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
Willem 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.
By: /s/ Xxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
SHAREHOLDER:
/s/ A. Xxxxxxx Xxxxxxxx
A. Xxxxxxx Xxxxxxxx
SHAREHOLDER:
Xxxx Xxxxxx
SHAREHOLDER:
Xxxxxxx Xxxxxxx
SHAREHOLDER:
Xxxxx Xxxxxx
SHAREHOLDER:
Xxxxx Xxxxx
SHAREHOLDER:
Xxxxx Xxxxx
SHAREHOLDER:
Xxxxx Xxxxxxx
TRUSTEE
Xxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx XxxXxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxx
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 Xxxxx, 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
