REGISTRATION RIGHTS AGREEMENT
(Including Restrictions on Transfer)
[Individuals]
June 26, 1998
TO THE PERSONS LISTED ON THE
ATTACHED DISTRIBUTION LIST
Dear Sirs:
This Agreement is being executed in conjunction with a Lock-Up Agreement
dated the same date as this Agreement. This will confirm that in connection
with the merger (the "Merger") of Cartotech, Inc., a Texas corporation
("Cartotech") with and into Surveys Holdings, Inc., a Texas corporation (the
"Company"), pursuant to the Agreement and Plan of Merger dated June 11, 1998
(the "Merger Agreement"), between Analytical Surveys, Inc., a Colorado
corporation ("ASI"), and the Company on the one hand, and the Cartotech, Inc.
Employee Stock Ownership and 401(k) Trust (the "ESOP"), The Xxxxx Family Limited
Partnership (the "Xxxxx Partnership"), The Xxxxxxxxx Family Limited Partnership
(the "Xxxxxxxxx Partnership") and Xxxxxx Xxxxxxx, III ("Xxxxxxx," with the Xxxxx
Partnership, the Xxxxxxxxx Partnership and Xxxxxxx being individually referred
to as a "Shareholder" and collectively as the "Shareholders") on the other hand,
the Investor Representation Letter dated June 26, 1998 executed by the ESOP and
by each Shareholder, and related transfer documents, ASI hereby covenants and
agrees with each of you, and with any Permitted Transferee of the Restricted
Stock (as defined below), as follows:
1. CERTAIN DEFINITIONS. The following terms have the following
respective meanings:
"AGREEMENT" means this Registration Rights Agreement.
"CLOSING DATE" means the date of this Registration Rights Agreement.
"COMMISSION" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"COMMON STOCK" means the shares of common stock, no par value, of ASI as
constituted as of the date of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same are in effect at the time.
"PERMITTED TRANSFEREES" means, for each Shareholder, trusts or other
entities created for the exclusive benefit of, or beneficially owned exclusively
by, a Shareholder.
"REGISTRATION EXPENSES" means the expenses so described in Section 7.
"RESTRICTED STOCK" means the shares of Common Stock issued to the
Shareholders pursuant to the Merger Agreement and any additional shares of
Common Stock or other securities issued in respect of such shares in connection
with a stock dividend, stock split, recapitalization, reclassification or other
transaction affecting ASI's outstanding Common Stock.
"SECURITIES ACT" means the Securities Act of 1933 or any similar federal
statute, and the rules and regulations of the Commission under the Securities
Act of 1933, all as the same are in effect at the time.
"SELLING EXPENSES" means the expenses so described in Section 7.
"TRANSFER" means a sale, exchange, assignment, pledge or other disposition
of Restricted Stock or any interest in such Restricted Stock, whether voluntary
or by operation of law, excluding a Transfer to a Permitted Transferee.
2. RESTRICTIVE LEGEND. Each certificate representing Restricted Stock
until such legend is removed or such shares are sold in accordance with the
other provisions of this Agreement, will be stamped or otherwise imprinted with
a legend substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE (A) HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE,
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY
HAVE BEEN REGISTERED UNDER THAT ACT AND ALL APPLICABLE STATE
SECURITIES LAWS OR EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS
THEREOF ARE AVAILABLE, AS ESTABLISHED TO THE SATISFACTION OF THE
COMPANY, BY OPINION OF COUNSEL OR OTHERWISE, AND (B) ARE SUBJECT TO
CONTRACTUAL RESTRICTIONS ON RESALE AND TRANSFER UNDER AGREEMENTS
BETWEEN THE HOLDER AND THE COMPANY, COPIES OF WHICH ARE AVAILABLE FOR
INSPECTION AT THE OFFICES OF THE COMPANY."
3. RESTRICTIONS ON SALE AND NOTICE OF PROPOSED TRANSFER. None of the
Shareholders will Transfer any shares of the Restricted Stock prior to the first
anniversary of the Closing Date, except in accordance with the Lock-Up Agreement
and the requirements of Section 9. After the first anniversary, the
Shareholders may transfer the One-Year Shares (as defined in the Lock-Up
Agreement) pursuant to the exercise of Incidental Rights (as defined below) as
set forth in Section 4(a)(ii).
