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UNITED STATES
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
Date of Report (Date of earliest event reported) January 14, 1999
VISTA Information Solutions, Inc.
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(Exact name of registrant as specified in charter)
Delaware 0-20312 41-1293754
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
5060 Shoreham Place, #300, San Diego, CA 92122
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (619) 450-6100
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Not applicable
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(Former name or former address, if changed since last report)
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ITEM 2. Acquisition Or Disposition Of Assets
On January 14, 1999, VISTA Information Solutions, Inc., a Delaware
corporation ("VISTA"), through its subsidiaries, acquired all of the
outstanding partnership interests of GeoSure, L.P. ("GeoSure") pursuant to
the terms of a Partnership Interest Purchase Agreement (the "Agreement"). In
exchange for the partnership interests of GeoSure, VISTA (through its
subsidiaries) issued an aggregate of 2,589,998 shares of common stock, par
value $0.001 per share, of VISTA ("VISTA Common Stock"), with 259,000 of such
shares being deposited into an escrow in accordance with the terms of the
Agreement.
The number of shares of VISTA Common Stock issued in exchange for the
partnership interests of GeoSure was based on an arm's length negotiation
between the parties after considering the perceived value of GeoSure, the
liabilities of GeoSure, and the market value of shares of VISTA Common Stock.
Prior to this transaction, none of the partners of GeoSure had any material
relationship with VISTA or its directors or officers.
VISTA intends to continue operating the business of GeoSure and its
subsidiaries in providing environmental risk information, flood certification
and flood insurance, although reductions of personnel resources and
dispositions of excess assets will likely take place over time.
ITEM 7. Financial Statements And Exhibits
(a) Financial statements of business acquired. To be filed by
amendment within 60 days of this report.
(b) Pro forma financial information. To be filed by amendment
within 60 days of this report.
(c) Exhibits.
EXHIBIT DESCRIPTION
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Exhibit 2 Partnership Interest Purchase Agreement made and entered
into as of January 5, 1999 by and among VISTA
INFORMATION SOLUTIONS, INC., VISTA Environmental
Information, Inc., GEOSURE, L.P. and the partners of
GEOSURE. Schedules, exhibits and similar attachments to
this Exhibit have not been filed; upon request, VISTA
will furnish supplementally to the Commission a copy of
any omitted schedule.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
VISTA INFORMATION SOLUTIONS, INC.
Date: January 29, 1999 By: /s/ BRIAN CONN
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Brian Conn
Principal Accounting Officer
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INDEX OF EXHIBITS
EXHIBIT DESCRIPTION
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Exhibit 2 Partnership Interest Purchase Agreement made and entered
into as of January 5, 1999 by and among VISTA
Information Solutions, Inc., VISTA Environmental
Information, Inc., GeoSure, L.P. and the partners of
GeoSure. Schedules, exhibits and similar attachments to
this Exhibit have not been filed; upon request, VISTA
will furnish supplementally to the Commission a copy of
any omitted schedule.
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PARTNERSHIP INTEREST PURCHASE AGREEMENT
by and between
VISTA INFORMATION SOLUTIONS, INC.
a Delaware corporation,
VISTA ENVIRONMENTAL INFORMATION, INC.
a Delaware corporation,
GEOSURE, L.P.,
a New York limited partnership
and
THE PARTNERS OF GEOSURE, L.P.
Dated as of January 5, 1999
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1. THE ACQUISITION . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Sale and Purchase of Partnership Interest . . . . . . . . 1
1.2 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Effect of the Acqusition . . . . . . . . . . . . . . . . . 2
1.4 Effect on Limited Partnership Interest . . . . . . . . . . 2
1.5 Accounting Treatment . . . . . . . . . . . . . . . . . . . 2
2. REPRESENTATIONS AND WARRANTIES GAMMA. . . . . . . . . . . . . . . 2
2.1 Organization, Standing and Power . . . . . . . . . . . . . 3
2.2 Partnership Documents. . . . . . . . . . . . . . . . . . . 3
2.3 Capitalization, etc. . . . . . . . . . . . . . . . . . . . 3
2.4 Financial Statements . . . . . . . . . . . . . . . . . . . 4
2.5 Absence of Changes . . . . . . . . . . . . . . . . . . . . 4
2.6 Title to Assets. . . . . . . . . . . . . . . . . . . . . . 5
2.7 Accounts Receivable. . . . . . . . . . . . . . . . . . . . 5
2.8 Equipment; Real Property Interests . . . . . . . . . . . . 6
2.9 Proprietary Assets . . . . . . . . . . . . . . . . . . . . 6
2.10 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . 7
2.11 Liabilities. . . . . . . . . . . . . . . . . . . . . . . . 9
2.12 Compliance With Legal Requirements . . . . . . . . . . . . 10
2.13 Governmental Authorizations. . . . . . . . . . . . . . . . 10
2.14 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . 10
2.15 Employee and Labor Matters; Benefit Plans. . . . . . . . . 11
2.16 Environmental Matters. . . . . . . . . . . . . . . . . . . 14
2.17 Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . 14
2.18 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 14
2.19 Related Party Transactions . . . . . . . . . . . . . . . . 15
2.20 Legal Proceedings; Orders. . . . . . . . . . . . . . . . . 15
2.21 Authority; Binding Nature of Agreement . . . . . . . . . . 16
2.22 NonContravention; Consents . . . . . . . . . . . . . . . . 16
2.23 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . 17
2.24 Accounting Matters . . . . . . . . . . . . . . . . . . . . 17
2.25 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.26 Consents . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. REPRESENTATIONS AND WARRANTIES OF THE PARTNERS AND DP . . . . . . 17
3.1 Representations and Warranties . . . . . . . . . . . . . . 17
4. REPRESENTATIONS AND WARRANTIES OF VISTA AND SUB . . . . . . . . . 18
4.1 Due Organization; Qualification . . . . . . . . . . . . . 18
4.2 Charter Documents. . . . . . . . . . . . . . . . . . . . . 18
4.3 Capitalization, etc. . . . . . . . . . . . . . . . . . . . 18
4.4 SEC Filings; Financial Statements. . . . . . . . . . . . . 19
4.5 Absence of Certain Changes or Events . . . . . . . . . . . 19
4.6 Compliance with Legal Requirements . . . . . . . . . . . . 19
4.7 Governmental Authorizations. . . . . . . . . . . . . . . . 20
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4.8 Legal Proceedings; Orders. . . . . . . . . . . . . . . . . 20
4.9 Authority; Binding Nature of Agreement . . . . . . . . . . 20
4.10 NonContravention; Consents . . . . . . . . . . . . . . . . 21
4.11 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . 21
4.12 Accounting Matters . . . . . . . . . . . . . . . . . . . . 22
4.13 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . 22
5. PRE-CLOSING COVENANTS OF GEOSURE AND THE PARTNERS . . . . . . . . 22
5.1 Access and Investigation . . . . . . . . . . . . . . . . . 22
5.2 Operation of GEOSURE's Business. . . . . . . . . . . . . . 22
5.3 Notification; Updates to GEOSURE Disclosure Schedule . . . 24
5.4 No Negotiation . . . . . . . . . . . . . . . . . . . . . . 24
5.5 Section 754 Election . . . . . . . . . . . . . . . . . . . 25
6. PRE-CLOSING COVENANTS OF VISTA AND SUB. . . . . . . . . . . . . . 25
6.1 Access and Investigation . . . . . . . . . . . . . . . . . 25
6.2 Notification; Updates to VISTA Disclosure Schedule . . . . 25
7. ADDITIONAL COVENANTS OF GEOSURE AND VISTA . . . . . . . . . . . . 26
7.1 Filings and Consents . . . . . . . . . . . . . . . . . . . 26
7.2 Public Announcements . . . . . . . . . . . . . . . . . . . 26
7.3 Pooling of Interests . . . . . . . . . . . . . . . . . . . 27
7.4 Affiliate Agreements . . . . . . . . . . . . . . . . . . . 27
7.5 Best Efforts . . . . . . . . . . . . . . . . . . . . . . . 27
7.6 Sanborn Agreement. . . . . . . . . . . . . . . . . . . . . 27
7.7 Regulatory Approvals . . . . . . . . . . . . . . . . . . . 27
7.8 Registration Rights. . . . . . . . . . . . . . . . . . . . 27
7.9 FIRPTA Matters . . . . . . . . . . . . . . . . . . . . . . 32
7.10 Treatment of Employee Plans and Benefits . . . . . . . . . 32
7.11 Employee Indemnification . . . . . . . . . . . . . . . . . 32
7.12 Tax Returns and Financial Statements . . . . . . . . . . . 32
7.13 Capital Availability Agreement . . . . . . . . . . . . . . 32
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF VISTA AND SUB. . . . . . . 32
8.1 Accuracy of Representations . . . . . . . . . . . . . . . 32
8.2 Performance of Covenants . . . . . . . . . . . . . . . . . 33
8.3 No Distributions . . . . . . . . . . . . . . . . . . . . . 33
8.4 Consents . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.5 Agreements and Documents . . . . . . . . . . . . . . . . . 33
8.6 Compliance with the Securities Act . . . . . . . . . . . . 34
8.7 No Restraints. . . . . . . . . . . . . . . . . . . . . . . 34
8.8 No Legal Proceedings . . . . . . . . . . . . . . . . . . . 34
8.9 GEOSURE's Key Employees. . . . . . . . . . . . . . . . . . 34
8.10 Due Diligence. . . . . . . . . . . . . . . . . . . . . . . 34
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9. CONDITIONS PRECEDENT TO OBLIGATIONS OF GEOSURE AND THE PARTNERS . 34
9.1 Accuracy of Representations . . . . . . . . . . . . . . . 34
9.2 Performance of Covenants . . . . . . . . . . . . . . . . . 35
9.3 Documents. . . . . . . . . . . . . . . . . . . . . . . . . 35
9.4 No Restraints. . . . . . . . . . . . . . . . . . . . . . . 35
9.5 Compliance with the Securities Act . . . . . . . . . . . . 35
9.6 No Legal Proceedings . . . . . . . . . . . . . . . . . . . 35
10. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.1 Termination Events . . . . . . . . . . . . . . . . . . . . 35
10.2 Termination Procedures . . . . . . . . . . . . . . . . . . 36
10.3 Effect of Termination. . . . . . . . . . . . . . . . . . . 36
11. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION. . . . . . . . . . . 37
11.1 Survival of Representations, etc. . . . . . . . . . . . . 37
11.2 Indemnification. . . . . . . . . . . . . . . . . . . . . . 37
11.3 Interest . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.4 Defense of Third Party Claims. . . . . . . . . . . . . . . 38
11.5 Indemnity Escrow Fund. . . . . . . . . . . . . . . . . . . 39
12. MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . 39
12.1 Further Assurances . . . . . . . . . . . . . . . . . . . . 39
12.2 Fees and Expenses. . . . . . . . . . . . . . . . . . . . . 39
12.3 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . 39
12.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 40
12.5 Confidentiality. . . . . . . . . . . . . . . . . . . . . . 41
12.6 Time of The Essence. . . . . . . . . . . . . . . . . . . . 41
12.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 41
12.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 41
12.9 Governing Law. . . . . . . . . . . . . . . . . . . . . . . 41
12.10 Successors and Assigns . . . . . . . . . . . . . . . . . . 41
12.11 Remedies Cumulative; Specific Performance. . . . . . . . . 41
12.12 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 42
12.13 Amendments . . . . . . . . . . . . . . . . . . . . . . . . 42
12.14 Severability . . . . . . . . . . . . . . . . . . . . . . . 42
12.15 Parties in Interest. . . . . . . . . . . . . . . . . . . . 42
12.16 Entire Agreement . . . . . . . . . . . . . . . . . . . . . 42
12.17 Construction . . . . . . . . . . . . . . . . . . . . . . . 42
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LIST OF EXHIBITS:
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EXHIBIT A -- LIST OF PARTNERS
EXHIBIT B -- CERTAIN DEFINITIONS
EXHIBIT C -- PARTNERSHIP INTEREST ASSIGNMENT
EXHIBIT D1 -- FORM OF AFFILIATE AGREEMENT
EXHIBIT D2 -- PERSONS TO EXECUTE AFFILIATE AGREEMENTS
EXHIBIT E -- ITEMS TO BE ADDRESSED IN LEGAL OPINION OF RUBIN BAUM LEVIN
CONSTANT & FRIEDMAN, COUNSEL TO GEOSURE
EXHIBIT F -- ITEMS TO BE ADDRESSED IN LEGAL OPINION OF GRAY CARY WARE &
FREIDENRICH, COUNSEL TO VISTA
EXHIBIT G -- FORM OF ESCROW AGREEMENT
LIST OF SCHEDULES:
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Schedule 4.3 -- VISTA Capitalization
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PARTNERSHIP INTEREST PURCHASE AGREEMENT
THIS PARTNERSHIP INTEREST PURCHASE AGREEMENT ("Agreement") is made and
entered into as of January 5, 1999, by and among VISTA INFORMATION SOLUTIONS,
INC., a Delaware corporation ("VISTA"); VISTA Environmental Information,
Inc., a Delaware corporation and a wholly owned subsidiary of VISTA ("SUB");
GEOSURE, L.P., a New York limited partnership ("GEOSURE"); and the partners
of GEOSURE (and those persons who will become partners of GEOSURE prior to
the Closing (as defined below)) identified on EXHIBIT A attached hereto (the
"Partners"). Certain other capitalized terms used in this Agreement are
defined in EXHIBIT B attached hereto.
RECITALS
A. Under and subject to the terms of this Agreement, VISTA will
acquire all of the general partner interests of GEOSURE and SUB will acquire
all of the limited partner interests of GEOSURE from the Partners
(collectively, the "Acquisition").
B. The parties intend that the Acquisition be treated as a "pooling
of interests" for accounting purposes.
C. The Partners collectively own one hundred percent (100%) of the
currently outstanding general partner interests and limited partner interests
of GEOSURE. Prior to the Closing, Mr. Dan Prickett ("DP") may acquire certain
general partnership interests and limited partnership interests of GEOSURE
through the exercise of an option; thereafter EXHIBIT A will be revised and
all references in this Agreement to the Partners as of and after the Closing
shall include DP.
D. This Agreement has been approved by the Boards of Directors of
VISTA and SUB and by the Partners.
AGREEMENT
NOW THEREFORE, in reliance on the foregoing and in and for the
consideration and the mutual covenants set forth herein, the parties agree as
follows:
1. THE ACQUISITION
1.1 SALE AND PURCHASE OF PARTNERSHIP INTEREST. Subject to the
terms and conditions set forth in this Agreement, at the Closing (as defined
below), (i) the general partners of GAMMA shall sell all of their general
partner interests in GEOSURE to VISTA, and VISTA shall purchase all such
interests, and (ii) the limited partners of GAMMA shall sell all of their
limited partner interests in GEOSURE to SUB, and SUB shall purchase all such
interests.
1.2 CLOSING. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Gray Cary
Ware & Freidenrich, 4365 Executive Drive, Suite 1600, San Diego, California
92121, on January 12, 1999, or at such other time and
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date as the Parties agree, but in no event later than the second business day
after the date that all of the conditions set forth in Sections 8 and 9 have
been satisfied or waived (the "Closing Date").
