counsel, as may be required by this
Agreement or reasonably requested by the other party.
(c) Landmark shall deliver to the Selling Shareholders:
(i) certificates representing the Shares,
determined in accordance with Section 1.2 hereof;
(ii) cash, in lieu of fractional Shares, in an
amount determined in accordance with Section 1.2 hereof; and
(iii) such other documents, including certificates
and opinions of counsel, as may be required by this Agreement
or reasonably requested by the Selling Shareholders.
(d) Landmark and each Selling Shareholder shall execute a
Registration Rights Agreement (herein so called) in the form attached
hereto as EXHIBIT A and shall have the registration and other rights
provided in such Registration Rights Agreement, which Registration
Rights Agreement is hereby incorporated herein by this reference as if
set forth in full in this Agreement. The parties hereto stipulate and
agree that the execution and delivery of the Registration Rights
Agreement is intended to provide the Selling Shareholders with
flexibility in liquidating their investment in the Shares and does not
evidence any present intention to dispose of such investment.
1.5 Further Action. If, at any time after the Closing Date, any
further action is necessary or desirable to carry out the purposes of this
Agreement or to vest Landmark with full right, title and possession and all
rights, privileges, immunities with respect to the GeoGraphix Shares, the
Selling Shareholders shall take all such action.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF LANDMARK
Landmark hereby represents and warrants to the Selling Shareholders as
follows:
2.1 Organization and Qualification. Landmark has been duly
incorporated and is validly existing as a corporation and in good standing
under the laws of the State of Delaware and has the requisite corporate power
to carry on its business as now conducted.
2.2 Authority Relative to this Agreement. Landmark has the
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations
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<PAGE> 8
hereunder. The execution and delivery of this Agreement by Landmark and the
consummation by Landmark of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Landmark, and no other corporate
proceedings on the part of Landmark are necessary to authorize this Agreement
and the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Landmark and constitutes the valid and binding
obligation of Landmark, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity. None of the execution and delivery of this Agreement by
Landmark, the performance by Landmark of its obligations hereunder or the
consummation of the transactions contemplated hereby by Landmark will require
any consent, approval or notice under, or violate, breach, be in conflict with
or constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or permit the termination of, or
result in the creation or imposition of any lien upon any properties, assets or
business of Landmark under any note, bond, indenture, mortgage, deed of trust,
lease, franchise, permit, authorization, license, contract, instrument or other
agreement or commitment or any order, judgment or decree to which Landmark is a
party or by which Landmark or any of its assets or properties is bound or
encumbered, except those that have already been given, obtained or filed.
Other than filings under the Securities Act of 1933, as amended (the
"Securities Act"), if any, necessary to perfect an exemption from registration
under the Securities Act and to effect the registrations contemplated by the
Registration Rights Agreement, filings made with the National Association of
Securities Dealers, Inc. to list the Shares in the National Market System of
the NASDAQ System and filings to be made with state securities regulatory
agencies, no authorization, consent or approval of, or filing with, any public
body, court or authority is necessary on the part of Landmark for the
consummation by Landmark of the transactions contemplated by this Agreement.
2.3 Landmark Stock and Landmark SEC Documents. The Landmark
Common Stock is listed for trading on the National Market System of the NASDAQ
System. Landmark has furnished the Selling Shareholders with a true and
complete copy of each report, schedule, registration statement and definitive
proxy statement filed by Landmark with the Securities and Exchange Commission
("SEC") since June 30, 1994 (the "Landmark SEC Documents"), which are all the
documents (other than preliminary materials) that Landmark was required to file
with the SEC since such date. All of such documents are listed on Annex II
attached hereto. As of its date, each Landmark SEC Document was in compliance,
in all material respects, with the requirements of its form and contained no
untrue statement of a material fact and did not omit any statement of a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of Landmark included in the Landmark SEC
Documents complied, at the time of filing with the SEC, as to form, in all
material respects, with applicable accounting requirements and published rules
and regulations of the SEC with respect thereto, were prepared in accordance
with generally accepted accounting principles, applied on a consistent basis
during the periods involved, and fairly presented, in all material respects
(subject, in the case of unaudited statements, to normal, recurring year-end
audit
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adjustments) the financial position of Landmark as at the dates thereof and the
results of its operations and changes in cash flows for the periods then ended.
Since March 31, 1995, there have been no changes in Landmark's method of
accounting for tax or financial statement purposes. Since March 31, 1995,
there has not been any adverse change in the financial condition, results of
operations or business of Landmark and no event or condition has occurred or
exists that will result in such a material adverse change other than changes
directly resulting from general economic conditions.
2.4 Certain Corporate Matters. Landmark is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the ownership of its properties, the employment of its personnel or
the conduct of its business requires it to be so qualified, except where such
failure would not have a material adverse effect on Landmark's financial
condition, results of operations or business. Landmark has full corporate
power and authority and all authorizations, licenses and permits necessary to
carry on the business in which it engages or in which it proposes presently to
engage and to own and use the properties owned and used by it. Landmark has
made available to GeoGraphix and the Selling Shareholders true, accurate and
complete copies of its charter documents and bylaws which reflect all
amendments made thereto at any time prior to the date of this Agreement. The
minute book containing the records of meetings of the stockholders and board of
directors of Landmark is accurate and complete in all material respects. All
material corporate actions taken by Landmark since its incorporation have been
duly authorized and/or subsequently ratified, as necessary. Landmark is not in
default under or in violation of any provision of its certificate of
incorporation or bylaws.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF GEOGRAPHIX AND THE SELLING SHAREHOLDERS
Except as set forth in the disclosure schedule attached hereto
asSchedule 1 and incorporated herein by this reference (the "Disclosure
Schedule") and subject to the limitations set forth in Section 8.4 relating to
representations made in Section 3.2(b) and Section 3.3 hereof, each of the
Selling Shareholders and GeoGraphix hereby represents and warrants to Landmark
as follows as of the date hereof and as of the Closing Date:
3.1 Organization, Qualification and Corporate Power. GeoGraphix
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Colorado. GeoGraphix is duly qualified to do business
as a foreign corporation and is in good standing in the jurisdictions specified
in Section 3.1 of the Disclosure Schedule, which are all the jurisdictions in
which the ownership of its properties, the employment of its personnel or the
conduct of its business requires that it be so qualified and where a failure to
be so qualified or licensed would have a material adverse effect on its
financial condition, results of operations or business. GeoGraphix has full
corporate power and authority and all authorizations, licenses and permits
necessary to carry on the business in which it is engaged or in which it
proposes presently to engage and to own
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and use the properties owned and used by it. GeoGraphix has delivered to
Landmark true, accurate and complete copies of its articles of incorporation
and bylaws which reflect all amendments made thereto at any time prior to the
date of this Agreement. The minute book containing the records of meetings of
the shareholders and Board of Directors of GeoGraphix are complete and correct
in all material respects. The stock record books of GeoGraphix and the
shareholder lists of GeoGraphix which GeoGraphix has previously furnished to
Landmark are complete and correct in all respects and accurately reflect the
record ownership and, to the knowledge of GeoGraphix and the Selling
Shareholders, the beneficial ownership of all the outstanding shares of
GeoGraphix's capital stock and all other outstanding securities issued by
GeoGraphix. All material corporate actions taken by GeoGraphix since its
incorporation have been duly authorized and/or subsequently ratified as
necessary. GeoGraphix is not in default under or in violation of any provision
of its articles of incorporation or bylaws. GeoGraphix is not in default or in
violation of any restriction, lien, encumbrance, indenture, contract, lease,
sublease, loan agreement, note or other obligation or liability by which it is
bound or to which any of its assets is subject.
3.2 Capitalization and Ownership of GeoGraphix Stock.
(a) GeoGraphix's entire authorized capital stock consists
of 100,000 shares of common stock, no par value per share (the
"Geographix Common Stock"), of which 8,503 shares are issued and
outstanding and 25 are issued but not outstanding and have been held
in Treasury since 1994. All of the issued and outstanding shares of
GeoGraphix Common Stock have been and, as of the Closing Date, will be
duly authorized and are and, as of the Closing Date, will be validly
issued, fully paid and nonassessable and have not been and, as of the
Closing Date, will not have been issued in violation of any
pre-emptive rights. There are no outstanding or authorized options,
rights, warrants, calls, convertible securities, rights to subscribe,
conversion rights or other agreements or commitments to which
GeoGraphix is a party or which are binding upon GeoGraphix providing
for the issuance or transfer by GeoGraphix of additional shares of its
capital stock and GeoGraphix has not reserved any shares of its
capital stock for issuance, nor are there any outstanding stock option
rights, phantom equity or similar rights, contracts, arrangements or
commitments based upon the book value, income or other attribute of
GeoGraphix. There are no voting trusts or any other agreements or
understandings with respect to the voting of GeoGraphix's capital
stock. Upon consummation of the Acquisition, Landmark will own the
entire equity interest in GeoGraphix owned by the Selling
Shareholders. GeoGraphix does not have and at the time of the Closing
will not have outstanding any stock or securities convertible or
exchangeable for any shares of its capital stock. GeoGraphix does not
have and at the time of the Closing will not have outstanding any
rights, options, agreements or arrangements to subscribe for or to
purchase its capital stock or any stock or securities convertible into
or exchangeable for its capital stock.
(b) Annex I attached hereto sets forth a true accurate
and complete list of all holders of capital stock of GeoGraphix and
the number of shares of capital
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stock held by each such person. All securities issued by GeoGraphix
were issued in compliance, in all respects, with all applicable
federal and state securities laws. Each of the Selling Shareholders
owns beneficially and of record, the GeoGraphix Shares reflected
opposite each such Selling Shareholder's name on Annex I hereto, free
and clear of any liens, claims, security interests, pledges or
encumbrances of any nature. Upon consummation of the Acquisition in
accordance with the terms of this Agreement, Landmark will acquire
such GeoGraphix Shares free and clear of any liens, claims, security
interests, pledges or encumbrances of any nature. No Selling
Shareholder owns, beneficially or of record, any capital stock of
GeoGraphix other than the GeoGraphix Shares reflected on Annex 1.
3.3 Authorization of Transaction. GeoGraphix and each of the
Selling Shareholders has the requisite power and authority to enter into this
Agreement and perform its obligations hereunder. The execution, delivery and
performance of this Agreement have been duly authorized by all requisite action
of the Board of Directors and shareholders of GeoGraphix. This Agreement has
been duly executed and delivered by GeoGraphix and each of the Selling
Shareholders and constitutes the valid and binding obligation of GeoGraphix and
each of the Selling Shareholders, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity. None of the execution and delivery of this
Agreement by GeoGraphix and the Selling Shareholders, the performance by
GeoGraphix and the Selling Shareholders of their obligations hereunder or the
consummation of the transactions contemplated hereby by GeoGraphix and the
Selling Shareholders will require any consent, approval or notice under, or
violate, breach, be in conflict with or constitute a default (or an event that,
with notice or lapse of time or both, would constitute a default) under, or
permit the termination of, or result in the creation or imposition of any lien
upon any properties, assets or business of any of the Selling Shareholders or
GeoGraphix under any note, bond, indenture, mortgage, deed of trust, lease,
franchise, permit, authorization, license, contract, instrument or other
agreement or commitment or any order, judgment or decree to which any of the
Selling Shareholders or GeoGraphix is a party or by which GeoGraphix or any of
its assets or properties is bound or encumbered, except those that have already
been given, obtained or filed, all as set forth in Section 3.3 of the
Disclosure Schedule. No notice to, filing with or authorization, consent or
approval of any public body or authority is necessary for the consummation by
GeoGraphix and the Selling Shareholders of the transactions contemplated by
this Agreement.
3.4 Subsidiaries. GeoGraphix does not own and is not obligated to
purchase any equity interest in or any other interest convertible into or
exchangeable for an equity interest in any entity.
3.5 Financial Statements. GeoGraphix has delivered to Landmark
(a) its audited consolidated balance sheets as of December 31, 1994, 1993, and
1992, (b) its audited consolidated statements of operations and cash flows as
of the end of and for each of the
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years in the three-year period ended December 31, 1994, (c) its unaudited
balance sheet as of March 31, 1995, and (d) its unaudited statements of
operations for the three-month period ended March 31, 1995 (collectively, the
"Financial Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods covered thereby and present fairly the financial
condition of GeoGraphix as of such dates and the results of its operations and
changes in cash flows for such periods (subject, in the case of the unaudited
Financial Statements, to normal, recurring year- end audit adjustments). Since
December 31, 1994, there have been no changes in GeoGraphix's methods of
accounting for tax or financial statement purposes.
