UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
December 22, 1995
Date of Report (Date of earliest event reported)
ANALYTICAL SURVEYS, INC.
(Exact name of registrant as specified in its charter)
COLORADO
(State of incorporation)
0-13111
(Commission File Number)
084-846389
(IRS Employer Identification No.)
1935 Jamboree Drive
Colorado Springs, Colorado 80920
(Address of principal executive offices)
(719)-593-0093
(Registrant's telephone number)
Item 2. Acquisition or Disposition of Assets
Analytical Surveys, Inc. (the "Company") acquired
substantially all of the net assets of Intelligraphics, Inc.
("Intelligraphics"),741 North Grand Avenue, Waukesha,
Wisconsin on December 22, 1995.
All of the operating assets, including accounts receivable,
unbilled revenue, prepaid expenses, furniture, fixtures and
equipment, leasehold improvements and goodwill used in the
conduct of its sole business as a data conversion company in
the geographic information systems industry were acquired,
net of selected current liabilities assumed. Those current
liabilities assumed included billings in excess of costs and
revenues, trade accounts payable and accrued payroll and
benefits.
The consideration paid for the net assets acquired consisted
of cash in the amount of $3,490,000 plus 230,000 shares of
Analytical Surveys, Inc. no par value common stock, which
shares are subject to restrictions on both transfer and
voting rights for a period of two years. The shares issued in
the transaction are held in a voting trust. The trustees of the
voting trust are the directors of the Compnay. A portion of the
consideration paid ($250,000 of the cash plus 70,000 of the
restricted shares) is being held in escrow awaiting the
satisfactory conclusion of certain pending matters.
The assets were acquired from Intelligraphics, Inc., a
privately held Wisconsin corporation, substantially all of
the stock of which was owned by A. William Huelsman. Prior
to this transaction, there was no material relationship
between the Company or any of its affiliates, officers or
directors and Intelligraphics or any of its affiliates,
officers or directors. As part of the purchase transaction,
the Company assumed the lease for the space occupied by
Intelligraphics. Mr. Huelsman owns a significant interest in
City Center Plaza, a Wisconsin Partnership which owns that
building.
Substantially all of the cash portion of the consideration
paid was provided by a term loan from Bank One, Colorado, N.A.
(the "Bank") in the amount of $3,430,000, payable over a four
year period with interest at floating rate of .60% over the
Bank's prime lending rate. The restricted shares of Analytical
Surveys, Inc. no par value common stock provided as part of
the purchase consideration were newly issued from the
authorized but unissued shares of the Company.
The net assets acquired were used by the seller in its data
conversion business which included digital mapping,
facilities management and geographic information systems.
The Company intends to continue to operate the business in
the same general manner and in the same location.
Item 5. Press Release
The following press release was issued on December 22, 1995:
FOR IMMEDIATE RELEASE
NEWS
December 22, 1995
Nasdaq National Market - ANLT
ANALYTICAL SURVEYS ACQUIRES INTELLIGRAPHICS, INC.
Acquisition Significantly Expands ASI's Data Conversion
Capabilities; Exposes Company to Broad New Base of Municipal
and Utility Customers.
COLORADO SPRINGS, Colorado -- Analytical Surveys, Inc. (ASI)
(Nasdaq National Market - ANLT), a leading provider of
digital mapping and Geographical Information Systems (GIS)
database services, today announced it has acquired
substantially all of the assets of privately-held
Intelligraphics, Inc., a Waukesha, Wisconsin-based data
conversion company. Intelligraphics was acquired for
$3,490,000 in cash and 230,000 shares of ASI restricted
stock. The Company will operate as a division of ASI and
will now be known as Intelligraphics International, a
Division of Analytical Surveys, Inc.
Intelligraphics International, which anticipates sales of
more than $8 million in 1995, designs, creates and maintains
the data systems required to operate process automation
systems for GIS, automated mapping and facilities management
programs. The company primarily serves the utility and
municipal markets.
"We are very pleased to have Intelligraphics International
as part of the ASI team," said Sidney V. Corder, President
and CEO of ASI. "We have worked jointly with the company on
several projects over the years, and are very familiar with
its excellent reputation within the data conversion
industry."
Corder said Intelligraphics International will significantly
enhance ASI's product and service offering to the utility
and municipal markets. "Intelligraphics International's
client base and services also are highly synergistic with
our core business and will therefore expose us to a variety
of new business opportunities," he said.
Corder added that he believed the timing of the acquisition
was ideal, as Intelligraphics International recently took a
number of steps to streamline its operations and position
itself for long-term success. "We anticipate the company
will be an important long-term contributor to ASI's already
strong financial performance," Corder said.
Intelligraphics International brings an extensive list of
major U. S. and international customers to ASI, including
Wisconsin Power and Light, Seattle City Light, Michigan
Consolidated Gas, Applachian Power, Iowa-Illinois Gas &
Electric, China Light and Power, Bell South and others.
Analytical Surveys is America's technology leader in
providing services and products that allow municipal,
utility, government and commercial customers to convert
paper-based maps and related data to a digital format. These
digital mapping systems allow ASI's customers to easily
access, analyze and maintain GIS data on computers.
# # #
CONTACTS:
Analytical Surveys, Inc.
Scott C. Benger
Senior Vice President - Finance 719-593-0093
Pfeiffer Public Relations, Inc.
Geoff High 303-393-7044
Item 7. Financial Statements and Exhibits
(a) Financial statements of business acquired
It is impractical for the registrant to provide the required
financial statements of the business acquired in time for
inclusion in the initial filing of this report on Form 8-K.
The required financial statements of the business acquired
will be provided by an amendment to this report on Form 8-K
as soon as practical which is expected to be within 30 days.
(b) Proforma financial information
It is impractical for the registrant to provide the required
proforma financial information in time for inclusion in the
initial filing of this report on Form 8-K. The required
proforma financial information will be provided by an
amendment to this report on Form 8-K as soon as practical
which is expected to be within 30 days.
(c) Exhibits
2. Plan of acquisition, reorganization, arrangement,
liquidation or succession:
2.1 Asset Purchase Agreement dated December 22, 1995
between Analytical Surveys, Inc. (buyer) and
Intellligraphics, Inc.(seller) and A. William Huelsman.
2.2 Voting Trust Agreement dated December 22, 1995,
between Analytical Surveys, Inc., a Colorado Corporation, A.
William Huelsman, Gary Miller, William Nantell, David
Coates, David Kroes, Randy Vanek and Hamid Akhavan (each a
"Shareholder" and John A. Thorpe, Sidney V. Corder, William
H. Hudson, Richard P. MacLeod, James T. Rothe, Robert H.
Keeley and Willem H. J. Anderson, (each an "Individual
Trustee" and collectively, the "Trustee").
2.3 Lock-Up Agreement made as of December 22, 1995, by
and among A. William Huelsman, Gary Miller, William Nantell,
David Coates, David Kroes, Randy Vanek and Hamid Akhavan
(each a "Shareholder" and collectively, the "Shareholders"),
and Analytical Surveys, Inc., a Colorado corporation (the
"Company").
2.4 Arbitration Agreement (this "Agreement") is made
as of December 22, 1995, among Analytical Surveys, Inc., a
Colorado corporation ("ASI"), Intelligraphics, Inc., a
Wisconsin corporation ("Intelligraphics"), A. William
Huelsman, Gary Miller, William Nantell, David Coates, David
Kroes, Randy Vanek and Hamid Akhavan (each a "Shareholder"
and collectively, the "Shareholders"), Joanne Huelsman,
James Carpenter, Bank One, Colorado, NA ("Escrow Agent") and
the members of the board of directors of ASI who are voting
trustees under the Voting Trust Agreement ("Trustee").
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
Analytical Surveys, Inc.
by: /s/ Scott C. Benger
Secretary/ Treasurer<PAGE>
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of December 22,
1995, by and among ANALYTICAL SURVEYS, INC., a Colorado corpora-
tion ("Buyer"), INTELLIGRAPHICS, INC., a Wisconsin corporation
("Seller"), and A. WILLIAM HUELSMAN ("Huelsman"). Certain of the
capitalized terms used in this Agreement are defined as set forth
in Paragraph 2.
R E C I T A L S :
A. Buyer desires to purchase from Seller, and Seller
desires to sell to Buyer, substantially all of the assets of
Seller used in the conduct of its data conversion business (the
"Business") in accordance with the terms and conditions herein-
after set forth.
B. Huelsman is the majority shareholder of Seller and
will benefit financially from the transactions contemplated
hereby.
NOW, THEREFORE, in consideration of the mutual promises
hereinafter contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Purchase of Assets.
1.1. Assets to be Purchased. Subject to the terms and
conditions set forth in this Agreement, Buyer hereby agrees to
purchase from Seller and Seller hereby agrees to sell, assign and
deliver to Buyer, at Closing, except for the Excluded Assets
(described below), all of the assets of Seller owned or used in
connection with the Business, as the same may exist as of the
date of Closing, including, but not limited to, the following:
(a) all Fixed Assets;
(b) all supplies, packaging materials, marketing and
sales literature, consumable materials and other miscellaneous
items of similar character of Seller on hand as of Closing
relating to the Business, wherever located;
(c) all work in process, unbilled services and other
billable charges of the Business;
(d) the Accounts Receivable;
(e) all sales, manufacturing, supplier and customer
lists and records, personnel and payroll records, accounting
records, purchasing and sale records, and all other records of
the Business (except Seller's corporate minute and stock books)
and the other business records of Seller listed on attached
Exhibit 1.1(e);
(f) all product specifications, Patents and Data,
Related Information, formulae, designs, copyright registrations
and applications therefor, whether issued or pending, relating to
the Business and all improvements, and other similar interests
relating to the Business to which Seller has any right of
ownership, use or otherwise;
(g) all of Seller's right, title and interest in and
to the name "Intelligraphics, Inc.," and "Intelligraphics
International, Inc." or any other name, including any derivations
or abbreviations of any name under which Seller is now doing or
has done business in the past;
(h) all of Seller's right, title and interest in, to
and under the Customer Contracts and the Leases and those other
contracts, licenses, permits, purchase orders, sales orders,
service contracts and other agreements of the Business existing
as of Closing, including without limitation, those listed on
attached Exhibit 1.1(h)(the "Assumed Contracts");
(i) all Software; and
(j) the goodwill, if any, of the Business.
All of the assets being purchased by Buyer described in this
Paragraph 1.1 are hereinafter referred to as the "Assets." Buyer
acknowledges that Huelsman is a partner in both Center City
Plaza, a Wisconsin general partnership, and Center City Leasing
LLC, a Wisconsin limited liability company (collectively, the
"Business Enterprises"), that Seller leases certain office space
and equipment from the Business Enterprises, and that the Assets
shall not include any assets which are set forth on attached
Exhibit 2.2 (the "Excluded Assets").
