REGISTRATION RIGHTS AGREEMENT
December 22, 1995
TO THE PERSONS LISTED ON THE
ATTACHED DISTRIBUTION LIST
Dear Sirs:
This will confirm that in connection with the
Asset Purchase Agreement dated December 22, 1995 (the
"Purchase Agreement") between Analytical Surveys, Inc.
("ASI"), Intelligraphics, Inc. ("Intelligraphics") and
A. Xxxxxxx Xxxxxxxx, the Investor Representation Letter
dated December 22, 1995 executed by A. Xxxxxxx
Xxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxx, Xxxxx
Xxxxx, Xxxx Xxxxxx, Xxxx Xxxxx and Xxxxx Xxxxxxx (each
a "Shareholder" and collectively, the "Shareholders"),
and related transfer documents, ASI has transferred
230,000 shares of Common Stock of ASI (the "Shares") as
follows: (i) 160,000 shares of Common Stock of ASI to
the Voting Trust, and (ii) 70,000 shares of Common
Stock of ASI into escrow pursuant to an Escrow
Agreement dated December 22, 1995 between ASI,
Intelligraphics, and Bank One, Colorado, NA. As an
inducement to you to enter into the Purchase Agreement,
ASI covenants and agrees with each of you, and with
each subsequent holder of the Shares, as follows:
1. Certain Definitions. As used in this
Registration Rights Agreement, the following terms will
have the following respective meanings:
"Agreement" will mean this Registration
Rights Agreement.
"Commission" will mean the Securities and
Exchange Commission, or any other federal agency
at the time administering the Securities Act.
"Common Stock" will mean the shares of common
stock, no par value, of ASI, as constituted as of
the date of this Agreement.
"Exchange Act" will mean the Securities
Exchange Act of 1934, as amended, or any similar
federal statute, and the rules and regulations of
the Commission under the Exchange Act, all as the
same will be in effect at the time.
"Registration Expenses" will mean the
expenses so described in Section 4 of this
Agreement.
"Restricted Stock" will mean any Shares owned
by any Shareholder and any subsequent holders.
"Securities Act" will mean the Securities Act
of 1933, as amended or any similar federal
statute, and the rules and regulations of the
Commission under the Securities Act, all as the
same will be in effect at the time.
"Selling Expenses" will mean the expenses so
described in Section 4 of this Agreement.
2. Incidental Registration. If ASI at any time
prior to the second anniversary of this Agreement
proposes to register any of its Common Stock under the
Securities Act in an underwritten public offering,
whether for its own account or for the account of other
security holders or both (except with respect to
registration statements on Form X-0, Xxxx X-0 or
another form not available for registering the
Restricted Stock for sale to the public), it will give
written notice at such time to all holders of
outstanding Restricted Stock of its intention to do so.
Upon the written request of any such holder, given
within 10 days after receipt of any such notice by ASI,
to register any of its Restricted Stock (which request
will state the intended method of disposition of such
Restricted Stock), ASI will use its best efforts to
cause the Restricted Stock as to which registration
will have been so requested, to be included in the
securities to be covered by the registration statement
proposed to be filed by ASI, all to the extent required
to permit the sale or other disposition by the holder
(in accordance with its written request) of such
Restricted Stock so registered under federal law and
under the laws of any state in which ASI chooses to
conduct the underwritten public offering, except that
ASI is under no obligation to the holders of Restricted
Stock to cause a registration statement under this
Section 2 to become effective or to keep a registration
statement under this Section 2 effective for any
period. Any request by a holder pursuant to this
Section 2 to register Restricted Stock will be deemed
to be such holder's agreement to sell such shares
exclusively in such offering on the same terms and
conditions as the shares of Common Stock otherwise
being sold through underwriters under such
registration. The number of shares of Restricted Stock
to be included in such an underwriting may be reduced
pro rata among the requesting holders of Restricted
Stock based upon the number of shares so requested to
be registered if and to the extent that the managing
underwriter reasonably and in good faith determines
that such inclusion would adversely affect the
marketing of the securities to be sold by ASI in such
underwriting.
