VOTING TRUST AGREEMENT
This Voting Trust Agreement ("Agreement") is
entered into as of December 22, 1995, between
Analytical Surveys, Inc., a Colorado corporation (the
"Company"), A. Xxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxx and
Xxxxx Xxxxxxx (each a "Shareholder" and collectively
the "Shareholders") and Xxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. XxxXxxx, Xxxxx X.
Xxxxx, Xxxxxx X. Xxxxxx and Xxxxxx X. X. Xxxxxxxx (each
an "Individual Trustee" and collectively, the
"Trustee").
Recitals
A. The Company, Intelligraphics, Inc.
(Intelligraphics") and A. Xxxxxxx Xxxxxxxx ("Xxxxxxxx")
have entered into an Asset Purchase Agreement dated as
of December 22, 1995 (the "Purchase Agreement")
pursuant to which the Company will purchase
substantially all of the assets of Intelligraphics in
exchange for $3,450,000 in cash, as adjusted, and
230,000 restricted shares of Company common stock (the
"Shares"). Certain of the Shares will be distributed
to Xxxxxxxx in partial satisfaction of certain loans
Xxxxxxxx has made to Intelligraphics, and the remainder
of the Shares will be distributed to key management
personnel of Intelligraphics in consideration for their
services to the Intelligraphics, as set forth on
Exhibit A. Pursuant to an Escrow Agreement dated
December 22, 1995 between the Company, Intelligraphics,
Xxxxxxxx and Bank One, Colorado, NA, the Company will
transfer $250,000 and 70,000 Shares directly into
escrow.
B. The Company, Shareholders and the Trustee
desire to set forth in writing the terms and conditions
under which the Trustee will hold and dispose of the
Shares.
Agreement
For good and valuable consideration, the parties
agree as follows:
1. Creation of Voting Trust. The Trustee is
hereby appointed as trustee under the voting trust
created by this Agreement (the "Trust"). During the
term of this Agreement, the Trustee will act as voting
trustee in respect of the Shares with all the powers,
rights and privileges and subject to all the terms set
forth in this Agreement.
2. Acceptance of Trust. The Trustee accepts the
Trust created by this Agreement in accordance with all
of the terms contained in this Agreement.
3. Composition of the Trustee. The parties to
this Agreement agree that: (a) if, after the date of
this Agreement, an Individual Trustee ceases to be a
member of the board of directors of the Company (the
"Board"), such person will no longer be an Individual
Trustee, effective the date that such person ceases to
be a member of the Board, and (b) if, after the date of
this Agreement, a person becomes a member of the Board,
such person will become an Individual Trustee effective
upon the execution of a document in the form of Exhibit
B to this Agreement, by which such person agrees to be
an Individual Trustee and to be bound by the terms of
this Agreement.
4. Transfer of Stock. Simultaneously with the
signing of this Agreement, the Shareholders have
assigned the Shares to the Trustee and have deposited
with the Trustee the stock certificates for such
Shares, duly endorsed in blank or accompanied by a
proper instrument of assignment duly executed in blank.
5. Voting Trust Certificates. Simultaneously
with the transfer of the Shares to the Trustee, the
Trustee will deliver to each Shareholder a voting trust
certificate ("Certificate") for the number of Shares
transferred by such Shareholder, in the form of Exhibit
C. Each Certificate will have the following legend
stamped, typed or otherwise legibly placed on its face
or reverse side:
"Sale, pledge or other disposition or
transfer of this Certificate and the shares
of common stock of Analytical Surveys, Inc.
represented by this Certificate is restricted
by the terms of the Voting Trust Agreement
dated as of December 22, 1995, which may be
examined at the offices of the Company in
Colorado Springs, Colorado."
6. Issuance of Stock Certificates to Trustee.
All stock certificates for Shares transferred and
delivered to the Trustee pursuant to this Agreement
will be surrendered by the Trustee to the Company and
cancelled, and new stock certificates will be issued by
the Company to and in the name of the Trustee. The
Trustee is authorized and empowered to cause any
further transfers of the Shares to be made which may
become necessary through the occurrence of any change
of persons holding the office of the Trustee. Such new
stock certificates will be endorsed by the Company with
a legend to the effect that they are issued pursuant to
this Agreement and a similar notation will appear in
the appropriate place in the transfer books of the
Company.
7. Transfer of Shares. The Shares owned by a
Shareholder are not transferable during the life of the
Trust except in accordance with the Lock-Up Agreement
dated the same date as this Agreement (the "Lock-Up
Agreement"). Any transferee of transferred Shares who
is a "family member" (as defined in the Lock-Up
Agreement) of a Shareholder, will take such Shares
subject to this Agreement, and the voting rights of
such transferred Shares will be exercised by the
Trustee in accordance with the Trust.