3.6 Events Subsequent to Financial Statements. Except as
disclosed in the Financial Statements, since March 31, 1995, there has not
been:
(a) any adverse change in the financial condition,
results of operations or business of GeoGraphix;
(b) any sale, lease, transfer, license or assignment of
any assets, tangible or intangible, of GeoGraphix, other than in the
ordinary course of business;
(c) any damage, destruction or property loss, whether or
not covered by insurance, affecting adversely the properties or
business of GeoGraphix;
(d) any declaration or setting aside or payment of any
dividend or distribution with respect to the shares of capital stock
of GeoGraphix or any redemption, purchase or other acquisition of any
such shares;
(e) any mortgage or pledge of, or subjection to any lien,
charge, security interest or encumbrance of any kind on, any of the
assets, tangible or intangible, of GeoGraphix (other than liens
arising by operation of law which secure obligations which are not yet
due and payable);
(f) any incurrence of indebtedness or liability or
assumption of obligations by GeoGraphix other than (i) those incurred
in the ordinary course of business, (ii) those incurred in the course
of negotiating, documenting and consummating the transactions
contemplated by this Agreement, and (iii) those which are not included
under either (i) or (ii) above and which do not exceed $100,000 in the
aggregate;
(g) any cancellation or compromise by GeoGraphix of any
debt or claim, except for adjustments made in the ordinary course of
business which, in the aggregate, are not material;
(h) any waiver or release by GeoGraphix of any right of
any material value;
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<PAGE> 13
(i) except licenses of software made in the ordinary
course of business, consistently with past practice, any sale,
assignment, transfer or grant by GeoGraphix of any rights under any
concessions, leases, licenses, agreements, patents, inventions,
trademarks, trade names or copyrights;
(j) any arrangement, agreement or undertaking entered
into by GeoGraphix not terminable on 30 days or less notice without
cost or liability (including, without limitation, any payment of or
promise to pay any bonus or special compensation) with employees or
any increase in compensation or benefits to officers or directors of
GeoGraphix, other than in the ordinary course of business;
(k) any change made or authorized in the articles of
incorporation or bylaws of GeoGraphix;
(l) any issuance, transfer, sale or other disposition by
GeoGraphix of any shares of its capital stock or other equity
securities, or any grant of any options, warrants or other rights to
purchase or obtain (including upon conversion or exercise) shares of
its capital stock or other equity securities;
(m) any loan to or other transaction with any officer,
director or shareholder of GeoGraphix giving rise to any claim or
right of GeoGraphix against any such person or of such person against
GeoGraphix;
(n) any acceleration, termination, modification or
cancellation (or threat thereof) by any party of any contract, lease
or other agreement or instrument to which GeoGraphix is a party or by
which it is bound so as to affect, materially and adversely, the
properties or business of GeoGraphix; or
(o) any other transaction or commitment entered into
other than in the ordinary course of business by GeoGraphix.
3.7 Undisclosed Liabilities. GeoGraphix has no material liability
or obligation whatsoever, known or unknown, either accrued, absolute,
contingent or otherwise, except to the extent shown on the Financial
Statements, incurred in the normal and ordinary course of business of
GeoGraphix since March 31, 1995, or incurred in the course of negotiating,
documenting and consummating the transactions contemplated by this Agreement.
3.8 Tax Returns and Audits. The taxable year of GeoGraphix ends
December 31. GeoGraphix has duly and timely filed or caused to be filed all
federal, foreign and state income, franchise, sales, value added and property
tax returns (the "Tax Returns") required to be filed by it and has paid in full
or fully reserved against in the Financial Statements all taxes, interest,
penalties, assessments and deficiencies due or claimed to be due by it to
foreign, federal, state or local taxing authorities (including taxes on
properties, income, franchises, licenses, sales, use and payrolls). Such Tax
Returns
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are correct, and GeoGraphix is not required to pay any taxes for such periods
except as shown in such Tax Returns and accrued in the balance sheet as of
December 31, 1994, or March 31, 1995, in each case as contained in the
Financial Statements. The income tax returns filed by GeoGraphix have not
been, and are not being, to the knowledge of GeoGraphix and the Selling
Shareholders, examined by the Internal Revenue Service (the "IRS") or other
applicable taxing authorities for any period. All taxes or estimates thereof
that are due, or are claimed or asserted by any taxing authority to be due,
have been timely and appropriately paid so as to avoid penalties for
underpayment. Except for amounts not yet due and payable, all tax liabilities
to which the properties of GeoGraphix may be subject have been paid and
discharged. The provisions for income and other taxes payable reflected in the
Financial Statements make adequate provision for all then accrued and unpaid
taxes of GeoGraphix. There are no tax liens (other than liens for taxes which
are not yet due and payable) on any of the property of GeoGraphix, nor are
there any pending or threatened examinations or tax claims asserted.
GeoGraphix has not granted any extensions of limitation periods applicable to
tax claims or filed a consent under Section 341(f) of the Internal Revenue Code
of 1986, as amended (the "Code") (or any predecessor thereof) relating to
collapsible corporations. Except jurisdictions in which GeoGraphix voluntarily
files tax returns, no claim has ever been made by a taxing authority that
GeoGraphix is or may be subject to taxation by that jurisdiction. True and
correct copies of all federal, foreign, state and local income and other tax
returns, notices from foreign, federal, state and local taxing authorities, tax
examination reports and statements of deficiencies assessed against or agreed
to by GeoGraphix since January 1, 1991, have been delivered to Landmark, and
the same are listed in Section 3.8 of the Disclosure Schedule. GeoGraphix is
not a party to, or bound by, any tax indemnity, tax sharing or tax allocation
agreement. GeoGraphix is not a party to any agreement that has resulted or
would result, in the payment of any "excess parachute payments" within the
meaning of Section 280G of the Code. GeoGraphix has never been a member of an
"affiliated group," as defined in Section 1504(a) of the Code (other than a
group of which GeoGraphix is the common parent) and is not the owner of an
interest in a partnership, joint venture, trust, limited liability company or
other entity or organization. All positions taken on federal Tax Returns that
could give rise to a penalty for substantial understatement pursuant to Section
6662(d) of the Code have been disclosed on such Tax Returns. GeoGraphix is not
a United States real property holding corporation as defined in Section 897 of
the Code. No shareholder of GeoGraphix is a foreign person within the meaning
of Section 1445(b)(2) of the Code. GeoGraphix is not a partner of any
partnership. Except as reflected on the Tax Returns, GeoGraphix has not made
any material tax elections under any section of the Code, including, without
limitation under any of Sections 108, 168, 338, 441, 463, 472, 1017, 1033 or
4977 of the Code (or any predecessor thereof). None of the assets and
properties of GeoGraphix is an asset or property that Landmark or any of its
affiliates is or will be required to treat as being (i) owned by any other
person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue
Code of 1954 as amended, and in effect immediately before the enactment of the
Tax Reform Act of 1986, or (ii) tax-exempt use property within the meaning of
Section 168(h)(1) of the Code. No closing agreement pursuant to Section 7121
of the Code (or any predecessor provision) or any similar provision of any
state, local, or foreign law has been entered into by or with respect to
GeoGraphix or any assets thereof. GeoGraphix
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has not agreed to and is not required to make any adjustment pursuant to
Section 481(a) of the Code (or any predecessor provision) by reason of any
change in any accounting method of GeoGraphix. GeoGraphix has no application
pending with any taxing authority requesting permission for any changes in any
accounting method of GeoGraphix, and the IRS has not proposed any such
adjustment or change in accounting method. GeoGraphix has not been nor is it
in violation (nor has any action been taken or omission occurred which, with
notice or lapse of time or both, would be in violation) of any applicable law
relating to the payment of withholding of Taxes. GeoGraphix has duly and
timely withheld from salaries, wages and other compensation and paid over to
the appropriate taxing authorities all amounts required to be so withheld and
paid over for all periods under all applicable laws.
3.9 Real Property. Set forth in Section 3.9 of the Disclosure
Schedule is a complete and accurate list and a brief description of all real
property owned or leased by GeoGraphix. With respect to each lease so set
forth: (a) the lease has been validly executed and delivered by GeoGraphix and,
to the knowledge of GeoGraphix and the Selling Shareholders, by the other party
or parties thereto and is a binding agreement; (b) GeoGraphix is not, and to
the knowledge of GeoGraphix and the Selling Shareholders, no other party to the
lease is in material breach or default, and no event has occurred on the part
of GeoGraphix or, to the knowledge of GeoGraphix and the Selling Shareholders,
on the part of any other party which, with notice or lapse of time, would
constitute such a breach or default or permit termination, modification or
acceleration under the lease; (c) the lease will continue to be binding in
accordance with its terms following the Closing; (d) GeoGraphix has not
repudiated and, to the knowledge of GeoGraphix and the Selling Shareholders, no
other party to the lease has repudiated any provision thereof; (e) there are no
disputes, oral agreements or delayed payment programs in effect as to the
lease; and (f) all facilities leased thereunder have been approved by all
necessary governmental authorities, have been maintained in accordance with
normal industry practice and are in good condition, working order and repair.
3.10 Tangible Property. GeoGraphix has good and marketable title
to, or a valid leasehold interest in, each item of tangible property, whether
real, personal or mixed, reflected on its books and records as owned or used by
it, subject to no mortgages, liens, claims, security interests, pledges or
encumbrances of any nature.
3.11 Intellectual Property.
(a) Owned. Section 3.11(a) of the Disclosure Schedule
sets forth a list of intellectual property owned by GeoGraphix,
including all patents, patent applications, trademarks, service marks,
trade dress, trade names, corporate names, copyrights, mask works,
technology or intellectual property owned by GeoGraphix that are
material to the business of GeoGraphix and registrations or
applications to register any of the foregoing and a list of all
licenses or other contracts related thereto (collectively, the
"Intellectual Property"). With respect to each such item of
Intellectual Property:
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(i) GeoGraphix is the sole and exclusive owner;
(ii) no proceedings have been instituted, are
pending or are threatened which challenge the validity,
enforceability, use or ownership thereof;
(iii) the item (A) does not infringe upon or
otherwise violate the rights of others, (B) to the knowledge
of GeoGraphix and the Selling Shareholders, is not being
infringed upon by others and (C) is not subject to any
outstanding order, decree or judgment;
(iv) no license, sublicense or agreement
pertaining to the item has been granted by GeoGraphix;
(v) GeoGraphix has not received any charge of
interference or infringement with respect to the item;
(vi) except in the ordinary course of business or
as expressly set forth in a contract disclosed on Schedule
3.12 hereto, GeoGraphix has not agreed to indemnify any person
or entity for or against any infringement with respect to the
item;
(vii) the transactions contemplated by this
Agreement will have no material adverse effect on the right,
title and interest of GeoGraphix in the item;
(viii) GeoGraphix has supplied Landmark with true
and complete copies of all written documentation evidencing
its ownership of the item and of all licenses and other
contracts related thereto; and
(ix) GeoGraphix has granted approximately 82
marketing licenses covering its software products, of which 30
are written and 52 are oral. The oral agreements provide for
substantially the same terms and provisions as the written
agreements, including, without limitation, provisions relating
to the right of GeoGraphix to terminate the license on 15 days
notice and a prohibition on the copy or transfer of the
software product.
(b) Used. Section 3.11(b) of the Disclosure Schedule
sets forth a list describing all patents, trademarks, trade names,
service marks, copyrights, trade secrets and mask works of others
which GeoGraphix practices or uses that are material to GeoGraphix.
With respect to each such item of intellectual property:
(i) any license agreement covering the item is
a valid and binding agreement;
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(ii) no event has occurred which constitutes a
breach of such license agreement, GeoGraphix has not
repudiated and, to the knowledge of GeoGraphix and the Selling
Shareholders, no other party thereto has repudiated any
provision thereof and there are no disputes or oral
arrangements in effect as to any such license agreement;
(iii) GeoGraphix has supplied Landmark with a true
and complete copy of the license agreement;
(iv) the transactions contemplated by this
Agreement will have no material adverse effect on the ability
of GeoGraphix to continue using or practicing each such item;
and
(v) GeoGraphix is not aware of any claim that the
exercise of the rights granted to GeoGraphix with respect to
such item infringes upon the intellectual property rights of
any third party.
(c) Business Activity. GeoGraphix has not infringed,
misappropriated or otherwise violated any intellectual property rights
of any party. Neither GeoGraphix nor the Selling Shareholders are
aware of any infringement, misappropriation or violation with respect
to intellectual property which will occur as a result of the continued
operation of the business of GeoGraphix as now conducted or as
presently proposed to be conducted.
(d) GeoGraphix has exercised reasonable care (giving due
regard to the size of GeoGraphix, its financial resources, and the
practices in the segment of the software industry in which GeoGraphix
does business) to protect its intellectual property against wrongful
use or disclosure. The employees and consultants of GeoGraphix who,
either alone or in concert with others, developed, invented,
discovered, derived, programmed or designed any of its intellectual
property, or who have knowledge of or access to information about such
intellectual property, have entered into written agreements to protect
the confidentiality of such intellectual property and to assign to
GeoGraphix all property rights therein. Copies of such written
agreements have been furnished to Landmark. No employee or
prospective employee of GeoGraphix who has signed such an agreement is
in violation thereof.
3.12 Contracts. Section 3.12 of the Disclosure Schedule lists the
following contracts and written arrangements, true and complete copies of which
have been delivered to Landmark, to which GeoGraphix is a party:
(a) any contract, agreement or arrangement which is
presently in effect, or which has been in effect at any time during
the 5-year period preceding the date of this Agreement, between (i)
GeoGraphix or any of its predecessors or affiliates and (ii) either
Schlumberger Technology Corporation or Photon Systems Ltd. or any of
their respective predecessors or affiliates;
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<PAGE> 18
(b) any contract for the lease of personal property from
or to third parties providing for lease payments in excess of
$15,000.00 per annum;
(c) any contract for the purchase or sale of supplies,
products manufactured by GeoGraphix or other personal property or for
the furnishing or receipt of services which contract calls for
performance over a period of more than one year or which involves more
than the sum of $50,000.00, except no license agreement need be
disclosed pursuant to this Section 3.12 unless it calls for
performance over a period of more than one year and involves more than
the sum of $10,000.00;
(d) any joint venture agreement;
(e) any agreement or instrument under which GeoGraphix is
or may become indebted for borrowed money;
(f) any noncompetition agreement;
(g) any other contract in which the consequences of a
default or termination would have a materially adverse effect on the
financial condition of GeoGraphix or on the prospects or the conduct
of the business of GeoGraphix;
(h) any standard form of license agreement;
(i) any agreement with any officer, director or
shareholder of GeoGraphix, or, to the best knowledge of GeoGraphix or
any Selling Shareholder, any affiliate of an officer, director or
shareholder of GeoGraphix; and
(j) any other contract or arrangement not entered into in
the ordinary course of business.