1.3 EFFECT OF THE ACQUISITION The Acquisition shall have the
effects set forth in this Agreement and in the applicable provisions of the
New York Revised Limited Partnership Act. Without limiting the generality of
the foregoing, and subject thereto, at the Closing all of the property,
rights, privileges, powers and franchises of GEOSURE shall remain vested in
GEOSURE, and all debts, liabilities and duties of GEOSURE shall remain the
debts, liabilities and duties of GEOSURE.
1.4 EFFECT ON LIMITED PARTNERSHIP INTEREST.
(a) Subject to Section 1.4(b), at the Closing VISTA will
issue to each general partner of GEOSURE, and SUB will issue to each limited
partner of GEOSURE, in each case in exchange for a Partnership Interest
Assignment in the form of EXHIBIT C attached hereto executed by such Partner,
the number of shares of the common stock, par value $0.001 per share, of
VISTA ("VISTA Common Stock") equal to the product of 2,590,000 (the "Exchange
Shares") multiplied by the percentage of such partner's pro rata ownership
interest of GEOSURE, as set forth on EXHIBIT A; provided that ten percent
(10%) of the Exchange Shares allocated to each Partner shall be deposited
into escrow in accordance with Section 11.5.
(b) No fractional shares of VISTA Common Stock shall be
issued in connection with the Acquisition, and no certificates for any such
fractional shares shall be issued. In lieu of such fractional shares, any
Partner who would otherwise be entitled to receive a fraction of a share of
VISTA Common Stock shall, upon delivery of such Partner's Partnership
Interest Assignment, be paid in cash the dollar amount (rounded to the
nearest whole cent), without interest, determined by multiplying such
fraction by Six Dollars and Fifty Cents ($6.50).
(c) VISTA and SUB shall be entitled to deduct and withhold
from any consideration payable or otherwise deliverable to any Partner
pursuant to this Agreement such amounts as VISTA or SUB may be required to
deduct or withhold therefrom under the Internal Revenue Code of 1986, as
amended (the "Code"), or under any provision of state, local or foreign tax
law (or, in the alternative, VISTA and SUB may request tax information and
other documentation to ensure no withholding is necessary). To the extent
such amounts are so deducted or withheld, such amounts shall be treated for
all purposes under this Agreement as having been paid to the Partner to whom
such amounts would otherwise have been paid.
1.5 ACCOUNTING TREATMENT. For accounting purposes, the Acquisition
is intended to be treated as a "pooling of interests."
2. REPRESENTATIONS AND WARRANTIES OF GEOSURE
GEOSURE represents and warrants to VISTA and SUB that, except as set
forth in the disclosure schedule which references the specific
representations and warranties as to which the exception is made and which
has been delivered by GEOSURE to VISTA and SUB on or before the date of this
Agreement (the "GEOSURE Disclosure Schedule") (any items disclosed in the
GEOSURE Disclosure Schedule being considered an exception to the other
representations and
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warranties not referenced therein if a reasonable business person who was not
familiar with GEOSURE or its operations would reasonably expect such item to
apply to such other representations or warranties):
2.1 ORGANIZATION, STANDING AND POWER. GEOSURE is a limited
partnership duly organized, validly existing and in good standing under the
laws of New York, has all requisite power to own, lease and operate its
assets and to carry on its business as currently being conducted and as
currently proposed to be conducted, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the nature of
its operations requires such qualification, except where the failure to so
qualify has not and will not have a Material Adverse Effect on GEOSURE.
GEOSURE has delivered to Vista true and correct copies of the partnership
agreement of GEOSURE and the charter documents of each Subsidiary, all as
amended to date. GEOSURE and each of its Subsidiaries (each of GEOSURE and
such Subsidiaries is individually referred to as the "Acquired Entity" and
collectively as the "Acquired Entities"), is not in violation of any of the
provisions of its charter documents. Except as set forth in Part 2.1 of the
GEOSURE Disclosure Schedule, GEOSURE does not directly or indirectly own any
equity or similar interest in, or any interest convertible or exchangeable or
exercisable for any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity.
2.2 PARTNERSHIP DOCUMENTS. GEOSURE has furnished to VISTA, or its
representatives, for its examination (i) copies of all records required to be
set forth of all proceedings, consents, actions, and meetings of the limited
and general partners and (ii) to the extent requested by VISTA, all permits,
orders, and consents issued by any Governmental Body with respect to GEOSURE
or any of its Subsidiaries. The partnership records of GEOSURE are complete
and accurate in all material respects, and the signatures of all officers and
limited and general partners and other persons appearing on all documents
contained therein are the true signatures of the persons purporting to have
signed the same. All actions reflected in such books and records were duly
and validly taken in material compliance with the laws of the applicable
jurisdiction.
2.3 CAPITALIZATION, ETC.
(a) The issued and outstanding interests of GEOSURE consist
of partnership interests issued to the persons and in the relative amounts
set forth on EXHIBIT A. All of the outstanding partnership interests of
GEOSURE have been duly authorized and validly issued, and are fully paid.
GEOSURE has made available to VISTA an accurate and complete description of
the terms of any repurchase option which is held by GEOSURE and to which any
of such partnership interests are subject as well as any obligation by
GEOSURE to pay distributions on any of its partnership interests. Except for
the option held by DP which will be exercised prior to the Closing, there are
no rights or agreements outstanding for the issuance of additional
partnership interests to any person.
(b) All outstanding partnership interests of GEOSURE have
been issued and granted in compliance with (i) all applicable securities laws
and other applicable Legal Requirements, and (ii) all requirements set forth
in applicable Contracts.
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(c) Except as set forth in Part 2.3 of GEOSURE Disclosure
Schedule, since December 31, 1996, GEOSURE has never repurchased, redeemed or
otherwise reacquired any partnership interests or other securities of
GEOSURE. All securities so reacquired by GEOSURE were reacquired in
compliance with (i) the applicable provisions of all applicable Legal
Requirements, and (ii) all requirements set forth in applicable Contracts.
(d) Except as set forth in Part 2.3 of the GEOSURE
Disclosure Schedule, all of the outstanding securities of each of the
Subsidiaries are validly issued (in compliance with all applicable securities
laws and other Legal Requirements and applicable GEOSURE Contracts), fully
paid and nonassessable and are owned beneficially and of record by GEOSURE or
its wholly owned Subsidiaries, free and clear of any Encumbrance.
2.4 FINANCIAL STATEMENTS. GEOSURE has delivered to VISTA its
audited consolidated financial statements as of and for each of the years
ended December 31, 1996, and 1997 and its unaudited consolidated financial
statements for the nine months ended September 30, 1998 (collectively, the
"GEOSURE Financial Statements"). The GEOSURE Financial Statements are
correct in all material respects and were prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved (except that the unaudited financial
statements do not contain footnotes and are subject to normal and recurring
year end audit adjustments, which will not, individually or in the aggregate,
be material in magnitude). The GEOSURE Financial Statements present fairly
the consolidated financial position of GEOSURE in all material respects as of
the respective dates and the consolidated results of its operations and cash
flows for the periods indicated. GEOSURE has maintained a standard system of
accounting established and administered in accordance with good business
practices sufficient to permit (i) the preparation of financial statements in
accordance with GAAP, and (ii) an audit by independent accountants.
2.5 ABSENCE OF CHANGES. Except as set forth in Part 2.5 of the
GEOSURE Disclosure Schedule, since September 30, 1998, GEOSURE has not: (a)
suffered any change, or any development or combination of developments that
has had or would reasonably be expected to have a Material Adverse Effect on
GEOSURE, (b) suffered any damage, destruction or loss, whether or not covered
by insurance, that has had or would reasonably be expected to have a Material
Adverse Effect on GEOSURE; (c) granted any material increase in the
compensation payable or to become payable by GEOSURE to its officers or
employees other than increases in the ordinary course of business to
employees who are not officers; (d) declared, set aside or paid any
distribution on or in respect of its partnership interests or declared any
direct or indirect redemption, retirement, purchase or other acquisition of
such partnership interests; (e) issued any partnership interests or any
rights for, or entered into any commitment relating to such partnership
interests; (f) made any change in the accounting methods or practices it
follows, whether for general financial or tax purposes, or any change in
depreciation or amortization policies or rates; (g) sold, leased, abandoned
or otherwise disposed of any real property, machinery, equipment or other
operating property other than in the ordinary course of business; (h) sold,
assigned, transferred, licensed or otherwise disposed of any patent, patent
right, trademark, trade name, brand name, copyright (or pending application
for any patent, trademark or copyright), invention, work of authorship,
process, know-how, formula or trade secret or interest thereunder or other
material intangible asset except for end-user license transactions
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entered into in the ordinary course of its business pursuant to GEOSURE's
standard forms of license agreement; (i) entered into any material commitment
or transaction (including without limitation any borrowing) other than
commitments or transactions entered into in the ordinary course of business
that are not reasonably likely to have a Material Adverse Effect on GEOSURE;
(j) permitted or allowed any of its property or assets to be subjected to any
new mortgage, deed of trust, pledge, lien, security interest or other
encumbrance of any kind, except for liens for current taxes not yet due and
purchase money security interests incurred in the ordinary course of
business; (k) made any capital expenditure or commitment for additions to
property, plant or equipment individually in excess of $25,000, or, in the
aggregate, in excess of $50,000; (l) paid, loaned or advanced any amount to,
or sold, transferred or leased any properties or assets to, or entered into
any agreement or arrangement with, any of its employees or partners or any
affiliate of any of the foregoing, other than employee compensation and
benefits and reimbursement of employment related business expenses incurred
in the ordinary course of business; (m) suffered any material decrease in
revenues from a customer which provided more than $50,000 in revenues during
the 12 months prior to September 30, 1998 or determined that such a decrease
should be expected; or (n) agreed to take any action described in this
Section 2.5 or which would constitute a breach of any of the representations
or warranties of GEOSURE contained in this Agreement.
2.6 TITLE TO ASSETS.
(a) Each of the Acquired Entities owns, and has good, valid
and marketable title to, all assets purported to be owned by it, including:
(i) all assets reflected on the GEOSURE Financial Statements; (ii) all assets
referred to in Parts 2.1, 2.7 and 2.9 of GEOSURE Disclosure Schedule and all
of its rights under the Contracts identified in Part 2.10 of GEOSURE
Disclosure Schedule; and (iii) all other assets reflected in its books and
records as being owned by such Acquired Entity. Except as set forth in Part
2.6 of GEOSURE Disclosure Schedule, all of said assets are owned by the
Acquired Entities free and clear of any liens or other Encumbrances, except
for any lien for current taxes not yet due and payable.
(b) Part 2.6 of GEOSURE Disclosure Schedule identifies all
assets that are material to the business of the Acquired Entities and that
are being leased or licensed to any of the Acquired Entities.
2.7 ACCOUNTS RECEIVABLE. GEOSURE has provided to VISTA accurate
records reflecting a breakdown and aging of all accounts receivable, notes
receivable and other receivables of the Acquired Entities as of September 30,
1998. Except as set forth in Part 2.7 of GEOSURE Disclosure Schedule, all
existing accounts receivable of the Acquired Entities (including those
accounts receivable reflected on the Geosure Financial Statements that have
not yet been collected and those accounts receivable that have arisen since
September 30, 1998 and have not yet been collected) (i) represent valid
obligations of customers of the Acquired Entities arising from bona fide
transactions entered into in the ordinary course of business, and (ii) are
current and will be collected in full when due, without any counterclaim or
set off (net of the allowance for doubtful accounts included in such
financial statements).
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2.8 EQUIPMENT; REAL PROPERTY INTERESTS.
(a) All items of equipment and other tangible assets owned
by or leased to the Acquired Entities are adequate for the uses to which they
are being put, are in good condition and repair (ordinary wear and tear
excepted) and are adequate for the conduct of the Acquired Entities'
businesses, in the manner in which such businesses are currently being
conducted.
(b) None of the Acquired Entities own any real property or
any interest in real property, except for the leasehold created under the
real property leases identified in Part 2.10 of GEOSURE Disclosure Schedule.
2.9 PROPRIETARY ASSETS.
(a) Part 2.9(a)(i) of GEOSURE Disclosure Schedule sets
forth, with respect to each GEOSURE Proprietary Asset registered with any
Governmental Body or for which an application has been filed with any
Governmental Body, (i) a brief description of such Proprietary Asset, and
(ii) the names of the jurisdictions covered by the applicable registration or
application. Part 2.9(a)(ii) of GEOSURE Disclosure Schedule identifies and
provides a brief description of all other material GEOSURE Proprietary Assets
owned by GEOSURE or any other Acquired Entity. Part 2.9(a)(iii) of GEOSURE
Disclosure Schedule identifies and provides a brief description of each
material Proprietary Asset licensed to GEOSURE or any other Acquired Entity
by any Person (except for any Proprietary Asset that is licensed to GEOSURE
or any other Acquired Entity under any third party software license generally
available to the public at a cost of less than $10,000), and identifies the
license agreement under which such Proprietary Asset is being licensed to
GEOSURE or any other Acquired Entity. Except as set forth in Part 2.9(a)(iv)
of GEOSURE Disclosure Schedule GEOSURE (or any other Acquired Entity, as
appropriate) has good, valid and marketable title to all of GEOSURE
Proprietary Assets identified in Parts 2.9(a)(i) and 2.9(a)(ii) of GEOSURE
Disclosure Schedule, free and clear of all liens and other Encumbrances, and
has a valid right (contractual or otherwise) to use all Proprietary Assets
identified in Part 2.9(a)(iii) of GEOSURE Disclosure Schedule. Except as set
forth in Part 2.9(a)(v) of GEOSURE Disclosure Schedule, no Acquired Entity is
obligated to make any payment to any Person for the use of any GEOSURE
Proprietary Asset. Except as set forth in Part 2.9(a)(vi) of GEOSURE
Disclosure Schedule, no Acquired Entity has developed jointly with any other
Person any GEOSURE Proprietary Asset with respect to which such other Person
has any rights.
(b) The Acquired Entities have taken all measures and
precautions reasonably necessary to protect and maintain the confidentiality
and secrecy of all GEOSURE Proprietary Assets (except GEOSURE Proprietary
Assets whose value would be unimpaired by public disclosure) and otherwise to
maintain and protect the value of all GEOSURE Proprietary Assets.
(c) None of GEOSURE Proprietary Assets infringes or
conflicts with any Proprietary Asset owned or used by any other Person. None
of the Acquired Entities is infringing, misappropriating or making any
unlawful use of, and the Acquired Entities have not at any time infringed,
misappropriated or made any unlawful use of, or received any notice or other
communication (in writing or otherwise) of any actual, alleged, possible or
potential infringement, misappropriation or unlawful use of, any Proprietary
Asset owned or used by any
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other Person. To the best of the knowledge of GEOSURE, no other Person is
infringing, misappropriating or making any unlawful use of, and no
Proprietary Asset owned or used by any other Person infringes or conflicts
with, any GEOSURE Proprietary Asset.
(d) Except as set forth in Part 2.9(d) of GEOSURE Disclosure
Schedule: (i) each GEOSURE Proprietary Asset conforms in all material
respects with any specification, documentation and performance standard
provided with respect thereto by or on behalf of any Acquired Entity; and
(ii) there has not been any material claim, which has not been fully
resolved, by any customer or other Person alleging that any GEOSURE
Proprietary Asset does not conform in all material respects with any
specification, documentation, performance standard, representation or
statement made or provided by or on behalf of any Acquired Entity, and, to
the best of the knowledge of GEOSURE, there is no basis for any such claim.