8. Term. This Agreement will remain in effect
until December 22, 1997. Upon termination of this
Agreement, the Trust will terminate and the Trustee
will deliver to the Company the stock certificates
representing the Shares owned by the Shareholders then
held by the Trustee under this Agreement, the Company
will issue new certificates for such Shares in the name
of each Shareholder (or such Shareholder's successors
and assigns), and each Shareholder will deliver to the
Trustee for cancellation the Certificates of such
Shareholder issued under this Agreement.
Notwithstanding anything to the contrary in this
Agreement or in any other document or agreement, upon
termination of this Agreement or the Trust, the parties
agree that until the Trustee has received notice from
Bank One, Milwaukee, N.A. (the "Bank") that Xxxxxxxx is
no longer indebted to the Bank, the Company will
deliver new certificates for Xxxxxxxx'x Shares directly
to the Bank.
9. Replacement of Mutilated or Lost Certificates.
In case any Certificate is mutilated, destroyed, lost
or stolen, the registered holder will immediately
notify the Trustee, who, subject to the following
sentence, will issue and deliver to such holder a new
Certificate of like tenor and denomination in exchange
for and upon cancellation of the Certificate so
mutilated, or in substitution for the Certificate so
destroyed, lost or stolen. The applicant for such
substituted Certificate will furnish proof reasonably
satisfactory to the Trustee of such destruction, loss
or theft, and, upon request, will furnish indemnity
(including indemnifying the Trustee individually)
reasonably satisfactory to the Trustee and will comply
with such other reasonable requirements as such Trustee
may prescribe.
10. Trustee Voting Rights. The Trustee is
granted the right to exercise (or refrain from
exercising) all of the Shareholders' voting rights with
respect to the Shares, and the Trustee will vote the
Shares proportionately for and against any issue
brought before the shareholders of the Company for a
vote in the same percentage as all other voted shares
of the Company are voted; except that, in the case of
any of the following matters, the Trustee will vote the
Shares of any Shareholder in accordance with the
written instructions from such Shareholder: (a) the
sale or other disposition of all or substantially all
of the assets of the Company that under applicable law
requires a vote of the shareholders of the Company; (b)
a merger or consolidation in which the Company is not
the continuing or surviving corporation or in which a
change of control of the Company would occur; (c) a
substantial recapitalization of the Company that under
applicable law requires a vote of the shareholders of
the Company and pursuant to which a change of control
of the Company would occur; and (d) a liquidation,
dissolution or "going private" transaction that under
applicable law requires a vote of the shareholders of
the Company. Notwithstanding the foregoing, if any
written voting instructions received by the Trustee
regarding (a) through (d) above are either (i)
ambiguous or unclear or (ii) received by the Trustee
fewer than five business days prior to the date that
such vote is required to be cast, then the Trustee will
vote the Shares proportionately for and against any
issue in the same percentage as all other voted shares
of the Company are voted. Whether a vote is required
"under applicable law," as set forth in (a), (c) and
(d) above will be determined by the Trustee in reliance
upon an opinion of counsel to the Company under the
standards set forth in Section 16.
11. Action by Trustee. A quorum at any meeting
of the Individual Trustees is at least three Individual
Trustees (or such lesser number of Individual Trustees
as are then in place), represented in person or by
telephone. If a quorum is present, the affirmative
vote of a majority of the Individual Trustees
represented at the meeting is the act of the Trustee.
Any action of the Trustee that can be taken at a
meeting of Individual Trustees may be taken without a
meeting if the action is evidenced by one or more
written consents describing the action taken, signed by
a :majority of the total number of Individual Trustees
as are then in place.
12. Resignation. An Individual Trustee may
resign at any time by delivering his resignation in
writing to the Company, to take effect immediately,
whereupon all powers, rights and obligations of the
resigning Individual Trustee under this Agreement will
cease and terminate, except to the extent provided in
Sections 14 and 15 of this Agreement.
13. Vacancies. If any vacancy occurs in the
position of an Individual Trustee by reason of the
resignation, death, incapacity or inability to act of
the Individual Trustee, such vacancy will be filled by
appointment of the board of directors of the Company,
subject to the provisions of Section 3 of this
Agreement. If, notwithstanding the above provisions,
there is at any time no Trustee capable of acting under
this Agreement, it is understood that the holders of
the Certificates may not exercise the voting power of
the stock evidenced by such Certificates until the
termination of the Trust pursuant to the provisions of
this Agreement and that said voting power will
accordingly remain suspended during such vacancy.