Notwithstanding anything to the contrary contained
in this Section 2, if there is a firm commitment
underwritten public offering of securities of ASI
pursuant to a registration covering Restricted Stock
and a holder of Restricted Stock does not elect to sell
his Restricted Stock to the underwriters of ASI's
securities in connection with such offering, such
holder will refrain from selling such Restricted Stock
during the period of distribution of ASI's securities
by such underwriters and the period in which the
underwriting syndicate participates in the after
market; provided, however, that such holder will, in
any event, be entitled to sell its Restricted Stock
commencing on the 90th day after the effective date of
such registration statement if not otherwise prohibited
from doing so under any other agreement.
3. Registration Procedures. In connection with
each registration under this Agreement, the selling
holders of Restricted Stock will furnish to ASI in
writing such information with respect to themselves and
the proposed distribution by them as will be reasonably
necessary in order to assure compliance with federal
and applicable state securities laws.
4. Expenses. All expenses incurred by ASI in
complying with Section 2 of this Agreement, including,
without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel
and independent public accountants for ASI, fees of the
National Association of Securities Dealers, Inc.,
transfer taxes and fees of transfer agents and
registrars, but excluding any Selling Expenses and fees
and expenses of counsel for the sellers of Restricted
Stock, are called "Registration Expenses." All
underwriting discounts and selling commissions
applicable to the sale of Restricted Stock are called
"Selling Expenses."
All Selling Expenses and Registration Expenses in
connection with any registration statement filed
pursuant to Section 2 of this Agreement will be borne
by the participating sellers in proportion to the
number of shares sold by each.
5. Indemnification. In the event of a
registration of any of the Restricted Stock under the
Securities Act pursuant to Section 2 of this Agreement,
ASI will indemnify and hold harmless each seller of
such Restricted Stock under such registration and each
underwriter of Restricted Stock under such registration
and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities
Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller or
underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect of any of such losses, claims, damages or
liabilities) arise out of or are based upon any untrue
statement or alleged untrue statement of any material
fact contained in any registration statement under
which such Restricted Stock was registered under the
Securities Act pursuant to Section 2, any preliminary
prospectus or final prospectus contained in such
registration statement, or any amendment or supplement
of such registration statement or prospectus, or arise
out of or are based upon the omission or alleged
omission to state in such registration statement or
prospectus a material fact required to be stated in
such registration statement or necessary to make the
statements in such registration statement or prospectus
not misleading, and will reimburse each such seller,
each such underwriter and each such controlling person
for legal or other expenses reasonably incurred by them
in connection with investigating or defending any such
loss, claim, damage, liability or action; provided,
however, that ASI will not be liable in any such case
if and to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or
alleged omission so made in conformity with information
furnished by such seller, such underwriter or such
controlling person in writing specifically for use in
such registration statement or prospectus.
In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to
Section 2 of this Agreement, each seller of such
Restricted Stock under such registration statement,
severally and not jointly, will indemnify and hold
harmless ASI and each person, if any, who controls ASI
within the meaning of the Securities Act, each officer
of ASI who signs the registration statement, each
director of ASI, each underwriter and each person who
controls any underwriter within the meaning of the
Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which ASI or such
officer or director or underwriter or controlling
person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect of any such losses,
claims, damages or liabilities) arise out of or are
based upon any untrue statement or alleged untrue
statement of any material fact contained in the
registration statement under which such Restricted
Stock was registered under the Securities Act pursuant
to Section 2, any preliminary prospectus or final
prospectus contained in such registration statement, or
any amendment or supplement of such registration
statement, or arise out of or are based upon the
omission or alleged omission to state in such
registration statement or prospectus a material fact
required to be stated in such registration statement or
prospectus or necessary to make the statements in such
registration statement not misleading, and will
reimburse ASI and each such officer, director,
underwriter and controlling person for any legal or
other expenses reasonably incurred by them in
connection with investigating or defending any such
loss, claim, damage, liability or action; provided,
however, that such seller will be liable under this
Agreement in any such case if and only to the extent
that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made
in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in
writing to ASI by such seller specifically for use in
such registration statement or prospectus; provided,
further, however, that the liability of each seller
under this Agreement will be limited to the proportion
of any such loss, claim, damage, liability or expense
which is equal to the proportion that the number of
shares sold by such seller under such registration
statement bears to the total number of all securities
sold under such registration statement, but not to
exceed the proceeds received by such seller from the
sale of Restricted Stock covered by such registration
statement.