GEOSURE has established adequate reserves on the GEOSURE Financial Statements
to cover all costs associated with any obligations that the Acquired Entities
may have with respect to the correction or repair of programming errors or
other defects in GEOSURE Proprietary Assets.
(e) GEOSURE Proprietary Assets constitute all the
Proprietary Assets reasonably necessary to enable the Acquired Entities to
conduct their businesses in the manner in which such businesses have been and
are being conducted. Except as set forth in Part 2.9(e) of GEOSURE
Disclosure Schedule, (i) the Acquired Entities have not licensed any of
GEOSURE Proprietary Assets to any Person on an exclusive basis, and (ii) the
Acquired Entities have not entered into any covenant not to compete or
Contract limiting the ability to exploit fully any Proprietary Assets or to
transact business in any market or geographical area or with any Person.
(f) Except as set forth in Part 2.9(f) of the GEOSURE
Disclosure Schedule, (i) all current and former employees of the Acquired
Entities have executed and delivered to the Acquired Entities an agreement
that is substantially identical to the standard form of agreement used by
GEOSURE and previously delivered to VISTA, and (ii) all current and former
consultants and independent contractors to the Acquired Entities have
executed and delivered to the Acquired Entities an agreement that is
substantially identical to the standard form of agreement used by GEOSURE and
previously delivered to VISTA.
(g) GEOSURE will retain all rights held by it to the Sanborn
Maps as set forth in that certain agreement dated August 1, 1991 by and among
Chadwyck-Healy, Ltd., Chadwyck-Healy, Inc., The Environmental Risk
Information Center and Elsevier Realty Information Services (the "Sanborn
Agreement"), and GEOSURE may assign such rights to VISTA following the
Closing without restriction.
2.10 CONTRACTS.
(a) Part 2.10 of GEOSURE Disclosure Schedule identifies each
Contract of GEOSURE or any of the other Acquired Entities material to the
Acquired Entities, considered as a whole (each a "Material GEOSURE
Contract"), including the following (to the extent material):
(i) each GEOSURE Contract relating to the employment
of, or the performance of services by, any employee, consultant or
independent contractor;
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(ii) each GEOSURE Contract relating to the
acquisition, transfer, use, development, sharing or license of any
Proprietary Asset;
(iii) each GEOSURE Contract imposing any material
restriction on any Acquired Entity's right or ability (A) to compete with any
other Person, (B) to acquire any product or other asset or any services from
any other Person, to sell any product or other asset to or perform any
services for any other Person or to transact business with any other Person,
or (C) develop or distribute any technology;
(iv) each GEOSURE Contract creating or involving any
agency relationship, distribution arrangement or franchise relationship;
(v) each GEOSURE Contract relating to the creation of
any Encumbrance with respect to any asset of any of the Acquired Entities;
(vi) each GEOSURE Contract involving or incorporating
any guaranty, any pledge, any performance or completion bond, any indemnity
or any surety arrangement;
(vii) each GEOSURE Contract creating or relating to any
partnership or joint venture or any sharing of revenues, profits, losses,
costs or liabilities;
(viii) each GEOSURE Contract relating to the purchase or
sale of any product or other asset by or to, or the performance of any
services by or for, any Related Party (as defined in Section 2.19);
(ix) any other GEOSURE Contract that was entered into
by any Acquired Entity outside the ordinary course of business or was
inconsistent with any such Acquired Entity's past practices;
(b) The Acquired Entities have delivered to VISTA accurate
and complete copies of all written Contracts identified in Part 2.10 of
GEOSURE Disclosure Schedule, including all amendments thereto. Each Contract
identified in Part 2.10 of GEOSURE Disclosure Schedule is valid and in full
force and effect, and is enforceable by the Acquired Entities in accordance
with its terms, subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable
remedies.
(c) Except as set forth in Part 2.10 of GEOSURE Disclosure
Schedule:
(i) none of the Acquired Entities has materially
violated or breached, or committed any material default under, any GEOSURE
Contract, and, to the best of the knowledge of GEOSURE, no other Person has
materially violated or breached, or committed any material default under, any
GEOSURE Contract;
(ii) to the best of the knowledge of GEOSURE, no event
has occurred, and no circumstance or condition exists, that (with or without
notice or lapse of time) will, or would reasonably be expected to, (A) result
in a material violation or breach of any of the
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provisions of any Material GEOSURE Contract, (B) give any Person the right to
declare a default or exercise any remedy under any Material GEOSURE Contract,
(C) give any Person the right to accelerate the maturity or performance of
any Material GEOSURE Contract, or (D) give any Person the right to cancel,
terminate or modify any Material GEOSURE Contract;
(iii) since December 31, 1997, none of the Acquired
Entities has received any notice or other communication regarding any
material violation or breach of, or default under, any GEOSURE Contract; and
(iv) none of the Acquired Entities has waived any of
its material rights under any Material GEOSURE Contract.
(d) No Person is renegotiating any amount paid or payable to
GEOSURE under any Material GEOSURE Contract or any other material term or
provision of any Material GEOSURE Contract.
(e) The Contracts identified in Part 2.10 of GEOSURE
Disclosure Schedule collectively constitute all of the Contracts reasonably
necessary to enable the Acquired Entities to conduct their businesses in the
manner in which they are currently being conducted.
(f) GEOSURE has made available to VISTA all material
documentation regarding any bid, offer, award, written proposal or term sheet
which has been submitted or received by the Acquired Entities since December
31, 1997 and which could result in an agreement that would be a Material
GEOSURE Contract.
(g) GEOSURE has made available to VISTA all material
documentation regarding the Acquired Entities' current backlog under GEOSURE
Contracts.
(h) Since December 31, 1996, except as set forth in Part
2.10(h) of GEOSURE Disclosure Schedule, none of the Acquired Entities has
entered into or become a party to a Government Contract.
2.11 LIABILITIES. Except as disclosed in Part 2.5 of the GEOSURE
Disclosure Schedule and except for obligations (such as, by way of
illustration but not limitation, trade payables) arising in the ordinary
course of business since September 30, 1998, none of the Acquired Entities
has any accrued, contingent or other liabilities of any nature, either
matured or unmatured (whether or not required to be reflected in financial
statements in accordance with generally accepted accounting principles, and
whether due or to become due), not otherwise reflected in GEOSURE Financial
Statements or provided in GEOSURE Disclosure Schedule. All sums advanced by
certain partners under the Capital Availability Agreement with State Street
Bank and Trust Company have been loans to GEOSURE, rather than contributions
to the capital of GEOSURE. The liabilities of GEOSURE for principal and
accrued interest to State Street Bank and Trust Company and to certain
Persons who advanced funds to GEOSURE in December 1998 (including prepayment
penalties on such liabilities that will be incurred upon payment of such
indebtedness by February 28, 1998) do not exceed an aggregate of $3,125,000
and will not exceed that amount as of the Closing Date.
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2.12 COMPLIANCE WITH LEGAL REQUIREMENTS. Each of the Acquired
Entities is, and has at all times since December 31, 1996 been, in compliance
with all applicable Legal Requirements, except where the failure to comply
with such Legal Requirements has not had and will not have a Material Adverse
Effect on GEOSURE. Except as set forth in Part 2.12 of GEOSURE Disclosure
Schedule, since December 31, 1996, none of the Acquired Entities has received
any notice or other communication from any Governmental Body regarding any
actual or possible violation of, or failure to comply with, any Legal
Requirements, except where the failure to comply with such Legal Requirements
has not had and will not have a Material Adverse Effect on GEOSURE.
2.13 GOVERNMENTAL AUTHORIZATIONS. Part 2.13 of GEOSURE Disclosure
Schedule identifies each material Governmental Authorization held by each of
the Acquired Entities. The Governmental Authorizations identified in Part
2.13 of GEOSURE Disclosure Schedule are valid and in full force and effect,
and collectively constitute all Governmental Authorizations necessary to
enable each of the Acquired Entities to conduct its business in the manner in
which its business is currently being conducted except where any failure to
have such Governmental Authorizations has not had and will not have a
Material Adverse Effect on GEOSURE. Each of the Acquired Entities is, and at
all times since December 31, 1996 has been, in substantial compliance with
the terms and requirements of the respective Governmental Authorizations
identified in Part 2.13 of GEOSURE Disclosure Schedule. Since December 31,
1996, GEOSURE has not received any notice or other communication from any
Governmental Body regarding (a) any actual or possible violation of or
failure to comply with any term or requirement of any Governmental
Authorization, or (b) any actual or possible revocation, withdrawal,
suspension, cancellation, termination or modification of any Governmental
Authorization.
2.14 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of
any Acquired Entity with any Governmental Body with respect to any taxable
period ending on or before the Closing Date (the "GEOSURE Returns") (i) have
been or will be filed on or before the applicable due date (including any
extensions of such due date), and (ii) have been, or will be when filed,
prepared in all material respects in compliance with all applicable Legal
Requirements. All amounts shown on GEOSURE Returns to be due on or before
the Closing Date have been or will be paid on or before the Closing Date.
GEOSURE has delivered or made available to VISTA accurate and complete copies
of all GEOSURE Returns filed since December 31, 1995 which have been
requested by VISTA.
(b) GEOSURE Financial Statements fully accrue all actual and
contingent liabilities for Taxes with respect to all periods through the
dates thereof in accordance with generally accepted accounting principles.
(c) Except as set forth in Part 2.14 of GEOSURE Disclosure
Schedule, there have been no examinations or audits of any GEOSURE Return
since December 31, 1995. GEOSURE has delivered to VISTA accurate and
complete copies of all audit reports and similar documents (to which it has
access) relating to GEOSURE Returns. Except as set forth in
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Part 2.14 of GEOSURE Disclosure Schedule, no extension or waiver of the
limitation period applicable to any of GEOSURE Returns has been granted and
no such extension or waiver has been requested from any Acquired Entity.
(d) Except as set forth in Part 2.14 of GEOSURE Disclosure
Schedule, since December 31, 1996 no material claim or Legal Proceeding is
pending or has been threatened against or with respect to any Acquired Entity
in respect of any Tax. There are no unsatisfied liabilities for Taxes
(including liabilities for interest, additions to tax and penalties thereon
and related expenses) with respect to any notice of deficiency or similar
document received by any Acquired Entity with respect to any Tax (other than
liabilities for Taxes asserted under any such notice of deficiency or similar
document which are being contested in good faith by any such Acquired Entity
and with respect to which adequate reserves for payment have been
established). There are no liens for Taxes upon any of the assets of any
Acquired Entity except liens for current Taxes not yet due and payable. Each
of the Acquired Entities has not entered into or become bound by any
agreement or consent pursuant to Section 341(f) of the Code. Each of the
Acquired Entities has not been, and will not be, required to include any
adjustment in taxable income for any tax period (or portion thereof) pursuant
to Section 481 or 263A of the Code or any comparable provision under state or
foreign Tax laws as a result of transactions or events occurring, or
accounting methods employed, prior to the Closing.
(e) There is no agreement, plan, arrangement or other
Contract covering any employee or independent contractor or former employee
or independent contractor of any Acquired Entity that, considered
individually or considered collectively with any other such Contracts, will,
or could reasonably be expected to, give rise directly or indirectly to the
payment of any amount that would not be deductible pursuant to Section 280G
or Section 162 of the Code. Each of the Acquired Entities is not, and has
never been, a party to or bound by any tax indemnity agreement, tax sharing
agreement, tax allocation agreement or similar Contract.
2.15 EMPLOYEE AND LABOR MATTERS; BENEFIT PLANS.
(a) Part 2.15(a) of GEOSURE Disclosure Schedule identifies
each salary, bonus, deferred compensation, incentive compensation, stock
purchase, stock option, severance pay, or termination pay plan (collectively,
the "Compensation Plans"), and each hospitalization, medical, life or other
insurance, supplemental unemployment benefits, profit-sharing, pension or
retirement plan, program or agreement (collectively, the "Plans") sponsored,
maintained, contributed to or required to be contributed to by any Acquired
Entity for the benefit of any employee of any Acquired Entity ("Employee"),
except for Plans which would not require the Acquired Entities to make
payments or provide benefits having a value in excess of $50,000 in the
aggregate.
(b) Except as set forth in Part 2.15(a) of GEOSURE
Disclosure Schedule, the Acquired Entities do not maintain, sponsor or
contribute to, and, to the best of the knowledge of GEOSURE, have not at any
time in the past maintained, sponsored or contributed to, any employee
pension benefit plan (as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), whether or not excluded
from coverage under
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specific Titles or Merger Subtitles of ERISA) for the benefit of Employees or
former Employees (a "Pension Plan").
(c) Each of the Acquired Entities maintains, sponsors or
contributes only to those employee welfare benefit plans (as defined in
Section 3(1) of ERISA, whether or not excluded from coverage under specific
Titles or Merger Subtitles of ERISA) for the benefit of Employees or former
Employees which are described in Part 2.15(c) of GEOSURE Disclosure Schedule
(the "Welfare Plans"), none of which is a multi-employer plan (within the
meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, GEOSURE has delivered to
VISTA:
(i) an accurate and complete copy of such Plan
(including all amendments thereto);
(ii) an accurate and complete copy of the annual
report, if required under ERISA, with respect to such Plan for the last two
years;
(iii) an accurate and complete copy of the most recent
summary plan description, together with each Summary of Material
Modifications, if required under ERISA, with respect to such Plan, and all
material employee communications relating to such Plan;
(iv) if such Plan is funded through a trust or any
third party funding vehicle, an accurate and complete copy of the trust or
other funding agreement (including all amendments thereto) and accurate and
complete copies the most recent financial statements thereof;
(v) accurate and complete copies of all Contracts
relating to such Plan, including service provider agreements, insurance
contracts, minimum premium contracts, stop-loss agreements, investment
management agreements, subscription and participation agreements and record
keeping agreements; and
(vi) an accurate and complete copy of the most recent
determination letter received from the Internal Revenue Service with respect
to such Plan (if such Plan is intended to be qualified under Section 401(a)
of the Code).
(e) No Acquired Entity is required to be, and, to the best
of the knowledge of GEOSURE, has ever been required to be, treated as a
single employer with any other Person under Section 4001(b)(1) of ERISA or
Section 414(b), (c), (m) or (o) of the Code. No Acquired Entity has ever
been a member of an "affiliated service group" within the meaning of Section
414(m) of the Code. To the best of the knowledge of GEOSURE, the Acquired
Entities have never made a complete or partial withdrawal from a
multi-employer plan, as such term is defined in Section 3(37) of ERISA,
resulting in "withdrawal liability," as such term is defined in Section 4201
of ERISA (without regard to subsequent reduction or waiver of such liability
under either Section 4207 or 4208 of ERISA).
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(f) The Acquired Entities do not have any plan or commitment
to create any additional Welfare Plan or any Pension Plan, or to modify or
change any existing Welfare Plan or Pension Plan (other than to comply with
applicable law) in a manner that would affect any Employee.