1.2. Purchase Price. As consideration for the Assets,
Buyer shall pay to Seller the following (the "Purchase Price"):
(a) An amount equal to Three Million Four
Hundred Fifty Thousand Dollars ($3,450,000.00) plus or minus the
amount, if any, by which the Net Current Asset Value (as defined
below) exceeds or is less than, as the case may be, One Million
Dollars ($1,000,000) (the "Cash Payment"); and
(b) Two Hundred Thirty Thousand (230,000) shares of
the Common Stock (subject to the restrictions contained in the
Voting Trust, Investor Letters, and Lock Up Agreement of even
date herewith), appropriately adjusted for any stock splits,
reverse stock splits, stock dividends, or other similar events
occurring between the date of this Agreement and the Closing (the
"Subject Shares"). Good and marketable title to the Subject
Shares shall be transferred to Seller at the Closing, free and
clear of all liens, claims and encumbrances, except the
encumbrances provided for in the terms of this Agreement or the
agreements executed pursuant to this Agreement.
1.3. Payment of Estimated Cash Payment and the Subject
Shares. At the Closing, Buyer shall:
(a) Pay to Bank One, Milwaukee, N.A. by wire transfer
an amount equal to $3,490,000 (the "Estimated Amount"), which
represents the parties' estimate of the amount set forth in
Paragraph 1.2(a) above (which is $3,507,000), less $17,000 as a
"cushion" and less $250,000 (the "Escrowed Amount"), pursuant to
Paragraph 1.3(b) below;
(b) Deliver to the Escrow Agent by wire transfer the
Escrowed Amount and 70,000 of the Subject Shares both of which
shall be held by the Escrow Agent under the terms of the Escrow
Agreement, as follows:
(i) $170,000 shall be paid by the Escrow Agent in
accordance with the terms of the Escrow Agreement upon Seller's
delivery to the Escrow Agent, on or before February 28, 1996, of
a signed Consent by Electronic Data Systems, Inc. ("EDS"),
assigning Seller's $5,000,000 Contract with EDS to Buyer in form
and substance satisfactory to Buyer;
(ii) $80,000 shall be paid in accordance with the
terms of the Escrow Agreement by Escrow Agent upon Buyer's
delivery to Escrow Agent of eight (8) signed Consents, in the
form set forth under Exhibit 1.3(b)(ii). If fewer than eight (8)
signed Consents are delivered by Buyer, Escrow Agent shall pay
$10,000 per signed Consent delivered on or before February 28,
1996. Any funds remaining in the Escrowed Amount by reason of
Buyer's failure to deliver the signed Consents pursuant to (i)
and (ii) above shall be paid by Escrow Agent to Buyer on
February 29, 1996. Seller will cooperate with Buyer's efforts to
obtain the Consents, provided that, direct contact with the
parties to the contracts for which the Consents are necessary
will be limited to William Nantell and Sydney Corder; and
(iii) the Subject Shares shall be held in
escrow pursuant to the terms of Paragraph 1.8 below.
(c) Deliver to the Trustee under the Voting Trust, of
even date herewith, a certificate, in the name of the Trustee,
for the balance (160,000) of the Subject Shares, which shares
shall be held by the Trustee under the terms of the Voting Trust.
As provided in the Voting Trust, the Trustee shall deliver to the
Beneficiaries their respective voting trust certificates.
Prior to Closing, Buyer and Seller and their respective account-
ing firms shall use reasonable good faith efforts to estimate
the Net Current Asset Value and, based upon the estimate of the
Net Current Asset Value, the Cash Payment. For purposes of this
Agreement, the Cash Payment as so estimated shall be referred to
in this Agreement as the "Estimated Amount."
1.4. Post-Closing Adjustments. As promptly as is
practicable and in any event within sixty (60) days following the
Closing, Seller will prepare and deliver to Buyer a balance sheet
dated as of the Closing Date (the "Final Balance Sheet") and a
statement setting forth the proposed calculation on the Net Cur-
rent Asset Value (the "Statement"), reviewed by BDO Seidman. The
Final Balance Sheet and Statement shall be prepared in accordance
with GAAP and on a basis consistent with the audited balance
sheet of Seller as at December 31, 1994 and shall be reviewed by
BDO Seidman. Buyer shall permit Seller and BDO Seidman access to
all of the accounting records of the Business in Buyer's
possession as may be necessary for the preparation and
certification of such balance sheet and statement. Seller shall
permit Buyer and its independent certified public accountant to
review all accounting records and all work papers and computa-
tions used in the preparation of the Final Balance Sheet and
Statement. If Buyer does not notify Seller within thirty (30)
days of receiving the Final Balance Sheet and Statement that
Buyer disagrees with the calculation of the Net Current Asset
Value reflected therein, then the Net Current Asset Value shall
be the amount reflected in the Statement. If Buyer notifies
Seller that Buyer disagrees with such calculation within such
thirty (30) day period, Seller and Buyer shall negotiate in good
faith to resolve the dispute. If, within fifteen (15) days from
the date notice of dispute is given, Seller and Buyer cannot
agree on the resolution of the dispute, then the dispute shall be
resolved a "Big 6" accounting firm (other than KPMG Peat Marwick)
chosen by Seller and Buyer, provided that, in the event that
Seller and Buyer cannot agree on a firm, Seller and Buyer will
each choose two of the firms referenced previously in this
sentence and a firm will be chosen from those four by a random
draw.
1.5. Payment of Adjustment Amount. If the adjustment
provided in Section 1.2(a) requires a payment by Buyer to Seller
(after taking into account the cushion provided for in
Section 1.3(a), then within ten (10) days of the final
determination of the Net Current Asset Value, Buyer shall pay to
Bank One, Milwaukee, N.A. an amount equal to such adjustment (the
"Adjustment Amount"); provided, that in no event shall the
Adjustment Amount payable by Buyer exceed $35,000 (taking into
account the cushion). If the adjustment provided for in Section
1.2(a) requires a payment by Seller to Buyer (after taking into
account the cushion), then within ten (10) days of such final
determination, Seller and Huelsman, jointly and severally, shall
wire transfer to Buyer an amount equal to such adjustment.
1.6. Allocation of Purchase Price. The Purchase Price
shall be allocated among the Assets based on their respective
fair market values as set forth on attached Exhibit 1.6.
1.7. Assumption of Liabilities. As of the Closing
Date, Buyer shall assume and hereby agrees to pay and perform
when due (i) all liabilities which accrue and which are based on
performance obligations arising from and after the Closing Date
under the Assumed Contracts, and (ii) all current liabilities of
Seller considered in the final calculation of the Net Current
Asset Value, including, without limitation, (a) trade accounts
payable, (b) total payroll taxes and withholding, (c) accrued
wages and salary, (d) accrued FICA taxes, (e) accrued property
taxes, (f) trade accounts payable to related parties, (g)
billings in excess of costs and estimated earnings, (h)
unemployment compensation taxes, and (i) in addition to total
payroll taxes and withholding, any employee withheld amounts, in
each case as reflected on the Final Balance Sheet except that
Buyer need not assume any liability reflected on the Final
Balance Sheet that is unliquidated or is not fixed in amount or
involves an obligation other than the payment of money, if Buyer,
on or prior to the date specified in Section 1.5 for the payment
of adjustments, identifies such liability by notice to Seller and
pays to Bank One, Milwaukee, N.A. cash in an amount equal to the
amount of the liability reflected on the Final Balance Sheet.
The liabilities so assumed by Buyer are referred to as the
"Assumed Liabilities." Except for the Assumed Liabilities, Buyer
shall assume no obligations or liabilities of Seller and Seller
covenants and agrees to pay, perform and discharge all
liabilities and obligations of Seller which are not specifically
assumed by Buyer hereunder.
1.8. Escrow of Subject Shares. Unless a claim is
timely made under the terms of the Escrow Agreement, the Escrow
Agent shall transfer the certificate for the Subject Shares held
under the Escrow Agreement to the Trustee of the Voting Trust on
the first anniversary of the Closing Date, to be held under the
terms of the Voting Trust. If a claim is timely made under the
Escrow Agreement, the Subject Shares shall be disbursed in
accordance with the terms of the Escrow Agreement. As provided
in the Voting Trust, the Trustee shall issue voting trust
certificates to the Beneficiaries and Bank One Milwaukee, N.A.
for any such Subject Shares disbursed by the Escrow Agent to the
Trustee.
2. Definitions. As used herein, the following terms
shall have the following meanings, respectively:
"Accounts Receivable" shall mean all accounts
receivable of Seller on hand as of the Closing Date.
"Assets" shall be defined as set forth in Paragraph
1.1.
"Assumed Contracts" shall be defined as set forth in
Paragraph 1.1(h).
"Assumed Liabilities" shall be defined as set forth in
Paragraph 1.7.
"Audited Financial Statements" shall be defined as set
forth in Paragraph 3.3.
"BDO Seidman" shall mean the Milwaukee, Wisconsin
office of the independent certified public accounting firm of BDO
Seidman.
"Beneficiaries" shall be defined as set forth in the
Voting Trust.
"Claiming Party" shall be defined as set forth in
Paragraph 6.3(a).
"Closing" shall be defined as set forth in Paragraph
11.1.
"Closing Date" shall mean December 22, 1995, or such
other date as may be mutually agreed by the parties as provided
in Paragraph 11.1.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Common Stock" shall mean the authorized no par value
Common Stock of Buyer.
"Customer Contracts" shall mean those written contracts
between Seller and any person, firm or corporation for the
provision by Seller of products and/or services related to the
Business (i) entered into at or prior to the Closing Date as to
which Seller has not completed performance as of the Closing Date
or (ii) received and to be completed after the Closing Date,
including only those contracts listed on Exhibit 1.1(h) between
Seller and its customers.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations
promulgated thereunder.
"Escrow Agent" shall mean Bank One, Colorado, NA,
Denver, Colorado.
"Escrow Agreement" shall mean the Escrow Agreement in
the form attached to this Agreement as Exhibit 2-1 to be entered
into among Buyer, Seller and the Escrow Agent at the Closing.
"Excluded Assets," if any, shall mean those assets
listed as being specifically excluded on attached Exhibit 2-2.
"Final Balance Sheet" shall be defined as set forth in
Paragraph 1.4.
"Fixed Assets" shall mean all fixed assets of Seller on
hand as of Closing of every kind and description, wherever
located, including without limitation, machinery, equipment,
hardware, computers, office equipment, furniture, furnishings,
fixtures, tools, automobiles, trucks, other vehicles, racks,
supplies, leasehold improvements, and other fixed assets of
Seller utilized in any manner by Seller in connection with the
Business.
