Bank One, Colorado, NA
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Escrow Agreement
This escrow agreement entered into by and between Bank One, Colorado, NA,
as Escrow Agent, Analytical Surveys, Inc. (the "Buyer"), and Xxx X. Xxxxxx (the
"Seller"). These instructions may be supplemented, altered, amended, modified or
revoked by writing only, signed by all of the parties hereto, and approved by
the Escrow Agent, upon payment of all fees, costs and expenses incident thereto.
No assignment, transfer, conveyance or hypothecation of any right, title or
interest in and to the property deposited with the Escrow Agent pursuant to this
Agreement, as described in the attached Schedule A (collectively referred to as
the "Escrowed Property"), shall be binding upon the Escrow Agent unless written
notice thereof shall be served upon the Escrow Agent and all fees, costs and
expenses incident thereto have been paid and then only upon the Escrow Agent's
assent thereto in writing.
The Escrow Agent will hold in an account (the "Escrow Account"), invest, if
applicable, and disburse the Escrowed Property pursuant to instructions set
forth in the attached Schedule B.
Any notice required or desired to be given by the Escrow Agent to any party
to this Escrow may be given by mailing the same addressed to such party at the
address given below the signature of such party or the most recent address of
such party shown on the records of the Escrow Agent, and notice so mailed shall
for all purposes hereof be as effectual as though served upon such party in
person at the time of depositing such notice in the mail.
The Escrow Agent may receive any payment called for hereunder after the due
date thereof unless subsequent to the due date of such payment and prior to the
receipt thereof the Escrow Agent shall have been instructed in writing to refuse
any such payment.
The Escrow Agent shall not be personally liable for any act it may do or
omit to do hereunder as such agent, while acting in good faith and in the
exercise of its own best judgment, and any act done or omitted by it pursuant to
the advice of its own attorneys shall be conclusive evidence of such good faith.
The Escrow Agent is hereby expressly authorized to disregard any and all
notices or warnings given by any of the parties hereto, or by any other person,
firm or corporation excepting only orders of process of court, and is hereby
expressly authorized to comply with and obey any and all process, orders,
judgments, or decrees of any court, and in case the Escrow Agent obeys or
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complies with any such process, order, judgment or decree of any court it shall
not be liable to any of the parties hereto or to any other person, firm, or
corporation by reason of such compliance, notwithstanding any such process,
order, judgement or decree be subsequently reversed, modified, annulled, set
aside or vacated, or found to have been issued or entered without jurisdiction.
In consideration of the acceptance of the escrow by the Escrow Agent, the
undersigned agree, jointly and severally, for themselves, their heirs, legal
representatives, successors and assigns, to pay the Escrow Agent its charges
hereunder and to indemnify and hold it harmless as to any liability by it
incurred to any other person, firm or corporation by reason of its having
accepted the same, or its carrying out any of the terms thereof, and to
reimburse it for all its expenses, including, among other things, reasonable
counsel fees and court costs incurred in connection herewith; and that the
Escrow Agent shall have a first and prior lien upon all deposits made hereunder
to secure the performance of said agreement of indemnity and the payment of its
charges and expenses, hereby expressly authorizing the Escrow Agent, in the
event payment is not received promptly from the undersigned, to deduct such
charges and expenses, without previous notice, from any funds deposited
hereunder, shall be as written above the Escrow Agent's signature at the time of
acceptance hereof.
The Escrow Agent shall be under no duty or obligation to ascertain the
identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver these instructions or any documents or papers
or payments deposited or called for hereunder, and assumes no responsibility or
liability for the validity or sufficiency of these instructions or any documents
or papers or payments deposited or called for hereunder.
The Escrow Agent shall not be liable for the outlawing of any rights under
any Statute of Limitations or by reason of laches in respect to the instructions
or any documents or papers deposited.
