LOCK-UP AGREEMENT
This Lock-Up Agreement (this "Agreement") is made as of June 26,
1998, by and among 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") (each a "Shareholder" and
collectively, the "Shareholders"), and Analytical Surveys, Inc., a Colorado
corporation (the "Company"). Any transferee of a Shareholder that is a
Permitted Transferee (as defined below) of such Shareholder will for all
purposes of this Agreement be deemed a Shareholder.
RECITALS
A. The Company and Surveys Holdings, Inc. ("Holdings") on the one
hand, and the Shareholders on the other hand, have entered into an Agreement
and Plan of Merger dated as of June 11, 1998 (the "Merger Agreement")
pursuant to which Cartotech, Inc. ("Cartotech") will merge with and into
Holdings, and the Shareholders as the sole shareholders of Cartotech, will
receive cash and shares of Company common stock (the "Shares"). Pursuant to
an Escrow Agreement dated June 26, 1998 between the Company, the
Shareholders, and Bank One, Colorado, N.A., the Company will transfer a
portion of the cash and Shares directly into escrow. This Agreement is being
executed in conjunction with Registration Rights Agreements between the
Company and the Xxxxx Partnership, the Xxxxxxxxx Partnership and Xxxxxxx (the
"Non-ESOP Shareholders"), and between the Company and the ESOP (the
"Registration Rights Agreements").
B. The Shareholders own the Shares as follows:
Shareholder Number of Shares
----------- ----------------
The ESOP 123,321 shares
The Xxxxx Partnership 101,398 shares
The Xxxxxxxxx Partnership 101,398 shares
Xxxxxxx 28,050 shares
C. The parties desire to limit the transfer of the Shares in the
manner set forth in this Agreement.
AGREEMENT
The parties agree as follows:
1. RESTRICTIONS ON TRANSFER.
(a) From the date of this Agreement to, and including, June 26,
1999, except as expressly provided in this Agreement, no Shareholder may
transfer any of the Shares or any interest in the Shares.
(b) From June 27, 1999, to, and including, June 26, 2000, each of
the Non-ESOP Shareholders may transfer up to 50% of the Shares (the "One-Year
Shares") held by it or him, subject to the provisions of Section 3. In
addition, any or all of the One-Year Shares may be sold pursuant to the
Registration Rights Agreement to which the Non-ESOP Shareholders are a party.
(c) After June 26, 2000, each of the Non-ESOP Shareholders may
transfer the remainder of the Shares held by it or him, without restriction
under this Agreement, but any such transfer will remain subject to the
requirements of state and federal securities laws.
(d) After June 26, 1999, and before June 27, 2000, the ESOP may
transfer all of the Shares held by it, subject to the provisions of Section 3.
(e) After June 26, 2000, the ESOP may transfer any of the Shares,
without restriction under this Agreement, but any such transfer will remain
subject to the requirements of state and federal securities laws.
(f) For purposes of this Agreement, "transfer" includes any sale,
gift, pledge, or other disposition, by voluntary act of a Shareholder or by
operation of law, as a result of which any person acquires or obtains a right
to acquire any interest in or rights in respect of the Shares.
2. TRANSFERS TO PERMITTED TRANSFEREES.
(a) A Shareholder may transfer any or all of its or his Shares to
a "Permitted Transferee." For purposes of this Agreement, "Permitted
Transferee" means (i) as to the Non-ESOP Shareholders, any trusts or other
entities created for the exclusive benefit of, or beneficially owned
exclusively by, a Shareholder; (ii) as to the ESOP, any participant or
beneficiary of the ESOP; and (iii) as to any Shareholder, a bona fide pledgee
of Shares.
(b) A transfer to a Permitted Transferee is not effective until
such Permitted Transferee executes and delivers to the Company a document in
the form of EXHIBIT A to this Agreement by which such Permitted Transferee
agrees to be bound by the terms of this Agreement.