Promptly after receipt by an indemnified party
under this Agreement of notice of the commencement of
any action, such indemnified party will, if a claim in
respect of such action is to be made against the
indemnifying party under this Agreement, notify the
indemnifying party in writing of such action, but the
omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party other than under this Section 5 and
such omission so to notify the indemnifying party in
any event will not relieve it from liability under this
Section 5, except to the extent that such failure
prejudiced the rights of the indemnifying party. In
case any such action will be brought against any
indemnified party and such indemnified party notifies
the indemnifying party of the commencement of such
action, the indemnifying party will be entitled to
participate in and, to the extent it wishes, to assume
and undertake the defense of such action with counsel
reasonably satisfactory to such indemnified party, and,
after notice from the indemnifying party to such
indemnified party of its election so to assume and
undertake the defense of such action, the indemnifying
party will not be liable to such indemnified party
under this Section 5 for any legal expenses
subsequently incurred by such indemnified party in
connection with the defense of such action other than
reasonable costs of investigation and of liaison with
counsel so selected; provided, however, that, if the
defendants in any such action include both the
indemnified party and the indemnifying party and the
indemnified party reasonably concludes that there are
likely to be reasonable defenses available to it which
are different from or additional to those available to
the indemnifying party, or if the interests of the
indemnified party reasonably are deemed to be in
conflict with the interests of the indemnifying party,
the indemnified party will have the right to select a
separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action,
with the expenses and fees of such separate counsel and
other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified
party will have the right to retain its own counsel in
any such action, but the fees and disbursements of such
counsel will be at the expense of such indemnified
party unless (i) the indemnifying party fails to retain
counsel for the indemnified person as aforesaid or (ii)
the indemnifying party and such indemnified party
mutually agree to the retention of such counsel. It is
understood that the indemnifying party will not, in
connection with any action or related actions in the
same jurisdiction, be liable for the fees and
disbursements of more than one separate firm to act as
counsel for the indemnified party (in addition to the
fees of local counsel in any jurisdiction where such
separate firm is not so qualified, but the fees and
expenses of such local counsel will be limited to the
making of appearances of record). The indemnifying
party will not be liable for any settlement of any
proceeding effected without its written consent, but if
settled with such consent or if there is a final
judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and
against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in the first
two paragraphs of this Section 5 is unavailable or
insufficient to hold harmless an indemnified party
under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect of any of
such losses, claims, damages or liabilities referred to
in such paragraphs, then each indemnifying party will
in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of ASI, on
the one hand, and the underwriters and the sellers of
such Restricted Stock, on the other, in connection with
the statements or omissions which resulted in such
losses, claims, damages, liabilities or actions, as
well as any other relevant equitable considerations.
The relative fault will be determined by reference to,
among other things, whether the untrue or alleged
untrue statement of a material fact relates to
information supplied by ASI, on the one hand, or the
underwriters and the sellers of such Restricted Stock,
on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to
correct or prevent such statement or omission. ASI and
each of you agree that it would not be just and
equitable if contributions pursuant to this paragraph
were determined by pro rata allocation (even if all of
the sellers of such Restricted Stock were treated as
one entity for such purpose) or by any other method of
allocation which did not take account of the equitable
considerations referred to above in this paragraph.