Prior to any proposed transfer of any Restricted Stock (other than under
the circumstances described in Section 4), the transferring Shareholder will
give written notice to ASI of its intention to effect such transfer. Each such
notice will describe the manner of the proposed transfer and, if requested by
ASI will be accompanied by an opinion of counsel reasonably satisfactory to ASI
to the effect that the proposed transfer of the Restricted Stock may be effected
without registration under the Securities Act and any state securities laws, at
which point such Restricted Stock may be transferred in accordance with the
terms of its notice. Each certificate of Restricted Stock transferred as
provided above will bear the legend set forth in Section 2, unless (i) such
transfer is in accordance with the provisions of Rule 144 (or any other rule
permitting public sale without registration under the Securities Act) or (ii)
the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee would be entitled to transfer such
securities in a public sale without registration under the Securities Act.
The foregoing restrictions on transferability of Restricted Stock will
terminate as to any particular shares of Restricted Stock when such shares have
been effectively registered under the Securities Act and sold or otherwise
disposed of in accordance with the intended method of disposition by the seller
or sellers of such shares set forth in the registration statement concerning
such shares, or when the legend set forth in Section 2 is removed from the
certificates representing such shares in accordance with the immediately
preceding sentence of this Section 3. If the transferring Shareholder is able
to demonstrate to the reasonable satisfaction of ASI (and its counsel) that the
provisions of Rule 144(k) of the Securities Act are available to the
transferring Shareholder without limitation, the transferring Shareholder will
be entitled to receive from ASI without expense, a new certificate not bearing
the restrictive legend set forth in Section 2.
4. INCIDENTAL REGISTRATION RIGHTS.
(a) The Shareholders have incidental registration rights as described
in Section 4(b) (the "Incidental Rights") with respect to the One-Year Shares,
with the following limitations: (i) the Shareholders will have no Incidental
Rights prior to the first anniversary of the Closing Date, and (ii) after the
first anniversary, but before the second anniversary, of the Closing Date the
Incidental Rights are limited to the One-Year Shares owned by a Shareholder.
(b) After the first anniversary of the Closing Date, and before the
second anniversary of the Closing Date, each time ASI proposes to register any
of its equity securities under the Securities Act (other than a registration
effected solely to implement an employee benefit or stock option plan, to sell
shares obtained under any employee benefit or stock-option plan or a transaction
to which Rule 145 or any other similar rule of the Commission under the
Securities Act is applicable, or a registration on any form which is not
available for the registration of Restricted Stock), ASI will give written
notice to the Shareholders of its intention to do so. Any Shareholder may give
ASI a written request to register all or some of the Restricted Stock in the
registration described in the written notice from ASI, provided that such
written request is given within 20 days after receipt of any such notice from
ASI, with such
request stating the number of shares of Restricted Stock to be disposed of
and the intended method of disposition of such Restricted Stock. Upon receipt
of such request, ASI will use its best efforts to cause promptly all such
shares of Restricted Stock intended to be disposed of to be registered under
the Securities Act so as to permit their sale or other disposition in
accordance with the intended methods set forth in the request for
registration; PROVIDED, HOWEVER, that if the registration relates to an
underwritten offering, (i) the requesting Shareholders' right to have shares
of Restricted Stock included in the registration will be contingent upon the
requesting Shareholders agreeing to include such Restricted Stock in the
offering and entering into an underwriting agreement as provided in Section
6, and (ii) if the managing underwriter of such offering determines
reasonably and in good faith in writing that the inclusion of all of the
shares of Restricted Stock as to which the requesting Shareholders have
requested registration would adversely affect the offering, the number of
shares to be registered for the account of such requesting Shareholders will
be reduced to the extent necessary to reduce the total number of shares to be
included in such offering to the amount recommended by such managing
underwriter. Any reduction under clause (ii) will be made against all
persons (other than ASI) who have elected to include shares of Common Stock
in the registration pursuant to the exercise of incidental registration
rights granted by ASI, in proportion to the number of shares that each had
been entitled to request, and had requested, ASI to include in the
registration. The Incidental Rights under this section apply to a
registration to be effected for securities to be sold for the account of ASI,
as well as a registration statement which includes securities to be offered
for the account of other holders of ASI equity securities.