In the event of any dispute between the parties hereto as to the facts of
default, the validity or meaning of these instructions or any other fact or
matter relating to the transaction between the parties, the Escrow Agent is
instructed as follows:
(a) That it may in its sole and absolute discretion deposit the
property described herein or so much thereof as remains in its hands with
the Clerk, or acting Clerk, of the District Court of the City and County of
Denver, State of Colorado, and interplead the parties hereto, and upon so
depositing such property and filing under the terms hereof as to the
property so deposited, and furthermore, the parties hereto for themselves,
their heirs, legal representatives, successors and assigns do hereby submit
themselves to the jurisdiction of said court and do hereby appoint the then
Clerk, or acting Clerk, of said court as their Agent for the service of all
process in connection with such proceedings. The institution of any such
interpleader action shall not impair the rights of the Escrow Agent under
the paragraph beginning "In consideration of the acceptance..."
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(b) That it shall be under no obligation to act, except under process
or order of court, or until it has been adequately indemnified to its full
satisfaction, and shall sustain no liability for its failure to act pending
such process or court order of indemnification.
The provisions of these instructions shall be binding upon the legal
representatives, heirs, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the undersigned have hereunto affixed their signatures
as of this date 7/2/97 .
Name: ANALYTICAL SURVEYS, INC. Name: XXX X. XXXXXX
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxx X. Xxxxxx
---------------------------- -----------------------------
Address: 0000 Xxxxxxxx Xxxxx #000 Address: Xx. Xxx X. Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000 c/o Xx. Xxxxxxx X. Xxxxxx
Attn: Xxxxxx X. Xxxxxx Xxx. S. Olive & Co. LLC
100 Capital Center South
000 X. Xxxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
No of copies signed ____. Accepted
Bank One, Colorado, NA,
as Escrow Agent
By: /s/ X.X. Xxxxx, S.V.P.
--------------------------
Attached: 1) Addendum to Escrow Agreement
2) Schedule A
3) Schedule B
4) Schedule C
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Addendum to Escrow Agreement
1. Exculpation and Indemnification of Escrow Agent
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(a) The Escrow Agent shall have no duties or responsibilities other
than those expressly set forth herein. The Escrow Agent shall have no duty
to enforce any obligation of any person to make any payment or delivery or
to direct or cause any payment or delivery to be made, or to enforce any
obligation of any person to perform any other act. The Escrow Agent shall
be under no liability to any party hereto or to anyone else by reason of
any failure on the part of any party hereto or any maker, guarantor,
endorser or other signatory of any document or any other person to perform
such person's obligations under any such document. Except for amendments to
this Agreement referred to in Section 5(b) of this Addendum and except for
instruction given to the Escrow Agent by the other party hereto relating to
the Escrow Account, the Escrow Agent shall not be obligated to recognize
any agreement between any or all of the persons referred to herein,
notwithstanding that references thereto may be made herein and whether or
not it has knowledge thereof.
(b) The Escrow Agent shall not be liable to any other party hereto or
to anyone else for any action taken or omitted by it, or any action
suffered by it to be taken or omitted, in good faith and in the exercise of
its own best judgment, except for fraud, negligence, or willful misconduct.
The Escrow Agent may rely conclusively and shall be protected in acting
upon any order, notice, demand, certificate, opinion or advice of counsel
(including counsel chosen by the Escrow Agent), statement, instrument,
report or other paper or document (not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth and
acceptability of any information therein contained) that is believed by the
Escrow Agent to be genuine and to be signed or presented by the proper
person or persons. The Escrow Agent shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this
Agreement or any of the terms hereof, unless evidenced by a written notice
delivered to the Escrow Agent signed by the proper party or parties and, if
the duties or rights of the Escrow Agent are affected, unless it shall give
its prior written consent thereto.