The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities or
actions in respect of any of such losses, claims,
damages or liabilities, referred to above in this
paragraph, will be deemed to include any legal or other
expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of
this paragraph, no seller under this Agreement will be
required to contribute any amount in excess of the
lesser of (i) the proportion that the number of shares
sold by such seller under such registration statement
bears to the total number of all securities sold under
such registration statement, but not to exceed the
proceeds received by such seller for the sale of
Restricted Stock covered by such registration statement
and (ii) the amount of any damages which they would
have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No
person guilty of fraudulent misrepresentations (within
the meaning of Section 11(f) of the Securities Act),
will be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for
in this Section 5 will be on such other terms and
conditions as are at the time customary and reasonably
required by such underwriters, and in that event the
indemnification of the sellers of Restricted Stock in
such underwriting will at the sellers' request be
modified to conform to such terms and conditions.
6. Changes in Common Stock. If, and as often as,
there are any changes in the Common Stock by way of
stock split, stock dividend, combination or
reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other
means, appropriate adjustment will be made in the
provisions of this Agreement, as may be required, so
that the rights and privileges granted by this
Agreement will continue with respect to the Common
Stock as so changed.
7. Miscellaneous.
(a) All covenants and agreements contained
in this Agreement by or on behalf of any of the
parties to this Agreement will bind and inure to
the benefit of the respective successors and
assigns of the parties to this Agreement whether
so expressed or not.
(b) All notices, requests, consents and
other communications under this Agreement will be
in writing and will be mailed by first class
registered mail, postage prepaid, addressed as
follows:
(i) if to ASI, to it at: 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx Xxxxxx;
(ii) if to a Shareholder, at the
address for notice set forth opposite such
Shareholder's signature below;
(iii) if to any subsequent holder of
Restricted Stock, to it at such address as
may have been furnished to ASI in writing by
such holder;
or, in any case, at such other address or
addresses as will have been furnished in writing
to ASI (in the case of a holder of Restricted
Stock) or to the holders of Restricted Stock (in
the case of ASI).
(c) This Agreement will be governed by and
construed in accordance with the laws of the State
of Colorado.
(d) This Agreement constitutes the entire
agreement of the parties with respect to the
subject matter of this Agreement and may not be
modified or amended except in writing.
(e) This Agreement may be executed in two or
more counterparts, each of which will be deemed an
original, but all of which together will
constitute one and the same instrument.
(f) 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 dated
December 22, 1995, between the Company,
Intelligraphics, Inc., the Shareholders, the
members of the board of ASI who are voting
trustees under the Voting Trust Agreement and Bank
One, Colorado.
This Agreement may be executed in two or more
counterparts, each of which will be deemed an original,
but all of which together will constitute one and the
same instrument.
Please indicate your acceptance of the foregoing
by sighing and returning the enclosed counterpart of
this letter, whereupon this letter (sometimes called
"this Agreement") will be a binding agreement between
ASI and you.
Very truly yours,
ANALYTICAL SURVEYS, INC.
By: /s/ X.X. Xxxxxx
--------------------
Title: President and
Chief Executive Officer
AGREED TO AND ACCEPTED ADDRESS FOR NOTICE:
as of the date first
above written.
/s/ A. Xxxxxxx Xxxxxxxx
----------------------- Suite 40
A. Xxxxxxx Xxxxxxxx 000 Xxxx Xxxxxxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxxx
----------------------- 523 W23124 Broadway
Xxxxxxx Xxxxxxx Xxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxx
----------------------- W316 00000 Xxxx Xxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxx
----------------------- 0000 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxxx, XX 00000
/s/ Xxxxx Xxxxx
----------------------- 000 Xxxxxx Xxxxx, #X
Xxxxx Xxxxx Xxxxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxxx
----------------------- 0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxxx Xxxxxxxx, XX 00000
/s/ Xxxxx Xxxxx
----------------------- 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx Xxxxxxxxx, XX 00000
DISTRIBUTION LIST
A. Xxxxxxx Xxxxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 00
Xxxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxx Xx. Xxxxx X. Xxxxxx
523 W23124 Broadway W316 00000 Xxxx Xxxxx
Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xx. Xxxxx X. Xxxxx Mr. Xxxx Xxxxxx
0000 Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xx. Xxxxx Xxxxx Xx. Xxxxx Xxxxxxx
000 Xxxxxx Xxxxx, #X 0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