(g) Except as set forth in Part 2.15(g) of GEOSURE
Disclosure Schedule, no Welfare Plan provides death, medical or health
benefits (whether or not insured) with respect to any current or former
Employee after any such Employee's termination of service (other than (i)
benefit coverage mandated by applicable law, including coverage provided
pursuant to Section 4980B of the Code, (ii) deferred compensation benefits
accrued as liabilities on the GEOSURE Financial Statements, and (iii)
benefits the full cost of which are borne by current or former Employees (or
the Employees' beneficiaries)).
(h) With respect to each of the Welfare Plans constituting a
group health plan within the meaning of Section 4980B(g)(2) of the Code, the
provisions of Section 4980B of the Code ("COBRA") have been complied with in
all material respects.
(i) Each of the Compensation Plans and the Plans has been
operated and administered in all material respects in accordance with
applicable Legal Requirements, including but not limited to ERISA and the
Code.
(j) Each of the Compensation Plans and the Plans intended to
be qualified under Section 401(a) of the Code has received a favorable
determination from the Internal Revenue Service, GEOSURE is not aware of any
reason why any such determination letter should be revoked.
(k) Except as set forth in Part 2.15(k) of GEOSURE
Disclosure Schedule, neither the execution, delivery or performance of this
Agreement, nor the consummation of the Acquisition or any of the other
transactions contemplated by this Agreement, will result in any payment
(including any bonus, golden parachute or severance payment) to any current
or former Employee or director of any Acquired Entity (whether or not under
any Plan), or materially increase the benefits payable under any Compensation
Plan or Plan, or result in any acceleration of the time of payment or vesting
of any such benefits.
(l) GEOSURE has provided to VISTA documentation showing all
salaried employees of the Acquired Entities, and correctly reflecting, in all
material respects, their salaries, any other compensation payable to them
(including compensation payable pursuant to bonus, deferred compensation or
commission arrangements), their dates of employment and their positions. The
Acquired Entities are not a party to any collective bargaining contract or
other Contract with a labor union involving any of its Employees. Except as
set forth in Part 2.15(l) of the GEOSURE Disclosure Schedule, all of
GEOSURE's employees are "at will" employees.
(m) Part 2.15(m) of GEOSURE Disclosure Schedule identifies
each Employee who is not fully available to perform work because of
disability or other leave and sets forth the basis of such leave and the
anticipated date of return to full service.
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(n) Each of the Acquired Entities is in compliance in all
material respects with all applicable Legal Requirements and Contracts
relating to employment, employment practices, wages, bonuses and terms and
conditions of employment, including employee compensation matters.
(o) Except as set forth in Part 2.15(o) of GEOSURE
Disclosure Schedule, each of the Acquired Entities has good labor relations,
and GEOSURE has no reason to believe that (i) the consummation of the
Acquisition or any of the other transactions contemplated by this Agreement
will have a material adverse effect on any Acquired Entity's labor relations,
or (ii) any Acquired Entity's employee(s) intend(s) to terminate his or her
employment with the Acquired Entity.
2.16 ENVIRONMENTAL MATTERS. Each of the Acquired Entities is in
compliance in all material respects with all applicable Environmental Laws,
which compliance includes the possession by each of the Acquired Entities of
all permits and other Governmental Authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions thereof.
Each of the Acquired Entities has not received any notice or other
communication (in writing or otherwise), whether from a Governmental Body or
citizens group, that alleges that any of the Acquired Entities is not in
compliance with any Environmental Law, and, to the best of the knowledge of
GEOSURE, there are no circumstances that may prevent or interfere with the
Acquired Entities' compliance with any Environmental Law in the future. To
the best of the knowledge of GEOSURE, no current or prior owner of any
property leased or controlled by any of the Acquired Entities has received
any notice or other communication (in writing or otherwise), whether from a
Government Body, citizens group, employee or otherwise, that alleges that
such current or prior owner or any of the Acquired Entities is not in
compliance with any Environmental Law. All Governmental Authorizations
currently held by each of the Acquired Entities pursuant to Environmental
Laws are identified in Part 2.16 of GEOSURE Disclosure Schedule. (For
purposes of this Section 2.16: (i) "Environmental Law" means any federal,
state, local or foreign Legal Requirement relating to pollution or protection
of human health or the environment (including ambient air, surface water,
ground water, land surface or subsurface strata), including any law or
regulation relating to emissions, discharges, releases or threatened releases
of Materials of Environmental Concern, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern; and (ii)
"Materials of Environmental Concern" include chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum products and
any other substance that is now or hereafter regulated by any Environmental
Law.)
2.17 BANK ACCOUNTS. GEOSURE has provided to VISTA accurate records
for each account (including account numbers) maintained by or for the benefit
of any of the Acquired Entities at any financial institution and the persons
authorized to draw on such accounts.
2.18 INSURANCE. Part 2.18 of GEOSURE Disclosure Schedule identifies
all insurance policies maintained by, at the expense of or for the benefit of
the Acquired Entities and identifies any material claims made thereunder, and
GEOSURE has delivered or made available to VISTA accurate and complete copies
of the insurance policies identified on Part 2.18 of GEOSURE Disclosure
Schedule. Each of the insurance policies identified in Part 2.18 of GEOSURE
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Disclosure Schedule is in full force and effect. Since December 31, 1996,
each of the Acquired Entities has not received any notice or other
communication regarding any actual or possible (a) cancellation or
invalidation of any insurance policy, (b) refusal of any coverage or
rejection of any claim under any insurance policy, or (c) material adjustment
in the amount of the premiums payable with respect to any insurance policy.
2.19 RELATED PARTY TRANSACTIONS. Except as set forth in Part 2.19
of the GEOSURE Disclosure Schedule, no Related Party has, and no Related
Party has at any time since December 31, 1996 had, any direct or indirect
interest in any material asset used in or otherwise relating to the
businesses of the Acquired Entities; (b) no Related Party is, or has at any
time since December 31, 1996 been, indebted to any of the Acquired Entities;
(c) since December 31, 1996, no Related Party has entered into, or has had
any direct or indirect financial interest in, any Material GEOSURE Contract,
transaction or business dealing involving any of the Acquired Entities; (d)
no Related Party is competing, or has at any time since December 31, 1996
competed, directly or indirectly, with any of the Acquired Entities; and (e)
no Related Party has any claim or right against any of the Acquired Entities
(other than rights to receive compensation for services performed as an
employee of any of the Acquired Entities). (For purposes of this Section
2.19 each of the following shall be deemed to be a "Related Party": (i) each
of the GEOSURE Partners; (ii) each individual who is, or who has at any time
since December 31, 1996 been, an officer, partner or manager of any of the
Acquired Entities; (iii) each member of the immediate family of each of the
individuals referred to in clauses "(i)" and "(ii)" above; and (iv) any trust
or other Entity (other than the Acquired Entities) in which any one of the
individuals referred to in clauses "(i)," "(ii)" and "(iii)" above holds (or
in which more than one of such individuals collectively hold), beneficially
or otherwise, a material voting, proprietary or equity interest. No Related
Party shall have any liability or obligation to VISTA with respect to this
Section 2.19.)
2.20 LEGAL PROCEEDINGS; ORDERS.
(a) Except as set forth in Part 2.20 of GEOSURE Disclosure
Schedule, GEOSURE has not been served with or otherwise received any
documents initiating a Legal Proceeding, there is (to the best knowledge of
GEOSURE) no pending Legal Proceeding, and (to the best of the knowledge of
GEOSURE) no Person has threatened to commence any Legal Proceeding: (i) that
involves any of the Acquired Entities or any of the assets owned or used by
any of the Acquired Entities or (to the best knowledge of GEOSURE) any Person
whose liability any of the Acquired Entities has or may have retained or
assumed, either contractually or by operation of law; or (ii) that
challenges, or that may have the effect of preventing, delaying, making
illegal or otherwise interfering with, the Acquisition or any of the other
transactions contemplated by this Agreement. To the best of the knowledge of
GEOSURE, except as set forth in Part 2.20 of GEOSURE Disclosure Schedule, no
event has occurred, and no claim, dispute or other condition or circumstance
exists, that will, or that could reasonably be expected to, give rise to or
serve as a basis for the commencement of any such Legal Proceeding.
(b) Except as set forth in Part 2.20 of GEOSURE Disclosure
Schedule, no material Legal Proceeding has been commenced by or has been
pending against any of the Acquired Entities since December 31, 1996.
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(c) There is no order, writ, injunction, judgment or decree
to which any of the Acquired Entities, or any of the assets owned or used by
any of the Acquired Entities, is subject. To the best of the knowledge of
GEOSURE, no employee of any of the Acquired Entities is subject to any order,
writ, injunction, judgment or decree that prohibits such employee from
engaging in or continuing any conduct, activity or practice relating to any
such Acquired Entity's business.
2.21 AUTHORITY; BINDING NATURE OF AGREEMENT. Subject to the
approval of the GEOSURE Partners, GEOSURE has the absolute and unrestricted
right and authority to enter into and to perform its obligations under this
Agreement; and the execution, delivery and performance by GEOSURE of this
Agreement have been duly authorized by all necessary action on the part of
GEOSURE and its general partners. This Agreement constitutes the legal,
valid and binding obligation of GEOSURE, enforceable against GEOSURE in
accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules
of law governing specific performance, injunctive relief and other equitable
remedies.
2.22 NON-CONTRAVENTION; CONSENTS. Except as set forth in Part 2.22
of GEOSURE Disclosure Schedule, neither (1) the execution, delivery or
performance of this Agreement or any of the other agreements referred to in
this Agreement, nor (2) the consummation of the Acquisition or any of the
other transactions contemplated by this Agreement, will directly or
indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of
(i) any of the provisions of GEOSURE's Limited Partnership Agreement, or (ii)
any resolution adopted by GEOSURE's partners;
(b) contravene, conflict with or result in a violation of,
or give any Governmental Body or other Person the right to challenge any of
the transactions contemplated by this Agreement or to exercise any remedy or
obtain any relief under, any material Legal Requirement or any order, writ,
injunction, judgment or decree to which GEOSURE, or any of the assets owned
or used by any of the Acquired Entities, is subject;
(c) contravene, conflict with or result in a violation of
any of the terms or requirements of, or give any Governmental Body the right
to revoke, withdraw, suspend, cancel, terminate or modify, any material
Governmental Authorization that is held by any of the Acquired Entities or
that otherwise relates to any of the Acquired Entities' business or to any of
the assets owned or used by any of the Acquired Entities;
(d) contravene, conflict with or result in a violation or
breach of, or result in a default under, any provision of any GEOSURE
Contract that is or would constitute a Material GEOSURE Contract, or give any
Person the right to (i) declare a default or exercise any remedy under any
such GEOSURE Contract, (ii) accelerate the maturity or performance of any
such GEOSURE Contract, or (iii) cancel, terminate or modify any such GEOSURE
Contract; or
(e) result in the imposition or creation of any lien or
other Encumbrance upon or with respect to any asset owned or used by any of
the Acquired Entities (except for minor
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liens that will not, in any case or in the aggregate, materially detract from
the value of the assets subject thereto or materially impair the operations
of any such Acquired Entity). Except as set forth in Part 2.22 of GEOSURE
Disclosure Schedule or for those filings, notice or Consents the failure of
which to make or obtain would not have a Material Adverse Effect on GEOSURE,
the Acquired Entities are not and will not be required to make any filing
with or give any notice to, or to obtain any Consent from, any Person in
connection with (x) the execution, delivery or performance of this Agreement
or any of the other agreements referred to in this Agreement, or (y) the
consummation of the Acquisition or any of the other transactions contemplated
by this Agreement.
2.23 FULL DISCLOSURE. This Agreement (including GEOSURE Disclosure
Schedule) does not (i) contain any representation, warranty or information
that is false or misleading with respect to any material fact, or (ii) omit
to state any material fact or necessary in order to make the representations,
warranties and information contained and to be contained herein and therein
(in the light of the circumstances under which such representations,
warranties and information were or will be made or provided) not false or
misleading.
2.24 ACCOUNTING MATTERS. To the knowledge of GEOSURE, based on
consultation with its independent accountants, neither GEOSURE nor any of its
affiliates has taken or agreed to, or plans to, take any action that would
prevent VISTA from accounting for the Acquisition as a "pooling of interests."
2.25 BROKERS. No broker, finder or financial adviser retained by
GEOSURE is entitled to any brokerage, finder's or other fee or commission
from GEOSURE in connection with the transactions contemplated by this
Agreement.
2.26 CONSENTS. GEOSURE consents to the assignment of the
partnership interests by each Partner and DP pursuant to the terms of this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE PARTNERS AND DP.
3.1 REPRESENTATIONS AND WARRANTIES. The Partners and DP (each, a
"Transferor"), severally and not jointly, represent and warrant to VISTA and
SUB that:
(a) to the best knowledge of such Transferor, the
representations and warranties of GEOSURE contained herein (as qualified by
GEOSURE Disclosure Schedule) are true and correct in all material respects,
and do not set forth facts that are false or misleading in any material
respect, nor do they omit to set forth facts the absence of which would make
such representations and warranties materially false or misleading.
(b) The respective Transferor has full right, power, legal
capacity and authority to enter into and perform his or her obligations under
this Agreement and the other related agreements to which he or she is a
party. Subject to approval of the transfers from State Street Bank and Trust
Company, no authorization or approval is necessary in order to enable such
Transferor to enter into and perform the terms of this Agreement or the other
related agreements to which he, she or it may be a party. This Agreement is,
and the other related
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agreements when executed and delivered by the Transferor shall be, valid and
binding obligations of the Partner enforceable in accordance with their
respective terms.
(c) The Transferor has full right, title and interest to the
GEOSURE partnership interests being sold by such Transferors, without any
liens, encumbrances or adverse claims, except for encumbrances held by State
Street Bank and Trust Company disclosed in Part 2.3(a) of the GEOSURE
Disclosure Schedule. Upon consummation of the transactions contemplated by
this Agreement, the Transferor shall have no right to any ownership interest
or rights to acquire an ownership interest of GEOSURE.
(d) The Transferor consents to the assignment by the other
Transferors of their respective GEOSURE partnership interests to VISTA and
SUB.
(e) The Transferor is acquiring the Exchange Shares for
investment for the Transferor's own account. The Transferor is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
(f) The Transferor understands that the Exchange Shares have
not been registered under the Securities Act, by reason of a specific
exemption from the registration provisions which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Transferor's representations as expressed herein. The Transferor understands
that the Exchange Shares are "restricted securities" under applicable U.S.
federal and state securities laws and that, pursuant to these laws, the
Transferor must hold the Exchange Shares until such transfer is registered
under the Securities Act and qualified by state authorities, or an exemption
from such registration and qualification requirements is available. The
Transferor understands that the certificates evidencing the Exchange Shares
will bear a legend in substantially the following form: "THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. NO SALE OR DISTRIBUTION OF THESE SECURITIES MAY BE EFFECTED
UNLESS SUBJECT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION."
4. REPRESENTATIONS AND WARRANTIES OF VISTA AND SUB.
VISTA and SUB represent and warrant to GEOSURE and each of the
Partners that, except as set forth in the disclosure schedule prepared by the
VISTA and delivered by the VISTA to GEOSURE on or before the date of this
Agreement (the "VISTA Disclosure Schedule"):
4.1 DUE ORGANIZATION; QUALIFICATION.
(a) VISTA and SUB are each duly organized, validly existing
and in good standing under the laws of the State of Delaware and have all
necessary power and authority: (i) to conduct their respective businesses in
the manner in which such business is currently being conducted; (ii) to own
and use their respective assets in the manner in which such assets are
currently owned and used; and (iii) to perform their respective obligations
under all Material VISTA Contracts by which they are or will be bound.