All contracts and arrangements listed in Section 3.12 of the Disclosure
Schedule are valid and binding agreements. GeoGraphix is not and, to the
knowledge of GeoGraphix and the Selling Shareholders, no other party is in
breach or default, and no event has occurred on the part of GeoGraphix or, to
the knowledge of GeoGraphix and the Selling Shareholders, on the part of any
other party to any such contract or arrangement which with notice or lapse of
time would constitute a breach or default or permit termination under any such
contract or arrangement. None of such contracts or arrangements will be
terminated or modified by the consummation of the Acquisition. GeoGraphix has
previously made available to Landmark all of the service agreements of
GeoGraphix with its customers. GeoGraphix is not a party to any verbal
contract or arrangement which, if reduced to written form, would be required to
be listed in Section 3.12 of the Disclosure Schedule under the terms of this
Section 3.12.
3.13 Suppliers and Customers. Section 3.13 of the Disclosure
Schedule is a true and correct list of all suppliers of GeoGraphix to whom
GeoGraphix made payments,
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during the fiscal year ended December 31, 1994, in excess of five percent of
GeoGraphix's consolidated cost of sales as reflected in the Financial
Statements for such year and all customers of GeoGraphix that paid GeoGraphix,
during the fiscal year ended December 31, 1994, more than five percent of the
consolidated revenues of GeoGraphix as reflected in the Financial Statements
for such year. Since December 31, 1994, no customer of GeoGraphix has notified
GeoGraphix that it will substantially decrease or cease doing business with
GeoGraphix.
3.14 Notes; Accounts Receivable. As of the Closing Date, all notes
payable to and accounts receivable of GeoGraphix will be properly reflected on
its books and records, will be valid receivables subject to no setoffs or
counterclaims, and such reflected receivable amount will be collected within
120 days from the Closing Date.
3.15 Powers of Attorney. There are no outstanding powers of
attorney or similar instruments executed by GeoGraphix.
3.16 Condition of Property. Each building, fixture, machine and
piece of equipment (having a net book value of $2,500.00 or more) owned or used
by GeoGraphix is in good operating condition and repair, subject to normal wear
and tear, and is in compliance with all zoning, building and fire codes.
GeoGraphix owns or leases under valid lease all buildings, machinery, equipment
and other tangible assets used in the conduct of its business.
3.17 Insurance. GeoGraphix is insured under the policies listed in
Section 3.17 of the Disclosure Schedule.
3.18 Litigation. Section 3.18 of the Disclosure Schedule sets
forth any instances in which (a) GeoGraphix is subject to any judgment or order
(other than orders of general applicability) of any court or quasi-judicial or
administrative agency of any jurisdiction, domestic or foreign, or where there
is any charge, complaint, lawsuit or governmental investigation pending or
threatened against GeoGraphix; or (b) GeoGraphix is a plaintiff in any action,
domestic or foreign, judicial or administrative in which a counterclaim against
GeoGraphix is pending or might be brought. None of the actions, suits,
proceedings or investigations set forth in Section 3.18 of the Disclosure
Schedule could result in any adverse change in the condition, financial or
otherwise, of GeoGraphix, the same being fully reserved against in the
Financial Statements. There are no unsatisfied judgments, orders (other than
orders of general applicability), decrees or stipulations affecting GeoGraphix
or to which GeoGraphix is a party and there is no reason to believe that any
such action, suit, proceeding or investigation may be brought or threatened
against GeoGraphix.
3.19 Employees. GeoGraphix has listed in Section 3.19 of the
Disclosure Schedule and has furnished to Landmark true and complete copies of:
(a) any written employment agreements with officers and directors of
GeoGraphix; and (b) any written employment agreements with its employees which
by their terms may not be terminated by GeoGraphix at will or which grant
severance payments. GeoGraphix has not entered
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into any similar oral employment agreements. To the knowledge of GeoGraphix
and the Selling Shareholders, no employee listed on Annex III has any plans to
terminate employment with GeoGraphix. GeoGraphix is not a party to or bound by
any collective bargaining agreement, nor has it experienced any strikes,
material grievances, claims of unfair labor practices or other collective
bargaining disputes. There are no loans or other obligations payable or owing
by GeoGraphix to any shareholder, officer, director or employee of GeoGraphix
(except salaries and wages incurred and accrued in the ordinary course of
business), nor are there any loans or debts payable or owing by any of such
persons to GeoGraphix or any guarantees by GeoGraphix of any loan or obligation
of any nature to which any such person is a party. GeoGraphix has complied
with all laws and regulations which relate to the employment of labor, employee
civil rights or equal employment opportunities. To the knowledge of GeoGraphix
and the Selling Shareholders, there is no organizational effort presently being
made or threatened by or on behalf of any labor union with respect to employees
of GeoGraphix.
3.20 Employee Benefit Plans. GeoGraphix has listed in Section 3.20
of the Disclosure Schedule and has furnished to Landmark true and complete
copies of (a) any nonqualified deferred or incentive compensation or retirement
plans or arrangements, (b) any qualified retirement plans or arrangements, (c)
any other employee compensation, severance or termination pay or welfare
benefit plans, programs or arrangements and (d) any related trusts, insurance
contracts or other funding arrangements maintained, established or contributed
to by GeoGraphix or to which GeoGraphix is a party or otherwise is bound
("GeoGraphix Employee Benefit Plans"). GeoGraphix is not a member of a
"controlled group" or an "affiliated service group" as both of such terms are
defined in Section 414 of the Code. Except as required by law, GeoGraphix has
never maintained or contributed to any funded or unfunded medical, health or
life insurance plan or arrangement for retirees or terminated employees.
GeoGraphix has never contributed or had any obligation to make any payment or
contribution to a "multiemployer plan," as that term is defined in Section
3(37) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and GeoGraphix does not have any actual or potential liability under
Section 4201 of ERISA for any complete or partial withdrawal from a
multiemployer plan. GeoGraphix has never maintained, contributed or had any
liability with respect to any employee pension benefit plan (as defined in
Section 3(2) of ERISA) which is intended to meet the requirements of a
qualified plan under Section 401(a) of the Code. GeoGraphix has never
maintained, contributed to or had any liability with respect to a plan which is
subject to Title IV of ERISA or Section 412 of the Code. With respect to the
employee benefit plans listed in Section 3.20 of the Disclosure Schedule,
GeoGraphix has furnished to Landmark true and complete copies of (i) any
summary plan description or other employee communication materials, (ii) the
latest financial statements and annual reports and (iii) all documents filed
with the IRS or the Department of Labor since December 31, 1989. All employee
benefit plans and related trusts listed in Section 3.20 of the Disclosure
Schedule and maintained or contributed to by GeoGraphix or with respect to
which GeoGraphix now has or has ever had any liability or potential liability
comply in form and in operation with all requirements of ERISA and the Code.
All reports with respect to such plans required by applicable law have been
filed and all contributions or payments presently anticipated thereunder have
been made or properly
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accrued. No applications for rulings, determination letters, advisory
opinions or prohibited transaction exemptions are currently pending before the
IRS, the Department of Labor or the Pension Benefit Guaranty Corporation with
respect to any such employee benefit plans or arrangements or any related
trusts. None of such employee benefit plans or arrangements, any related
trusts, the trustees of any related trusts or the directors, officers and
employees of GeoGraphix is the subject of any lawsuit, arbitration or other
proceeding concerning any benefit claim or other benefit-related matter (other
than routine claims in the ordinary course of business), and there have been no
prohibited transactions as described in Section 406 of ERISA or as defined in
Section 4975 of the Code with respect to any such plan. Neither GeoGraphix,
its directors, officers and employees nor any other fiduciary, as such term is
defined in Section 3 of ERISA, has committed any breach of fiduciary
responsibility imposed by ERISA or any other applicable law which would subject
GeoGraphix, or its directors, officers and employees to liability under ERISA
or any applicable law.
3.21 Guarantees. GeoGraphix is not a guarantor or otherwise liable
for any indebtedness of any other person, firm or corporation other than
endorsements for collection in the ordinary course of business.
3.22 Legal Compliance. GeoGraphix and its directors, officers and
employees (the individuals only in their capacities as representatives of
GeoGraphix, as applicable) have complied with all applicable laws and
regulations of foreign, federal, state and local governments and all agencies
thereof, and no claim has been filed against GeoGraphix alleging a violation of
any such laws or regulations. GeoGraphix holds all of the permits, licenses,
certificates or other authorizations of foreign, federal, state or local
governmental agencies required for the conduct of its business as presently
conducted or proposed to be conducted.
3.23 Certain Business Relationships. To the knowledge of
GeoGraphix and the Selling Shareholders, none of the present or former
shareholders, directors, officers or employees of GeoGraphix owns, directly or
indirectly, any interest in any business, corporation or other entity (other
than investments in publicly held companies) which, on the date hereof or
within the past 12 months, has been involved in any manner in any business
arrangement or relationship with GeoGraphix, and none of the foregoing persons
owns any property or rights, tangible or intangible, which are used in the
business of GeoGraphix.
3.24 Broker's Fees. Neither GeoGraphix nor anyone on its behalf
has any liability to any broker, finder, investment banker or agent, or has
agreed to pay any brokerage fees, finder's fees or commissions, or to reimburse
any expenses of any broker, finder, investment banker or agent in connection
with the Acquisition or any similar transaction, except Wessels, Arnold &
Henderson, L.L.C.
3.25 Disclosure. The representations and warranties and statements
of fact made by GeoGraphix and the Selling Shareholders in this Agreement, the
Disclosure Schedule, the Registration Rights Agreement, in correspondence
provided to Price
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Waterhouse LLP and/or Arthur Andersen, L.L.P. in connection with the opinions
contemplated by Sections 6.1(b) and 6.1(c), the investor questionnaires and
investor representation letters provided to Landmark, the agreements executed
in connection with the opinions contemplated by Sections 6.1(b) and 6.1(c), the
certificate contemplated by Section 6.2(e) and in the certificate contemplated
by Section 6.2(e) are, as applicable, accurate, correct and complete on the
date of this Agreement and will, except as contemplated hereby, be accurate,
correct and complete on the Closing Date and do not and will not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained herein or
therein not misleading.
3.26 SIC Code. The Standard Industrial Classification codes for
GeoGraphix do not include any between the numbers 2000 to and including 3999.
3.27 Scheduled Disclosures. In the event of an inconsistency
between the disclosures set forth in the body of this Agreement and those set
forth in the Disclosure Schedule, the disclosures in the Disclosure Schedule
shall control.