"GAAP" shall mean generally accepted accounting
principles consistently applied.
"Indemnifying Party" shall be defined as set forth in
Paragraph 6.3(a).
"Knowledge of Seller" or similar phrases such as
"Seller's Knowledge" or to the "best of Seller's knowledge" means
matters known to any of Huelsman, William Nantell, David Coates
and David Kroes and matters which would come to any of their
attention in the normal course of due diligence to verify the
warranties and representations set forth in Paragraph 3.
"Leases" shall mean all of the leases for equipment and
facilities under which Seller is lessee, utilized by Seller in
the Business, including without limitation, those leases listed
on attached Exhibit 1.1(h).
"Market Price" shall mean the average of the closing
bid and asked prices for the Common Stock on the applicable date
as reported on the National Market System of NASDAQ (or, if the
NASDAQ is closed on such date, on the next preceding date on
which the NASDAQ is operated).
"NASDAQ" shall mean the National Market System of the
National Association of Securities Dealers Automated Quotation
System.
"Net Current Asset Value" shall mean the sum of the
book value of the trade accounts receivable, work in progress,
unbilled work, prepaid expenditures and other current assets of
Seller as reflected on the Final Balance Sheet (excluding any
current assets included among the Excluded Assets), minus the sum
of the trade accounts payable, accrued expenses, billings in
excess of charges, and other current liabilities of Seller as
reflected on the Final Balance Sheet, in all cases determined in
accordance with GAAP.
"Obligations" shall mean all obligations under the
Assumed Contracts and the Assumed Liabilities.
"Patents and Data" shall mean such of the following in
which Seller has any right, title or interest: patents or
applications for patents (domestic or foreign) and trade secrets
with respect to such patents or applications for patents and
trade secrets, as well as all technical know-how and knowledge,
discoveries, inventions, processes, secret processes, machines,
manufacture or compositions of matter or any other similar infor-
mation, conversion data, and all documents pertaining to such
patents or applications for patents and trade secrets (including
both written and oral recordings or representations).
"Plan" or "Plans" shall be defined as set forth in
Paragraph 3.27.
"Related Information" shall mean such of the following
in which Seller has any right, title or interest: trademarks,
trademark registrations, applications for trademark
registrations, trade names, copyrights, copyright applications,
license agreements (as licensee), technical reports, vendor and
customer lists, and all other documents and business records of
Seller.
"Required Consents" shall be defined as set forth in
Paragraph 8.6.
"Shareholders" shall mean A. William Huelsman, Gary
Miller, William Nantell, David Coates, David Kroes, Andy Vanek
and Mahid Ahkavan.
"Software" shall mean all software in which Seller or
Huelsman have any rights and which is utilized by Seller in any
manner in the Business, whether or not said software is fully
developed or in the process of development, and including, but
not limited to, any enhancements or modifications to said
software and all software licenses and all source codes therefor
which may be in Seller's possession or control.
"Statement" shall be defined as set forth in Paragraph
1.4.
"Subject Shares" shall be defined as set forth in
Paragraph 1.2(b).
"Trustee" shall be defined as set forth in Paragraph
11.5.
"Uncollected Receivables" shall be defined as set forth
in Paragraph 7.
"Voting Trust" shall be defined as set forth in
Paragraph 11.5.
3. Representations and Warranties of Seller and
Huelsman. Except as set forth in the schedule attached to this
Agreement (the "Schedule of Exceptions"), Seller and Huelsman
jointly and severally covenant, represent and warrant as follows,
each of which is true and correct as of the date of this
Agreement and shall be true and correct on the Closing Date and
each of which shall survive the Closing Date and the transactions
contemplated hereby, to the extent set forth in Paragraph 16.16.
3.1. Corporate Existence, Qualifications and Power
of Seller. Seller is a corporation duly organized and validly
existing under the laws of the State of Wisconsin. Seller has
the corporate power and authority to own and use its properties
and to transact the Business, and is licensed or qualified as a
foreign corporation in all jurisdictions in which such licensing
or qualification is required and where the failure to be so
licensed or qualified could reasonably be anticipated to have a
material adverse effect on the Business. Seller has the
corporate power to enter into and consummate the transactions
contemplated by this Agreement. Seller does not have any
subsidiaries or any interest or investment in any partnership,
joint venture, corporation or other entity, except as disclosed
on attached Exhibit 3.1.
3.2. Authorization of Agreement by Seller. The
execution and delivery of this Agreement do not, and, subject to
the receipt of the consents referred to in Paragraph 8.6, the
consummation of the transactions contemplated by this Agreement
will not, violate or conflict with any provisions of applicable
law or the Articles of Incorporation or Bylaws of Seller or
result in a breach of, or constitute a default under, or result
in the acceleration of, any obligation or loans under any
agreement or instrument to which Seller or Huelsman is a party or
by which either of them is bound or violate any order, judgment,
award or decree to which either of them is a party or by which
either of them is subject, which violation, conflict, breach or
default could have a material adverse effect on (i) the Business,
the Assets, or the Obligations or (ii) the consummation of the
transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation by Seller of the transactions
contemplated herein have been approved by the Board of Directors
and shareholders of Seller, which constitutes all action required
by applicable law and the Articles of Incorporation and Bylaws of
Seller to authorize and approve the execution, delivery and
performance of this Agreement by Seller and the consummation
by it of the transactions contemplated herein.
3.3. Financial Statements. Seller has delivered to
Buyer an audited balance sheet of Seller as of December 31, 1994,
audited financial statements of Seller for its fiscal year ended
December 31, 1994, and audited financial statements of Seller for
the period from January 1, 1995 to September 30, 1995
(collectively, the "Audited Financial Statements"). The Audited
Financial Statements have been prepared based upon the accounting
records of Seller in accordance with the normal and customary
practices of Seller in the preparation of audited financial
statements and in the ordinary course of its business, and on a
consistent basis. In addition to the Final Balance Sheet to be
delivered pursuant to Paragraph 1.4, Seller not later than
February 29, 1996 will also cause to be prepared and delivered to
Buyer an audited statement of earnings for the period from
January 1, 1995, through the Closing Date (the "Final Statement
of Income"). The Final Statement of Income will be reviewed by
BDO Seidman and will be prepared in accordance with GAAP.
3.4. Full Disclosure. Neither this Agreement nor any
other agreement, document, certificate or statement furnished or
to be furnished to Buyer or to any other party in connection with
the transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were
made, not misleading.
3.5. Events Subsequent to Non-Binding Term Sheet.
Since September 15, 1995, except as set forth on attached Exhibit
3.5 hereto, there has been no (i) change in the condition of the
Assets or liabilities of Seller or the Business (other than
changes in the ordinary course of business, none of which
individually has or cumulatively have had a material adverse
effect on any of the Assets, the Obligations, or the Business) or
(ii) damage, destruction or loss, whether covered by insurance or
not, which individually or cumulatively have had a material
adverse effect on any of the Assets, the Obligations or the
Business.
3.6. Accounts Receivable. Except as set forth on
attached Exhibit 3.6, the Accounts Receivable will be (a) valid
and subsisting, (b) subject to no known defenses, offsets or
counterclaims, and (c) good and collectible within six (6) months
of the Closing Date in the ordinary course of business at the
aggregate amounts of the Accounts Receivable, net of the reserves
therefor reflected on the Final Balance Sheet.
3.7. Undisclosed Liabilities. Except as set forth on
attached Exhibit 3.7, Seller does not have, and through the
Closing Date will not have, any material liabilities, fixed or
contingent, liquidated or accrued, primary or secondary, by
agreement or by operation of law, including, without limitation,
liabilities for federal, state, local or foreign taxes or
liabilities to customers or suppliers for which adequate
provisions have not been made on the Final Balance Sheet (other
than liabilities incurred in the ordinary course of business,
none of which individually or in the aggregate will have a
material adverse effect on the Business).
3.8. Tax Returns and Audit. Seller has filed, or
caused to be filed, with the appropriate federal, state and local
agencies, all tax returns and tax reports required by law to be
filed by them. All income, profits, franchise, sales, use,
ownership, occupation, property, excise, ad valorem, and any
other taxes due have been fully paid, or adequate reserves have
been established for the same and are reflected on the Audited
Financial Statements, except for such as may have accrued or been
incurred in the ordinary course of business since September 30,
1995, and there exist no liens, and to the knowledge of Seller,
there are no facts or circumstances which could reasonably be
anticipated to result in any liens for unpaid or delinquent
taxes, except for liens for current taxes not yet due.
3.9. Title to Assets. Seller has good and marketable
title to all Assets, free and clear of any liens, mortgages,
pledges, encumbrances, claims, charges of any kind, except (i)
liens shown on the Audited Financial Statements or incurred in
the normal course of business since September 30, 1995 and
reflected on the Final Balance Sheet as securing specified lia-
bilities, (ii) liens for current taxes not yet due, (iii) minor
imperfections of title and encumbrances, if any, which are not
substantial in amount, do not detract from the value of the prop-
erty subject thereto or impair the operations of the Business and
have arisen only in the ordinary course of business and
consistent with past practice, and (iv) as identified on attached
Exhibit 3.9.
3.10. Patents and Data, Software and Related
Information. Set forth on attached Exhibit 3.10 is a list and
brief description of each patent, application for patent,
trademark, service mark, trade name and copyright included within
(but not comprising the whole of) the Patents and Data, Software,
and the Related Information, including (as appropriate) where
such items are filed, issued and/or registered. Except as set
forth on attached Exhibit 3.10, title to all such items is held
by Seller, free and clear of all adverse claims, liens, security
interests, restrictions and other encumbrances, and there are no
interferences, proceedings or infringement suits pending or, to
the knowledge of Seller, threatened, and neither Seller nor
Huelsman has received any notice that Seller is infringing upon
the right of any other person under any other intellectual
property, copyright, patent, trademark, service mark or trade
name in the conduct of the Business. Neither Seller nor Huelsman
has received any notice in writing of any claim, lien, security
interest, restriction or encumbrance adversely affecting Seller's
rights to all other items comprising the Patents and Data and
Related Information. Huelsman has no interest in any of the
Patents and Data and the Related Information. Seller has the
right (subject to the rights of any third parties set forth on
attached Exhibit 3.10) to use the intellectual property,
software, patents, trademarks, service marks, trade names and
copyrights upon the products or with respect to the services upon
or in respect of which they have been or are currently being used
by Seller. Except as listed on attached Exhibit 3.10, there are
no claims, demands or proceedings instituted, pending (or to the
best knowledge of Seller, threatened) nor does Seller have actual
knowledge of any facts and circumstances which could reasonably
be anticipated to result in any claims, demands or proceedings,
pertaining to or challenging the right of Seller to obtain,
maintain or use any such intellectual property, patents,
trademarks, service marks, trademarks or copyrights, or any
application or registration therefor, or any copyrighted or trade
secret material, or any invention, process, machine, manufacture
or composition of matter included in the Patents and Data, Soft-
ware or Related Information. Except for rights granted pursuant
to the Customer Contracts or as listed on attached Exhibit 3.10,
Seller has not granted any licenses, sublicenses or other rights
under any of the patents (or any applications or registrations
therefor), software, trade secrets, inventions, copyrights, trade
names or trademark (or any applications or registrations
therefor), service marks (or any applications or registrations
therefor), know-how or other intellectual property owned by or
licensed to Seller and including the Patents and Data, Software
and the Related Information.