14. Expenses, Etc. The Company will pay to the
Trustee and any agent of the Trustee all reasonable
expenses, including counsel fees, and discharge all
liabilities incurred by the Trustee in connection with
the proper exercise of its powers and performance of
its duties under this Agreement.
15. Indemnification. The Shareholders jointly
and severally indemnify and hold the Trustee and each
Individual Trustee harmless from and against any and
all joint or several liabilities in connection with or
growing out of the administration of the Trust created
by this Agreement or the exercise of any powers or the
performance of any duties by the Trustee as provided or
contemplated in this Agreement, including, without
limitation, any action taken or omitted to be taken
pursuant to Section 11 of this Agreement, except such
liability as arises from the willful misconduct or
gross negligence of the Trustee.
16. Reliance on Advice of Counsel. The Trustee
may consult with counsel concerning any question which
may arise with reference to the Trustee's duties or
authority under this Agreement or any of the provisions
of this Agreement or any matter relating to this
Agreement, and the opinion of such counsel will be a
full and complete authorization and protection in
respect to any action taken or omitted to be taken by
the Trustee under this Agreement in good faith and in
accordance with such opinion of counsel, and the
Trustee will not be liable for any damages sustained as
a result of such good faith reliance.
17. Holders of Certificates Bound; Waiver of
Claims Against Trustee. Every registered holder of a
Certificate, and every bearer of a Certificate properly
endorsed in blank or properly assigned, by the
acceptance or holding of the Certificate (a) will be
deemed conclusively for all purposes to have assented
to this Agreement and to all of its terms, conditions
and provisions and will be bound thereby with the same
force and effect as if such holder or bearer had
executed this Agreement, and (b) severally agrees to
waive and by such act does waive any and all claims of
every kind and nature that hereafter each such holder
or bearer may have against the Trustee, and agrees to
release and by such act does release the Trustee, the
Trustee's heirs, legal representatives, executors,
administrators and assigns, from any liability
whatsoever arising out of or in connection with the
exercise of the Trustee's powers or the performance of
the Trustee's duties under this Agreement, except
liability for the gross negligence or willful
misconduct of the Trustee.
18. Dividends and Distributions. During the term
of this Agreement, all dividends and other
distributions with respect to the Shares received by
the Trustee will immediately be distributed to the
Shareholders (or their successors and assigns) in
accordance with the number of Shares represented by
their respective Certificates. Notwithstanding the
previous sentence, the Trustee will receive and hold,
subject to the terms of this Agreement, any stock
dividends issued by the Company to the Shareholders (or
their successors and assigns) by reason of any capital
reorganization, stock split, combination or the like
and will issue and deliver to the holders of the
Certificates additional voting trust certificates
issued in connection with the foregoing transactions.
In addition, notwithstanding anything to the contrary
in this Agreement or in any other document or
agreement, the parties agree that until the Trustee has
received written notice from the Bank, that Xxxxxxxx no
longer is indebted to the Bank, the Trustee will: (i)
distribute the proceeds of any sale of Shares owned by
Xxxxxxxx during the term of this Agreement directly to
the Bank and (ii) upon termination of this Agreement,
deliver all stock certificates for Shares owned by
Xxxxxxxx directly to the Bank. For purposes of this
Section, any deliveries to the Bank will be made to the
attention of Xxxxx Xxxx at 000 Xxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000. The Trustee shall have no
duty to collect funds due for any sale of Shares by
Xxxxxxxx.
19. Notice, Etc. Each Shareholder acknowledges
that the Trustee may have direct or indirect financial
interests in the Company and further agrees and
acknowledges that such interests are expressly
authorized under this Agreement and will not be deemed
to impair the Trustee's independence of action in the
exercise of its voting power as provided in Section 9.
Any notice to the Trustee, the Shareholders or the
Company required under this Agreement will be deemed to
have been given to the respective party if delivered
personally, or upon receipt of such notice mailed first
class, postage prepaid, registered or certified mail,
return receipt requested, to the Shareholders at their
respective addresses set forth on Exhibit A, and to
each Individual Trustee and the Company as set forth
below:
Individual Trustee: c/o Analytical Surveys, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Company: Analytical Surveys, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
With a copy to: Xxxxxx X. Xxxxxxx, P.C.
Suite 310
128 South Tejon
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
or to such other address as each party may designate by
notice in writing to the other parties as provided
above.
20. Dispute Resolution. All disputes arising out
of or related to this Agreement, including any claims
that all or any part of this Agreement is invalid,
illegal, voidable, or void, will be settled by
arbitration, pursuant to an Arbitration Agreement
between the Company, Intelligraphics, Inc., the
Shareholders, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx, the
Trustee and Bank One, Colorado, NA dated December 22,
1995.