ARTICLE 4
CONDUCT OF BUSINESS PENDING THE CLOSING
4.1 Conduct of Business by GeoGraphix Pending the Closing.
GeoGraphix and each of the Selling Shareholders covenant and agree that, prior
to the Closing, unless Landmark shall otherwise agree in writing or as
otherwise expressly contemplated or permitted by this Agreement, including in
Schedule 4.1 hereto:
(a) GeoGraphix shall conduct its business and
operations, including its cash management practices, collection of
receivables, inventory control, maintenance of equipment and
facilities and payment of payables, only in the usual and ordinary
course of business and consistent with past custom and practice;
(b) GeoGraphix shall not directly or indirectly do any
of the following: (i) sell, pledge, dispose of or encumber any of its
assets, except in the ordinary course of business; (ii) amend or
propose to amend its articles of incorporation or bylaws; (iii) split,
combine or reclassify any outstanding shares of its capital stock, or
declare, set aside or pay any dividend or other distribution payable
in cash, stock, property or otherwise with respect to shares of its
capital stock; (iv) redeem, purchase or acquire or offer to acquire
any shares of its capital stock or other securities; (v) create any
subsidiaries; or (vi) enter into or modify any contract, agreement,
commitment or arrangement with respect to any of the matters set forth
in this Section 4.1(b);
(c) GeoGraphix shall not (i) issue, sell, pledge or
dispose of, or agree to issue, sell, pledge or dispose of, any
additional shares of, or any options,
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warrants, conversion privileges or rights of any kind to acquire any
shares of, its capital stock; (ii) acquire (by merger, consolidation,
acquisition of stock or assets or otherwise) any corporation,
partnership or other business organization or division or the material
assets thereof; (iii) incur any indebtedness for borrowed money, issue
any debt securities or guarantee any indebtedness to others; or (iv)
enter into or modify any contract, agreement, commitment or
arrangement with respect to any of the foregoing;
(d) Except as set forth in Section 5.10 hereof,
GeoGraphix shall not (i) enter into or modify any employment,
severance or similar agreements or arrangements with, or grant any
bonus, salary increase, severance or termination pay to, any officers
or directors; or (ii) in the case of employees who are not officers or
directors, take any action other than in the ordinary course of
business and consistent with past practice (none of which shall be
unreasonable or unusual) with respect to the grant of any bonuses,
salary increases, severance or termination pay or with respect to any
increase of benefits payable in effect on January 1, 1995;
(e) Except as set forth in Section 5.10 hereof,
GeoGraphix shall not adopt or amend any bonus, profit sharing,
compensation, stock option, pension, retirement, deferred
compensation, employment or other employee benefit plan, agreement,
trust, fund or arrangement for the benefit or welfare of any employee;
(f) except as otherwise required by its articles of
incorporation or bylaws, by this Agreement or by applicable law,
GeoGraphix shall not call any meeting of its shareholders and, with
respect to any meeting of its shareholders called by GeoGraphix,
GeoGraphix shall provide to Landmark all written materials and other
information given to the shareholders prior to the time such materials
and information are given to the shareholders;
(g) GeoGraphix shall use its best efforts to cause its
current insurance (or reinsurance) policies not to be cancelled or
terminated or any of the coverage thereunder to lapse, unless
simultaneously with such termination, cancellation or lapse,
replacement policies underwritten by insurance and reinsurance
companies of nationally recognized standing providing coverage equal
to or greater than the coverage under the cancelled, terminated or
lapsed policies for substantially similar premiums are in full force
and effect;
(h) GeoGraphix shall (i) use its best efforts to preserve
intact its business organization and goodwill, keep all material
rights, licenses, permits and franchises relating to its business,
keep available the services of its officers and employees as a group
and maintain satisfactory relationships with suppliers, distributors,
customers and others having business relationships with it; (ii)
report upon request, at reasonable times, to representatives of
Landmark regarding operational matters and the general status of
ongoing operations; (iii) use its best efforts not to take any action
which would render, or which reasonably may be expected to render,
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any representation or warranty made by it in this Agreement untrue at
any time prior to the Closing if then made; and (iv) notify Landmark
of any emergency or other change in the normal course of its business
or in the operation of its properties and of any tax audits, tax
claims, governmental or third party complaints, investigations or
hearings (or communications indicating that the same may be
contemplated) if such emergency, change, audit, claim, complaint,
investigation or hearing would be material, individually or in the
aggregate, to the financial condition, results of operations or
business of GeoGraphix, or to the ability of GeoGraphix or Landmark to
consummate the transactions contemplated by this Agreement;
(i) GeoGraphix shall deliver to Landmark promptly (but in
any event within two business days) after the discovery or receipt of
notice of any default under any material agreement to which it is a
party or any other material adverse event or circumstance affecting
GeoGraphix (including the filing of any material litigation against
GeoGraphix or the existence of any dispute with any person or entity
which involves a reasonable likelihood of such litigation being
commenced), a certificate of the Chief Executive Officer of GeoGraphix
specifying the nature and period of the existence thereof and what
actions GeoGraphix has taken and proposes to take with respect
thereto;
(j) GeoGraphix shall maintain its assets in customary
repair, order and condition, replace in accordance with past practice
its inoperable, worn out or obsolete assets with assets of quality at
least comparable to the original quality of the assets being replaced
and maintain its books, accounts and records in accordance with past
custom and practice as used in the preparation of the Financial
Statements;
(k) GeoGraphix shall maintain the existence of all
material patents, inventions, trademarks, service marks, trade dress,
trade names, corporate names, copyrights, mask works, trade secrets,
licenses, computer software, data and documentation and other
proprietary rights, which it uses or owns; and
(l) GeoGraphix shall comply with all legal requirements
and contractual obligations applicable to its operations and business
and pay all applicable taxes.
Notwithstanding any other provision of this Agreement, the amendment
or modification of the Disclosure Schedule by GeoGraphix after the time
Landmark has signed this Agreement shall have no effect with respect to the
agreements, covenants and obligations of GeoGraphix, the Selling Shareholders
and Landmark pursuant to this Section 4.1 or satisfaction of the conditions
precedent set forth in Sections 6.2 and 6.3 of this Agreement.
4.2 No Other Bids for GeoGraphix. Neither GeoGraphix nor any of
the Selling Shareholders shall, or shall authorize or knowingly permit any
officer, director or employee of, or any investment banker, attorney,
accountant or other representative retained by,
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GeoGraphix or such Selling Shareholder to, make, solicit, initiate, encourage
or respond to a submission of a proposal or offer from any person or entity
(other than Landmark) relating to any liquidation, dissolution,
recapitalization, merger, consolidation or acquisition or purchase of all or a
material portion of the assets/technology of, or any equity interest in,
GeoGraphix or other similar transaction or business combination involving
GeoGraphix (hereinafter collectively referred to as a "Third Party Offer").
Neither Geographix nor any of the Selling Shareholders shall participate in any
negotiations regarding, or furnish to any person or entity (other than
Landmark) any information with respect to, or otherwise cooperate in any way
with, or assist or participate in, facilitate or encourage, any effort or
attempt by any person or entity (other than Landmark) to do or seek any of the
foregoing. GeoGraphix and the Selling Shareholders will immediately cease and
cause to be terminated any contacts or negotiations currently pending with
respect to Third Party Offers, if any, and shall use their best efforts to
cause all reports, material, data and other written information heretofore
disseminated by them or on their behalf by any such officer, director or
employee or any investment banker, attorney, accountant or other representative
in connection with any such Third Party Offer or any inquiry or proposal
related thereto to be promptly returned to it. GeoGraphix and the Selling
Shareholders shall promptly notify Landmark of the receipt of any Third Party
Offer or any inquiry or communication which might reasonably be expected to
lead to any Third Party Offer and will provide Landmark with all information
that Landmark may reasonably request with respect thereto.
4.3 Lines of Business and Capital Expenditures. Unless approved
in writing by Landmark, GeoGraphix covenants that it will not (a) enter into
any new material line of business; (b) change its investment, liability
management and other material policies in any material respect; or (c) incur or
commit to any capital expenditures, obligations or liabilities in connection
therewith.
4.4 Accounting Methods. Unless approved in writing by Landmark,
GeoGraphix covenants that it will not, prior to the Closing, change its methods
of accounting in effect at December 31, 1994, except as required by changes in
generally accepted accounting principles as concurred in by Arthur Andersen,
L.L.P., GeoGraphix's independent accountants.
4.5 Other Actions. Unless approved in writing by Landmark,
GeoGraphix and each Selling Shareholder covenants that it shall not knowingly
take any action or permit any action to occur that might reasonably be expected
to result in any of the representations and warranties of GeoGraphix or such
Selling Shareholder set forth in this Agreement becoming untrue after the date
hereof or any of the conditions to the Closing set forth in Article 6 of this
Agreement not being satisfied.
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ARTICLE 5
ADDITIONAL AGREEMENTS
5.1 Adjustments for Excess Closing Costs. All costs, fees and
expenses incurred by GeoGraphix in connection with the Acquisition, this
Agreement or the transactions contemplated hereby or related hereto shall be
determined and related invoices for the full amounts owing shall be submitted
to GeoGraphix on or prior to Closing. In the event that such costs, fees and
expenses incurred by GeoGraphix exceed $540,000, the number of Shares to be
issued in connection with the Acquisition shall be reduced by an amount
(rounded to the nearest whole number) equal to the quotient of such excess
costs, fees and expenses (referred to collectively herein as the "Excess
Closing Costs") divided by the Average Closing Price.
5.2 Expenses. Except as otherwise provided herein, and subject to
Section 5.1 above, all costs and expenses incurred in connection with the
Acquisition, this Agreement and the other agreements contemplated hereby and
the transactions contemplated hereby and thereby shall be paid by the party
incurring such expenses.
5.3 Termination Fee. In the event that during the period from the
date hereof through December 15, 1995, a Third Party Offer is accepted, or
agreed to be accepted, by GeoGraphix and/or its shareholders, which results or
would result in aggregate consideration to GeoGraphix or its shareholders in
excess of $15,525,000, GeoGraphix shall pay Landmark, in immediately available
funds, an amount (the "Termination Fee") equal to the sum of (i) $500,000.00
and (ii) Landmark's aggregate out-of-pocket expenses incurred in connection
with the negotiation and performance of this Agreement and the transactions
contemplated hereby, including, without limitation, all costs of investigation
and fees and expenses of legal, accounting and financial advisors; provided,
the maximum aggregate obligation of GeoGraphix pursuant to this sentence shall
not, in any event, exceed $750,000. The Termination Fee will be payable within
60 days following the acceptance of such Third Party Offer, but will, in any
event, be payable prior to the consummation of the transactions contemplated by
such Third Party Offer. GeoGraphix's obligation to pay the Termination Fee
shall be extinguished if this Agreement is terminated pursuant to subparagraphs
(a) or (d) of Section 7.1 or GeoGraphix declines to consummate the Acquisition
because of any failure of the conditions set forth in subparagraphs (a) or (f)
of Section 6.1 or Section 6.3 of this Agreement. Furthermore, GeoGraphix's
obligation to pay the Termination Fee shall be extinguished if Landmark
declines to consummate the Acquisition for any reason other than failure of the
conditions set forth in subparagraph (e) of Section 6.1 or subparagraphs (a),
(b), (e), (f), (g), (j) and (k) of Section 6.2 of this Agreement. The
Termination Fee is intended to compensate Landmark for entering into this
Agreement and further negotiations with respect to the Acquisition and is not
intended as a penalty.
5.4 Notification of Certain Matters. Each party shall give prompt
notice to the others of (a) the occurrence or failure to occur of any event,
which occurrence or failure would result in any Material Adverse Breach, and
(b) any failure of such party, or any
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<PAGE> 27
officer, director, employee or agent thereof, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied hereunder.
5.5 Access to Information. From the date hereof to the Closing,
each of GeoGraphix and Landmark shall, and shall cause its respective officers,
directors, employees and agents to afford the officers, employees, agents and
representatives of the other parties hereto complete access at all reasonable
times to such officers, employees and agents and its properties, books and
records (all such access to be arranged through the respective officers of the
parties hereto so as not to be unreasonably disruptive to any of the parties),
and shall furnish each of such parties all financial, operating, personnel,
compensation, tax and other data and information as such parties, through
their respective officers, employees, agents or representatives, may request.
5.6 Taking of Necessary Action. Subject to the terms and
conditions of this Agreement, the parties hereto agree, subject to applicable
laws, to use all reasonable efforts to promptly take or cause to be taken all
action and to promptly do or cause to be done all things necessary, proper or
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. Without limiting
the foregoing, the Selling Shareholders, GeoGraphix and Landmark shall use
their best efforts to maintain and make all filings with and obtain all
consents, approvals, and/or assurances from third parties and appropriate
governmental agencies and authorities necessary or, in the opinion of
GeoGraphix or Landmark, advisable for the consummation of the transactions
contemplated by this Agreement. Each party shall cooperate with the other in
good faith to help the other satisfy its obligations in this Section 5.6.
5.7 Notice of Changes. GeoGraphix and Landmark shall each
promptly inform the other in writing if any change shall have occurred or shall
have been threatened (or any development shall have occurred or shall have been
threatened involving a prospective change) in its financial condition, results
of operations or business that is or may reasonably be expected to have a
material adverse effect on its financial condition, results of operations or
business.
5.8 Press Releases. GeoGraphix and Landmark shall consult with
each other as to the form and substance of any press release or other public
disclosure of matters related to this Agreement or any of the transactions
contemplated hereby; provided, however, that nothing in this Section 5.8 shall
be deemed to prohibit any party hereto from making any disclosure that is
required to fulfill such party's disclosure obligations imposed by law,
including, without limitation, federal securities laws.
5.9 Solicitation of Other GeoGraphix Shareholders.
(a) Landmark shall be entitled, on and after the date hereof,
to solicit all holders of GeoGraphix Common Stock who have not, on the
date of this Agreement, executed this Agreement, for the purpose of
requesting that such
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holders become parties to this Agreement, thereby agreeing to sell
their shares of GeoGraphix Common Stock to Landmark on the Closing
Date pursuant to the terms of this Agreement.
(b) Each holder of GeoGraphix Common Stock who shall
execute this Agreement at any time prior to the Closing Date shall be
deemed to be a "Selling Shareholder" hereunder, and such holder's
shares of GeoGraphix Common Stock shall be deemed to be "GeoGraphix
Shares."
(c) The execution and delivery of this Agreement by any
Selling Shareholder at any time on or prior to the Closing Date shall
not be deemed to be contingent or conditioned upon the execution of
this Agreement by any other holder or holders of GeoGraphix Common
Stock.
5.10 Certain Transition Arrangements. Landmark agrees to cause
GeoGraphix to pay (subsequent to the Closing) an aggregate of $500,000 (the
"Bonus Amount") to persons (other than holders of equity interests in
GeoGraphix) designated to receive such amounts under a post-Acquisition
compensatory arrangement (the "Transition Program") as hereinafter set forth.
The Transition Program shall be implemented as follows:
(a) Landmark shall cause GeoGraphix to pay bonus awards to the
persons designated in Annex V hereto in such amounts as mutually agreed upon by
Landmark and David Armitage. It is agreed that 50% of the amount of each bonus
award made under the Transition Program shall be payable on or about the
Closing Date and 50% of the amount of each such bonus award shall be payable on
or about December 31, 1995. Notwithstanding anything to the contrary contained
herein, in no event shall Landmark be obligated to cause GeoGraphix to pay
aggregate bonuses under the Transition Program in excess of the Bonus Amount.
5.11 Release Relating to Corporate Indebtedness and Obligations.
GeoGraphix and Landmark shall cause David Armitage and Gina Armitage to be
fully and finally released from the following indebtedness and obligations
(including without limitation, any guarantees thereof) effective as of the
Closing Date:
(a) Commercial Guaranty executed by David L. Armitage for the
benefit of Professional Bank relating to indebtedness of GeoGraphix under a
$350,000 line of credit facility;
(b) Guaranty Agreement dated December 21, 1994 executed by David
L. Armitage and Gina G. Armitage in favor of Colorado National Leasing, Inc.
(c) GeoGraphix's office leases in Denver, Houston and Calgary.