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(b) VISTA and SUB are qualified, authorized, registered or
licensed to do business as a foreign entity in any jurisdiction where so
required under applicable law, except where the failure to be so qualified,
authorized, registered or licensed has not had and will not have a Material
Adverse Effect on VISTA or SUB. VISTA and SUB are in good standing as a
foreign entity in each of such jurisdictions.
4.2 CHARTER DOCUMENTS. True, correct and complete copies of the
charter documents, as amended to date, of VISTA and SUB have been provided to
GEOSURE. The charter documents of VISTA and SUB are in full force and
effect. VISTA and SUB are not in violation of any provision of their
respective charter documents.
4.3 CAPITALIZATION, ETC. The authorized and issued capital stock
of VISTA is as set forth on Schedule 4.3 attached hereto. All of the
outstanding shares of VISTA capital stock have been duly authorized and
validly issued, and are fully paid and nonassessable, and none of such shares
is subject to any repurchase option or restriction on transfer other than
restrictions imposed by federal or state securities laws. All outstanding
shares of VISTA capital stock have been issued in compliance with all
applicable securities laws and other applicable Legal Requirements, and all
requirements set forth in applicable Contracts. As of December 30, 1998,
VISTA had outstanding options to purchase 1,515,457 shares of common stock as
of the date hereof and warrants to acquire 622,315 shares of common stock or
securities convertible into common stock. The Exchange Shares to be issued
in the Acquisition, when issued by VISTA and SUB in accordance with the terms
of this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, will be issued in compliance with all applicable federal and
state securities laws and, except for the restrictions imposed by applicable
federal and state securities laws, will be free and clear of any Encumbrances
created or imposed, directly or indirectly, by VISTA or SUB (subject to the
terms of Affiliate Agreements (as defined below) entered into as contemplated
by this Agreement).
4.4 SEC FILINGS; FINANCIAL STATEMENTS.
(a) VISTA has delivered or made available to GEOSURE
accurate and complete copies (excluding copies of exhibits) of each report,
registration statement (on a form other than Form S-8) and definitive proxy
statement filed by VISTA with the SEC between January 1, 1998 and the date of
this Agreement (the "VISTA SEC Documents"). As of the time it was filed with
the SEC (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing): (i) each of the VISTA SEC
Documents complied in all material respects with the applicable requirements
of the Securities Act or the Exchange Act (as the case may be); and (ii) none
of the VISTA SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The consolidated financial statements contained in the
VISTA SEC Documents: (i) complied as to form in all material respects with
the published rules and regulations of the SEC applicable thereto; (ii) were
prepared in accordance with generally accepted accounting principles applied
on a consistent basis throughout the periods covered,
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except as may be indicated in the notes to such financial statements and (in
the case of unaudited statements) as permitted by Form 10-QSB of the SEC, and
except that unaudited financial statements may not contain footnotes and are
subject to year end audit adjustments; and (iii) fairly present the
consolidated financial position of VISTA and its subsidiaries as of the
respective dates thereof and the consolidated results of operations of VISTA
and its subsidiaries for the periods covered thereby.
4.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30,
1998, there has not been (a) any change, or any development or combination of
developments, that has had or would reasonably be expected to have a Material
Adverse Effect on VISTA or SUB, or (b) any damage, destruction or loss,
whether or not covered by insurance, that has had or would reasonably be
expected to have a Material Adverse Effect on VISTA or SUB.
4.6 COMPLIANCE WITH LEGAL REQUIREMENTS. VISTA and SUB are, and
have at all times since December 31, 1996 been, in compliance with all
applicable Legal Requirements, except where the failure to comply with such
Legal Requirements has not had and will not have a Material Adverse Effect on
VISTA or SUB. Since December 31, 1996, neither VISTA nor SUB has received
any notice or other communication from any Governmental Body regarding any
actual or possible violation of, or failure to comply with, any Legal
Requirements, except where the failure to comply with such Legal Requirements
has not had and will not have a Material Adverse Effect on VISTA or SUB.
4.7 GOVERNMENTAL AUTHORIZATIONS. The Governmental Authorizations
held by VISTA are valid and in full force and effect, and collectively
constitute all Governmental Authorizations necessary to enable VISTA and SUB
to conduct their respective businesses in the manner in which such business
is currently being conducted except where any failure to have such
Governmental Authorizations has not had and will not have a Material Adverse
Effect on VISTA or SUB. VISTA and SUB are in substantial compliance with the
terms and requirements of such Governmental Authorizations.
4.8 LEGAL PROCEEDINGS; ORDERS.
(a) Except as set forth in the VISTA SEC Documents, there is
no pending Legal Proceeding, and (to the best of the knowledge of VISTA or
SUB) no Person has threatened to commence any Legal Proceeding that has had
or would reasonably be expected to have a Material Adverse Effect on VISTA or
SUB: (i) that involves VISTA or SUB or any of the assets owned or used by
VISTA or SUB or (to the best knowledge of VISTA or SUB) any Person whose
liability VISTA or SUB has or may have retained or assumed, either
contractually or by operation of law; or (ii) that challenges, or that may
have the effect of preventing, delaying, making illegal or otherwise
interfering with, the Acquisition or any of the other transactions
contemplated by this Agreement. To the best of the knowledge of VISTA or
SUB, except as set forth in the VISTA SEC Documents, no event has occurred,
and no claim, dispute or other condition or circumstance exists, that will,
or that could reasonably be expected to, give rise to or serve as a basis for
the commencement of any such Legal Proceeding.
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(b) Except as set forth in the VISTA SEC Documents, no
material Legal Proceeding has been commenced by or has been pending against
any of the Acquiring Entities since December 31, 1997.
(c) There is no order, writ, injunction, judgment or decree
to which VISTA or SUB, or any of the assets owned or used by VISTA or SUB, is
subject. To the best of the knowledge of VISTA and SUB, no officer or other
employee of VISTA or SUB is subject to any order, writ, injunction, judgment
or decree that prohibits such officer or other employee from engaging in or
continuing any conduct, activity or practice relating to the business of
VISTA or SUB.
4.9 AUTHORITY; BINDING NATURE OF AGREEMENT. Each of VISTA and SUB
has the absolute and unrestricted right and authority to perform their
obligations under this Agreement; and the execution, delivery and performance
by VISTA and SUB of this Agreement (including the contemplated issuance of
VISTA Common Stock in the Acquisition in accordance with this Agreement) have
been duly authorized by all necessary action on the part of VISTA, SUB and
their respective Boards of Directors. Upon conversion to Common Stock of
certain shares of VISTA Preferred Stock, as to which VISTA has received oral
commitments, no vote of VISTA's stockholders is needed to approve the
Acquisition. This Agreement constitutes the legal, valid and binding
obligation of VISTA and SUB, enforceable against it in accordance with its
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing
specific performance, injunctive relief and other equitable remedies.
4.10 NON-CONTRAVENTION; CONSENTS. Neither (1) the execution,
delivery or performance of this Agreement or any of the other agreements
referred to in this Agreement, nor (2) the consummation of the Acquisition or
any of the other transactions contemplated by this Agreement, will directly
or indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of
(i) any of the provisions of the charter documents of VISTA or SUB, or (ii)
any resolution adopted by the Board of Directors of VISTA or SUB,
respectively;
(b) contravene, conflict with or result in a violation of,
or give any Governmental Body or other Person the right to challenge any of
the transactions contemplated by this Agreement or to exercise any remedy or
obtain any relief under, any material Legal Requirement or any order, writ,
injunction, judgment or decree to which VISTA or SUB, or any of their
respective assets owned or used by it, is subject;
(c) contravene, conflict with or result in a violation of
any of the terms or requirements of, or give any Governmental Body the right
to revoke, withdraw, suspend, cancel, terminate or modify, any material
Governmental Authorization that is held by VISTA or SUB or that otherwise
relates to the business of VISTA or SUB or to any of the assets owned or used
by them;
(d) contravene, conflict with or result in a violation or
breach of, or result in a default under, any provision of any Contract
material to VISTA or SUB, or give any Person the
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right to (i) declare a default or exercise any remedy under any such
Contract, (ii) accelerate the maturity or performance of any such Contract,
or (iii) cancel, terminate or modify any such Contract; or
(e) result in the imposition or creation of any lien or
other Encumbrance upon or with respect to any asset owned or used by VISTA or
SUB (except in each case for minor liens that will not, in any case or in the
aggregate, materially detract from the value of the assets subject thereto or
materially impair the operations of any such Acquiring Entity). Except as
may be required by the Securities Act, the Exchange Act, state securities or
"blue sky" laws, and the Nasdaq Rules and Regulations, neither VISTA nor SUB
will be required to make any filing with or give any notice to, or to obtain
any Consent from, any Person in connection with (x) the execution, delivery
or performance of this Agreement or any of the other agreements referred to
in this Agreement, or (y) the consummation of the Acquisition or any of the
other transactions contemplated by this Agreement.
4.11 FULL DISCLOSURE. This Agreement (including the VISTA
Disclosure Schedule) does not (i) contain any representation, warranty or
information that is false or misleading with respect to any material fact, or
(ii) omit to state any material fact necessary in order to make the
representations, warranties and information contained and to be contained
herein and therein (in the light of the circumstances under which such
representations, warranties and information were or will be made or provided)
not false or misleading.
4.12 ACCOUNTING MATTERS. To the knowledge of VISTA, VISTA has not
taken and has not agreed, and does not plan, and will not take any action
that would prevent VISTA from accounting for the business combination to be
effected by the Acquisition as a "pooling of interests."
4.13 BROKERS. No broker, finder or financial adviser retained by
VISTA or SUB is entitled to any brokerage, finder's or other fee or
commission from VISTA or SUB in connection with the transactions contemplated
by this Agreement.
5. PRE-CLOSING COVENANTS OF GEOSURE AND THE PARTNERS
5.1 ACCESS AND INVESTIGATION. During the period from the date of
this Agreement through the Effective Time (the "Pre-Closing Period"), GEOSURE
shall, and shall cause its Representatives to: (A) provide VISTA and VISTA's
Representatives with reasonable access to GEOSURE's Representatives,
personnel and assets and to all existing books, records, Tax Returns, work
papers and other documents and information relating to GEOSURE; and (B)
provide VISTA and VISTA's Representatives with copies of such existing books,
records, Tax Returns, work papers and other documents and information
relating to GEOSURE, and with such additional financial, operating and other
data and information regarding GEOSURE, as VISTA may reasonably request.
5.2 OPERATION OF GEOSURE'S BUSINESS. During the Pre-Closing
Period, except pursuant to prior written consent of VISTA, GEOSURE shall, and
shall cause each of the other Acquired Corporations to:
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(a) conduct its business and operations in the ordinary
course and in substantially the same manner as such business and operations
have been conducted prior to the date of this Agreement, except as may be
otherwise required by the Sanborn Agreement;
(b) in each case, in all material respects use reasonable
efforts to preserve intact its current business organization, keep available
the services of its current officers and employees and maintain its relations
and good will with all suppliers, customers, landlords, creditors, employees
and other Persons having business relationships with it;
(c) use reasonable efforts to keep in full force all
insurance policies identified in Part 2.18 of GEOSURE Disclosure Schedule;
(d) not declare, accrue, set aside or pay any dividend or
make any other distribution in respect of any of its securities, and shall
not repurchase, redeem or otherwise reacquire any of its securities;
(e) not sell, issue or authorize the issuance of (i) any
securities, (ii) any option or right to acquire any securities, or (iii) any
instrument convertible into or exchangeable for any securities;
(f) except as otherwise provided herein, not amend or permit
the adoption of any amendment to GEOSURE's Limited Partnership Agreement, or
effect or permit GEOSURE to become a party to any Acquisition Transaction,
recapitalization, reclassification of its limited partnership interests or
similar transaction; to which each of the GEOSURE Partners also covenants;
(g) not form any subsidiary or acquire any equity interest
or other interest in any other Entity;
(h) not make any capital expenditure, except for capital
expenditures that, when added to all other capital expenditures made on
behalf of the Acquired Entities during the Pre-Closing Period, do not exceed
$50,000 in the aggregate;
(i) not (i) enter into, or permit any of the assets owned or
used by it to become bound by, any Contract that is or would constitute a
Material GEOSURE Contract, or (ii) amend or prematurely terminate, or waive
any material right or remedy under, any such Material GEOSURE Contract;
(j) except in compliance with the limits of subsection (i)
above, not (i) acquire, lease or license any right or other asset from any
other Person, (ii) sell or otherwise dispose of, or lease or license, any
right or other asset to any other Person, or (iii) waive or relinquish any
right, except for assets acquired, leased, licensed or disposed of by the
Acquired Entities pursuant to Contracts that are not Material GEOSURE
Contracts;
(k) not (i) lend money to any Person or (ii) incur or
guarantee any indebtedness for borrowed money (except that GEOSURE may make
routine borrowings in the ordinary course of business under its line of
credit with State Street Bank & Trust Company) and
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from its partners to fund payments due to said bank and otherwise provide
working capital to GEOSURE;
(l) except as set forth in GEOSURE Disclosure Schedule, not
(i) establish, adopt or amend any Employee Benefit Plan, (ii) pay any bonus
or make any profit-sharing payment, cash incentive payment or similar payment
to, or increase the amount of the wages, salary, commissions, fringe benefits
or other compensation or remuneration payable to, any of its directors,
officers or employees, except for items accrued and approved by VISTA or
pursuant to agreements in effect on the date hereof, or in accordance with
GEOSURE's past practices, or (iii) hire any new employee whose aggregate
annual compensation from GEOSURE is expected to exceed $60,000;
(m) not change any of its methods of accounting or
accounting practices in any material respect;
(n) not make any Tax election;
(o) not commence or settle any material Legal Proceeding; and
(p) not agree or commit to take any of the actions described
in clauses "(d)" through "(o)" above.
5.3 NOTIFICATION; UPDATES TO GEOSURE DISCLOSURE SCHEDULE.
(a) During the Pre-Closing Period, GEOSURE shall promptly
notify VISTA in writing of:
(i) the discovery by GEOSURE of any event, condition,
fact or circumstance that occurred or existed on or prior to the date of this
Agreement and that caused or constitutes an inaccuracy in or breach of any
representation or warranty made by GEOSURE or any of the Partners in this
Agreement;
(ii) any event, condition, fact or circumstance that
occurs, arises or exists after the date of this Agreement and that would
cause or constitute an inaccuracy in or breach of any representation or
warranty made by GEOSURE or any of the Partners in this Agreement if (A) such
representation or warranty had been made as of the time of the occurrence,
existence or discovery of such event, condition, fact or circumstance, or (B)
such event, condition, fact or circumstance had occurred, arisen or existed
on or prior to the date of this Agreement;
(iii) any breach of any covenant or obligation of
GEOSURE (and each Partner shall promptly notify VISTA in writing of any
breach of any covenant or obligation of such Partner set forth herein); and
(iv) any event, condition, fact or circumstance that
would make the timely satisfaction of any of the conditions set forth in
Section 8 or Section 9 impossible or unlikely.