5. PURCHASE IN LIEU OF REGISTRATION. If the Shareholders exercise
Incidental Rights as to any shares of the Restricted Stock (a "Registration
Notice"), then ASI will have the option (the "Option"), which Option may be
exercised only to the extent not prohibited by Section 0-000-000 of the Colorado
Business Corporation Act, to purchase any or all of such shares, in lieu of
registering them, at the current market price determined as follows: as to each
share of Common Stock, the average of the daily closing prices for the Common
Stock for the 20 consecutive trading days before the day the Registration Notice
was received by ASI. The closing price for each day will be the last reported
sale price regular way, or, in case no such reported sale takes place on such
day, the reported closing price regular way, in either case on the composite
tape, or if the Common Stock is not quoted on the composite tape, on the
principal United States securities exchange registered under the Securities
Exchange Act of 1934, on which the Common Stock is listed or admitted to
trading, or if it is not listed or admitted to trading on any such exchange, the
closing sale price (or the average of the quoted closing bid and asked prices if
no sale is reported) as reported by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ"), or any comparable system, or if
the Common Stock is not quoted on the NASDAQ, or any comparable system, the
average of the closing bid and asked prices quoted to the public by a person
then making a market in the Common Stock, and if no person is a market maker in
the Common Stock, then the average of the closing bid and asked prices furnished
by any member of the National Association of Securities Dealers, Inc. ASI may
exercise the Option at any time within 15 days after receiving the Registration
Notice by giving the selling Shareholders written notice of its election to
exercise. Such notice must specify the number of shares of the Restricted Stock
that ASI elects to purchase, the current market price as determined according to
the formula set forth above, and the date of payment for such shares,
which will be within 60 days after XXX's receipt of the Registration Notice.
On the date fixed for payment in ASI's notice of exercise, the selling
Shareholders will deliver certificates representing the shares of Restricted
Stock that ASI has elected to purchase, duly endorsed for transfer to ASI,
free and clear of liens, claims and encumbrances, to ASI at its principal
executive offices against payment by ASI of the purchase price for such
shares. If ASI elects to purchase less than all of the shares covered by a
Registration Notice, it will be obligated to register the balance of such
shares, subject to the provisions of Section 4.
6. REGISTRATION PROCEDURES. As to any shares of Restricted Stock that are
subject to a Registration Notice under the Incidental Rights and as to which ASI
does not exercise the Option provided for in Section 5, ASI will:
(a) after the expiration of the period within which ASI may exercise
the Option, prepare and file with the Commission, a registration statement
with respect to such securities;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement to comply with the provisions
of the Securities Act with respect to the disposition of all Restricted
Stock covered by such registration statement in accordance with the selling
Shareholders intended method of disposition set forth in such registration
statement for such period;
(c) furnish to the selling Shareholders and to each underwriter such
number of copies of the registration statement and the prospectus included
in the registration statement (including each preliminary prospectus) as
such persons may reasonably request in order to facilitate the public sale
or other disposition of Restricted Stock covered by such registration
statement;
(d) use its best efforts to register or qualify Restricted Stock
covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the selling Shareholders or, in the case of
an underwritten public offering, the managing underwriter, reasonably
requests, if such registrations are required by law;
(e) immediately notify the selling Shareholders and each underwriter,
at any time when a prospectus relating to such registration statement is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated in such
prospectus or necessary to make the statements in such prospectus not
misleading in light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to
furnish, at the request of the selling Shareholders on the date that
Restricted Stock is delivered to
the underwriters for sale pursuant to such registration: (i) an opinion
dated such date of counsel representing ASI for the purposes of such
registration, addressed to the underwriters and to the ESOP Trustee
stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel no
stop order suspending the effectiveness of such registration statement
has been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus, and each amendment or
supplement of each of them, comply as to form in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission under the Securities Act (except that such
counsel need express no opinion as to financial statements and other
financial and statistical data contained in each of them), and (C) to
such other effects as may reasonably be requested by counsel for the
underwriters or by the selling Shareholders or their counsel, and (ii) a
letter dated such date from the independent public accountants retained
by ASI, addressed to the underwriters and to the selling Shareholders,
stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountant; the
financial statements of ASI included in the registration statement or
the prospectus, or any amendment or supplement of such statement or
prospectus, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, and such
letter will additionally cover such other financial matters with respect
to the registration in respect of which such letter is being given as
such underwriters may reasonably request;
(g) make available for inspection by the selling Shareholders and any
attorney, accountant or other agent retained by any of them, all financial
and other records, pertinent corporate documents and properties of ASI and
cause ASI's officers, directors and employees to supply all information
reasonably requested by the selling Shareholders or any such attorney,
accountant or agent in connection with such registration statement;
(h) as expeditiously as is reasonably practicable, cause all
Restricted Stock covered by the registration statement to be listed on each
securities exchange on which similar securities of ASI are then listed; and
(i) provide a transfer agent and registrar for all Restricted Stock
covered by the registration statement not later than the effective date of
such registration statement.
ASI will be entitled to control the timing of the registration process in
all respects and may withdraw or terminate any such registration at any time.
In connection with each registration under this Agreement, the selling
Shareholders 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.