Notwithstanding the foregoing, the release provided for in this Section 5.11
shall only apply to indebtedness and obligations (including, without
limitation, guarantees) to the
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extent such indebtedness or obligations were incurred for bona fide business
reasons and represent bona fide obligations of GeoGraphix.
5.12 Termination of Voting Agreement. Each of the Selling
Shareholders hereby agrees that immediately upon the consummation of the
Acquisition at Closing, that certain Voting Agreement dated November 1, 1993,
between David Armitage and Gina Armitage shall be deemed terminated and of no
further force or effect; and David Armitage, Gina Armitage, and every person
now holding any GeoGraphix Shares previously owned by David Armitage or Gina
Armitage do hereby consent to such termination on and as of the Closing Date.
5.13 Denver Lease. Without first obtaining the written consent of
Landmark, GeoGraphix shall not enter into any lease, or modification or
extension of the existing lease, in respect of the premises at 1860 Blake
Street, Denver, Colorado.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 Conditions to Obligations of Each Party to Effect the Closing.
The respective obligations of each party to effect the Closing shall be subject
to the fulfillment on or prior to the Closing Date of the following conditions:
(a) no order shall have been entered and remain in effect
in any action or proceeding before any foreign, federal or state court
or governmental agency or other foreign, federal or state regulatory
or administrative agency or commission that would prevent or make
illegal the consummation of the transactions contemplated hereby;
(b) Landmark shall have received an opinion letter from
Price Waterhouse LLP, stating that the Acquisition will be accounted
for as a "pooling of interests" rather than as a "purchase",
substantially in the form of EXHIBIT B attached hereto, and all
agreements and/or representations as are determined by Price
Waterhouse LLP, GeoGraphix and/or Landmark to be necessary for the
issuance of such opinion shall have been received by such entities;
(c) GeoGraphix and Price Waterhouse LLP shall have
received an opinion letter from Arthur Andersen, L.L.P., stating that
neither GeoGraphix nor any of its affiliates has taken any action on
or prior to the Closing Date that would prevent Landmark from treating
the Acquisition as a "pooling of interests" for accounting purposes
rather than as a "purchase," which opinion letter shall be
substantially in the form ofExhibit C attached hereto; and
(d) The "affiliates" of Landmark shall have provided
Landmark with written agreements not to sell, assign, convey, encumber
or otherwise transfer any
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equity interests in Landmark in a manner which would prevent the
Acquisition from being accounted for as a "pooling of interests."
(e) The "affiliates" of GeoGraphix shall have provided
Landmark with written agreements not to sell, assign, convey, encumber
or otherwise transfer any equity interests in GeoGraphix or Landmark
in any manner which would prevent the Acquisition from being accounted
for as "pooling of interests."
(f) The Average Closing Price is not less than $21.00 per
share nor more than $31.00 per share.
6.2 Additional Conditions to Landmark's Obligations. The
obligations of Landmark to effect the Closing are subject to the satisfaction
of the following conditions on or before the Closing Date:
(a) Except for breaches which do not constitute a
Material Adverse Breach (as defined in Section 9.5 of this Agreement)
by the Selling Shareholders and GeoGraphix, the representations and
warranties set forth in Article 3 of this Agreement (without regard to
any amendments or modifications of the Disclosure Schedule by the
Selling Shareholders and GeoGraphix after the time Landmark has signed
this Agreement) will be true and correct as of the date hereof and at
and as of the Closing, as though then made and as though the Closing
Date were substituted for the date of this Agreement throughout such
representations and warranties and with appropriate modifications of
tense with respect to representations and warranties made as of a
specified date;
(b) GeoGraphix and the Selling Shareholders shall have
performed, in all material respects, each obligation and agreement and
complied with each covenant to be performed and complied with by them
under this Agreement prior to the Closing, including, without
limitation, all of their respective agreements contained in Articles 4
and 5 of this Agreement;
(c) All consents by governmental or regulatory agencies
or otherwise that are required for the consummation of the
transactions contemplated hereby or that are required for Landmark to
own, operate or control GeoGraphix or any portion of the assets of
GeoGraphix or to prevent a breach of or a default under or a
termination of any agreement material to GeoGraphix to which
GeoGraphix is a party or to which any material portion of the assets
of GeoGraphix is subject, will have been obtained;
(d) No action or proceeding before any court or
governmental body will be pending or threatened wherein a judgment,
decree or order would prevent any of the transactions contemplated
hereby or cause such transactions to be declared unlawful or rescinded
or which might adversely affect the right of Landmark to own, operate
or control GeoGraphix or any material portion of the assets of
GeoGraphix or the value of the assets of GeoGraphix;
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(e) The Selling Shareholders shall have delivered to
Landmark certificates representing all the GeoGraphix Shares held by
such Selling Shareholders;
(f) Holders of at least 90% of the GeoGraphix Common
Stock shall have executed and delivered this Agreement or counterparts
hereof to Landmark on or before the Closing Date and shall have
tendered such GeoGraphix Common Stock to Landmark at the Closing in
accordance with the terms and conditions of this Agreement;
(g) Each of the Selling Shareholders shall have
completed, executed and delivered to Landmark, an Investor
Questionnaire and investor representation letter (pursuant to forms
provided by Landmark) acceptable in all respects to Landmark and all
such Investor Questionnaires and investor representation letters shall
be sufficient to satisfy Landmark, in its sole discretion, of the
availability of an exemption from the registration requirements of the
federal securities laws and any applicable state securities or "blue
sky" laws for the offer and sale of the Shares;
(h) David Armitage shall have accepted Landmark's offer
of employment (upon terms satisfactory to Landmark) or indicated his
agreement to continue in the employment of GeoGraphix (upon terms
acceptable to Landmark and him);
(i) David Armitage shall have executed a noncompetition
agreement with Landmark in form and substance reasonably acceptable to
Landmark and such parties (the "Noncompetition Agreements");
(j) Landmark will have received from Rothgerber, Appel,
Powers and Johnson, counsel to GeoGraphix, an opinion addressed to
Landmark, dated the Closing Date and substantially in the form
attached hereto as EXHIBIT D;
(k) At the Closing, GeoGraphix and the Selling
Shareholders shall have delivered or caused to be delivered to
Landmark the following:
(i) a certificate executed by each of the Selling
Shareholders and by the Chief Executive Officer of GeoGraphix,
on behalf of GeoGraphix, stating that the conditions set forth
in Sections 6.2(a) through (d) of this Agreement have been
satisfied;
(ii) certified copies of the resolutions duly
adopted by GeoGraphix's Board of Directors authorizing the
execution, delivery and performance of this Agreement, and the
other agreements contemplated hereby;
(iii) good standing or comparable certificates for
GeoGraphix from the jurisdiction of its incorporation and from
every jurisdiction where a failure to be qualified or licensed
would have a material adverse effect on its
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financial condition, results of operations or business, dated
not earlier than 10 days prior to the Closing Date;
(iv) a copy of GeoGraphix's articles of
incorporation certified as of a recent date by the Secretary
of State of the State of Colorado; and
(v) such other documents as Landmark may
reasonably request in connection with the transactions
contemplated hereby; and
(l) Landmark shall have completed its due diligence
investigation of the business, operations, assets, financial condition
and prospects of GeoGraphix and shall not have reasonably determined
that the results of such investigation are unsatisfactory.
6.3 Additional Conditions to GeoGraphix's and the Selling
Shareholders' Obligations. The obligations of GeoGraphix and the Selling
Shareholders to effect the Closing are subject to the satisfaction of the
following conditions on or before the Closing Date:
(a) Except for breaches which do not constitute a
Material Adverse Breach (as defined in Section 9.5 of this Agreement)
by Landmark, the representations and warranties set forth in Article 2
of this Agreement will be true and correct as of the date hereof and
at and as of the Closing, as though then made and as though the
Closing Date were substituted for the date of this Agreement
throughout such representations and warranties and with appropriate
modifications of tense with respect to representations and warranties
made as of a specified date;
(b) Landmark shall have performed, in all material
respects, each obligation and agreement and complied with each
covenant required to be performed and complied with by it under
Sections 4 and 5 of this Agreement prior to the Closing Date;
(c) No action or proceeding before any court or
government body will be pending or threatened wherein a judgment,
decree or order would prevent any of the transactions contemplated
hereby or cause such transactions to be declared unlawful or
rescinded;
(d) GeoGraphix and the Selling Shareholders shall have
received from Winstead Sechrest & Minick P.C., counsel to Landmark, an
opinion addressed to GeoGraphix and the Selling Shareholders, dated
the Closing Date and substantially in the form attached hereto as
EXHIBIT "E";
(e) On the Closing Date, Landmark shall have delivered to
GeoGraphix the following:
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(i) a certificate executed on behalf of Landmark
by its President or any Vice President or Secretary stating
that the conditions set forth in Sections 6.3(a) through (c)
of this Agreement have been satisfied;
(ii) certified copies of the resolutions duly
adopted by Landmark's board of directors authorizing the
execution, delivery and performance of this Agreement, the
Registration Rights Agreement and the other agreements
contemplated hereby and thereby;
(iii) good standing certificates for Landmark from
the Secretary of State of the State of Delaware, dated not
earlier than 5 days prior to the Closing Date;
(iv) copies of Landmark's certificate of
incorporation certified by the Secretary of State of the State
of Delaware; and
(v) such other documents as GeoGraphix or the
Selling Shareholders may reasonably request in connection with
the transactions contemplated hereby.
(f) GeoGraphix and the Selling Shareholders shall have
completed the due diligence investigation of the business, operations,
assets and prospects of Landmark and neither GeoGraphix nor Selling
Shareholders holding no less than 80% of the issued and outstanding
GeoGraphix Common Stock shall have reasonably determined the results
of such investigation to be unsatisfactory.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date upon the occurrence of any of the following:
(a) by mutual consent of the Selling Shareholders and the
Boards of Directors of Landmark and GeoGraphix;
(b) by Landmark, GeoGraphix or Selling Shareholders
owning 80% of the outstanding GeoGraphix Common Stock if the Closing
shall not have occurred by June 15, 1995 and provided that the party
seeking termination is not then in material breach of any
representation, warranty or agreement in this Agreement;
(c) by Landmark if there has been a misrepresentation or
breach of a representation or warranty or a failure to perform a
covenant on the part of the Selling Shareholders or GeoGraphix with
respect to their representations,
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<PAGE> 34
warranties and covenants set forth in this Agreement and any such
breach or failure constitutes a Material Adverse Breach;
(d) by the Selling Shareholders who own at least 80% of
the outstanding GeoGraphix Common Stock or by GeoGraphix if there has
been a misrepresentation or a breach of a representation or warranty
or a failure to perform a covenant on the part of Landmark with
respect to its representations, warranties and covenants set forth in
this Agreement and any such breach or failure constitutes a Material
Adverse Breach;
(e) by Landmark if the results of its due diligence
investigation of the business, operations, assets, financial condition
and prospects of GeoGraphix are reasonably determined by Landmark to
be unsatisfactory; and
(f) by GeoGraphix or the Selling Shareholders if the
results of the due diligence investigation of the business,
operations, assets, financial condition and prospects of Landmark are
reasonably determined by GeoGraphix or the Selling Shareholders
holding no less than 80% of the issued and outstanding GeoGraphix
Common Stock to be unsatisfactory.
7.2 Amendment. This Agreement may not be amended except by an
instrument signed by Landmark, GeoGraphix and the Selling Shareholders holding
at least 80% of the outstanding GeoGraphix Common Stock; provided, however,
that no amendment may be made which decreases the number of Shares which the
Selling Shareholders will be entitled to receive pursuant to Section 1.2 hereof
or which would materially and adversely affect the rights or obligations of the
Selling Shareholders without the further approval of each Selling Shareholder.
7.3 Waiver. At any time prior to the Closing Date, (a) Landmark
may (i) extend the time for the performance of any of the obligations or other
acts of the Selling Shareholders or GeoGraphix or (ii) waive compliance with
any of the agreements of the Selling Shareholders or GeoGraphix or with any
conditions to its own obligations, and (b) GeoGraphix and the Selling
Shareholders holding at least 80% of the outstanding GeoGraphix Common Stock
may (i) extend the time for the performance of any of the obligations or other
acts of Landmark or (ii) waive compliance with any of the agreements of
Landmark or with any conditions to its own obligations in each case only to the
extent such obligations, agreements and conditions are intended for its
benefit.
7.4 Effect of Termination. If this Agreement is terminated as
provided in Section 7.1, this Agreement shall become void and there shall be no
liability or further obligation on the part of any party hereto or any of their
respective shareholders, officers or directors, except (a) the provisions of
Section 5.3 of this Agreement will survive any such termination, (b) that
nothing herein and no termination pursuant hereto will relieve any party from
liability for any breach of this Agreement and (c) the provisions of Section
5.3, 5.8, Article 8 and any confidentiality agreements by and between Landmark
and GeoGraphix will survive such termination.