3.11. Necessary Property. The Assets constitute
all of the assets, property and contracts used in the operation
of the Business in the manner and to the extent operated by
Seller, as of September 30, 1995. Neither Huelsman nor any of
the officers, directors or employees of Seller have any rights of
ownership, use or any other rights with respect to any of the
Assets.
3.12. Leases. Set forth on Exhibit 3.12 is a list
of each lease for real or personal property involves payments by
Seller aggregating in excess of $1,000 annually. [Seller has
previously delivered to Buyer a true and correct copy of each
lease listed on attached Exhibit 3.12.] The property covered by
the terms of the leases is currently occupied or used by Seller
as lessee under the terms of said leases for the Business, and,
in particular, in the case of any leases for real property,
Seller is entitled, by the terms of said leases, to use any
leased premises for the purposes for which and in the manner
in which they are currently being used by Seller, and such use
complies in all material respects with all applicable zoning and
building code ordinances and any other applicable ordinances,
laws or regulations, including those that relate to the use,
storage, and disposal of hazardous materials. Except as set
forth on attached Exhibit 3.12, all rentals due under the Leases
have been paid and there exists no default by Seller under any of
the Leases which would have a material adverse effect on the
operation of the Business which cannot be cured without material
penalty to Seller under the terms of said Leases and no event has
occurred which, with the passage of time or the giving of notice,
or both, would result in any event of default thereunder by
Seller or prevent Seller, currently, or Buyer, after consummation
of the transactions contemplated hereunder, from exercising or
obtaining the benefits thereunder. Except as noted on attached
Exhibit 3.12, all of the Leases are valid and in full force and
effect.
3.13. Customer Contracts. Set forth on attached
Exhibit 3.13 is a list of all of the Customer Contracts and of
all customers who have generated any revenue for Seller from and
after January 1, 1992. Each of the Customer Contracts is valid
and subsisting, has not been subsequently amended (except as set
forth on Exhibit 3.13) and is currently in full force and effect
according to the terms of such Customer Contract; and Seller has
not assigned any rights thereto, except for liens listed on
attached Exhibit 3.13. Except as set forth on attached Exhibit
3.13, (i) there exists no event of default under any Customer
Contract by Seller or, to the knowledge of Seller, by the other
party thereto, and (ii) no event of default by Seller has
occurred and is continuing which would prevent Buyer from
exercising or obtaining the benefits thereunder (including any
options contained therein), would cause the acceleration of any
obligation of Seller under any of such contracts, or would cause
the creation of a lien or encumbrance upon any of the Assets
which are material to the Business.
3.14. Contracts and Commitments. Except as set
forth on attached Exhibit 3.13, Seller does not have outstanding:
(a) Any single contract, including consulting
contracts providing for an expenditure in excess of $1,000, or
contracts in the aggregate providing for expenditures in excess
of $1,000 for the purchase, leasing or licensing of any real
property, machinery, equipment, software or other items which are
in the nature of a capital investment, or for consulting
services.
(b) Any loan agreement, indenture, promissory note,
mortgage, conditional sales agreement, guaranty, surety
agreement, installment debt agreement or other similar type
agreement.
(c) Any contract for sale or purchase of materials,
products, or supplies which contains an escalator, renegotiation
or redetermination clause or which establishes a commitment for
sale or purchase for a fixed term, except for those contracts
which (A) are cancelable by Seller on thirty (30) days notice or
less without penalty or (B) involve payments by Seller of less
than $5,000 per year.
(d) Any other material contract or commitment (other
than the Customer Contracts) which is not cancelable on thirty
(30) days notice or less without penalty.
3.15. Use and Condition of Property. Except as set
forth on Exhibit 3.15, to the Knowledge of Seller, all of the
Fixed Assets are suitable for the uses for which they are
intended, in good operating condition and repair, and free from
any known defects except normal wear and tear. Except as set
forth in any Exhibit attached hereto, to the Knowledge of Seller
the Business is in compliance with applicable laws, rules or
regulations relating to the Fixed Assets or any improvements
thereto.
3.16. No Breach of Statute, Decree, Order or
Contract. Seller is not in default under, or in violation of the
provisions of (a), any provisions of its Articles of
Incorporation or Bylaws or (b) any provision of any franchise or
license or of any promissory note, indenture or any evidence of
indebtedness or security therefor, any lease, contract, purchase
or other commitment or any other agreement by which it or any of
its property is bound, which in any such case as to matters
described in (b) could materially adversely affect the
consummation of the transactions contemplated in this Agreement,
the Business, the Assets or the Customer Contracts, nor is Seller
in violation of any applicable statute, law, ordinance, decree,
order, rule or regulation of any governmental body which may
reasonably be anticipated to result in any material adverse
effect on the transactions contemplated by this Agreement, the
Business, the Assets or the Customer Contracts.
3.17. Approvals and Consents. Except as set forth
on attached Exhibit 3.17, no authorization, consent, permit,
license or approval of, or declaration, registration or filing
with, any person or governmental, quasi-governmental or
regulatory authority or agency is necessary for the execution and
delivery by Seller or Huelsman of this Agreement and the other
agreements required to be executed in connection with the
transactions contemplated by this Agreement.
3.18. Litigation. There is no suit, claim, action
or proceeding now pending before any court, administrative or
regulatory body, or any governmental agency, or to Seller's
Knowledge, any threatened claim which may result in any judgment,
order, decree, liability or other determination which will, or
could, have a material adverse effect upon the Business, the
Assets or the Customer Contracts or the consummation of the
transactions contemplated hereby. Seller is not subject to any
such judgment, order, decree, liability or other determination
which has, or could reasonably be expected to have such effect.
3.19. Discrimination, Occupational Safety and other
Statutes and Regulations. No person or party (including, but
not limited to, governmental agencies of any kind) has any claim
against Seller pending before any court or administrative agency,
and, to Seller's Knowledge, no claim of such nature has been
threatened against Seller arising out of any statute, ordinance
or regulation relating to discrimination in employment or employ-
ment practices or occupational safety and health standards
(including, but without limiting the foregoing, the Fair Labor
Standards Act, Title VII of the Civil Rights Act of 1964, or the
Age Discrimination in Employment Act of 1967, all as amended,
where applicable).
3.20. Employees. Set forth on attached Exhibit
3.20 is a list of all employees of Seller as of the date of this
Agreement and their respective base rates of pay during Seller's
fiscal year ended December 31, 1994 (including all incentives,
bonuses, commissions and similar cash payments, all identified
separately from the employee's base rate of pay), and all
employees of Seller retained since January 1, 1995, together with
their respective rates of compensation and the actual amounts, if
any, paid to each such employee through November 25, 1995.
3.21. Environmental Matters. Seller's ordinary
course business activities have no material environmental impact.
Seller has not violated, is not violating and neither Seller nor
Huelsman has received, with respect to the Seller or the
Business, a notice or charge asserting any violation by Seller of
the Federal Solid Waste Disposal Act, the Federal Clean Air Act,
the Federal Clean Water Act, the Federal Resource Conservation
Recovery Act of 1976 ("RCRA"), the Federal Comprehensive
Environmental Responsibility Clean-Up and Liability Act of 1980
("CERCLA"), the Toxic Substance Control Act of 1976 or any other
federal, state, local or foreign laws including rules and regu-
lations thereunder, regulating or otherwise affecting the envi-
ronment ("Environmental Laws") as the same may have been amended
prior to the date of this Agreement. Except as set forth on
Exhibit 3.21, no asbestos, PCBs, urea formaldehyde or
polychlorinated biphenyls are present on the premises utilized by
Seller in operation of the Business (the "Leased Premises").
None of the equipment or machinery of Seller employed in the
Business is required to be upgraded or modified to be in compli-
ance with Environmental Laws. During Seller's use of the Leased
Premises, neither Seller nor any third party has disposed of any
substance in any manner on the Leased Premises and the
improvements thereon in violation of any Environmental Laws.
With respect to Seller and the Business, no environmental claims
have been asserted and none have been threatened or are
anticipated to be asserted against Seller, Huelsman, the Assets
or the
3.22. No Additional Liabilities. Other than the
obligations specifically assumed by ASI at Closing, ASI is not
assuming and will not be responsible or liable for any
liabilities (including but not limited to warranty liability or
product liability on any products) relating to Seller or the
Business being transferred because of this Agreement, or the
Assets.
3.23. Complete Business. Except for the Excluded
Assets, the Assets are all of the assets used by Seller in
connection with the Business being transferred hereby and, with
the exception of working capital, no other assets are needed to
continue to conduct the Business as it is currently being
conducted.
3.24. No Limitation of Representations or
Warranties. Any inspection or investigation by or on behalf of
Buyer shall not limit or affect any of the representations or
express or implied warranties of Seller and Huelsman which are
contained herein, except that, notwithstanding any provision of
this Agreement to the contrary, in the event that Seller or
Huelsman can prove that Buyer had actual knowledge (which in this
context is intended to mean that Buyer had actual knowledge of a
fact or condition and that the significance of such fact or
condition was or should have been apparent to a person not
involved in the business on a day-to-day basis), of a breach of
any covenant, representation or warranty of Seller or Huelsman
set forth in this Agreement or any agreement or instrument
executed pursuant hereto, then neither Seller nor Huelsman shall
be liable hereunder for any loss to the extent that such loss
results from or arises out of any such breach.
3.25. Insurance. Attached Exhibit 3.25 contains a
true and correct list of all policies of insurance in respect to
the Business (including the amounts) in which Seller is named as
the insured party. Seller will continue to maintain the present
coverage afforded by such policies in full force and effect up to
and including the Closing Date.