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(b) If any event, condition, fact or circumstance that is
required to be disclosed pursuant to Section 5.3(a) requires any change in
GEOSURE Disclosure Schedule, or if any such event, condition, fact or
circumstance would require such a change assuming GEOSURE Disclosure Schedule
were dated as of the date of the occurrence, existence or discovery of such
event, condition, fact or circumstance, then GEOSURE shall promptly deliver
to VISTA an update to GEOSURE Disclosure Schedule specifying such change. No
such update shall be deemed to supplement or amend the GEOSURE Disclosure
Schedule for the purpose of (i) determining the accuracy of any of the
representations and warranties made by GEOSURE or any of the Partners in this
Agreement, or (ii) determining whether any of the conditions set forth in
Section 8 has been satisfied; provided, however, that if Closing occurs, the
GEOSURE Disclosure Schedule shall be deemed to be modified at such time by
such update.
5.4 NO NEGOTIATION. Neither GEOSURE nor any of the Partners shall,
directly or indirectly:
(a) solicit or encourage the initiation of any inquiry,
proposal or offer from any Person (other than VISTA) relating to a possible
Acquisition Transaction;
(b) participate in any discussions or negotiations or enter
into any agreement with, or provide any nonpublic information or afford
access to the properties, books or records of GEOSURE to any Person (other
than VISTA) relating to or in connection with a possible Acquisition
Transaction; or
(c) consider, entertain or accept (subject to Section
10.1(e)) any proposal or offer from any Person (other than VISTA) relating to
a possible Acquisition Transaction.
The parties acknowledge that any breach of the foregoing provisions by
any officer, director or agent (including any employee of GEOSURE acting as
agent) of any of the Acquired Entities shall be deemed a breach by GEOSURE.
This Section 5.4 does not prohibit GEOSURE from furnishing information
regarding GEOSURE or entering into discussions with any Person in response to
an unsolicited bona fide written proposal or offer relating to a possible
Acquisition Transaction submitted by such Person if the General Partners of
GEOSURE conclude in good faith, after consultation with outside legal
counsel, that such action is required in order for the General Partners of
GEOSURE to comply with their fiduciary obligations to the Partners under
applicable law.
GEOSURE shall promptly notify VISTA in writing of any inquiry, proposal or
offer relating to a possible Acquisition Transaction that is received by
GEOSURE or any of the Partners during the Pre-Closing Period.
5.5 SECTION 754 ELECTION. GEOSURE will file an election under
section 754 of the Code and under similar provisions of applicable state tax
laws.
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6. PRE-CLOSING COVENANTS OF VISTA AND SUB.
6.1 ACCESS AND INVESTIGATION. During the Pre-Closing Period, VISTA
and SUB shall, and shall cause their Representatives to: (A) provide GEOSURE
and GEOSURE's Representatives with reasonable access to VISTA's
Representatives, personnel and assets and to all existing books, records, and
other documents and information relating to VISTA; and (B) provide GEOSURE
and GEOSURE's Representatives with copies of such existing books, records,
and other documents and information relating to VISTA or SUB, and with such
additional financial, operating and other data and information regarding
VISTA, as GEOSURE may reasonably request.
6.2 NOTIFICATION; UPDATES TO VISTA DISCLOSURE SCHEDULE.
(a) During the Pre-Closing Period, VISTA shall promptly
notify GEOSURE in writing of:
(i) the discovery by VISTA of any event, condition,
fact or circumstance that occurred or existed on or prior to the date of this
Agreement and that caused or constitutes an inaccuracy in or breach of any
representation or warranty made by VISTA or SUB in this Agreement;
(ii) any event, condition, fact or circumstance that
occurs, arises or exists after the date of this Agreement and that would
cause or constitute an inaccuracy in or breach of any representation or
warranty made by VISTA or SUB in this Agreement if (A) such representation or
warranty had been made as of the time of the occurrence, existence or
discovery of such event, condition, fact or circumstance, or (B) such event,
condition, fact or circumstance had occurred, arisen or existed on or prior
to the date of this Agreement;
(iii) any breach of any covenant or obligation of VISTA
or SUB; and
(iv) any event, condition, fact or circumstance that
would make the timely satisfaction of any of the conditions set forth in
Section 8 or Section 9 impossible or unlikely.
(b) If any event, condition, fact or circumstance that is
required to be disclosed pursuant to Section 6.2(a) requires any change in
the VISTA Disclosure Schedule, or if any such event, condition, fact or
circumstance would require such a change assuming the VISTA Disclosure
Schedule were dated as of the date of the occurrence, existence or discovery
of such event, condition, fact or circumstance, then VISTA shall promptly
deliver to GEOSURE an update to the VISTA Disclosure Schedule specifying such
change. No such update shall be deemed to supplement or amend the VISTA
Disclosure Schedule for the purpose of (i) determining the accuracy of any of
the representations and warranties made by VISTA or SUB in this Agreement, or
(ii) determining whether any of the conditions set forth in Section 9 has
been satisfied; provided, however, that if Closing occurs, VISTA's Disclosure
Schedule shall be deemed to be modified at such time by such update.
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7. ADDITIONAL COVENANTS OF GEOSURE AND VISTA.
7.1 FILINGS AND CONSENTS. As promptly as practicable after the
execution of this Agreement, each party to this Agreement (a) shall make all
filings (if any) and give all notices (if any) required to be made and given
by such party in connection with the Acquisition and the other transactions
contemplated by this Agreement, and (b) shall use all commercially reasonable
efforts to obtain all Consents (if any) required to be obtained (pursuant to
any applicable Legal Requirement or Contract, or otherwise) by such party in
connection with the Acquisition and the other transactions contemplated by
this Agreement. GEOSURE shall (upon request) promptly deliver to VISTA a
copy of each such filing made, each such notice given and each such Consent
obtained by GEOSURE during the Pre-Closing Period.
7.2 PUBLIC ANNOUNCEMENTS. During the Pre-Closing Period, (A)
neither GEOSURE nor any of the Partners shall (and GEOSURE shall not permit
any of its Representatives to) issue any press release or make any public
statement regarding this Agreement or the Acquisition, or regarding any of
the other transactions contemplated by this Agreement, without VISTA's prior
written consent, which shall not be unreasonably withheld, and (B) except as
may be required by law, VISTA will not issue any press release or make any
public statement regarding this Agreement or the Acquisition, without
GEOSURE's prior written consent, which shall not be unreasonably withheld.
7.3 POOLING OF INTERESTS. During the Pre-Closing Period, no party
to this Agreement shall take any action that could reasonably be expected to
have an adverse effect on the ability of VISTA to account for the Acquisition
as a "pooling of interests."
7.4 AFFILIATE AGREEMENTS. Each Partner who is an affiliate of
GEOSURE shall execute and deliver to VISTA, and GEOSURE shall use all
commercially reasonable efforts to cause each other Person identified on
EXHIBIT D-2 (and any other Person that could reasonably be deemed to be an
"affiliate" of GEOSURE for purposes of the Securities Act), to execute and
deliver to VISTA, as promptly as practicable after the execution of this
Agreement, an Affiliate Agreement in the form of EXHIBIT D-1.
7.5 BEST EFFORTS. During the Pre-Closing Period, (a) GEOSURE and
the Partners shall use their best efforts to cause the conditions set forth
in Section 8 to be satisfied on a timely basis, and (b) VISTA shall use their
best efforts to cause the conditions set forth in Section 9 to be satisfied
on a timely basis.
7.6 SANBORN AGREEMENT. GEOSURE shall have the right to fulfill its
obligations, if any, under the Sanborn Agreement.
7.7 REGULATORY APPROVALS. In addition to the obligations of the
parties set forth in the preceding section, GEOSURE and VISTA shall use all
reasonable efforts to file, as soon as practicable after the date of this
Agreement, all notices, reports and other documents required to be filed with
any Governmental Body with respect to the Acquisition and the other
transactions contemplated by this Agreement, and to submit promptly any
additional information requested by any such Governmental Body. Each of
GEOSURE and VISTA shall (1) give the other party prompt notice of the
commencement of any Legal Proceeding by or before any Governmental
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Body with respect to the Acquisition or any of the other transactions
contemplated by this Agreement, (2) keep the other party informed as to the
status of any Legal Proceeding, and (3) promptly inform the other party of
any communication to or from any Governmental Body regarding the Acquisition.
GEOSURE and VISTA will consult and cooperate with one another, and will
consider in good faith the views of one another, in connection with any
analysis, appearance, presentation, memorandum, brief, argument, opinion or
proposal made or submitted in connection with any Legal Proceeding or any
federal or state antitrust or fair trade law. In addition, except as may be
prohibited by any Governmental Body or by any Legal Requirement, in
connection with any Legal Proceeding under or relating to any federal or
state antitrust or fair trade law or any other similar Legal Proceeding, each
of GEOSURE and VISTA agrees to permit authorized Representatives of the other
party to be present at each meeting or conference relating to any such Legal
Proceeding and to have access to and be consulted in connection with any
document, opinion or proposal made or submitted to any Governmental Body in
connection with any such Legal Proceeding.
7.8 REGISTRATION RIGHTS.
(a) On or before 10 days following the filing by VISTA of
its Annual Report on Form 10-KSB for the fiscal year ended December 31, 1998,
VISTA will file a registration statement under the Securities Act covering
the registration for resale by the Partners or their distributees in
accordance with a plan of distribution reasonably satisfactory to them of all
of the Exchange Shares then outstanding (except for any Exchange Shares for
Partners who do not return a Selling Stockholder Questionnaire by March 15,
1999). The registration statement will be on Form S-3 if VISTA then
qualifies for such Form, or such other form as VISTA may then be eligible to
use. As used herein, the term "Registrable Securities" shall mean the
Exchange Shares (including that portion of the Exchange Shares held in the
escrow pursuant to Section 11.5) included in the registration statement.
(b) Notwithstanding the foregoing, if the Company shall
furnish to the Partners a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its
stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Company
shall have the right to defer such filing for a period of not more than 20
days.
(c) In connection with any registration pursuant to this
Section 7.8, Vista will:
(i) prepare and file with the Commission the
requisite registration statement to effect such registration and use its best
efforts to cause such registration statement to become effective;
(ii) 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 to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until the earlier of two years after the effective
date of the registration statement, such time as all remaining Registrable
Securities could be sold in any 3 month period without
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registration, or such time as all of such securities have been disposed of
in accordance with the intended methods of disposition by the Holders thereof
or their distributees set forth in such registration statement;
(iii) furnish to each Partner holding Registrable
Securities covered by such registration statement such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other documents, as such
Partner may reasonably request;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions
in the United States as each Partner holding such securities shall reasonably
request, to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and take any other action
which may be reasonably necessary or advisable to enable such Partner to
consummate the disposition in such jurisdictions of the securities owned by
such Partner;
(v) use its best efforts to cause all Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the Partner(s) holding
such securities to consummate the disposition of such Registrable Securities;
(vi) promptly notify each Partner holding Registrable
Securities at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made, and Partner promptly prepare and furnish to such
Partner a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, but not more than
sixteen months after effectiveness, an earnings statement covering the period
of at least twelve months, beginning with the first full calendar month after
the effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
(viii) use its best efforts to list all VISTA Common
Stock covered by such registration statement on any securities exchange or
the Nasdaq Stock Market on which any of the VISTA Common Stock is then
listed; and
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(ix) provide each Partner holding Registrable
Securities with an opinion of counsel, dated as of the effective date of the
Registration Statement, that the Registration Statement has been declared
effective by the Commission and complies as to form with the requirement of
the Securities Act.
Each Partner holding Registrable Securities agrees that
upon receipt of any notice from VISTA of the happening of any event of the
kind described in subsection (vi) of this Section 7.8(c), such Partner will
forthwith discontinue such Partner's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable
Securities until such Partner's receipt of the copies of the supplemented or
amended prospectus and, if so directed by VISTA, will deliver to VISTA (at
VISTA's expense) all copies, other than permanent file copies, then in such
Partner's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
(d) VISTA will indemnify each Partner, each of its officers
and directors and partners, and each person controlling such Partner within
the meaning of Section 15 of the Securities Act against all expenses
(including but not limited to reasonable attorney's fees), claims, losses,
damages or liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any registration statement, prospectus,
preliminary prospectus, offering circular or other document, or any amendment
or supplement thereto, incident to any registration, qualification or
compliance effected pursuant to this Section 7.8, or based on any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation or
any alleged violation in each instance by VISTA of any rule or regulation
promulgated under the Securities Act or the Exchange Act in connection with
any such registration, qualification or compliance, and VISTA will reimburse
each such Partner, each of its officers and directors, and each person
controlling such Partner, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, as such expenses are incurred,
provided that VISTA will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based
on any untrue statement or omission or alleged untrue statement or omission,
made in reliance upon and in conformity with written information furnished to
VISTA by such Partner or controlling person specifically for use therein.
(e) Each Partner (an "Indemnifying Partner") will, if
Exchange Shares held by such Indemnifying Partner are included in the
securities as to which such registration is being effected, indemnify VISTA,
each of its directors and officers, each person who controls VISTA within the
meaning of Section 15 of the Securities Act, and each other Partner with
securities included in such registration, each of its officers and directors
and each person controlling such other Partner within the meaning of Section
15 of the Securities Act, against all expenses (including but not limited to
reasonable attorney's fees), 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 such
registration statement, prospectus, offering circular or other document, or
any omission (or alleged omission) to state therein a material fact
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required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, and will
reimburse VISTA, such other Partners, directors, officers, persons or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, as such expenses are incurred, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to VISTA by the Indemnifying
Partner specifically for use therein.
(f) Each party entitled to indemnification under Section
7.8(d) or 7.8(e) (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 to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense; PROVIDED, HOWEVER, that
an Indemnified Party (together with all other Indemnified Parties which may
be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with the fees and expenses to be paid by the
Indemnifying Party, if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to
differing or potentially differing interests between such Indemnified Party
and any other party represented by such counsel in such proceeding. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under Section 7.9(d) or
7.9(e) unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action. 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.
(g) VISTA shall pay all of the out-of-pocket expenses (other
than underwriting discounts and sales commissions, if any, allocable to any
Partner's Registrable Securities and, except as contemplated by Section
7.9(f), the fees and expenses of any counsel to the Partners) incurred in
connection with any registration of Registrable Securities pursuant to this
Section 7.8, including, without limitation, all registration and filing fees,
printing expenses, transfer agents' and registrars' fees, and the reasonable
fees and disbursements of VISTA's outside counsel and independent accountants.
(h) If for any reason the indemnification provided for in
subsection 7.8(d) or 7.8(e) is unavailable to an Indemnified Party as
contemplated therein, then the Indemnifying Party, in lieu of
indemnification, shall contribute to the amount paid or payable by the
Indemnified Party as a result of such loss, claim, damage, expense or
liability (or action in respect hereof) in such proportion as is appropriate
to reflect not only the relative benefits received by the Indemnified Party
and the Indemnifying Party, but also the relative fault of the
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Indemnified Party and the Indemnifying Party, as well as any other relevant
equitable considerations, provided that no holder of Registrable Securities
shall be required to contribute in an amount greater than the difference
between the net proceeds received by such holder with respect to the sale of
any Registrable Securities and all amounts already contributed by such
Partner with respect to such claims, including amounts paid for any legal or
other fees or expenses incurred by such Partner. No person guilty of a
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 any such fraudulent misrepresentation. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such action.