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ARTICLE 8
INDEMNIFICATION; REMEDIES
8.1 Survival of Representations and Warranties. The
representations and warranties set forth in this Agreement shall not be
extinguished by reason of the occurrence of the Closing. No claim, demand,
suit, action or proceeding may be commenced against Landmark, GeoGraphix or any
Selling Shareholder more than one year after the Closing Date, to the extent
the same shall arise from an alleged breach of any other warranty or
representation made by such parties herein. Notwithstanding the foregoing, no
party shall be liable hereunder to any other party for the breach of any
representation and warranty to the extent such representation and warranty was
true, accurate and complete on the date made and as of the Closing Date.
8.2 Effect of Due Diligence. No investigation by Landmark, the
Selling Shareholders or GeoGraphix into the business, operations and condition
of the other shall diminish in any way the effect of any representations or
warranties made by any other party in this Agreement unless such investigation
shall result in the party undertaking the investigation having actual knowledge
of a breach of such representation or warranty nor shall any such investigation
relieve such party of any of its obligations under this Agreement. In any
dispute as to whether a party had "actual knowledge" of the breach of any
representation or warranty, the burden of proof shall be on the party seeking
to establish actual knowledge.
8.3 Specific Performance. Landmark, the Selling Shareholders and
GeoGraphix understand and agree that the covenants and undertakings on each of
their parts herein contained are uniquely related to the desire of Landmark,
the Selling Shareholders and GeoGraphix to consummate the Acquisition, that
the Acquisition is a unique business opportunity for GeoGraphix, the Selling
Shareholders and Landmark and that, although monetary damages may be available
for the breach of such covenants and undertakings, monetary damages would be an
inadequate remedy therefor. Accordingly, Landmark, the Selling Shareholders
and GeoGraphix agree that Landmark shall be entitled to obtain specific
performance by the Selling Shareholders and GeoGraphix of every such covenant
and undertaking contained herein to be performed by the Selling Shareholders
and GeoGraphix and that the Selling Shareholders and GeoGraphix shall be
entitled to obtain specific performance from Landmark of each and every
covenant and undertaking herein contained to be observed or performed by
Landmark.
8.4 INDEMNIFICATION BY SELLING SHAREHOLDERS. EXCEPT FOR THOSE
REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 3.2(B) AS THEY RELATE
SOLELY TO THE OWNERSHIP OF GEOGRAPHIX SHARES, AND THOSE CONTAINED IN SECTION
3.3 AS THEY RELATE SOLELY TO THE POWER AND AUTHORITY OF THE SELLING
SHAREHOLDERS TO ENTER INTO THIS AGREEMENT AND PERFORM HEREUNDER, FOR WHICH THE
SELLING SHAREHOLDERS SHALL EACH BE LIABLE ONLY WITH RESPECT TO A BREACH OF
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<PAGE> 36
THE REPRESENTATIONS AND WARRANTIES MADE BY THEM, THE SELLING SHAREHOLDERS,
JOINTLY AND SEVERALLY, SHALL, WITHOUT LIMITATION AS TO TIME, INDEMNIFY AND HOLD
LANDMARK HARMLESS, TO THE FULL EXTENT PERMITTED BY LAW, AND SHALL REIMBURSE
LANDMARK FOR, ANY LOSS, LIABILITY, CLAIM, DAMAGE, COST AND EXPENSE (INCLUDING,
BUT NOT LIMITED TO, COSTS OF INVESTIGATION AND DEFENSE AND REASONABLE
ATTORNEYS' FEES) OR DIMINUTION OF VALUE (COLLECTIVELY, "DAMAGES") ARISING FROM
OR IN CONNECTION WITH OR BASED UPON (A) ANY UNTRUE STATEMENT OF A MATERIAL FACT
TO BE CONTAINED IN THE SECTION ENTITLED "GEOGRAPHIX, INC.," INCLUDING THE
FINANCIAL STATEMENTS OF GEOGRAPHIX TO BE INCLUDED THEREIN, TO BE INCLUDED IN
THE CONFIDENTIAL OFFERING MEMORANDUM, TO BE SENT BY LANDMARK TO EACH OF THE
HOLDERS OF GEOGRAPHIX COMMON STOCK OR ARISING OUT OF OR BASED UPON ANY OMISSION
OF A MATERIAL FACT REQUIRED TO BE STATED IN SUCH SECTION OR NECESSARY TO MAKE
THE STATEMENTS IN SUCH SECTION NOT MISLEADING, (B) ANY INACCURACY IN ANY OF THE
REPRESENTATIONS AND WARRANTIES OF GEOGRAPHIX OR THE SELLING SHAREHOLDERS IN
THIS AGREEMENT OR IN ANY CERTIFICATE DELIVERED BY GEOGRAPHIX OR THE SELLING
SHAREHOLDERS PURSUANT TO THIS AGREEMENT, OR ANY ACTIONS, OMISSIONS OR STATE OF
FACTS INCONSISTENT WITH ANY SUCH REPRESENTATION OR WARRANTY OR (C) ANY FAILURE
BY GEOGRAPHIX OR THE SELLING SHAREHOLDERS TO PERFORM OR COMPLY WITH ANY
COVENANT OR AGREEMENT IN THIS AGREEMENT.
8.5 INDEMNIFICATION BY LANDMARK. LANDMARK SHALL, WITHOUT
LIMITATION AS TO TIME, INDEMNIFY AND HOLD THE SELLING SHAREHOLDERS HARMLESS, TO
THE FULL EXTENT PERMITTED BY LAW, AND SHALL REIMBURSE THE SELLING SHAREHOLDERS
FOR, ANY DAMAGES ARISING FROM OR IN CONNECTION WITH (A) ANY INACCURACY IN ANY
OF THE REPRESENTATIONS AND WARRANTIES OF LANDMARK IN THIS AGREEMENT OR IN ANY
CERTIFICATE DELIVERED BY LANDMARK PURSUANT TO THIS AGREEMENT, OR ANY ACTIONS,
OMISSIONS OR STATE OF FACTS INCONSISTENT WITH ANY SUCH REPRESENTATION OR
WARRANTY OR (B) ANY FAILURE BY LANDMARK TO PERFORM OR COMPLY WITH ANY AGREEMENT
IN THIS AGREEMENT.
8.6 Limitations as to Amount.
(a) The Selling Shareholders shall have no liability (for
indemnification or otherwise) with respect to the matters described in
Section 8.4 until the total of all Damages with respect thereto
exceeds $500,000. No Selling Shareholder shall have any liability or
obligation hereunder (for indemnification or otherwise) with respect
to any Damages in excess of the product of (i) the number of Shares
received by such Selling Shareholder at the Closing and (ii) the
Average Closing Price. However, this Section shall not apply to any
intentional misrepresentation or breach of warranty or any intentional
failure to perform or comply with any
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<PAGE> 37
agreement and the Selling Shareholders who shall so intentionally act
shall be liable for all Damages with respect thereto.
(b) Landmark shall have no liability (for indemnification
or otherwise) with respect to the matters described in Section 8.5
until the total of all Damages with respect thereto exceeds $500,000.
Landmark shall have no liability or obligation hereunder (for
indemnification or otherwise) with respect to any Damages in excess of
the product of (i) the number of Shares issued to the Selling
Shareholders and (ii) the Average Closing Price. However, this
Section shall not apply to any intentional misrepresentation or breach
of warranty by Landmark or any intentional failure to perform or
comply with any agreement and Landmark shall be liable for all Damages
with respect thereto.
(c) No party to this Agreement will have any obligation
to indemnify any other party to this Agreement with respect to claims
asserted by a third party insofar as the request for indemnification
relates to (i) expenses incurred after a bona fide offer of final and
complete settlement (the "Original Settlement Offer") is tendered to
the indemnified party or (ii) the amount by which any subsequent
judgement or settlement exceeds the amount of the Original Settlement
Offer, if the indemnified party rejects the Original Settlement Offer
and the amount subsequently required to finally settle the third party
claim or satisfy any resulting judgement exceeds the amount of the
Original Settlement Offer.
8.7 Procedure for Indemnification. Promptly after receipt by an
indemnified party under Section 8.4 or 8.5 of notice of the commencement of any
claim, demand, action, suit, investigation or proceeding of any nature (a
"Claim") against it, such indemnified party shall, if a demand in respect
thereof is to be made against an indemnifying party under such Section, give
notice to the indemnifying party of the commencement thereof, but the failure
so to notify the indemnifying party shall not relieve it of any liability that
it may have to any indemnified party except to the extent the indemnifying
party demonstrates that the defense of such action is prejudiced thereby. In
case any such Claim shall be brought against an indemnified party and it shall
give notice to the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it desires (unless the indemnifying party is also a party to such Claim
and the indemnified party determines in good faith that joint representations
would be inappropriate), to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such Section for any fees of other counsel subsequently incurred by such
indemnified party in connection with the defense of such Claim or for any other
expenses subsequently incurred by such indemnified party in connection with the
defense of such Claim. If notice is given to an indemnifying party of the
commencement of any Claim and it does not, within ten days after the
indemnified party's notice is given, give notice to the indemnified party of
its election to assume the defense thereof, the indemnifying party shall be
bound by any determination made in good faith in such action or any compromise
or settlement thereof
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effected in good faith by the indemnified party. Landmark may not seek
indemnity hereunder for any amounts paid in connection with the defense or
settlement of any Claim unless incurred in good faith. Notwithstanding the
foregoing, if an indemnified party determines in good faith that there is a
reasonable probability that a Claim may adversely affect it or its affiliates
other than as a result of monetary damages, such indemnified party may, by
notice to the indemnifying party, assume the exclusive right to defend,
compromise or settle such Claim, but the indemnifying party shall not be bound
by any determination of a Claim so defended or any compromise or settlement
thereof effected without its consent (which shall not be unreasonably
withheld). The indemnified party shall not settle any claim for which it is
seeking indemnification without the consent of the indemnifying party (which
consent will not be unreasonably withheld).
ARTICLE 9
GENERAL PROVISIONS
9.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, sent by telex, telecopy, facsimile or overnight courier, or mailed
by registered or certified mail (postage prepaid and return receipt requested),
to the party to whom the same is so delivered, sent or mailed at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Landmark:
Landmark Graphics Corporation
15150 Memorial Drive
Houston, Texas 77079
Attention: Robert P. Peebler, Chief Executive Officer
Telecopy: (713) 560-1410
with a copy to:
Landmark Graphics Corporation
15150 Memorial Drive
Houston, Texas 77079
Attention: Patti Massaro, Esq.
Telecopy: (713) 560-1383
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<PAGE> 39
and
Winstead Sechrest & Minick P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attention: Robert E. Crawford, Jr., Esq.
Telecopy: (214) 745-5390
(b) if to GeoGraphix:
GeoGraphix, Inc.
1860 Blake Street, Suite 900
Denver, Colorado 80202
Attention: David Armitage, Chief Executive Officer
Telecopy: (303) 292-1143
with a copy to:
Rothgerber, Appel, Powers and Johnson
One Tabor Center
1200 17th Street, Suite 3000
Denver, Colorado 80401
Attn: Peter Edwards
Telecopy: (303) 623-9222
(c) if to the Selling Shareholders, at the address listed
for each Selling Shareholder on the signature pages
attached hereto.
Notices delivered personally or by telex, telecopy or facsimile shall be deemed
delivered as of actual receipt, mailed notices shall be deemed delivered three
days after mailing and overnight courier notices shall be deemed delivered one
day after the date of sending.
9.2 Interpretation. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
sections and articles of this Agreement unless otherwise stated.
9.3 Severability. If any term, provision, covenant or Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated and the parties shall negotiate
in good faith to modify the Agreement to preserve each party's anticipated
benefits under the Agreement.
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<PAGE> 40
9.4 Miscellaneous. This Agreement (together with all other
documents and instruments referred to herein): (a) except for any
confidentiality agreements executed in connection with the transactions
contemplated hereby constitutes the entire agreement and supersedes all other
prior agreements and undertakings, both written and oral, among the parties
with respect to the subject matter hereof; (b) except as expressly set forth
herein, is not intended to confer upon any other person any rights or remedies
hereunder and (c) shall not be assigned by operation of law or otherwise,
except that Landmark may assign all or any portion of its rights under this
Agreement to any wholly-owned subsidiary but no such assignment shall relieve
Landmark of its obligations hereunder, and except that this Agreement may be
assigned by operation of law to any corporation with or into which Landmark may
be merged.
9.5 Material Adverse Breach. Breaches of representations,
warranties and covenants by either party hereto which (a) individually results
in damages to the other party in excess of $500,000 or (b) in the aggregate
result in damages to the other party in excess of $500,000, shall constitute,
for purposes of this Agreement, a "Material Adverse Breach."
9.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE INTERNAL LAWS
OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF
LAWS THEREOF, AND WILL, TO THE MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL
FOR PERFORMANCE IN HARRIS COUNTY, TEXAS. COURTS WITHIN THE STATE OF TEXAS WILL
HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER
IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE PARTIES
CONSENT TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. VENUE IN
ANY SUCH DISPUTE WHETHER IN FEDERAL OR STATE COURT WILL BE LAID IN HARRIS
COUNTY, TEXAS.
9.7 Counterparts. This Agreement may be executed in two or more
counterparts which together shall constitute a single agreement.
9.8 Certain Terms. For purposes of this Agreement, the term
"knowledge" when used with respect to a corporation shall be deemed to refer to
the knowledge of the officers and directors of the corporation.
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<PAGE> 41
STOCK PURCHASE AGREEMENT
Signature Page
IN WITNESS WHEREOF, Landmark, the Selling Shareholders and GeoGraphix
have executed or caused this Agreement to be executed on the date first written
above.