3.26. Licenses, Etc. Attached Exhibit 3.26
contains a true and correct list setting forth all licenses,
rights and authorities issued by the State of Wisconsin and other
states, the United States, and any municipality, foreign or
domestic governmental or quasi-governmental agency or
administrative body, and any and all applications for same, which
authorize Seller to conduct the Business. Except as set forth in
attached Exhibit 3.26, such licenses, rights, and authorities to
Buyer. In addition, attached Exhibit 3.26 contains a detailed
summary of any and all claims and actions asserted against Seller
by notice in writing to Seller within the past five (5) years by
any of the above referenced governmental bodies on account of any
alleged violation of any such license, right or authority.
3.27. Ongoing Business. Seller shall (a) keep the
operations and business of the Business intact until the Closing
Date, (b) use reasonable efforts to keep available to Buyer the
services of the present employees of the Business, and (c)
preserve the business relations of the subcontractors and
customers of Seller and the business relations of others with
whom Seller and Huelsman have business relations in respect of
the Business.
3.28. Access to Seller. Seller will, and will
cause its employees and agents (including bankers, in-house and
other accountants, attorneys and insurance representatives) to,
allow the officers, employees and authorized representatives of
Buyer free and full access during normal business hours to the
plants, properties, books and records of Seller, including,
without limitation, the right to perform environmental liability
audits, contact customers, employees, suppliers, bankers,
accountants, attorneys, insurance representatives, state and
federal regulatory agencies and others, and will from time to
time promptly furnish Buyer with such additional financial and
operating data and other information as to the business and prop-
erties of Seller as may from time to time be requested by Buyer.
Huelsman hereby agrees to cause Seller to fulfill its obligation
under this Paragraph 3.28.
3.29. Labor Controversies. With respect to the
employees of the Business, Seller is in compliance in
all material respects with all federal, foreign, state and local
laws, rules and regulations relating to the employment of labor,
employment discrimination, employee welfare and labor standards
which are applicable to it. No proceedings are pending before
any court, government agency or instrumentality or arbitrator
relating to labor matters, and to the knowledge of Seller, there
is no pending investigation by any governmental agency or threat-
ened claim by any such agency or other person with respect to
Seller relating to labor or employment matters. Seller is not a
party to any agreement or contract with any union, labor organi-
zation, employee group, or other entity or individual which
affects the employment of employees of the Business, including
but not limited to, any collective bargaining agreements or labor
contracts.
3.30. ERISA.
(a) Attached Exhibit 3.30 lists all profit sharing,
pension or retirement plans, programs, arrangements or
agreements, and each other employee benefit plan, program or
agreement maintained or contributed to or required to be
contributed to for the benefit of any employee or terminated
employee of the Business, whether formal or informal (the "Plan"
or "Plans"). Seller does not have any formal plan or commitment,
whether legally binding or not, to create any additional Plan or
modify or change any existing Plan that would affect any employee
or terminated employee of the Business.
(b) No Plans are covered by Title IV of ERISA, nor has
Seller ever maintained any Plan covered by Title IV of ERISA with
respect to employees or former employees of the Business. With
respect to each Plan, the Seller and each such Plan is, and at
all times has been, in compliance in all material respects with
all applicable laws including, without limitation, the Code and
ERISA. All contributions, premiums or other payments required by
the Plans have been made on or before their due dates. There are
no pending or threatened claims under, by or on behalf of any of
the Plans, by any employee or beneficiary covered by any such
Plan, or otherwise involving any such Plan (other than routine
claims for benefits), nor have there been any "prohibited
transactions" within the meaning of ERISA or the Code. Each Plan
that is intended to qualified under Section 401(d) or Section
401(k) of the Code has received a favorable determination letter
from the Internal Revenue Service to that effect, and no fact or
event has occurred from the date thereof which would adversely
affect the qualified status of such Plans. The 401(k) Plan main-
tained by Seller is not "top heavy" within the meaning of Section
416(g) of the Code.
3.31. Vyas Consulting Services.
(a) The Service Agreement between Seller, Interra
Technologies (India) PVT. Ltd. ("Interra-India") and Interra
Technologies, Inc. ("Interra") dated December 1, 1995 (the
"Services Agreement") is currently on a month to month basis and
is in full force and effect according to its terms.
(b) There exists no event of default (including
any payment default) by Seller under the agreement in effect
immediately prior to the Services Agreement or under the Services
Agreement and to the knowledge of Seller, there exists no event
of default by Interra and Interra-India.
(c) To the knowledge of Seller, no dispute exists
between Seller, Interra and Interra-India under the agreement in
effect immediately prior to the Services Agreement or under the
Services Agreement.
(d) No authorization, consent, permit, license or
approval of, or declaration, registration or filing with, any
person or governmental, quasi-governmental or regulatory
authority or agency is required of Seller, or to the knowledge of
Seller, of Interra or Interra-India, in connection with the
execution, delivery or performance of the Services Agreement by
Seller, Interra and Interra-India, respectively.
(e) No authorization, consent, permit, license or
approval of, or declaration, registration or filing with, any
person or governmental, quasi-governmental or regulatory
authority or agency would be required of Buyer, Interra or
Interra-India in connection with any assignment of the Services
Agreement to Buyer and, if so assigned, the performance of the
Services Agreement by Interra, Interra-India and Buyer.
4. Representations and Warranties of Buyer. Buyer
hereby makes the following representations and warranties, each
of which is true and correct as of the date of this Agreement and
as of the Closing Date and shall survive the Closing Date and the
transactions contemplated hereby, to the extent set forth in
Paragraph 16.16.
4.1. Corporate Status. Buyer is a corporation duly
organized and validly existing under the laws of the State of
Colorado, and has the corporate power and the authority to own
and use its properties and to transact the business in which it
is engaged. Buyer has the corporate power and authority to enter
into and consummate the transactions contemplated by this
Agreement.
4.2. Authorization of Agreement. The execution and
delivery of this Agreement does not, and the compliance with and
the fulfillment of, and the consummation of the transactions con-
templated by, this Agreement will not violate or conflict with
any provisions of the Articles of Incorporation or Bylaws of
Buyer or result in a breach of, or constitute a default under, or
result in the acceleration of, any obligation under any agreement
or instrument to which Buyer is a party or by which it is bound,
or violate any order, judgment, award or decree to which it is a
party or to which it is subject which could have a material
adverse effect on (i) Buyer or its assets or (ii) the consumma-
tion of the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation by Buyer of the
transactions contemplated herein have been approved by the Board
of Directors of Buyer, which constitutes all action required by
law, Buyer's Articles of Incorporation, its Bylaws or otherwise
to authorize and approve the execution, delivery and performance
of this Agreement by Buyer and the consummation by it of the
transactions contemplated herein.
4.3. Litigation. There is no suit, claim, action or
proceeding now pending or, to the knowledge of Buyer, threatened
before any court, administrative or regulatory body, or any
governmental agency which may result in any judgment, order,
decree, liability or other determination which will, or could,
have a material adverse effect of any kind upon (i) Buyer or its
assets or (ii) the consummation of the transactions contemplated
hereby. Buyer is not subject to any such judgment, order,
decree, liability or other determination which has or reasonably
could be expected to have such effect.
4.4. Shares. The Subject Shares to be issued by Seller
to Buyer hereunder, have been duly and validly authorized and,
when issued as provided herein, will be duly and validly issued
and fully paid and non-assessable, free and clear of all liens,
claims, and encumbrances except those in favor of Buyer as
specifically provided in this Agreement.
4.5. Capitalization. Buyer has delivered true and
complete copies of its Articles of Incorporation and Bylaws to
Seller. The Authorized capital stock of Buyer consists of
100,000,000 shares of Common Stock and 2,500,000 shares of
preferred stock, no par value ("Preferred Stock"). As of the
date of this Agreement, (i) 2,832,349 shares of Common Stock are
issued and outstanding, (ii) no shares of Preferred Stock are
issued and outstanding, and (iii) 711,275 shares of Common Stock
are subject to issuance pursuant to stock options, warrants or
similar agreements. Except as set forth in clause (iii) above,
as of the date of this Agreement, there are no options, warrants
or other rights of any character obligating Buyer to issue or
sell any shares of its capital stock. None of the issued and
outstanding shares of Common Stock were, and none of the Subject
Shares will be, issued in violation of any preemptive rights.
4.6. SEC Documents.
(a) Buyer has filed all forms, reports and documents
required to be filed with the Securities and Exchange Commission
(the "SEC") since September 30, 1994, and as of the date of this
Agreement has delivered to Seller in the form filed with the SEC
(i) its Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1994, (ii) its Quarterly Reports on Form 10-QSB for
the periods ended December 31, 1994, March 31, 1995 and June 30,
1995, (iii) the definitive Proxy Statement for any meeting of
shareholders of Buyer held since September 30, 1994, (iv) all
Current Reports on Form 8-K filed since September 30, 1994, (v)
all registration statements filed with the SEC since September
30, 1994, and (vi) all amendments and supplements filed with the
SEC to all such reports and registration statements
(collectively, the "Buyer SEC Reports").
(b) The Buyer SEC Reports, and all reports filed by
Buyer with the SEC after the date of this Agreement and on or
prior to the Closing, (i) were or will be prepared in accordance
with applicable rules and regulations in all material respects,
and (ii) did not at the time they were filed, contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(c) Since the date of the last Buyer SEC Report filed
prior to the date of this Agreement, there has not been any
change in the financial condition, results of operations, or
business of Buyer which has a material adverse effect on Buyer.
4.7. Securities Act Compliance. The issuance of the
Subject Shares will comply with all applicable federal and state
securities laws.
4.8. NASDAQ. Seller will comply with any applicable
NASDAQ requirements regarding the Subject Shares.
5. Opinions of Counsel.
5.1. Opinions of Counsel of Seller. Buyer shall have
received as of the Closing Date, an opinion from Seller's
counsel, Godfrey & Kahn, S.C., dated as of the Closing in the
form attached to this Agreement as Exhibit 5.1.
5.2. Opinion of Counsel of Buyer. Seller shall have
received as of the Closing Date, opinions from Buyer's counsel,
Daniel P. Edwards, P.C., and from Sherman & Howard L.L.C., dated
as of the Closing Date, in the form attached to this Agreement as
Exhibits 5.2 and 5.2.1, respectively.