21. General Provisions.
(a) Entire Agreement. This Agreement
constitutes the entire agreement among the parties
with respect to the subject matter of this
Agreement and supersedes all other prior
agreements and understandings, both written and
oral, between the parties with respect to the
subject matter of this Agreement.
(b) Benefit. This Agreement will be binding
upon and inure to the benefit of the parties,
their personal representatives, successors and
assigns.
(c) Amendment. This Agreement may be
amended at any time and from time to time by a
written instrument signed by all of the parties to
this Agreement.
(d) Governing Law. The laws of the State of
Colorado will govern this Agreement and the
construction of any of its terms.
(e) Original. This Agreement will be signed
in one original, which will be deposited with the
Company at its registered office.
(f) Photocopies. A photocopy of this
Agreement will be delivered to the Trustee and to
each Shareholder.
The parties have signed this Agreement, and by
their respective signatures, the Trustee acknowledges
receipt of the certificate(s) representing the Shares
and acceptance of the Trust, and each Shareholder
acknowledges receipt of the its respective Certificate,
all to be effective as of the date set forth above.
ANALYTICAL SURVEYS, INC.
/s/ X.X. Xxxxxx
----------------------------
By: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
SHAREHOLDER:
/s/ A. Willliam Xxxxxxxx
-----------------------------
A. Xxxxxxx Xxxxxxxx
SHAREHOLDER:
/s/ Xxxx Xxxxxx
------------------------------
Xxxx Xxxxxx
SHAREHOLDER:
/s/ Willliam Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx
SHAREHOLDER:
/s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
SHAREHOLDER:
/s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
SHAREHOLDER:
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
SHAREHOLDER:
/s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx
TRUSTEE
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx XxxXxxx
/s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxx
EXHIBIT A
Shareholder Shares
A. Xxxxxxx Xxxxxxxx 179,200
Xxxxx 00
000 X. Xxxxxxxx
Xxxxxxxx, XX 00000
Xxxx Xxxxxx 6,769
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 13,537
000 X00000 Xxxxxxxx
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxx 10,187
W316 00000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx 6,769
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx 6,769
000 Xxxxxx Xxxxx, #X
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxxx 6,769
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
EXHIBIT B
The undersigned is a member of the board of
directors of Analytical Surveys, Inc. (the "Company"),
and agrees to be bound by all of the terms of a Voting
Trust Agreement (the "Agreement") dated December 22,
1995 between the Company, A. Xxxxxxx Xxxxxxxx, Xxxx
Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Woes,
Xxxxx Xxxxx, Xxxxx Xxxxxxx and the Trustee (as defined
in the Agreement). The undersigned acknowledges that
he or she will for all purposes be deemed an
"Individual Trustee" (as defined in the Agreement).
The undersigned's address and FAX number for purposes
of Section 19 of the Agreement are set forth below:
__________________________________________
(Type or Print Name)
__________________________________________
(Xxxxxx Xxxxxxx)
__________________________________________
(City, State and Zip Code)
__________________________________________
(Facsimile Number)
__________________________________________
(Signature)
__________________________________________
(Date)
EXHIBIT C
VOTING TRUST CERTIFICATE
No. ___ _______ Shares
This certifies that _____________ is entitled to
all of the benefits and burdens arising from the
deposit of stock certificate no. ____ for ________
shares of the common stock of ANALYTICAL SURVEYS, INC.
("Company") with certain individuals who are members of
the board of directors of the Company, as a group,
acting as Trustee under the Voting Trust Agreement,
dated December 22, 1995 (the "Agreement"), for such
shares.
The original of the Agreement, which has been
deposited with the Company at its registered office, is
subject to examination by each Shareholder, either in
person or by agent or attorney, at any reasonable time
for any proper purpose.
In general, the Agreement provides that each
Shareholder's voting rights are vested in the Trustee
during the term of the Agreement. The Agreement, which
is incorporated by this reference, should be consulted
for its specific terms.
The stock in the Company represented by this
voting trust certificate is transferable only in
accordance with the terms of the Agreement and is
subject to additional restrictions set forth in a Lock-
Up Agreement dated December 22, 1995, a copy of which
also has been deposited with the Company at its
registered office.
The Trustee has executed this Voting Trust
Certificate on December 22, 1995.
__________________________________________
Xxxx X. Xxxxxx
__________________________________________
Xxxxxx X. Xxxxxx
__________________________________________
Xxxxxxx X. Xxxxxx
__________________________________________
Xxxxxxx X. XxxXxxx
__________________________________________
Xxxxxx Xxxxxxxx
__________________________________________
Xxxxx X. Xxxxx
__________________________________________
Xxxxxx X. Xxxxxx