In connection with each registration pursuant to Section 4 covering an
underwritten public offering, ASI and the selling Shareholders will enter into a
written agreement with the managing underwriter selected in the manner provided
above in such form and containing such provisions as are customary in the
securities business for such an arrangement between major underwriters and
companies of ASI's size and investment stature; PROVIDED, HOWEVER, that such
agreement will not contain any such provision applicable to ASI or the selling
Shareholders which is inconsistent with the provisions of this Agreement and
provided, further, that the time and place of the closing under said agreement
will be as mutually agreed upon among ASI, such managing underwriter, and the
selling Shareholders.
7. EXPENSES.
(j) All expenses incurred in complying with Section 4, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel and independent public accountants for ASI, fees of
the Commission and 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 selling Shareholders or any
other expenses of such Shareholders, are referred to as "Registration Expenses".
All underwriting discounts, selling commissions applicable to the sale of the
Restricted Stock, and any customary and reasonable underwriter's expense
allowances expressed on a percentage of the proceeds of the offering, are
referred to as "Selling Expenses".
(k) ASI will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4. All Selling Expenses in
connection with any registration statement filed pursuant to Section 4 will be
borne pro rata by the participating Shareholders.
8. INDEMNIFICATION. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 4, ASI will
indemnify and hold harmless the selling Shareholders, and each underwriter of
Restricted Stock under the Securities Act and each other person, if any, who
controls the selling Shareholders or any underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which the selling Shareholders 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 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, 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 therein or
necessary to make the statements therein not misleading, and will reimburse the
selling Shareholders, each such underwriter and each such 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 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 the selling Shareholders, any underwriter or any
controlling person in writing specifically for use in such registration
statement or prospectus.
If there is a registration of any of the Restricted Stock under the
Securities Act pursuant to Section 4, the selling Shareholders 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 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, 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 therein or necessary to make the statements therein 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 the selling Shareholders
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
furnished in writing to ASI by the selling Shareholders specifically for use
in such registration statement or prospectus provided, further, however that
the liability of the selling Shareholders 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 public offering price of
shares sold by the selling Shareholders under such registration statement
bears to the total public offering price of all securities sold under such
registration statement, but not to exceed the proceeds received by the
selling Shareholders from the sale of the 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, promptly notify the indemnifying party in writing of such
claim but the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party except to the
extent that the indemnifying party is prejudiced by such omission or delay. In
case any such action is brought against any indemnified party and it 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 8 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 (unless such indemnified party reasonably
objects to such assumption on the grounds that there are likely to be
defenses available to it which are different from or in addition to, and are
in conflict with, the defenses available to such indemnifying party, in which
event the indemnified party will be reimbursed by the indemnifying party for
the reasonable expenses incurred in connection with retaining its separate
legal counsel, but only to the extent of such conflict). The indemnifying
party will lose its right to defend, contest, litigate and settle a matter if
it fails to contest such matter diligently. No matter will be settled by an
indemnifying party without the prior written consent of the indemnified
party, unless such settlement contains a full and unconditional release of
the indemnified party.
Notwithstanding the foregoing, any indemnified party has 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. 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
qualified in such jurisdiction to act as counsel for the indemnified party.
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 8 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 such losses, claims, damages or
liabilities, 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 selling Shareholders, 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. ASI and the Shareholders agree that it
would not be just and equitable if contributions pursuant to this paragraph
were determined by pro rata allocation or by any other method of allocation
which did not take account of the equitable considerations referred to above
in this paragraph. Notwithstanding the provisions of this paragraph, no
Shareholder will be required to contribute any amount in excess of the lesser
of (i) the proportion that the public offering price of shares sold by such
Shareholder under such registration statement bears to the total public
offering price of all securities sold under such registration statement, but
not to exceed the proceeds received by such Shareholder for the sale of the
Restricted Stock covered by such registration statement and (ii) the amount
of any damages which it 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 8 will be
on such other terms and conditions as are at the time customary and reasonably
required by such underwriters. The indemnification provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party and will survive the transfer of
the shares of Restricted Stock.
9. PERMITTED TRANSFEREES.
(a) In order to Transfer Restricted Stock to a Permitted Transferee,
the Shareholders will submit the certificates representing the shares to ASI
together with (i) a written agreement satisfactory in form and substance to ASI
signed by the Permitted Transferee agreeing to be bound by all of the terms and
provisions of this Agreement applicable to the Shareholders, (ii) such evidence
as ASI may reasonably request that the proposed transferee is a Permitted
Transferee; (iii) an opinion of counsel reasonably satisfactory to ASI that the
proposed Transfer may be effective without registration under the Securities Act
and any state securities laws. The certificate issued in the name of the
Permitted Transferee will bear the legend referred to in Section 2.