(i) With a view to making available to the Partners the
benefits of Rule 144 promulgated under the Securities Act (or any other rule
that may permit the Partners to sell Exchange Securities without registration
or pursuant to a registration on Form S-3), VISTA will file with the
Commission in a timely fashion all reports required under the Exchange Act.
7.9 FIRPTA MATTERS. At the Closing, GEOSURE shall deliver to VISTA
a statement (in such form as may be reasonably requested by counsel to VISTA)
conforming to the requirements of Section 1.1445-11T(d)(2)(i) of the United
States Treasury Regulations, certifying that fifty percent (50%) or more of
the value of the gross assets of GEOSURE does not consist of U.S. real
property interests within the meaning of Code section 897.
7.10 TREATMENT OF EMPLOYEE PLANS AND BENEFITS. Except as otherwise
agreed to by VISTA and GEOSURE, VISTA shall ensure that upon the Closing, the
benefit plans and benefit arrangements of employees of GEOSURE will remain
unchanged. Following the Closing, benefits will be reviewed in consonance
with VISTA benefit plans and arrangements, applicable law and marketplace
factors.
7.11 EMPLOYEE INDEMNIFICATION. VISTA and GEOSURE agree to provide
indemnification in favor of any employee of GEOSURE and its Subsidiaries (the
"Indemnified Parties"), as currently provided in their respective charter
documents or in an agreement between an Indemnified Party and GEOSURE or one
of its Subsidiaries set forth in Part 7.11 of GEOSURE Disclosure Schedule,
and rights to indemnification shall survive the Acquisition and shall
continue in full force and effect for a period of two years after the
Closing; provided that in the event any claim or claims are asserted or made
within such two-year period, all rights to indemnification in respect to any
such claim shall continue until final disposition of such claim; provided,
however, that no Partner shall be eligible to assert a claim for
indemnification from GEOSURE or any of its Subsidiaries in a matter subject
to Section 11.
7.12 TAX RETURNS AND FINANCIAL STATEMENTS. VISTA shall arrange for
its accountants to (i) audit the financial statements of GEOSURE as of and
for the year ended December 31, 1998, and (ii) prepare, following the Closing
Date, tax returns for GEOSURE for the year ended
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December 31, 1998 and for the partial year from January 1, 1999 until the
Closing Date. The parties acknowledge that the purchase of the partnership
interests of GEOSURE will be reported as taxable transactions.
7.13 CAPITAL AVAILABILITY AGREEMENT. Following the Closing Date,
VISTA shall indemnify the Partners, Bruce Llewellyn and Burton Rubin from any
liabilities they may incur as a result of claims made by State Street Bank
and Trust Company for additional amounts they may be required to pay pursuant
to the Capital Availability Agreement with State Street Bank and Trust
Company following the Closing Date.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF VISTA AND SUB.
The obligations of VISTA and SUB to effect the Acquisition and
otherwise consummate the transactions contemplated by this Agreement are
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
8.1 ACCURACY OF REPRESENTATIONS. Each of the representations and
warranties made by GEOSURE and the Partners in this Agreement and in each of
the other agreements and instruments delivered to VISTA in connection with
the transactions contemplated by this Agreement shall have been accurate in
all material respects as of the date of this Agreement (without giving double
effect to any "Material Adverse Effect" or other materiality qualifications,
or any similar qualifications, contained or incorporated directly or
indirectly in such representations and warranties), and shall be accurate in
all material respects as of the Closing Date as if made at the Closing Date
(without giving double effect to any update to GEOSURE Disclosure Schedule
not consented to in writing by VISTA, and without giving effect to any
"Material Adverse Effect" or other materiality qualifications, or any similar
qualifications, contained or incorporated directly or indirectly in such
representations and warranties).
8.2 PERFORMANCE OF COVENANTS. All of the covenants and obligations
that GEOSURE and the Partners are required to comply with or to perform at or
prior to the Closing shall have been complied with and performed in all
respects at or prior to Closing.
8.3 NO DISTRIBUTIONS. There will have not been any distributions
to the Partners since September 30, 1998.
8.4 CONSENTS. All material Consents required to be obtained in
connection with the Acquisition and the other transactions contemplated by
this Agreement (including the Consents identified in Part 2.22 of GEOSURE
Disclosure Schedule and the consent, on terms reasonably acceptable to VISTA,
of State Street Bank & Trust Company, GEOSURE's bank) shall have been
obtained and shall be in full force and effect.
8.5 AGREEMENTS AND DOCUMENTS. VISTA shall have received the
following agreements and documents, each of which shall be in full force and
effect:
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(a) Affiliate's Agreements in the form of EXHIBIT D-1
executed by any Person who could reasonably be deemed to be an "affiliate" of
GEOSURE for purposes of the Securities Act;
(b) an agreement terminating GEOSURE's obligations under its
contract with DP pursuant to the terms thereof, which would not involve a
cost or charge to GEOSURE in excess of the $200,000 currently specified;
(c) to the extent reasonably requested by VISTA,
confidential invention and assignment agreements, reasonably satisfactory in
form and content to VISTA, executed by all employees of GEOSURE and by all
consultants and independent contractors to GEOSURE who have not already
signed such agreements (including the individuals identified in Part 2.9(f)
of GEOSURE Disclosure Schedule);
(d) a legal opinion of Rubin Baum Levin Constant & Friedman,
dated as of the Closing Date, covering the matters set forth in EXHIBIT E;
(e) a letter from Leslie Sufrin and Company, P.C., dated as
of the Closing Date, confirming that no transaction entered into by GEOSURE,
and no other fact or circumstance relating to GEOSURE, will prevent VISTA
from accounting for the Acquisition as a "pooling of interests" in accordance
with generally accepted principles, Accounting Principles Board Opinion No.
16;
(f) a certificate executed by GEOSURE's General Partners
(solely in their capacity as such and not in their capacity as a Partner) and
containing the representation and warranty that each of the representations
and warranties set forth in Section 2 is accurate in all respects as of the
Closing Date as if made on the Closing Date and that the conditions set forth
in Sections 8.1, 8.2, 8.3, 8.4, 8.7 and 8.8 have been duly satisfied (the
"GEOSURE Closing Certificate"); and
(g) The Escrow Agreement in substantially the form attached
hereto as EXHIBIT G, executed by or on behalf of the Partners and the Escrow
Agent (as defined therein).
8.6 COMPLIANCE WITH THE SECURITIES ACT. All applicable
requirements of the Securities Act and state securities laws shall have been
satisfied.
8.7 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the
Acquisition shall have been issued by any court of competent jurisdiction and
remain in effect, and there shall not be any Legal Requirement enacted or
deemed applicable to the Acquisition that makes consummation of the
Acquisition illegal.
8.8 NO LEGAL PROCEEDINGS. No Person shall have commenced or
threatened to commence any Legal Proceeding challenging or seeking the
recovery of a material amount of damages in connection with the Acquisition
or seeking to prohibit or limit the exercise by VISTA of any material right
pertaining to its ownership of GEOSURE or its assets.
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8.9 GEOSURE'S KEY EMPLOYEES. VISTA shall be reasonably satisfied
that GEOSURE has used its best efforts during the Pre-Closing Period to
ensure that certain key GEOSURE employees (as identified by VISTA) will
continue their employment with the VISTA or the Acquired Entities.
8.10 DUE DILIGENCE.VISTA shall be satisfied with the results of its
inspection and review of GEOSURE and its business.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF GEOSURE AND THE PARTNERS.
The obligations of GEOSURE and the Partners to effect the Acquisition
and otherwise consummate the transactions contemplated by this Agreement are
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
9.1 ACCURACY OF REPRESENTATIONS. Each of the representations and
warranties made by VISTA and SUB in this Agreement and in each of the other
agreements and instruments delivered to GEOSURE and the Partners in
connection herewith, shall have been accurate in all material respects as of
the date of this Agreement (without giving effect to any "Materially Adverse
Effect" or other materiality qualifications, or any similar qualifications,
contained or incorporated directly or indirectly in such representations and
warranties), and shall be accurate in all material respects as of the Closing
Date as if made at the Closing Date (without giving effect to any "Material
Adverse Effect" or other materiality qualifications, or any similar
qualifications, contained in such representations and warranties).
9.2 PERFORMANCE OF COVENANTS. All of the covenants and obligations
that VISTA or SUB are required to comply with or to perform at or prior to
the Closing shall have been complied with and performed in all respects.
9.3 DOCUMENTS. GEOSURE shall have received the following documents:
(a) a legal opinion of Gray Cary Ware and Freidenrich LLP,
dated as of the Closing Date, covering the matters set forth in EXHIBIT F;
(b) a certificate executed by the Chief Executive Officer of
each of VISTA and SUB and containing the representation and warranty that
each of the representations and warranties set forth in Section 4 is accurate
in all respects as of the Closing Date as if made on the Closing Date and
that the conditions set forth in Sections 9.1 and 9.2 have been duly
satisfied (the "VISTA Closing Certificate"); and
(c) The Escrow Agreement, executed by VISTA and the Escrow
Agent.
9.4 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the
Acquisition shall have been issued by any court of competent jurisdiction and
remain in effect, and there shall not be any Legal Requirement enacted or
deemed applicable to the Merger that makes consummation of the Merger illegal.
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9.5 COMPLIANCE WITH THE SECURITIES ACT. All applicable
requirements of the Securities Act and state securities laws shall have been
satisfied.
9.6 NO LEGAL PROCEEDINGS. No Person shall have commenced or
threatened to commence any Legal Proceeding challenging or seeking the
recovery of a material amount of damages in connection with the Acquisition
or seeking to prohibit or limit the exercise by VISTA of any material right
pertaining to its ownership of GEOSURE or its assets.
10. TERMINATION
10.1 TERMINATION EVENTS. This Agreement may be terminated prior to
the Closing without either party (except as provided in Section 10.1(e))
incurring any termination fee:
(a) by VISTA, if VISTA reasonably determines that the timely
satisfaction of any condition set forth in Section 8 has become impossible
(other than as a result of any failure on the part of VISTA to comply with or
perform any covenant or obligation of VISTA set forth in this Agreement);
(b) by GEOSURE, if GEOSURE reasonably determines that the
timely satisfaction of any condition set forth in Section 9 has become
impossible (other than as a result of any failure on the part of GEOSURE or
any of the Partners to comply with or perform any covenant or obligation set
forth in this Agreement or in any other agreement or instrument delivered to
VISTA);
(c) by VISTA, if the Closing has not taken place on or
before March 31, 1999 (other than as a result of any failure on the part of
VISTA to comply with or perform any covenant or obligation of VISTA set forth
in this Agreement);
(d) by GEOSURE, if the Closing has not taken place on or
before March 31, 1999 (other than as a result of the failure on the part of
GEOSURE or any of the Partners to comply with or perform any covenant or
obligation set forth in this Agreement or in any other agreement or
instrument delivered to VISTA);
(e) by GEOSURE (at any time prior to Partner approval of
this Agreement, the Acquisition and the transactions contemplated hereby) if,
pursuant to and in compliance with Section 5.4, GEOSURE and its general
partners conclude in good faith that GEOSURE must accept an unsolicited bona
fide written proposed Acquisition Transaction which could reasonably be
expected to result in a transaction that is more favorable to the Partners
than the Acquisition (any such more favorable proposed Acquisition
Transaction being referred to in this Agreement as a "Superior Proposal");
provided, however, that if this Agreement is terminated pursuant to this
Section 10.1(e), GEOSURE shall pay to VISTA a nonrefundable fee of $500,000
in cash upon GEOSURE's (or its General Partners') election to accept such
Superior Proposal. In reaching such conclusion, the general partners of
GEOSURE shall consult with outside legal counsel (and other advisors as
appropriate);
(f) by the mutual consent of VISTA and GEOSURE; or
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<PAGE>
(g) by VISTA, as provided in Section 10.3.
10.2 TERMINATION PROCEDURES. If VISTA wishes to terminate this
Agreement pursuant to Section 10.1(a), Section 10.1(c) or Section 10.1(g),
VISTA shall deliver to GEOSURE prompt written notice stating that VISTA is
terminating this Agreement and setting forth a brief description of the basis
on which VISTA is terminating this Agreement. If GEOSURE wishes to terminate
this Agreement pursuant to Section 10.1(b), Section 10.1(d) or Section
10.1(e), GEOSURE shall deliver to VISTA prompt written notice stating that
GEOSURE is terminating this Agreement and setting forth a brief description
of the basis on which GEOSURE is terminating this Agreement.
10.3 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 10.1, all further obligations of the parties under this
Agreement shall terminate; provided, however, that (i) neither GEOSURE nor
VISTA shall be relieved of any obligation or liability arising from any prior
breach by such party of any provision of this Agreement; (ii) the parties
shall, in all events, remain bound by and continue to be subject to the
provisions set forth in Section 12; and (iii) GEOSURE shall, in all events,
remain bound by and continue to be subject to Section 7.3.
11. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.
11.1 SURVIVAL OF REPRESENTATIONS.
(a) Subject to the indemnification limitations set forth in
Section 11.2, the representations and warranties made by GEOSURE, the
Partners and VISTA in Sections 2, 3 and 4 shall survive the Closing and shall
expire on the first anniversary of the Closing Date (the "Claim Deadline")
except as follows: (i) representations and warranties contained in Section
7.5 shall survive the Closing Date indefinitely; (ii) representations and
warranties contained in Section 2.14 shall survive for the period of the
applicable statute of limitations plus any extensions or waivers granted or
imposed with respect thereto; (iii) in the event of fraud, the applicable
representations and warranties shall survive indefinitely; and (iv) if, at
any time prior to the first anniversary of the Closing Date, any Indemnitee
(acting in good faith) delivers to the Escrow Agent (in the case of a claim
against the Partners) or to VISTA (in the case of a claim by a Partner) a
written notice asserting a claim for recovery under Section 11.2, then the
claim asserted in such notice shall survive the first anniversary of the
Closing until such time as such claim is fully and finally resolved.
(b) The representations, warranties, covenants and
obligations of the parties hereto, and (except as provided herein) the rights
and remedies that may be exercised pursuant hereto, shall not be limited or
otherwise affected by or as a result of any information furnished to or any
investigation made by or knowledge of (except as provided herein, in GEOSURE
Disclosure Schedule or the VISTA Disclosure Schedule), any of the parties or
any of their Representatives.
(c) For purposes of this Agreement, each statement or other
item of information set forth in the parties' disclosure schedules or in any
update to the parties' disclosure schedules shall be deemed to be a
representation and warranty made by that party in this Agreement.
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11.2 INDEMNIFICATION.