(c) The Escrow Agent shall not be responsible for the sufficiency or
accuracy of the form of, or the execution, validity, value or genuineness
of, any document or property received or held by it hereunder, or of any
signature or endorsement thereon, or for any lack of endorsement thereon,
or for any description therein, nor shall the Escrow Agent be responsible
or liable to the other parties hereto or to anyone else in any respect on
delivering or purporting to execute or deliver any document or property or
this Agreement, other than on behalf of or in the name of the Escrow Agent.
The Escrow Agent shall have no responsibility with respect to the use or
application of any funds or other property paid or delivered by the Escrow
Agent pursuant to the provision hereof. Except as provided in Section 1(b)
above, the Escrow Agent shall not be liable to any other party hereto or to
anyone else for any loss that may be incurred by reason of any investment
of any monies that it holds hereunder.
(d) The Escrow Agent shall have the right to assume, in the absence of
written notice to the contrary from the proper person or persons, that a
fact or an event by reason of which an action would or might be taken by
the Escrow Agent does not exist or has not occurred, without incurring
liability to the other parties hereto or to anyone else for any action
taken or omitted, or any action suffered by it to be taken or omitted, in
good faith and in the exercise of its own best judgment, in reliance upon
such assumption; provided, however, that the Escrow Agent shall be liable
for any such liability resulting from its own fraud, negligence or willful
misconduct.
(e) To the extent that the Escrow Agent becomes liable for the payment
of taxes, including withholding taxes, in respect of income derived from
the investment of funds held hereunder or any payment made hereunder, and
held harmless against any liability for taxes and for any penalties or
interest in respect of taxes, on such investment income or payments in the
manner provided in Section 1(f).
(f) The Escrow Agent shall be indemnified and held harmless from and
against any and all expenses, including reasonable counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection with any
action, suit or other proceeding involving any claim, or in connection with
any claim or demand, that in any way, directly or indirectly, arises out of
or relates to this Agreement, the services of the Escrow Agent hereunder,
the monies or other property held by it hereunder or any income earned from
investment of such monies; provided, however, that if the Escrow Agent has
been determined to be guilty of fraud, negligence or willful misconduct,
the Escrow Agent shall not be entitled to indemnification hereunder.
Promptly after the receipt by the Escrow Agent of notice of any such
action, suit or other proceeding, the Escrow Agent shall, if a claim in
respect thereof is to be made against any of the other parties hereto,
notify such other parties thereof in writing; the failure by the Escrow
Agent to give such notices shall relieve such other parties from any
liability that such parties may have to the Escrow Agent under this Section
1(f) as the particular item for which indemnification is being sought, but
not from any other liability that any of them may have to the Escrow Agent.
Each of the other parties hereto will be entitled to participate in the
defense of any action, suit or proceeding for which indemnification is
sought hereunder and, to the extent any of them so desires, jointly with
any of the other parties hereto, to assume such defense, with counsel who
shall be reasonably satisfactory to the Escrow Agent, and after notice from
any of the other parties hereto to the Escrow Agent of such parties'
election so to assume such defense, none of the other parties hereto will
be liable to the Escrow Agent under this Section 1(f) for any legal or
other expense subsequently incurred by the Escrow Agent in connection with
such defense other than reasonable costs of investigation.
2. Compensation of Escrow Agent
----------------------------
The Escrow Agent shall be entitled to reasonable compensation for the
services rendered by it hereunder, as set forth on Schedule C. The Escrow Agent
shall also be entitled to reimbursement for all expenses (pre-approved) paid or
incurred by it in the administration of its duties hereunder, including, but not
limited to, all counsel advisors' and agents' fees and disbursements and all
taxes or other governmental charges.
3. Termination of Agreement and Resignation of Escrow Agent
-------------------------------------------------------------
(a) This Agreement shall terminate on the final disposition of the
monies and property held in escrow hereunder, provided that the rights of
the Escrow Agent and the obligations of the other parties hereto under
Sections 1 and 2 shall survive the termination hereof.