6. Indemnification.
6.1. Indemnification of Buyer.
(a) Seller and Huelsman jointly and severally agree to
indemnify Buyer and Buyer's officers, directors, shareholders,
agents and employees and to hold them harmless from and against
any and all damages, losses, deficiencies, actions, demands,
judgments, costs and expenses (including reasonable attorneys'
and accountants' fees) (collectively, "Losses") of or against
Buyer resulting from (i) any misrepresentation or breach of
warranty on the part of Seller or Huelsman in this Agreement or
in any document or agreement executed and/or delivered by Seller
or Huelsman in connection herewith; (ii) any nonfulfillment of
any agreement or covenant contained herein or in any certificate,
documents, agreement or instrument delivered hereunder on the
part of Seller or Huelsman; and/or (iii) any failure of Seller or
Huelsman to pay and/or perform any liability or obligation of
Seller, Huelsman or the Business other than the Assumed
Liabilities; and (iv) any loss, liability, or expenses, including
reasonable attorneys' fees and costs, incurred by Buyer in
pursuing a claim against Intelligraphics, Inc. of Texas for
infringement of the name "Intelligraphics"; provided for this
purpose, the parties acknowledge that Godfrey & Kahn, S.C. has
been retained to pursue such claim and will continue to be the
counsel which will pursue the matter subsequent to the Closing.
(b) Notwithstanding anything in this Agreement to the
contrary, Seller and Huelsman shall not be obligated to
indemnify, defend or hold harmless Buyer pursuant to Paragraph
6.1(a)(i) of this Agreement, in respect of any breach of any
representation or warranty made in this Agreement or any document
executed in connection herewith unless, the aggregate Losses for
which Buyer is entitled to indemnification under said Paragraph
6.1(a)(i) shall exceed twenty-five thousand dollars ($25,000.00)
(in which event the entire loss will be payable), and in no event
shall Seller's and Huelsman's aggregate liability to indemnify
Buyer in respect of all Losses under said Paragraph 6.1(a)(i)
exceed $4,300,000. Notwithstanding the foregoing, no Loss
arising from a breach of a representation and warranty in
Sections 3.8, 3.9 or the second sentence of Section 3.10 will be
subject to the $25,000 "basket" provided for above; that is, any
such Loss will be payable by Seller and Huelsman without dilution
or effect against the $25,000 "basket.".
(c) Seller and Huelsman may satisfy their obligations
under Paragraph 6.1(a) of this Agreement by transferring Subject
Shares to Buyer except with respect to any claim by Buyer
relating to the failure to obtain Consents specified in
Section1.3(b)(1) and (ii), which shall be paid in cash to Buyer.
Such shares shall be valued at fifty percent (50%) of the Market
Price of the Common Stock as of the most recent business day
preceding the date of transfer. If applicable, Seller and Buyer
shall direct the Escrow Agent to transfer to Buyer such number of
Subject Shares as Seller may designate in accordance with the
provisions of this Paragraph 6.1(c).
6.2. Indemnification of Seller and Huelsman.
(a) Buyer agrees to indemnify Seller and Huelsman and
to hold each of them harmless from and against any and all Losses
of or against Seller or Huelsman resulting from (i) any
misrepresentation or breach of warranty or representation on the
part of Buyer in this Agreement or in any document or agreement
executed and/or delivered by Buyer in connection herewith; (ii)
any nonfulfillment of any agreement or covenant contained herein
or in any certificate, document or instrument delivered hereunder
on the part of Buyer; and/or (iii) any failure of Buyer to pay
and/or perform when due any of the Assumed Liabilities.
(b) Notwithstanding anything in this Agreement to the
contrary, Buyer shall not be obligated to indemnify, defend or
hold harmless Seller or Huelsman pursuant to Paragraph 6.2(a)(i),
in respect of any breach of any representation or warranty made
in this Agreement or any document executed in connection herewith
unless, and only to the extent, the aggregate Losses for which
Seller and Huelsman are entitled to indemnification under said
Paragraph 6.1(a)(i) shall exceed twenty-five thousand dollars
($25,000.00) and in no event shall Buyer's aggregate liability to
indemnify Seller and Huelsman in respect of all Losses under said
Paragraph 6.2(a)(i) exceed the purchase price set forth in
Section 1.2 above.
6.3. Procedure Relative to Indemnification.
(a) In the event that any party hereto shall
claim that it is entitled to be indemnified pursuant to the terms
of this Paragraph 6, it or he (the "Claiming Party") shall so
notify the party or parties against which the claim is made (the
"Indemnifying Party") in writing of such claim within forty-five
(45) days after receipt of a notice of such claim or notice of
any claim of a third party that may reasonably be expected to
result in a claim by such party against the party to whom such
notice is given. Such notice shall specify the breach of
representation, warranty or agreement claimed by the Claiming
Party and the liability, loss, cost or expense incurred by, or
imposed upon, the Claiming Party on account of any such
liability, loss, cost or expense. Failure to give such notice
will not relieve Indemnifying Party of its indemnification
obligation, except to the extent the defense of the Indemnifying
Party against such claim was prejudiced. If such liability,
loss, cost or expense is liquidated in amount, the notice shall
so state and such amount shall be deemed the amount of the claim
of the Claiming Party. If the amount is not liquidated, the
notice shall so state and in such event a claim shall be deemed
asserted against the Indemnifying Party on behalf of the Claiming
Party, but the amount of the claim of the Claiming Party shall be
deemed undetermined.
(b) If such claim shall involve a suit, claim or
demand of a third party, the Indemnifying Party shall, upon
receipt of such written notice and at its expense, defend such
claim in its own name or, if necessary, in the name of the
Claiming Party; provided, however, that if the proceeding
involves a matter solely of concern to the Claiming Party in
addition to the claim for which indemnification under this
Paragraph 6 is being sought, such matter of sole concern shall be
within the sole responsibility of the Claiming Party and its
counsel. The Claiming Party will cooperate with and make
available to the Indemnifying Party such assistance and materials
as may be reasonably requested of it, and the Claiming Party
shall have the right, at its expense, to participate in the
defense. The Indemnifying Party shall have the right to settle
and compromise such claim only with the consent of the Claiming
Party (which consent shall not be unreasonably withheld;
provided, that such consent can be reasonably withheld if the
party from which such consent is requested is not fully released
by the settlement).
(c) In the event the Indemnifying Party shall notify
the Claiming Party that it disputes any claim made by the
Claiming Party and/or it shall fail to undertake a defense
against such claim, then the Claiming Party shall have the right
to conduct a defense against such claim and shall have the right
to settle and compromise such claim upon five (5) days notice to,
but without the consent of, the Indemnifying Party. Once the
amount of such claim is liquidated and the claim is finally
determined, the Claiming Party shall be entitled to pursue each
and every remedy available to it at law or in equity to enforce
the indemnification provisions of this Paragraph 6 and, in the
event it is determined, or the Indemnifying Party agrees, that it
is obligated to indemnify the Claiming Party for such claim, the
Indemnifying Party agrees to pay all costs, expenses and fees,
including all reasonable attorneys' fees which may be incurred by
the Claiming Party in its efforts to enforce indemnification
under this Paragraph 6, whether the same shall be enforced by
suit or otherwise.
7. Accounts Receivable. After the Closing Date, all
payments collected for those accounts which were included within
the Accounts Receivable on the Final Balance Sheet shall, unless
otherwise designated for payment of a specific invoice by the
account debtor, first be applied against outstanding invoices in
the order of issuance (i.e., against the oldest invoices first).
Buyer agrees to use normal and customary efforts in collecting
the Accounts Receivable; provided that nothing contained herein
shall be construed as requiring Buyer to file suit, employ the
services of a collection agency or commence any other official
proceeding in order to collect any delinquent accounts included
with the Accounts Receivable. Buyer will provide Seller with
written progress reports as reasonably requested by Seller as to
the status of the collection of the Accounts Receivable. If at
the end of six (6) months from the Closing Date hereunder there
remain any Accounts Receivable which are uncollected (over and
above the amount of the reserves as reflected on the Final Bal-
ance Sheet), Buyer shall give written notice to Seller within
fifteen (15) days of the expiration of said six (6) month period
stating such fact and setting forth the amount of the Account
Receivable uncollected (the "Uncollected Receivables") after
deducting any applicable reserves, and by delivering such notice
Seller will be deemed to have made a claim (an "Accounts Receiv-
able Claim") for such amount. Within fifteen (15) days of the
delivery by Buyer of any such notice to Seller, Seller shall pay
the amount of such Accounts Receivable Claim to Buyer, in cash,
or from the Subject Shares escrowed pursuant to Section 1.8
above. Seller's obligation to pay any Accounts Receivable Claim
hereunder shall be subject to any specific rights Seller may have
hereunder or may have in general at law to dispute the amount or
propriety of any such Accounts Receivable Claim. Upon payment to
Buyer by Seller of an Accounts Receivable Claim, Buyer shall be
deemed to have assigned to Seller (or its designee) all such
Uncollected Receivables. In the event that Buyer should receive
payment for any such Uncollected Receivables, any amounts so
received by Buyer shall promptly be paid over to Seller (or its
designee).
7.1. Remedies Cumulative. Except as herein expressly
provided, the remedies provided herein shall be cumulative and
shall not preclude assertion by any party hereto of any other
rights or the seeking of any other remedies against any other
party hereto, provided they are consistent with this Agreement.
8. Conditions Precedent to Buyer's Obligation to
Close. All obligations of Buyer to complete the transaction
contemplated under this Agreement are subject to the satisfaction
by Seller and Huelsman or waiver by Buyer, prior to or at Clos-
ing, of each of the following conditions, with respect to which
Seller agrees to use its good faith efforts to fulfill on or
before Closing:
8.1. Continued Validity of Representations and War-
ranties. All representations and warranties made by Seller and
Huelsman contained in this Agreement shall be true at and as of
the Closing as though such representations and warranties were
made at and as of such time, except for those waived as provided
below.
8.2. Performance Conditions and Completion of Agree-
ments. Seller shall have performed and complied with all
agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at Closing.
8.3. Satisfaction with Financial Condition. There
shall have been no material adverse change in the Assets or in
the financial condition or prospects of the Business since
September 30, 1995.
8.4. Delivery of Documents. Prior to or at the Clos-
ing, true and complete copies of all documents listed on any
Exhibit hereto shall have been delivered to Buyer in a form
acceptable to Buyer and Buyer's counsel.
8.5. Employment Agreements. Buyer shall have entered
into employment agreements and non-competition agreements with
William Nantell, David Kroes and David Coates in substantially
the form attached hereto as Exhibits 8.5-1, 8.5-2 and 8.5-3,
respectively (collectively, the "Executive Employment
Agreements"), and with the additional employees listed in Exhibit
8.5-4 attached hereto. Seller, Buyer and Huelsman shall
cooperate fully in arranging for such executive employment agree-
ments.
8.6. Other Agreements. Seller and Huelsman shall have
entered into a Voting Trust Agreement in the form attached hereto
as Exhibit 8.6-1; an Arbitration Agreement in the form attached
hereto as Exhibit 8.6-2, an Investor Letter in the form attached
hereto as Exhibit 8.6-3, a Lock Up Agreement in the form attached
hereto as Exhibit 8.6-4, and any other agreements reasonably
required by counsel for Buyer, in addition to that required under
Paragraph 8.7 below, to substantiate, to Buyer's satisfaction,
the relationship among Seller, INTERRA, and Manesh P. Vyas.