(a) From and after the Closing Date, VISTA shall be held
harmless and indemnified by the Partners from and against, and shall be
compensated and reimbursed by the Partners for, any Damages which are
directly or indirectly suffered or incurred by VISTA or to which VISTA may
otherwise become subject (regardless of whether or not such Damages relate to
any third-party claim) and which arise from or as a result of, or are
directly or indirectly connected with: (i) any inaccuracy in or breach of any
representation or warranty of GEOSURE or the Partners set forth in Sections 2
and 3; and (ii) any Legal Proceeding relating to any inaccuracy or breach of
the type referred to in clause "(i)" above (including any Legal Proceeding
commenced by VISTA for the purpose of enforcing any of its rights under this
Section 11); PROVIDED, HOWEVER, that (y) except as set forth in the following
clause, VISTA shall not be entitled to any indemnification hereunder until
the total Damages as to which it would otherwise be entitled to for
indemnification hereunder exceed $50,000, and (z) VISTA shall be entitled to
indemnification for any Damages resulting from a breach of the
representations and warranties set forth in the final sentence of Section
2.11. The parties acknowledge and agree that, if GEOSURE or SUB suffers,
incurs or otherwise becomes subject to any Damages as a result of or in
connection with any inaccuracy in or breach of any representation, warranty,
covenant or obligation of GEOSURE or the Partners set forth in Sections 2 or
3, then VISTA shall also be deemed, by virtue of its ownership of GEOSURE and
SUB (and their assets upon dissolution), to have incurred Damages as a result
of and in connection with such inaccuracy or breach. The liability of each
Partner under this Agreement shall be limited to the number of Exchange
Shares actually received by such Person pursuant to Section 1.4.
(b) In addition to the indemnification provided pursuant to
Section 7.13, from and after the Closing Date, the Partners shall be held
harmless and indemnified by VISTA from and against, and shall be compensated
and reimbursed by VISTA for any Damages which are directly or indirectly
suffered or incurred by the Partners or to which Partners may otherwise
become subject (regardless of whether or not such Damages relate to any
third-party claim) and which arise from or as a result of, or are directly or
indirectly connected with: (i) any inaccuracy in or breach of any
representation or warranty of VISTA or SUB set forth in Section 4; (ii) any
Legal Proceeding relating to any inaccuracy or breach of the type referred to
in clause "(i)" above (including any legal proceeding commenced by a Partner
for purpose of enforcing any of its rights under this Section 11); PROVIDED,
HOWEVER, that the Partners shall not be entitled to any indemnification
hereunder until the total Damages as to which they would otherwise be
entitled to for indemnification hereunder exceed $50,000.
11.3 INTEREST. Any Indemnitee provided indemnification pursuant to
this Section 11 with respect to any Damages shall also be entitled to receive
interest on the amount of such Damages (for the period commencing as of the
date of a claim for recovery by such Indemnitee and ending on the date on
which the liability to such Indemnitee is fully satisfied pursuant hereto) at
a floating rate equal to the rate of interest publicly announced by Bank of
America, N.T. & S.A. from time to time as its prime, base or reference rate.
11.4 DEFENSE OF THIRD PARTY CLAIMS. In the event of the assertion
or commencement by any Person of any claim or Legal Proceeding (whether
against GEOSURE or against VISTA)
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<PAGE>
with respect to which VISTA may be entitled to payment pursuant to this
Section 11 and where the amount as to which VISTA may be entitled to such
payment is reasonably expected to be $100,000 or less, VISTA shall have the
right, at its election, to proceed with the defense of such claim or Legal
Proceeding on its own. If VISTA so proceeds with the defense of any such
claim or Legal Proceeding, then, subject to the limitations of Section
11.2(b): (a) all reasonable expenses relating to the defense of such claim
or Legal Proceeding shall be borne and paid exclusively by the Partners;
(b) the parties shall use reasonable efforts to make available to VISTA any
documents and materials in their possession or control that may be necessary
to the defense of such claim or Legal Proceeding; and (c) VISTA shall not
settle, adjust or compromise such claim or Legal Proceeding without the
consent of a majority in interest of the Partners, which consents shall not
be unreasonably withheld. Notwithstanding the provisions of this Section
11.4 to the contrary, in the event the claim or Legal Proceeding is
reasonably expected to result in a payment in excess of $100,000, then the
parties will use their good faith efforts to enter into a cooperative defense
agreement addressing the relevant issues, including control, on the basis of
the potential exposure of the parties, the importance of the matter to the
ongoing business of GEOSURE (or its successors), the relative knowledge of
the parties, and any perceived difference in the ability of the parties to
resolve the matter efficiently.
11.5 INDEMNITY ESCROW FUND. At Closing, VISTA shall deliver a stock
certificate representing ten percent (10%) of the Exchange Shares to Norwest
Bank, N.A. as escrow agent (the "Indemnity Escrow Agent"), such deposit to
constitute the "Indemnity Escrow Fund" which shall be governed by the terms
set forth herein and substantially in the form Indemnity Escrow Agreement
attached hereto as EXHIBIT G (the "Indemnity Escrow Agreement"). The
Indemnity Escrow fund will serve as collateral for the indemnification
obligations of and the payment of Damages by the Partners as set forth in
this Section 11. Withdrawal of such shares of stock shall be subject to
restrictions consistent with this Section 11 and the terms of the Indemnity
Escrow Agreement. All such shares of stock that are not then subject to
claims regarding Damages shall be released to the GEOSURE Partners in
proportion to the distribution made at the Closing one year after the Closing
Date; provided, however, that any such shares of stock which are subject to
unresolved claims upon the first anniversary of the Closing shall be released
to the Partners only upon the resolution of such claims. Subject to the
limitations of Section 11.3, this Section 11.5 is not intended to establish a
ceiling or maximum amount that the Partners shall indemnify VISTA pursuant to
this Section 11.
12. MISCELLANEOUS PROVISIONS.
12.1 FURTHER ASSURANCES. Each party hereto shall execute and cause
to be delivered to each other party hereto such instruments and other
documents, and shall take such other actions, as such other party may
reasonably request (prior to, at or after the Closing) for the purpose of
carrying out or evidencing any of the transactions contemplated by this
Agreement.
12.2 FEES AND EXPENSES. Each party to this Agreement shall bear and
pay all fees, costs and expenses (including legal fees and accounting fees)
that have been incurred or that are incurred by such party in connection with
the transactions contemplated by this Agreement, including all fees, costs
and expenses incurred by such party in connection with or by virtue of (a)
the investigation and review conducted by VISTA and its Representatives with
respect to
39
<PAGE>
GEOSURE's business (and the furnishing of information to VISTA and its
Representatives in connection with such investigation and review), (b) the
negotiation, preparation and review of this Agreement (including the
respective Disclosure Schedules) and all agreements, certificates, opinions
and other instruments and documents delivered or to be delivered in
connection with the transactions contemplated by this Agreement, (c) the
preparation and submission of any filing or notice required to be made or
given in connection with any of the transactions contemplated by this
Agreement, and the obtaining of any Consent required to be obtained in
connection with any of such transactions, and (d) the consummation of the
Acquisition. Following the Acquisition, VISTA will cause GEOSURE to pay the
fees and expenses of GEOSURE's counsel and accountants with respect to this
transaction following receipt of appropriately detailed invoices and in an
aggregate amount up to $85,000.
12.3 ATTORNEYS' FEES. If any action or proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
12.4 NOTICES. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail return receipt requested, postage and
fees prepaid, by courier or express delivery service or by facsimile with
electronic confirmation of receipt) to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other
address or facsimile telephone number as such party shall have specified in a
written notice given to the other parties hereto):
if to VISTA or SUB:
VISTA Information Solutions, Inc.
Attn.: Chief Financial Officer
5000 Shoreham Place, #300
San Diego, CA 92122
Telephone: (619) 450-6100
Facsimile: (619) 450-6185
with a copy to:
Gray Cary Ware & Freidenrich LLP
Attn.: Douglas J. Rein
4365 Executive Drive, Suite 1600
San Diego, California 92121-2189
Telephone: (619) 677-1400
Facsimile: (619) 677-1477
if to GEOSURE:
Burton R. Rubin
c/o Rubin Baum Levin Constant & Friedman
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<PAGE>
30 Rockefeller Plaza
New York, NY 10012
Telephone: (212) 698-7700
Facsimile: (212) 698-7825
with a copy to:
Rubin Baum Levin Constant & Friedman
Attn: Robert B. Zimmerman
30 Rockefeller Plaza
New York, NY 10012
Telephone: (212) 698-7700
Facsimile: (212) 698-7825
if to the Partners (respectively):
At the address set forth on Exhibit A.
12.5 CONFIDENTIALITY. Without limiting the generality of anything
contained in Section 7.3, on and at all times after the Closing Date, each
Partner shall keep confidential, and shall not use or disclose to any other
Person, any nonpublic document or other nonpublic information in such
Partner's possession that relates to the business of GEOSURE or VISTA;
provided, however, the Confidentiality Agreement dated May 21, 1998 between
Bachow and Associates, Inc. and GEOSURE shall remain in full force and
effect, unaffected by the execution of this Agreement or by the Acquisition.
By execution of this Agreement, VISTA agrees to be bound by the terms of such
Confidentiality Agreement.
12.6 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
12.7 HEADINGS. The underlined headings contained in this Agreement
are for convenience of reference only, shall not be deemed to be a part of
this Agreement and shall not be referred to in connection with the
construction or interpretation of this Agreement.
12.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement. Any such counterpart
may be executed and delivered by telecopier or other facsimile transmission
all with the same force and effect as if such counterpart had been manually
executed and delivered as an original.
12.9 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of
Delaware (without giving effect to principles of conflicts of laws), except
to the extent the New York Revised Limited Partnership Act governs.
12.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon:
GEOSURE and its successors and assigns (if any); the Partners and DP and
their respective personal representatives, executors, administrators,
estates, heirs, successors and assigns (if any); and
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<PAGE>
VISTA and its successors and assigns (if any). This Agreement shall inure to
the benefit of: GEOSURE; the Partners and DP; VISTA; the other Indemnitees
(subject to Section 11.2); and the respective successors and assigns (if any)
of the foregoing. Neither VISTA nor SUB may assign any or all of their
rights under this Agreement to any Entity, in whole or in part, without
obtaining the prior written consent of GEOSURE; PROVIDED, HOWEVER, that
without the consent of GEOSURE, VISTA and/or SUB shall assign its rights to
purchase some or all of the partnership interests from the Partners to
wholly-owned direct or indirect subsidiaries of SUB as long as such
assignment does not affect the consideration to be received by the Partners
or the covenants or obligations of VISTA or SUB hereunder. Neither GEOSURE
nor any Partner or DP may assign any or all of its rights hereunder, in whole
or in part, without obtaining the prior written consent of VISTA.
12.11 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE. The rights and
remedies of the parties hereto shall be cumulative (and not alternative).
The parties to this Agreement agree that, in the event of any breach or
threatened breach by any party to this Agreement of any covenant, obligation
or other provision set forth in this Agreement for the benefit of any other
party to this Agreement, such other party shall be entitled (in addition to
any other remedy that may be available to it) to (A) a decree or order of
specific performance or mandamus to enforce the observance and performance of
such covenant, obligation or other provision, and (B) an injunction
restraining such breach or threatened breach.
12.12 WAIVER.
(a) No failure on the part of any Person to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the
part of any Person in exercising any power, right, privilege or remedy under
this Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any
other power, right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
12.13 AMENDMENTS. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties hereto.
12.14 SEVERABILITY. In the event that any provision of this
Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as
to which it is determined to be invalid, unlawful, void or unenforceable,
shall not be impaired or otherwise affected and shall continue to be valid
and enforceable to the fullest extent permitted by law.
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12.15 PARTIES IN INTEREST. Except for the provisions of Sections
7.8, 7.13 and 11, none of the provisions of this Agreement is intended to
provide any rights or remedies to any Person other than the parties hereto
and their respective successors and assigns (if any).
12.16 ENTIRE AGREEMENT. This Agreement and the other agreements
referred to herein set forth the entire understanding of the parties hereto
relating to the subject matter hereof and thereof and supersede all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof and thereof; provided, however, that any agreement
with respect to confidentiality or proprietary information executed on behalf
of VISTA and GEOSURE prior to the date hereof shall not be superseded by this
Agreement and shall remain in effect in accordance with its terms and until
the earlier of (a) the Effective Time, or (b) the date on which such
agreement is terminated in accordance with its terms.
12.17 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections hereof and
Exhibits hereto.
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The parties hereto have caused this Agreement to be executed and
delivered as of the date first written above.
VISTA INFORMATION SOLUTIONS, INC.,
a Delaware Corporation
By:__________________________________
Its:_________________________________
SUB:
VISTA Environmental Information, Inc.
By:__________________________________
Its:_________________________________
GEOSURE, L.P.,
a New York limited partnership
By: LRB Envio Enterprises, Inc.,
its general partner
By:__________________________________
Its:_________________________________
By: Chadwyck-Healey Ventures, Inc.
its general partner
By:__________________________________
Its:_________________________________
THE PARTNERS OF GEOSURE:
LRB Envio Enterprises, Inc.,
By:__________________________________
Its:_________________________________
Chadwyck-Healey Ventures, Inc.
By:__________________________________
Its:_________________________________
_____________________________________
Sir Charles Chadwyck-Healey
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_____________________________________
Charles Debare*
_____________________________________
Emily Unterberg Satloff*
_____________________________________
Ellen Unterberg Celli*
_____________________________________
Ann Unterberg*
_____________________________________
Benjamin J. Arno and
Nancy Arno JTWROS*
_____________________________________
C.E. Unterberg Towbin 401K Plan*
(f/k/a Unterberg Harris 401K Plan)
FBO Robert C. Harris, Jr.
_____________________________________
C.E. Unterberg Towbin 401K Plan*
(f/k/a Unterberg Harris 401K Plan)
FBO Jody A. Owen
_____________________________________
C.E. Unterberg Towbin 401K Plan*
(f/k/a Unterberg Harris 401K Plan)
FBO C.E. Unterberg
_____________________________________
Thomas I. Unterberg*
_____________________________________
John Dexheimer*
_____________________________________
C.E. Unterberg Towbin 401K Plan*
(f/k/a Unterberg Harris 401K Plan)
FBO David S. Wachter
_____________________________________
James William Weil*
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_____________________________________
Nancy Moyer*
_____________________________________
Andrew Celli & James Satloff*
TTEE uad 5/13/93 FBO Rebecca Rose
Celli
_____________________________________
Andrew Celli & James Satloff*
TTEE uad 5/19/93
FBO Dustin N. Satloff
_____________________________________
Andrew Arno*
ACF Matthew Arno UGMA/NY
_____________________________________
C.E. Unterberg Capital Partners I,
L.P.
(f/k/a Unterberg Harris Capital
Partners)*
_____________________________________
Ellen V. Celli & Emily V. Satloff*
TTE FBO T.I. Unterberg's
Grandchildren's
Trust uad 4/26/93
_____________________________________
C.E. Unterberg, Towbin LLC
(f/k/a Unterberg Harris, L.P.)
_____________________________________
Andrew Arno and Jane K. Arno, JTWROS*
_____________________________________
Elizabeth Arno*
_____________________________________
Mary Debare*
_____________________________________
C.E. Unterberg Towbin 401K Plan*
(f/k/a Unterberg Harris 401K Plan)
FBO Mel Lavitt
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<PAGE>
_____________________________________
C.E. Unterberg Towbin 401K Plan*
(f/k/a Unterberg Harris 401K Plan)
FBO Steven P. Novak
_____________________________________
Robert Matluck*
_____________________________________
Andrew Arno*
ACF Jesse Arno UGMA/NY
* By:________________________________
Attorney in Fact
_____________________________________
Dan S. Prickett
47