(b) Following any Transfer of Restricted Stock to a Permitted
Transferee, the transferring Shareholder and all of his Permitted Transferees
will be jointly and severally liable for the performance of the obligations of
such Shareholder under this Agreement, and the rights of such Shareholder under
this Agreement will be exercised by a single representative of all holders of
such Shareholder's portion of the Restricted Stock. As long as a Shareholder is
alive and legally competent and continues to own any share of Restricted Stock,
such Shareholder will be that representative. Upon the death or incompetency of
such Shareholder, his executor or conservator will appoint a Permitted
Transferee as successor representative. Upon the Transfer by a Shareholder of
all of his Restricted Stock, if any Permitted Transferee will own Restricted
Stock after the Transfer, such Shareholder will appoint a Permitted Transferee
as successor representative. If any successor representative appointed by a
Shareholder or his executor or conservator resigns or ceases to own Restricted
Stock, the Permitted Transferees will appoint a successor representative by
majority vote of the shares of Restricted Stock then owned by all Permitted
Transferees. A Shareholder or other person or persons appointing or electing a
successor representative will give written notice of such election or
appointment to ASI, identifying the successor representative. ASI will be
entitled to rely without inquiry on the instructions of the representative last
identified to it as provided above and may disregard any contrary claims or
demands by any other holder of such Restricted Stock.
(c) After any Transfer to a Permitted Transferee, all provisions of
this Agreement will apply to all shares, transactions or actions of the
Shareholders and all Permitted Transferees in the aggregate.
10. MISCELLANEOUS.
(a) In order to make available to the Shareholders the benefits of
certain rules and regulations of the Commission which may permit the sale of the
shares of Restricted Stock to the public without registration, ASI agrees that,
when required by law, it will use its best efforts to: (i) make and keep
public information available, as those terms are understood and defined in Rule
144 of the Commission, at all times; (ii) file with the Commission in a timely
manner all reports and other documents required of ASI under the Securities Act
and the Exchange Act; and (iii) so long as any of the Shareholders own any
shares of Restricted Stock, furnish a Shareholder, promptly after such
Shareholder's request a written statement by ASI as to its compliance with the
reporting requirements of Rule 144.
(b) 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.
(c) All notices, requests, demands, claims, and other communications
under this Agreement will be in writing. Any notice, request, demand, claim, or
other communication under this Agreement will be deemed duly given only if it is
sent by registered or certified mail, return receipt requested, postage prepaid,
or by courier, telecopy or facsimile, and addressed to the intended recipient as
set forth below:
(i) if to ASI to it at: Analytical Surveys, Inc., 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx;
and
(ii) if to a Shareholder at the address for notice set forth
opposite such Shareholder's signature below.
Notices will be deemed given three days after mailing if sent by certified mail,
when delivered if sent by courier, and one business day after receipt of
confirmation by person or machine if sent by telecopy or facsimile transmission.
Any party may change the address to which notices, requests, demands, claims and
other communications under this Agreement are to be delivered by giving the
other parties notice in the manner set forth in this Agreement.
(d) This Agreement will be governed by and construed in accordance
with the laws of the State of Colorado.
(e) Any dispute arising under this Agreement will be resolved in
accordance with Article X (Alternative Dispute Resolution) of the Merger
Agreement.
(f) 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.
(g) 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.
(h) All references in this Agreement to "Sections" refer to the
pertinent provision of this Agreement unless provided otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this Agreement, whereupon this Agreement will be a
binding agreement between ASI and you.
Very truly yours,
Analytical Surveys, Inc.
By:
Title:
AGREED TO AND ACCEPTED ADDRESS FOR NOTICE:
as of the date first
above written
THE XXXXX FAMILY LIMITED
PARTNERSHIP
By: The Xxxxx Family Limited Partnership
Xxxxxx Xxxxx, General Partner 000 Xxxxxxx Xxx
Xxx Xxxxxxx, XX 00000
By:
Xxxxxx Xxxxx, General Partner
THE XXXXXXXXX FAMILY LIMITED
PARTNERSHIP
By: The Braverman Family Limited Partnership
Xxxxxxx Xxxxxxxxx, General Partner 0000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
By:
Xxxxxxx Xxxxxxxxx, General Partner
Xxxxxx Xxxxxxx, III
Xxxxxx Xxxxxxx, III 00000 Xxxxxxxxxx Xxxxx, #000
Xxx Xxxxxxx, XX 00000