LANDMARK GRAPHICS CORPORATION
By: /s/ William H. Seippel
Its: VP, Finance & CFO
GEOGRAPHIX, INC.
By: /s/ David L. Armitage
Its: President
SPOUSE: SELLING SHAREHOLDERS:
/s/ Gina G. Armitage /s/ David L. Armitage
Gina G. Armitage David L. Armitage
Address: 1860 Blake Street, #900
/s/ David L. Armitage /s/ Gina G. Armitage
David L. Armitage Gina G. Armitage
Address: 5635 Meadow Lake Lane
Houston, Texas 77056
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<PAGE> 42
Minnowburn Corporation
By: For Arawak Trust Company Limited
Name: /s/ Ethlyn George
Title: Director
Address: Arawak Chambers, P. O. Box 173
Road Town, Tortola
British Virgin Islands
SPOUSE:
/s/ Meredith R. Armitage
- -------------------------- Meredith R. Armitage
Address: 115 Ridge Road
Rumson, New Jersey 07760
SPOUSE:
/s/ Barbara V. Robbins /s/ Galen P. Robbins
Galen P. Robbins
Address:
-----------------------------------------
-------------------------------------------------
-------------------------------------------------
The Estate of Peter B. Seaman
By: /s/ Nancy Seaman
Name: Nancy Seaman
Title: Executrix
Address: 256 Round Hill Road
Greenwich, California 06831
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<PAGE> 43
SPOUSE:
/s/ Linda K. Whitaker /s/ William B. Whitaker II
William B. Whitaker II
Address: 2338 S. Hearth Dr., #21
Evergreen, Colorado 80439
SPOUSE:
/s/ Arthur L. Armitage /s/ Catherine S. Armitage
Catherine S. Armitage
Address: 434 Knight Road
Clinton Corners, NY 12514
Antrim Resources, Inc.
By: /s/ Alex M. Cranberg
Name: Alex M. Cranberg
Title: President
Address: 535 16th Street, #820
Denver, Colorado 80202
SPOUSE:
/s/ Carol McDermott /s/ Dirk W. McDermott
Dirk McDermott
Address: 2212 Birch
Denver, Colorado 80207
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<PAGE> 44
SPOUSE:
/s/ Karla K. McKinley /s/ Marc C. McKinley
Marc C. McKinley
Address: 400 N. St. Paul, #400
Dallas, Texas 75201
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<PAGE> 1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of the
24th day of May, 1995, between Landmark Graphics Corporation, a Delaware
corporation ("Landmark"), and the individuals executing this Agreement (each, a
"Holder" and collectively, the "Holders") evidences the following:
WHEREAS, pursuant to that certain Stock Purchase Agreement, dated May
24, 1995 (the "Acquisition Agreement"), by and among Landmark and the Holders,
the Holders have been issued shares (collectively, the "Purchase Shares") of
the common stock, par value $.05 per share, of Landmark (the "Common Stock");
WHEREAS, to insure that they will have liquidity in the future (with
respect to their Registrable Stock, as defined below), the Holders wish to have
certain registration rights and Landmark wishes to grant such rights;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be legally
bound, agree as follows:
DEFINITION. As used herein, the following terms have the following
meanings:
"Acquisition" means acquisition by Landmark of at least ninety percent
(90%) of the issued and outstanding capital stock of GeoGraphix, Inc.,
a Colorado corporation, pursuant to the Acquisition Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission and any successor federal agency having similar powers.
"Initiating Holders" shall mean any Holder or Holders who in the
aggregate own not less than 25% of the aggregate number of shares of
Registrable Stock, which shares have not previously been sold to the
public.
"Register", "registered" and "registration" refer to a registration
effected by filing a registration statement in compliance with the
Securities Act of 1933, as amended (the "Securities Act"), and the
declaration or ordering by the Commission of the effectiveness of such
registration statement.
"Registrable Stock" means the Purchase Shares held by the Holders from
time to time and all shares of Common Stock issued by Landmark in
respect of such Purchase Shares.
"Registration Statement" means a registration statement prepared on an
appropriate form promulgated under the Securities Act.
REGISTRATION RIGHTS AGREEMENT - Page 1
<PAGE> 2
1. REQUIRED REGISTRATION.
(a) At any time after the consummation of the
Acquisition, but prior to June 2, 1997, at the written request of the
Initiating Holders, Landmark shall prepare, file with the Commission and use
its commercially reasonable best efforts to have declared effective, a
Registration Statement with respect to the distribution of Registrable Stock.
Each such request shall be made by delivery of written notice to Landmark by
the Initiating Holders, which notice shall (i) request the preparation of the
Registration Statement pursuant to the terms of this Section 1, (ii) include
the number of shares of Registrable Stock to be offered by such Initiating
Holders pursuant to such Registration Statement, and (iii) be sent by Landmark
to all other Holders. Each other Holder shall be permitted by written notice
to Landmark, within 20 calendar days after receipt of notice of any
registration demanded hereunder, to include all or part of Registrable Stock of
such Holder in such registration. Notwithstanding anything contained herein to
the contrary, Landmark will not be obligated to effect, or take any further
action to effect, any such registration pursuant to this Section 1 after
Landmark has effected two (2) such registrations pursuant to this Section 1,
which registrations have been declared or ordered effective. The registration
referenced in Section 1(b) below shall be deemed to constitute one (1)
registration for purposes of this Section 1 but only if such registration has
been declared or ordered effective. Holders shall not initiate any request for
registration pursuant to this Section 1 during such time as Landmark is using
its commercially reasonable best efforts to cause the Registration Statement
referenced in Section 1(b) below to be declared or ordered effective or during
such time as such Registration Statement is effective.
(b) As soon as reasonably practicable following the
consummation of the Acquisition, Landmark will use its commercially reasonable
best efforts to (i) file with the Commission a Registration Statement on Form
S-3 (or, should Form S-3 be unavailable to Landmark, on another appropriate
form) registering the distribution of the Registrable Stock under the
Securities Act, (ii) cause such Registration Statement to be declared effective
as soon thereafter as is practicable and (iii) remain effective through June 2,
1997.
(c) Except as noted in Section 1(b), Landmark shall not
be obligated to cause any Registration Statement filed pursuant to this Section
1 to remain effective for more than ninety (90) days.
2. INCIDENTAL REGISTRATION. If at any time after the
consummation of the Acquisition and prior to June 2, 1997, and subject to the
limitations hereinafter set forth, Landmark proposes to register any of its
securities ("Company Securities") under the Securities Act (other than a
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 promulgated under the Securities Act is
applicable), whether or not for sale for its own account, on a form and in a
manner which would permit registration of the distribution of Registrable Stock
to the public under the Securities Act, it will, each such time, give written
notice to all Holders of its intention to do so, describing such Company
Securities and specifying the form and manner and the other relevant facts
involved in such proposed registration. Upon the written request of
REGISTRATION RIGHTS AGREEMENT - Page 2
<PAGE> 3
a Holder or Holders (individually, each a "Holder Request" and collectively,
the "Holder Requests") given within 20 days after receipt of any such notice
(stating the number of shares of Registrable Stock to be disposed of by such
Holder or Holders and the intended method of disposition), Landmark will use
its commercially reasonable best efforts to cause the aggregate of the
Registrable Stock designated in the Holder Requests to be included in such
registration so as to permit the disposition (in accordance with the methods
specified in the Holder Request(s)) by such Holder or Holders of the
Registrable Stock so registered; provided that:
(i) if, at any time after giving such notice of its
intention to register any Company Securities and prior to the
effective date of the Registration Statement filed in connection with
such registration, Landmark shall determine for any reason not to
register any Company Securities, Landmark may, at its election, give
written notice of such determination to each Holder which has timely
delivered a Holder Request and thereupon shall be relieved of its
obligation to register any Registrable Stock in connection with such
registration (but not from its obligation to pay expenses in
connection therewith as provided inSection 6);
(ii) if the registration proposed by Landmark involves an
underwritten offering of the Company Securities, whether or not for
sale for the account of Landmark, to be distributed (on a best efforts
or firm commitment basis) by or through one or more underwriters and
the managing underwriter of such underwritten offering shall advise
Landmark in writing that, in its opinion, the registration of all or a
specified portion of Registrable Stock concurrently with the Company
Securities will adversely affect the distribution of such Company
Securities by such underwriters, then Landmark may require, by written
notice to each such Holder, that the distribution of all or a
specified portion of such Registrable Stock be excluded from such
registration.
Notwithstanding anything to the contrary contained herein, Holders shall not be
entitled to registration rights under this Section 2 in respect of any
registration by Landmark, whether or not for sale for its own account, if at
the time Landmark proposes such registration the Registration Statement
contemplated by Section 1(b) is effective.
3. REGISTRATION PROCEDURES. Whenever Landmark is required by the
provisions of this Agreement to use its commercially reasonable best efforts to
effect the registration of Registrable Stock, Landmark will:
(a) (i) prepare and file with the Commission a
Registration Statement on an appropriate form with respect to such shares as
soon as practicable following written request for such registration, use its
commercially reasonable best efforts to cause such Registration Statement to
become effective and remain effective as provided herein;
(b) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and current and to comply with the provisions of the Securities Act,
with respect to the disposition of
REGISTRATION RIGHTS AGREEMENT - Page 3
<PAGE> 4
the Registrable Stock, including such amendments and supplements as may be
necessary to reflect the intended method of disposition from time to time of
the prospective seller or sellers of the Registrable Stock (individually, a
"Selling Stockholder", and collectively, the "Selling Stockholders");
(c) furnish to each prospective Selling Stockholder such
number of copies of a prospectus, in conformity with the requirements of the
Securities Act, as such Selling Stockholder may reasonably request to
facilitate the public sale or other disposition of the Registrable Stock owned
by such Selling Stockholder;
(d) use its commercially reasonable best efforts to
register or qualify the Registrable Stock under such other securities or blue
sky or other applicable laws of such jurisdictions within the United States as
each prospective Selling Stockholder shall reasonably request, to enable such
Selling Stockholder to consummate (upon the Registration Statement being
declared effective by the Commission) the public sale or other disposition in
such jurisdictions of the Registrable Stock owned by such Selling Stockholder;
provided, however, that in no event shall Landmark be obligated to qualify to
do business in any jurisdiction where it is not at the time so qualified or to
take any action which would subject it to service of process in suits other
than those arising out of the offer or sale of the Registrable Stock in any
jurisdiction where it is not at the time so subject;
(e) prior to filing any Registration Statement
contemplated by this Agreement, furnish to all Selling Stockholders, copies of
all documents proposed to be filed. The Selling Stockholders or their counsel
shall be entitled to perform a reasonable due diligence review of the matters
addressed in such documents, such review to be at the expense of the Selling
Stockholders. In connection with a registration initiated pursuant to Section
1, such documents shall not be filed if the holders of a majority of the shares
of Registrable Stock to be sold by the Selling Stockholders or their counsel
reasonably object, in writing, to such filing on the basis that such documents
do not comply in all material respects with the requirements of the Securities
Act and all other applicable securities laws and the rules and regulations
promulgated thereunder;
(f) notify each Selling Stockholder and (if requested by
a Selling Stockholder) confirm such notice in writing, (i) when a prospectus or
any prospectus supplement or post-effective amendment has been filed and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act and each applicable state
law, (ii) of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iii) of the receipt by Landmark of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Stock for sale in any jurisdiction or the initiation
or threatened initiation of any proceeding for such purpose, (iv) of the
happening of any event which makes any material statement made in a
Registration Statement or related prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in such Registration Statement,
prospectus or documents so that,
REGISTRATION RIGHTS AGREEMENT - Page 4
<PAGE> 5
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the material statements therein not
misleading, and that in the case of the prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the material statements therein, in
light of the circumstances under which they were made, not misleading and (v)
of Landmark's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate;
(g) use its commercially reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement filed pursuant to Section 1, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Stock offered pursuant to a Registration Statement filed pursuant
to Section 1 for sale in any jurisdiction, at the earliest practicable moment;
(h) cooperate with the Selling Stockholders to facilitate
the timely preparation and delivery of certificates representing Registrable
Stock to be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company; and
enable such Registrable Stock to be registered in such names as any underwriter
may request at least two business days prior to any sale of Registrable Stock;
(i) use its commercially reasonable best efforts to cause
such Registrable Stock to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of Landmark to enable the Selling Stockholders thereof
to consummate the disposition of such Registrable Stock;
(j) use its commercially reasonable best efforts to cause
all such Registrable Stock to be listed on each securities exchange on which
similar securities issued by Landmark are then listed or quoted and on any
inter-dealer quotation system on which similar securities issued by Landmark
are then quoted; and
(k) cooperate in any filings to be made with the National
Association of Securities Dealers, Inc.
4. UNDERWRITTEN OFFERINGS.
(a) Underwritten Offerings Upon Required Registration.
Whenever a registration is for an underwritten offering, only shares of
Registrable Stock which are to be distributed by the underwriters may be
included in such registration.
(b) Underwriting Agreement. If requested by the
underwriters for any underwritten offering of Registrable Stock, Landmark will
enter into an underwriting agreement that shall contain such representations
and warranties by Landmark and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions. The Holders of Registrable Stock on whose behalf
REGISTRATION RIGHTS AGREEMENT - Page 5
<PAGE> 6
Registrable Stock is to be distributed by such underwriters shall be parties to
any such underwriting agreement. No Holder of Registrable Stock shall be
required by Landmark to make any representations or warranties to or agreements
with Landmark or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's Registrable Stock and such
Holder's intended method or methods of distribution, of the type that are
customarily required by an issuer or underwriter with respect to secondary
distributions.