3. SALE VOLUME LIMITATIONS. During the periods described in Section
1(b) and 1(d), with respect to each Shareholder, except for sales by such
Shareholder to a Permitted Transferee of such Shareholder, and including any
sales of Shares by a Permitted Transferee of such Shareholder other than the
ESOP (as to whom the volume limitations of this Section 3 will be calculated
separately as to each such Permitted Transferee), the number of Shares sold
by a Shareholder in any 90 day period may not exceed the greater of the
following:
(a) one percent of the shares of common stock of the Company
outstanding as shown by the most recent report or statement published by the
Company; or
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(b) the average weekly reported volume of trading of common stock
of the Company on all national securities exchanges and/or reported through
the automated quotation system of a registered securities association during
the four calendar weeks preceding the date of the sale of the Shares (the
"Sale Date"); or
(c) the average weekly reported volume of trading of common stock
of the Company reported through the consolidated transaction reporting
system, contemplated by Rule 11Aa3-1 under the Securities Exchange Act of
1934, as amended, during the four calendar weeks preceding the Sale Date.
4. ENDORSEMENT ON STOCK CERTIFICATES. All stock certificates
representing Shares will bear the following legend:
"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."
5. SALE OF ASSETS, REDEMPTION OR LIQUIDATION. Nothing contained in
this Agreement will limit the Company's ability, in accordance with
applicable law, to sell or otherwise dispose of all or substantially all of
its assets, to redeem all or any part of the stock held by any Shareholder,
or to liquidate, either partially or completely.
6. NOTICES. 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:
(a) if to the Company to it at: Analytical Surveys, Inc., 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx; and
(b) 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
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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.
7. 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 the Merger Agreement.
8. 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) WAIVER. No waiver by any party of any provision of this
Agreement will be deemed to extend to any other circumstance or occurrence,
and no waiver will be effective unless set forth in writing and signed by the
party against whom such waiver is asserted. The restrictions on transfer set
forth in this Agreement are for the benefit of the Company only, and may be
waived as to any Shareholders by the Company only, without any restriction
imposed by any other Shareholder.
(f) ORIGINAL. This Agreement will be signed in one original,
which will be deposited with the Company at its registered office.
(g) PHOTOCOPIES. A photocopy of this Agreement will be delivered
to the Company and to each Shareholder.
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The parties to this Agreement have executed this Agreement as of the
date first written above.
SHAREHOLDERS: ADDRESS FOR NOTICE:
THE CARTOTECH, INC. EMPLOYEE
STOCK OWNERSHIP AND 401(K) TRUST
By: The Cartotech, Inc. Employee Stock
---------------------------------- Ownership and 401(K) Trust
Xxxx Xxxxxx, Trustee
THE XXXXX FAMILY LIMITED
PARTNERSHIP
By: The Xxxxx Family Limited Partnership
---------------------------------- 000 Xxxxxxx Xxx
Xxxxxx Xxxxx, General Partner Xxx Xxxxxxx, XX 00000
By:
----------------------------------
Xxxxxx Xxxxx, General Partner
THE BRAVERMAN FAMILY LIMITED
PARTNERSHIP
By: The Braverman Family Limited Partnership
---------------------------------- 0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx Xxxxxxxxx, General Partner Xxx Xxxxxxx, XX 00000
By:
----------------------------------
Xxxxxxx Xxxxxxxxx, General Partner
Xxxxxx Xxxxxxx, III
Xxxxxx Xxxxxxx, III 00000 Xxxxxxxxxx Xxxxx, #000
Xxx Xxxxxxx, XX 00000
COMPANY:
ANALYTICAL SURVEYS, INC.
By: Analytical Surveys, Inc
----------------------------- 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx,
Chief Executive Officer
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Indianapolis, IN 46204-1061
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EXHIBIT A
DOCUMENT TO BE SIGNED BY TRANSFEREE
The undersigned, being a transferee of shares of the common stock of
Analytical Surveys, Inc. (the "Company"), agrees to be bound by all of the terms
of a Lock-Up Agreement (the "Agreement") dated June 23, 1998, between the
Company and the Shareholders (as defined in the Agreement). The undersigned
acknowledges that he or she will for all purposes be deemed a "Shareholder" (as
defined in the Agreement) and that the Agreement will apply to all Shares of the
Company now owned or hereafter acquired by the undersigned. The undersigned's
address and telecopy number for purposes of Section 6 of the Agreement are set
forth below:
-------------------------------------------
(Type or Print Name)
-------------------------------------------
(Street Address)
-------------------------------------------
(City, State and Zip Code)
-------------------------------------------
(Facsimile Number)
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(Signature)
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(Date)