(b) The Escrow Agent may resign at any time and be discharged from its
duties as Escrow Agent hereunder by giving the other parties hereto at
least 60 days' notice thereof. The Escrow Agent may be removed at any time
by giving to the other parties hereto at least 30 days' notice hereof. As
soon as practicable after its resignation or removal, the Escrow Agent
shall turn over to a successor escrow agent appointed by the other parties
hereto all monies and property held hereunder (less such amount as the
Escrow Agent is entitled to retain pursuant to Section 1(e)) upon
presentation of the document appointing the new escrow agent and its
acceptance thereof. If no new escrow agent is so appointed within the
60-day period following such notice of resignation or the 30-day period
following such notice of removal, the Escrow Agent may deposit the
aforesaid monies and property with any court in the State of Colorado, it
deems appropriate. If the Escrow Agent is removed, it shall be entitled to
(i) the full payment of its flat fee, (ii) compensation for services
rendered prior to such removal and (iii) pre-approved out-of-pocket
expenses incurred prior to such removal, all as set forth on Schedule C.
4. Notices
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All notices, request, demands and other communications provided for herein
shall be in writing, shall be delivered by hand, first-class mail or overnight
express, shall be deemed given when received and shall be addressed to the
parties hereto at their respective addresses listed below or to such other
persons or addresses as the relevant party shall designate as to itself from
time to time in writing delivered in like manner.
5. Miscellaneous
-------------
(a) All amounts referred to herein are expressed in United States
dollars and all payments by the Escrow Agent shall be made in such dollars.
(b) This Agreement shall be binding upon and inure to the benefit of
each party's respective successors, heirs, and permitted assigns. No other
person shall acquire or have any rights under of by virtue of this
Agreement. This Agreement may not be changed orally or modified, amended or
supplemented without an express written agreement executed by the Escrow
Agent and the other parties hereto.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado. The representations and warranties
contained in this Agreement shall survive the execution and delivery hereof
and any investigation made by any party. The headings in this Agreement are
for purposes of reference only and shall not limit or otherwise affect any
of the terms hereof.
SCHEDULE A
Deposits
The Escrowed Property will consist of cash in the amount of $200,000 (the
"Escrowed Cash") and 92,500 shares of common stock of the Buyer (the "Escrowed
Shares") deposited with the Escrow Agent.
SCHEDULE B
Instructions
1. Payments from the Escrow Account. The Escrow Agent will make
distributions from the Escrow Account as follows:
(a) As directed in a written notice executed by ASI and the
Seller.
(b) As directed by a written arbitral award or court order.
(c) On the first Business Day following the Escrow Agent's
receipt of a joint notice from ASI and the Seller to the effect
that the Closing Date Balance Sheet has been completed and agreed
upon, the Escrow Agent will pay the Escrowed Cash to the Seller
and/or ASI in the respective amounts specified in that notice.
Any interest accrued on the Escrowed Cash will be paid to the
Seller.
(d) On November 30, 1998, the Escrow Agent will deliver to
the Seller 46,250 of the Escrowed Shares, less the sum of:
(i) all Escrowed Shares delivered to ASI pursuant to Section
2 of this Schedule prior to November 30, 1998, plus
(ii) all Escrowed Shares then being reserved by the Escrow
Agent in respect of Claim Certificates received prior to November
30, 1998.
(e) On November 30, 1999, the Escrow Agent will deliver to
the Seller the remaining Escrowed Shares, less all Escrowed
Shares then being reserved by the Escrow Agent in respect of
Claim Certificates received prior to such date.
(f) If less than all of the remaining Escrowed Property is
transferred to the Seller on November 30, 1999, at such time as
the Escrow Agent is no longer reserving any amounts in the Escrow
Account in respect of Claim Certificates and has made all
payments to ASI due under Sections 2(c) and 2(d) of this
Schedule, the Escrow Agent will promptly transfer to the Seller
all Escrowed Shares then remaining in the Escrow Account.