8.7. Consents Obtained. Except for those Customer
Contracts listed on Exhibit 8.7, all consents to the consummation
of the transaction contemplated in this Agreement to the leases
between Seller and Business Enterprises and shall remain in full
force and effect at and as of the Closing (the "Required
Consents").
8.8. No Action. No suit, action, investigation,
inquiry or other legal or administrative proceeding by any
governmental authority or other person shall have been instituted
or threatened which seeks to enjoin, restrain or prohibit, or
which questions the validity or legality of, the transactions
contemplated hereby or which otherwise seeks to affect or could
affect the transactions contemplated hereby or the Assets or
impose damages or penalties upon any party hereto if such
transactions are consummated.
8.9. Name Change. Intelligraphics shall have taken all
requisite action to change its corporate name to a name which is
not in any way similar to Intelligraphics and shall have
transferred to Buyer all rights to any such names.
8.10. Termination Statements. Seller shall have
delivered UCC-3 termination statements in form and substance
acceptable for filing with the applicable Wisconsin authorities,
to terminate and release all prior UCC filings with respect to
the Assets, as of the Closing Date.
9. Conditions Precedent to Seller's Obligation to
Close. The obligations of Seller and Huelsman to consummate the
transactions contemplated under this Agreement are subject to the
following conditions:
9.1. Continued Validity of Representations and War-
ranties. All representations and warranties of Buyer contained
in this Agreement shall be true at and as of the Closing as
though such representations and warranties were made at such
time.
9.2. Performance Conditions and Completion of Agree-
ments. Buyer shall have performed and complied with all agree-
ments and conditions required by this Agreement to be performed
or complied with by it prior to or at Closing.
9.3. Delivery of Documents; Purchase Price. Prior
to or at the Closing, true and complete copies of all documents
required to be delivered by Buyer to Seller hereunder shall have
been delivered to Seller in a form acceptable to Seller and
Seller's counsel, and Buyer shall have delivered the Estimated
Amount to Seller by wire transfer and shall have transferred the
Subject Shares to the Escrow Agent and the Trustee as provided in
Paragraph 1.3.
9.4. No Action. No suit, action, investigation,
inquiry or other legal or administrative proceeding by any gov-
ernmental authority or other person shall have been instituted or
threatened which seeks to enjoin, restrain or prohibit, or which
questions the validity or legality of, the transactions contem-
plated hereby or which otherwise seeks to affect or could affect
the transactions contemplated hereby or the Assets or impose
damages or penalties upon any party hereto if such transactions
are consummated.
10. No Additional Liabilities. Other than any
obligations specifically assumed by ASI at Closing, ASI is not
assuming and will not be responsible or liable for any
liabilities relating to Intelligraphics or Huelsman or the
Business being transferred because of this Agreement, or the
Assets transferred pursuant hereto, and Intelligraphics and
Huelsman hereby agree to indemnify and hold harmless ASI against
any such unassumed obligations or claims against ASI arising from
such obligations, under the terms of Paragraph 6.3.
11. Closing.
11.1. Closing. Subject to the satisfaction or
waiver of all conditions to the obligation of the parties hereto
to close as set forth herein, the closing of the transaction pro-
vided for in this Agreement ("Closing") shall take place at the
offices of Sherman & Howard L.L.C., in Denver, Colorado on
December 22, 1995 at 8:00 A.M. MST, or at such other date, time
and place as may be mutually agreed by the Buyer and Seller,
after all Required Consents have been obtained as designated by
Buyer by written notice given to Seller and Huelsman five (5)
days in advance of Closing, unless Buyer and Seller agree
otherwise. For purposes hereof, the Closing shall be deemed to
have occurred effective 12:01 A.M., MST, on December 22, 1995.
11.2. Deliveries by Seller. Seller and Huelsman
agree to execute and deliver to Buyer or cause to be delivered to
Buyer, at the Closing, the following:
(a) A certificate executed by a duly authorized
officer of Seller and by Huelsman to the effect that all
warranties and representations of Seller and Huelsman contained
in this Agreement, as supplemented pursuant to Paragraph 16.19,
are true and correct in all material respects at and as of the
Closing and all conditions precedent to the obligations of Buyer
to consummate the transaction contemplated herein not waived by
Buyer have been fulfilled by Seller and Huelsman;
(b) An opinion of Godfrey & Kahn, S.C., legal counsel
for Seller and Huelsman, as described in Paragraph 5.1;
(c) To the extent available prior to Closing,
certificates of taxes due from each jurisdiction in which Seller
conducts business;
(d) A general warranty bill of sale and other
appropriate instruments of assignment and conveyance, in form and
substance satisfactory to Buyer, dated as of the Closing Date,
conveying to Buyer good and marketable title to the Assets, free
and clear of all encumbrances, security interests, liens,
contracts of sale and matters of record;
(e) General warranty assignments (and such other
documents as may be satisfactory to Buyer) of the Customer
Contracts and the other Assumed Contracts and the Required
Consents;
(f) Copies (dated as of the Closing Date) of the
resolutions of Seller's Board of Directors and shareholders
authorizing and approving this Agreement and the consummation of
each and every transaction contemplated by this Agreement,
together with a certificate of incumbency, certified by Seller's
Secretary;
(g) New Employment Agreements or letters, containing
non-competition agreements and confidentiality agreements, in
form and content satisfactory to Buyer, from those former
employees of Seller, as set forth on Exhibit 11.2(g), including,
but not limited to acknowledgment of their termination of
employment by Seller, their subsequent employment by Buyer, and a
release of Buyer from any liabilities arising under their
employment with Seller;
(h) The Executive Employment Agreements duly executed
by William Nantell, David Kroes and David Coates;
(i) Those additional agreements set forth in
Paragraph 8.6;
(j) The Escrow Agreement duly executed by Seller and
the Escrow Agent;
(k) The Required Consents as set forth in
Paragraph 8.7;
(l) The Confidentiality Agreements as set forth
in Paragraph 14.2;
(m) Evidence satisfactory to Buyer that
Intelligraphics has changed its corporate name and evidence
satisfactory to Buyer that Buyer shall have all rights to any
such names.
(n) UCC-3 termination statements, to terminate
all prior UCC filings in connection with the Assets; and
(o) Such other documents or instruments as Buyer
or its counsel may reasonably request.
11.3. Buyer's Delivery. Subject to the
performance by Seller and Huelsman of their obligations
hereunder, at the Closing Buyer shall deliver to Seller:
(a) A certificate executed by a duly authorized
officer of Buyer to the effect that all warranties and
representations of Buyer contained in this Agreement are true and
correct in all material respects at and as of the date of Closing
and all conditions precedent to the obligations of Seller to
consummate the transaction contemplated herein have been
fulfilled by Buyer or waived by Seller and Huelsman;
(b) Opinions of Daniel P. Edwards, P.C., and Sherman &
Howard L.L.C., legal counsel for Buyer, as described in Paragraph
5.2;
(c) The Estimated Amount, by wire transfer, and
certificates for the Common Stock in the name of the Voting
Trustee (as defined below), and subject to the Escrow Agreement;
(d) The Executive Employment Agreements, duly executed
by Buyer; and
(e) An assumption in form attached as Exhibit 11.3(e),
and to Buyer and its legal counsel, under which Buyer shall
assume all executory obligations under the Assumed Contracts.
11.4. Escrow Agreement. At the Closing, Buyer,
Seller and the Escrow Agent shall enter into the Escrow
Agreement. Furthermore, Buyer shall at the Closing execute and
deliver to the Escrow Agent a certificate for the Subject Shares
to be held in escrow by the Escrow Agent under the terms of the
Escrow Agreement as provided in Paragraph 1.3(b).
11.5. Voting Trust Agreement. Buyer, Seller,
Huelsman and those persons listed on Exhibit 11.5-1 (the
"Additional Holders") shall enter into a Voting Trust Agreement
in the form attached hereto as Exhibit 8.6-1 and, together with
the members of the board of directors of Buyer who are voting
trustees under the Voting Trust Agreement, as Trustee
("Trustee"), a Voting Trust (the "Voting Trust") for the Subject
Shares referred to in Paragraph 1.3(c). Furthermore, Buyer shall
execute and deliver to the Trustee a certificate for the Subject
Shares to be held by the Trustee under the terms of the Voting
Trust with respect to the Subject Shares transferred to the
Voting Trust. As provided in the Voting Trust, appropriate
voting trust certificates shall be issued to the beneficiaries of
the Voting Trust. As a condition to the delivery of the voting
trust certificates, Seller and Huelsman shall arrange for the
execution of such agreements by the Additional Holders. Buyer
acknowledges and agrees to permit the transfer of the voting
trust certificates as contemplated in the Voting Trust.
12. Termination. The Agreement may be terminated
prior to Closing only as follows:
(a) by mutual written consent of all parties hereto;
(b) by any party hereto if the Closing has not
occurred on or before December 31, 1995, provided that the
failure of the Closing to occur is not due to any breach of this
Agreement by the terminating party;
(c) by Buyer in the event of a substantial loss of or
damage to the Assets or the Business prior to Closing as the
result of theft, fire, flood, explosion or other casualty, act of
God or otherwise, whether or not covered by insurance, or a
material adverse change in the Business prior to Closing; or
(d) by Buyer, in the event of a material breach of any
covenant, agreement, warranty, or representation of Seller, or in
the event of a material change of any representation or warranty,
as set forth in Paragraph 15.19.
Any such termination under the foregoing paragraphs shall not
preclude the terminating party from seeking any legal or equit-
able remedy which may be available as a result of the breach of
any warranty, representation or covenant in this Agreement.
13. Brokers Indemnification; Fees and Expenses.
13.1. Brokers; Indemnification. Buyer represents
and warrants to Seller and Huelsman and Seller and Huelsman,
jointly and severally, represent and warrant to Buyer, that
neither of them has employed any broker or finder in connection
with the transactions contemplated by this Agreement, except as
expressly set forth below. Seller and Huelsman hereby agree that
they will indemnify and save Buyer harmless, and Buyer hereby
agrees it will indemnify and save Seller and Huelsman harmless,
from any claim for a commission, finder's fee or other obligation
as a result of anyone claiming a commission as a broker or finder
for the transactions contemplated by this Agreement, based on the
respective acts of the other.