(c) Selection of Underwriters. If Landmark at any time
proposes to register any Company Securities for sale for its own account and
such securities are to be distributed by or through one or more underwriters,
the selection of the underwriter(s), including, without limitation, the
managing underwriter(s), shall be made by Landmark.
(d) Holdback Agreements. If any registration pursuant to
this Agreement shall be in connection with an underwritten public offering,
each Holder agrees, if so required by the managing underwriter, not to effect
any public sale or distribution of Registrable Stock (other than as part of
such underwritten public offering) within seven days prior to the effective
date of such Registration Statement or the one hundred eightieth day after the
effective date of such Registration Statement.
5. COOPERATION BY PROSPECTIVE SELLING STOCKHOLDERS.
(a) Each prospective Selling Stockholder will furnish to
Landmark such information as Landmark may reasonably require from such Selling
Stockholder in connection with the preparation and filing of a Registration
Statement (and any prospectus included therein) pursuant to this Agreement.
(b) Failure of a prospective Selling Stockholder to
furnish the information and agreements described in this Agreement shall not
affect the obligations of Landmark under this Agreement to the remaining
Selling Stockholders who furnish such information and agreements unless, in the
reasonable opinion of counsel to Landmark or the underwriters, such failure
impairs or may impair the viability of the offering or the legality of the
applicable Registration Statement or the underlying offering.
(c) Selling Stockholders will not (until further notice)
effect sales of Registrable Stock after receipt of telegraphic or written
notice from Landmark to suspend sales to permit Landmark to correct or update a
Registration Statement or prospectus; but the obligations of Landmark with
respect to maintaining a Registration Statement current and effective shall be
extended by a period of days equal to the period such suspension is in effect.
Landmark agrees to use its best efforts to promptly prepare and file any such
correction or update. At the end of the period during which Landmark is
obligated to keep a Registration Statement current and effective (and any
extensions thereof required by the preceding sentence), the Selling
Stockholders shall discontinue sales of shares pursuant to such Registration
Statement upon receipt of notice from Landmark of its intention to remove from
registration the shares covered by such Registration Statement which remain
unsold, and Selling Stockholders shall notify Landmark of the number of
REGISTRATION RIGHTS AGREEMENT - Page 6
<PAGE> 7
shares registered which remain unsold immediately upon receipt of such notice
from Landmark.
(d) Each Selling Stockholder agrees to provide Landmark
with written representations of fact reasonably necessary to permit Landmark
and its counsel to conclude that all sales of Registrable Stock made in
connection with a registration effected pursuant to this Agreement were made in
compliance with all applicable securities laws, including, without limitation,
the prospectus delivery requirements of Section 5 of the Securities Act and the
restrictions of Rules 10b-6 and 10b-7 promulgated by the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
6. EXPENSES OF REGISTRATION. All expenses incurred in effecting
any registration pursuant to this Agreement, including, without limitation, all
registration and filing fees, printing expenses, expenses of compliance with
blue sky laws, fees and disbursements of counsel for Landmark and expenses of
any audits incidental to or required by any such registration, shall be borne
by Landmark, except that fees and expenses of legal counsel retained by the
Selling Stockholders, all underwriting discounts and commissions attributable
to Registrable Stock being sold by the Selling Stockholders and all costs of
any "due diligence" investigation undertaken by the Selling Stockholders shall
be borne by the Selling Stockholders, pro rata according to the quantity of
Registrable Stock included in such registration. Without limiting the
generality of the foregoing, Landmark shall pay all of the following
registration expenses: (a) Landmark's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (b) to the extent not already incurred, the fees
and expenses incurred in connection with the listing of the Registrable Stock
on a securities exchange or inter-dealer quotation system, (c) all registration
and filing fees (including, without limitation, with respect to filings to be
made with the National Association of Securities Dealers, Inc.), (d) fees and
expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Stock), (e) printing expenses and engraving expenses, (f) fees and
disbursements of counsel to Landmark and customary fees and expenses for
independent certified public accountants retained by Landmark and (g) the fees
and expenses of any special experts retained by Landmark.
7. INDEMNIFICATION.
(a) To the extent permitted by law, Landmark will indemnify
each Holder requesting or joining in a registration, each agent, officer and
director of such Holders, each person controlling (within the meaning of
Section 15 of the Securities Act) such Holder and each underwriter and selling
broker of the securities so registered (collectively, "Indemnitees") against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any prospectus, offering circular or other
document incident to any registration, qualification or compliance (or in any
related Registration Statement, notification or the like) or any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not
REGISTRATION RIGHTS AGREEMENT - Page 7
<PAGE> 8
misleading in the light of the circumstances in which they were made, or any
violation by Landmark of any rule or regulation promulgated under the
Securities Act and/or the Exchange Act, as amended, applicable to Landmark and
relating to action or inaction required of Landmark in connection with any such
registration, qualification or compliance, and will reimburse each such
Indemnitee for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that Landmark will not be liable in any
such case to the extent that any such claim, loss, damage or liability is
caused by any untrue statement or alleged untrue statement or omission or
alleged omission made in conformity with written information furnished to
Landmark by a Holder or underwriter specifically for use in such prospectus,
offering circular or other document and Landmark will not be liable with
respect to any untrue statement (or alleged untrue statement) or omission (or
alleged omission) made in the preliminary prospectus but eliminated or remedied
in the amended prospectus on file with the Commission at the time the
Registration Statement becomes effective or in the amended prospectus filed
with the Commission pursuant to Rule 424(b); provided, further, that this
indemnity shall not be deemed to relieve any underwriter of any of its due
diligence obligations; provided, further, that the indemnity agreement
contained in this Section 7 shall not apply to amounts paid in settlement of
any such claim, loss, damage, liability or action if such settlement is
effected without the consent of Landmark, which consent shall not be
unreasonably withheld.
(b) To the extent permitted by law, each Holder
requesting or joining in a registration and each underwriter of the securities
so registered will indemnify Landmark and its officers and directors and each
person, if any, who controls Landmark within the meaning of Section 15 of the
Securities Act, and their respective successors against all claims, losses,
damages and liabilities or actions in respect thereof arising out of or based
on violation of Section 5(e) hereof or any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document incident to any registration, qualification or compliance (or in
any related Registration Statement, notification or the like) or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances in which they were made and will reimburse Landmark and
each other person indemnified pursuant to this Section 7(b) for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action; provided, however,
that this Section 7(b) shall apply only if (and only to the extent that) such
statement or omission was made in reliance upon and in conformity with written
information (including, without limitation, written negative responses to
inquiries) furnished to Landmark by such Holder or underwriter specifically for
use in such prospectus, offering circular or other document (or related
Registration Statement, notification or the like) or any amendment or
supplement thereto; provided, further, that the indemnity agreement contained
in this Section 7(b) shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if such settlement is effected without
the consent of the Holder or underwriter, as the case may be, which consent
shall not be unreasonably withheld; and provided, further, that the obligations
of such Holders under this Section 7(b) shall be limited to an amount equal to
the proceeds to each such Holder of Registrable Stock sold as
REGISTRATION RIGHTS AGREEMENT - Page 8
<PAGE> 9
contemplated herein, unless such claim, loss, damage, liability or action
resulted from such Holder's fraudulent misconduct.
(c) Each party entitled to indemnification hereunder (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party (at its expense) to assume the defense
of any claim or any litigation resulting therefrom, provided, however, that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be reasonably satisfactory to the Indemnified Party, and
the Indemnified Party may participate in such defense at the Indemnified
Party's expense; and provided, further, that the omission by any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Section 7 except to the extent that the
omission results in a failure of actual notice to the Indemnifying Party and
such Indemnifying Party is damaged as a result of the failure to give notice.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(d) The reimbursement required by this Section 7 shall be
made by periodic payments during the course of the investigation or defense, as
and when bills are received or expenses incurred.
(e) If the indemnification provided for in this Section 7
is unavailable to an Indemnified Party in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each 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 and judgments as between Landmark on the one hand
and a Holder on the other, in such proportion as is appropriate to reflect the
relative fault of Landmark and of the Holder in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of Landmark on the one hand and of a Holder on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Landmark and the Holders agree
that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities or judgments referred to above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, a Holder shall not be required to contribute any
amount in excess of the
REGISTRATION RIGHTS AGREEMENT - Page 9
<PAGE> 10
total price at which the Registrable Stock of such Holder was offered to the
public. No person guilty of material 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.
(f) The obligation of Landmark and the Holders under this
Section 7 shall survive the completion of any offering of Registrable Stock
pursuant to a Registration Statement under this Agreement, or otherwise.
8. NOTICES. Any and all notices, designations, consents, offers,
acceptances or other communications provided for herein (each a "Notice") shall
be given in writing by overnight courier, telegram or telecopy which shall be
addressed, or sent, to Landmark as follows (or such other address as Landmark
or any Holder may specify to Landmark and all other parties by Notice):
Landmark Graphics Corporation
15150 Memorial Drive
Houston, Texas 77079
Attention: Corporate Secretary
Telecopy: (713) 560-1383
and to the Holders at the addresses set forth below under their respective
signatures.
All notices shall be deemed effective and received (a) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified herein and
receipt thereof is confirmed; (b) if given by overnight courier, on the
business day immediately following the date on which the Notice is delivered to
a reputable overnight courier service; or (c) if given by telegram, when such
Notice is delivered at the address specified above.
9. AMENDMENT. The terms of this Agreement may not be amended,
modified or otherwise revised except by the written consent of Landmark and the
Holders of a majority of the then-outstanding shares of Registrable Stock.
10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts and each counterpart shall be deemed to be an original. All of
such counterparts together shall constitute one and the same agreement of the
parties hereto.
11. CHOICE OF LAW. This Agreement shall be governed by the
internal laws of the State of Texas without regard to the principles of
conflict of laws thereof and will, to the maximum extent practicable, be deemed
to call for performance at the offices of Landmark in Harris County, Texas.
12. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, discussions and understandings with respect
thereto.
REGISTRATION RIGHTS AGREEMENT - Page 10
<PAGE> 11
13. CUMULATIVE RIGHTS. The rights of the parties under this
Agreement are cumulative and in addition to all similar and other rights of the
parties under other agreements.
14. SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
15. LIMITATION ON REGISTRATION. Notwithstanding the foregoing,
under no circumstances will Landmark be obligated to cause any registration
effected pursuant to this Agreement to remain effective after June 2, 1997 or
to include any Registrable Stock in a Registration Statement which becomes
effective after such date.
16. ASSIGNMENT. Neither this Agreement nor any rights hereunder
may be assigned by the Holders without the written consent of Landmark.
17. CONDITION PRECEDENT. Landmark's obligations pursuant to this
Agreement are conditioned upon consummation of the Acquisition.
NOTICE: UNDER CERTAIN CIRCUMSTANCES,SECTION 7 OF THIS AGREEMENT
IMPOSES INDEMNIFICATION OBLIGATIONS ON THE PARTIES HERETO.
REGISTRATION RIGHTS AGREEMENT - Page 11
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LANDMARK GRAPHICS CORPORATION,
a Delaware corporation
By: /s/ William H. Seippel
Name: William H. Seippel
Title: Vice President Finance and CFO
HOLDERS:
Printed Name: David L. Armitage
Signature: /s/ David L. Armitage
Address: 1285 S. Cold Springs Gulch
Golden, Colorado 80401
Telecopy: (303) 526-7225
Printed Name: Gina G. Armitage
Signature: /s/ Gina G. Armitage
Address: 5635 Meadow Lake Lane
Houston, Texas 77056
Telecopy: (___) ________
MINNOWBURN CORPORATION
By: ARAWAK TRUST COMPANY LTD
Printed Name: David Raworth, Director
Signature: /s/ David Raworth
Address: Arawak Chambers
P. O. Box 173
Road Town Tortola BVZ
Telecopy: (809) 494-3384
REGISTRATION RIGHTS AGREEMENT - Page 12
<PAGE> 13
Printed Name: Alex Cranberg, President
Antrim Resources
Signature: /s/ Alex Cranberg
Address: 535 16th, #820
Denver, Colorado 80202
Telecopy: (303) 573-7340
Printed Name: Meredyth R. Armitage
Signature: /s/ Meredyth R. Armitage
Address: 115 Ridge Road
Rumson, New Jersey 07760
Telecopy: (___) ________
Printed Name: Estate of Peter B. Seaman
Signature: /s/ Nancy Seaman
Address: 256 Round Hill Road
Greenwich, Connecticut 06830
Telecopy: (914) 337-1671
Printed Name: William B. Whitaker II
Signature: /s/ William B. Whitaker II
Address: 2338 S. Hearth Drive, #21
Evergreen, Colorado 80439
Telecopy: (303) 674-8115
Printed Name: Catherine S. Armitage
Signature: /s/ Catherine S. Armitage
Address: 434 Knight Road
Clinton Corners, NY 12514
Telecopy: (914) 868-1248
Printed Name: Dirk W. McDermott
Signature: /s/ Dirk W. McDermott
Address: 7212 Birch
Denver, Colorado 80207
Telecopy: (303) 573-7340
REGISTRATION RIGHTS AGREEMENT - Page 13
<PAGE> 14
Printed Name: Mark C. McKinley
Signature: /s/ Mark C. McKinley
Address: 400 N. St. Paul, #400
Dallas, Texas 75201
Telecopy: (214) 922-9033
REGISTRATION RIGHTS AGREEMENT - Page 14