2. Claims by ASI.
(a) At any time prior to November 30, 1999, ASI may deliver
to the Escrow Agent a certificate executed by ASI (a "Claim
Certificate") which Claim Certificate will:
(i) state that ASI has paid or incurred or reasonably
expects to pay or incur an amount against which it is or
will be entitled to indemnification under Article VI of the
Purchase Agreement (an "Indemnification Amount");
(ii) state the Indemnification Amount to the extent
that it has actually been paid or incurred and is definite
in amount or give a reasonable estimate of the maximum
Indemnification Amount to the extent that it has not
actually been paid or incurred or is not definite in amount,
identifying separately the amounts in each category;
(iii) specify in reasonable detail the facts and
circumstances giving rise to each Indemnification Amount,
including, if applicable, a reference to the section or
sections of the Purchase Agreement containing the
representation or warranty of the Seller alleged to have
been breached; and
(iv) request immediate payment from the Escrowed
Property of the portion of the Indemnification Amount that
has actually been paid or incurred by ASI and is definite in
amount (a "Payment Request") or instruct the Escrow Agent to
reserve from the Escrowed Property an estimated amount for
the portion of the Indemnification Amount that is expected
to be incurred by ASI or is not definite in amount (a
"Reservation Instruction").
If the Escrow Agent receives a Claim Certificate prior to November 30,
1999, the Escrow Agent will promptly deliver a copy of such Claim Certificate to
the Seller.
(b) If the Seller objects to any Payment Request in any
Claim Certificate, the Seller will, within 10 days after delivery
by the Escrow Agent to the Seller of such Claim Certificate,
deliver to the Escrow Agent a certificate of the Seller, executed
by the Seller (an "Objection Certificate") which Objection
Certificate will (i) identify the Claim Certificate to which it
relates and the particular Payment Request (or portion of such
Payment Request) to which the Seller objects; and (ii) describe
in reasonable detail the basis for the objection to the Payment
Request or state that the Seller lacks sufficient information to
determine whether ASI is or will be entitled to indemnification
against the Indemnification Amount described in the Payment
Request or the amount of such Payment Request. Promptly upon
receipt of an Objection Certificate, the Escrow Agent will
deliver a copy of such Objection Certificate to ASI.
(c) If the Escrow Agent does not receive an Objection
Certificate objecting to a Payment Request within the time
specified in Section 2(b) of this Schedule, the Escrow Agent will
promptly transfer to ASI out of the Escrow Account the amount of
such Payment Request. If, within the time specified in Section
2(b), the Escrow Agent receives an Objection Certificate
objecting to only a portion of a Payment Request, the Escrow
Agent will so transfer to ASI the amount of the Payment Request
to which the Seller did not object.
(d) If the Escrow Agent receives, within the time specified
in Section 2(b) of this Schedule, an Objection Certificate
objecting to all or any portion of the Payment Request, the
amount so objected to will be reserved by the Escrow Agent in the
Escrow Account until receipt by the Escrow Agent of either (i)
joint written instructions from ASI and the Seller or (ii) a
written arbitral award or court order. Promptly after its receipt
of such instructions or such an award or order, the Escrow Agent
will transfer to ASI out of the Escrow Account, the amount to
which ASI is entitled under such instructions, award, or order,
except that if the payment to ASI is made after November 30,
1999, the amount paid to ASI will not exceed the amount
previously reserved in respect of the Payment Request. The
balance, if any, of the amount reserved in respect of the Payment
Request will be held in the Escrow Account until disbursed in
accordance with the provisions of this Agreement, but will no
longer be reserved except that if the payment to ASI under this
Section 2(d) is made after any date on which a payment or
delivery is required to be made to the Seller under Section
1(c)(i) or 1(c)(ii) (each, a "Distribution Date") in respect of a
Claim Certificate received before that Distribution Date, such
balance will be paid to the Seller to the extent that it would
have been so paid on that Distribution Date had it not then been
reserved in respect of the Payment Request.
(e) If the Escrow Agent receives a Reservation Instruction
within the time specified in Section 2(a), the amount specified
in the Reservation Instruction will be reserved by the Escrow
Agent in the Escrow Account until receipt by the Escrow Agent of
(i) joint written instructions from ASI and the Seller directing
the disposition of such amount, (ii) a Claim Certificate
containing a Payment Request with respect to the Indemnification
Amount to which the Reservation Instruction relates, or (iii) a
written arbitral award or court order determining the disposition
of such amount. If the Escrow Agent receives joint written
instructions, an arbitral award, or a court order, it will hold
or dispose of the amount specified in the Reservation Instruction
in accordance with such instructions, award, or order. If the
Escrow Agent receives a Payment Request with respect to the
Indemnification Amount to which the Reservation Instruction
relates, it will proceed as provided in Section 2(a) through (d)
of this Schedule, even though the Payment Request is received on
or after November 30, 1999, but no such Payment Request received
on or after November 30, 1999 may request payment of more than
the amount reserved in respect of the Reservation Instruction. If
the Payment Request specifies an amount that is less than the
amount specified in the Reservation Instruction, the excess will
be held in the Escrow Account until disbursed in accordance with
the provisions of this Agreement, but will no longer be reserved,
except that if such Payment Request is received after a
Distribution Date and the Reservation Instruction was given
before that Distribution Date, such excess will be paid to the
Seller to the extent that it would have been so paid on that
Distribution Date had it not then been reserved in respect of the
Reservation Instruction. The Seller need not object to any
Reservation Instruction and the failure to object will not imply
any agreement by the Seller that ASI is entitled to
indemnification against any or all of the Indemnification Amount
described in such Reservation Instruction. If the Seller does not
believe that all or any portion of the Indemnification Amount
described in a Reservation Instruction is indemnifiable under the
Purchase Agreement, or believes that the amount specified in a
Reservation Instruction is unreasonable, its remedy will be to
submit the matter to arbitration as provided in the Purchase
Agreement.
3. Average Closing Price. All Reservation Instructions and payments will be
calculated on the basis of the Escrowed Shares being valued at 90% of the
Average Closing Price (as defined below) of the common stock of ASI (the
"Stock"). The Average Closing Price of the Stock on any date will be the average
of the closing price of the Stock on the 10 trading days ending one trading day
prior to that date as reported by the principal exchange on which it is traded
on each such day or, if it is not traded on an exchange on any such day, as
reported by Nasdaq. If the closing price of the Stock is not reported for any
such day, the closing price of the Stock will be the average of the bid and
asked prices for that day as reported by Nasdaq, or, if bid and asked prices are
not reported by Nasdaq on any such day, as reported by the National Quotation
Bureau, Inc. If the Average Closing Price cannot be determined in any of the
ways described above, the Average Closing Price will mean the fair market value
of the Stock as determined by ASI in any reasonable manner.
4. Notice of Average Closing Price. In determining how many Escrowed Shares
are to be distributed under Section 2(a)(iv) of this Schedule, the Escrow Agent
may rely on a notice from ASI that sets forth the calculation of the Average
Closing Price, together with copies of the pertinent pages of The Wall Street
Journal containing the information utilized in determining the Average Closing
Price. For the purposes of a distribution pursuant to a Payment Request, the
Escrowed Shares will be valued as of the date of such distribution. For the
purposes of reserving any Escrowed Shares pursuant to a Reservation Instruction,
any such Reservation Instruction must contain a notice from ASI, as described
above in this Section, setting forth the Average Closing Price as of the date of
such notice. If Escrowed Shares are initially reserved and subsequently some or
all of the reserved shares are required to be distributed, the value of the
shares will be redetermined as of the date of each such distribution and the
number of shares actually distributed will be based on that redetermined value.
If the application of the Average Closing Price does not result in a whole
number of Escrowed Shares to be reserved or distributed, the Escrow Agent will
round the number of shares to be reserved or distributed up to the next highest
whole share.