13.2. Fees and Expenses. Seller and Buyer agree
that they will each bear their own costs and expenses, including,
without limitation, fees and expenses of counsel, financial
advisors, accountants and other experts in connection with the
discussions, due diligence investigations, negotiations, docu-
mentation concerning this proposed transaction, the preparation
of this Agreement and related documentation and the consummation
of the transaction contemplated herein. Seller and Huelsman have
engaged Resource Financial Corporation to act in investment bank-
ing and financial advisory capacities with respect to this trans-
action. Buyer, on its part, has retained Hanifen, Imhoff Inc. to
render certain financial advisory services in connection with the
proposed transaction. It is agreed that neither party will be
responsible for the fees, commissions, or expenses payable to
either investment banking firm by the other by reason of this
proposed transaction, and each agrees to indemnify the other
against any such fees, commissions and expenses due and payable
to their respective investment banking firms by reason of consum-
mation of the transactions contemplated in this Agreement.
14. Seller's Employees and Benefit Plans.
14.1. On the Closing Date, Seller will terminate
the employment of all of the employees of Seller. Buyer
presently intends, after the Closing Date, to hire substantially
all of the employees employed by Seller in the Business prior to
the Closing Date, but it is totally within the discretion of
Buyer to decide which (if any) of Seller's current employees will
be offered continued employment and upon what terms and
conditions.
14.2. It is understood by the parties that Buyer
does not guarantee that it will carry over or establish
retirement, savings, health insurance, life insurance, fringe
benefit or other plans or personnel policies or practices similar
or identical to those maintained for Seller's employees prior to
the Closing Date.
15. General Matters.
15.1. Access to Books and Records and Employee
Services. For a period of five (5) years after the Closing Date,
Seller, Huelsman and Buyer agree that prior to the destruction of
disposition of any books or records of or to the Business in its
possession or control, such party shall provide not less than
ninety (90) days prior written notice to the other party of any
such proposed destruction or disposal. If such other party
desires to obtain any of such documents, it may do so by noti-
fying such party in writing at any time prior to the scheduled
date for such destruction or disposal. Such notice must specify
the documents which such party wishes to obtain. The parties
shall then promptly arrange for the delivery of such documents.
All out-of-pocket costs associated with the delivery of the
requested documents shall be paid by the receiving party. In
addition, the parties agree that for a period of six months after
the Closing, Buyer will provide Seller with reasonable access to
the services of David Kroes for the purposes of preparing tax
returns, tax reports and other reports, provided that such access
shall not interfere with Buyer's business and shall be provided
at mutually agreeable times.
15.2. Best Efforts. The parties covenant, promise
and agree that they will use their best efforts to consummate the
transactions contemplated by this Agreement, including, without
limitation, removing all conditions precedent to the other
party's obligations at the Closing, and obtaining any and all
approvals and consents, and executing and delivering all docu-
ments, certificates, schedules, exhibits, consents and other
instruments necessary to effect the transfer of the Assets from
Seller to Buyer.
15.3. Binding Effect and Assignment. This
Agreement shall inure to the benefit of and be binding upon the
parties hereto, their successors and assignees. Neither party
shall, without the written consent of the other party, assign or
transfer any of the rights, benefits, obligations, or other
interest under this Agreement to any other party, which consent
shall not unreasonably be withheld; provided that Buyer may, at
its sole election, assign to a wholly owned subsidiary its rights
to purchase the Assets hereunder, but in that event Buyer shall
not be relieved of its obligations to perform hereunder.
15.4. Confidentiality. The parties hereto agree to
maintain the confidentiality of the transactions contemplated
hereby and the information contained herein and in the Exhibits
and Schedules attached hereto and that no disclosure related
thereto will be made other than in order to comply with appli-
cable laws or other than to such officer, employees and profes-
sional advisors of the parties to the extent necessary in order
for such persons to carry out their duties with respect to
consummation of the transaction contemplated hereby. All parties
acknowledge Buyer, as a publicly owned company, listed on NASDAQ,
and reporting to the SEC, must comply with applicable SEC
disclosure rules.
15.5. Construction and Representation by Counsel.
The parties hereto represent that in the negotiation and drafting
of this Agreement they have been represented by and relied upon
the advice of counsel of their choice. The parties affirm that
their counsel had a substantial role in the drafting and
negotiation of this Agreement and, therefore, the rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any Exhibit or Schedule
attached hereto.
15.6. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
15.7. Enforcement of Agreement. In the event of
any lawsuit to enforce the provisions of this Agreement, the
prevailing party shall be entitled to an award of reasonable
attorneys' fees.
15.8. Entire Agreement. This Agreement (and the
other agreements required hereby to be executed and delivered)
embodies the entire agreement of the parties hereto relating to
the subject matter of this Agreement expressly replacing the non-
binding term sheet dated September 15, 1995, between the parties,
except the Confidentiality Agreement between Seller and Buyer,
which shall terminate if, as and when the Closing occurs. No
amendment or modification of this Agreement shall be valid or
binding upon Buyer unless made in writing and signed by a duly
authorized officer of Buyer, or upon Seller unless made in
writing and signed by a duly authorized officer of Seller, or
upon Huelsman unless made in writing and signed by Huelsman.
15.9. Further Assurances. From time to time, at
the request of Seller or Huelsman or Buyer and without further
consideration, Seller or Buyer, as appropriate, will execute and
deliver to the other such documents and take such other action
as the other may reasonably request in order to consummate more
effectively the transactions contemplated hereby. Without limit-
ing the foregoing, Seller and Huelsman agree, at any time and
from time to time after the Closing, upon request by Buyer, to
do, execute, acknowledge, and deliver, or to cause to be done,
executed, acknowledged, and delivered, all such further acts,
deeds, assignments, transfers, conveyances, powers of attorney
and assurances as may be reasonably required for the better
assigning, granting, transferring, conveying, assuring and
confirming to Buyer, or to its successors and assigns, or for
aiding and assisting in collecting and reducing to possession,
any or all of the Assets to be sold to Buyer pursuant to this
Agreement.
15.10. Governing Law. This Agreement shall be con-
strued, interpreted and enforced, both as to substance and
remedies, in accordance with the internal laws of Colorado.
15.11. Notices. All notices, consents, approvals or
other notifications required to be sent by one party to the other
party hereunder shall be in writing and shall be deemed given to
and received by the other party in all respects when delivered by
hand or sent by reputable overnight delivery service or when
transmitted via facsimile and actually received by the receiving
equipment or two (2) days after the date sent by United States
registered or certified mail, postage prepaid, with return
receipt requested, in each case addressed to such other party at
the address set below, or the last address of such party as shall
have been communicated to the other party. If a party changes
its address, such party shall give written notice promptly to the
other parties of the new address.
15.12. Notification. Upon the occurrence of any
event, whether by omission, commission or acquiescence, which
causes any of the representations and warranties contained herein
to no longer be true, or which will prevent any party from per-
forming its covenants or satisfying the conditions contained
herein, the party whose representation and warranty is no longer
true will give prompt notification in writing to the other party
describing the relevant circumstances in detail.
15.13. Risk of Loss. All risk of loss relating to the
Assets shall remain upon Seller and Huelsman through the delivery
of the Assets to Buyer at Closing, in accordance with the terms
of this Agreement, at and after which time Buyer shall bear such
risk.
15.14. Paragraph Headings. The parties agree that the
section and article headings are inserted only for ease of refer-
ence, shall not be construed as part of this Agreement, and shall
have no effect upon the construction or interpretation of any
part of this Agreement.
15.15. Severability. A determination that any portion
of this Agreement is unenforceable or invalid shall not affect
the enforceability or validity of any of the remaining portions
of the Agreement or of this Agreement as a whole. In the event
that any part of any of the covenants, sections or provisions
herein may be determined by a court of law to be overly broad
thereby making such covenants, sections or provision invalid or
unenforceable, the parties hereto agree, and it is their desire
that, such court shall substitute a reasonable and judicially
enforceable limitation in place of the invalid and unenforceable
part of such covenants, section or provisions, and that, as so
modified, the covenants, sections or provisions shall be as fully
enforceable as if set forth herein by the parties themselves in
the modified form. If, however, any court of law shall delete
any covenants, sections or provisions of this Agreement and shall
refuse to substitute any reasonable and judicially enforceable
provisions in their place, the parties shall attempt to reach
agreement with respect to a valid and enforceable substitute for
the deleted provisions, which shall be as close in its intent and
effect as possible to the deleted portion.
15.16. Survival of Representations and Warranties.
The representations and warranties contained herein or in any
schedule or other certificate or letter (including letters
referred to herein) delivered by, or on behalf of, any of the
parties pursuant to this Agreement and the transactions contem-
plated hereby shall be deemed representations and warranties by
the party by whom, or on whose behalf, the same is delivered, and
all representations and warranties made by the parties in this
Agreement, or delivered pursuant hereto, are incorporated in and
constitute a part of this Agreement and shall survive the Closing
Date as follows:
(a) The warranties and representations of Buyer in
Paragraphs 4.4 and 4.5 of this Agreement and of Seller and
Huelsman in Paragraph 3.9 will survive forever.
(b) All warranties and representations of Seller and
Huelsman in Paragraphs 3.8, 3.21 and 3.30 will survive for the
applicable statute of limitation, plus thirty (30) days.
(c) All other warranties and representations of the
parties herein or in any agreement or instrument executed in
connection herewith shall terminate on December 31, 1997.
(d) Notwithstanding the limitations described in
subsections (b) and (c) above, if a Claiming Party has a
reasonable basis for the belief that a claim for indemnification
exists or will arise and notice regarding such claim is received
in writing by the Indemnifying Party describing in reasonable
detail the facts or circumstances with respect to the subject
matter of such claim on or before the date on which the
representation, warranty, covenant or agreement on which such
claim or action is or will be based ceases to survive as set
forth in this Section 15.16, such claim will survive irrespective
of whether the subject matter of such claim or action shall have
occurred before, on or after such date.
15.17. Taxes. The parties hereto agree that any
federal, state or local sales or other similar transfer taxes,
levies or assessments (including interest and penalties relating
thereto) resulting from the consummation of the transactions
contemplated hereby shall be the liability or responsibility of
Seller.
15.18. Waiver. The failure of any party to exercise
any of its rights hereunder or to enforce any of the terms or
condition of this Agreement on any occasion shall not constitute
or be deemed a waiver of that party's rights thereafter to exer-
cise any rights hereunder or to enforce each and every term and
condition of this Agreement.
15.19. Supplementary Disclosures; Waiver. The parties
acknowledge and agree that all exhibits or schedules delivered to
Buyer by Seller or Huelsman or warranties or representations made
by Seller or Huelsman herein on or prior to the date of this
Agreement may be amended or supplemented in writing by Seller or
Huelsman, but not later than five (5) business days prior to the
Closing Date; provided, that if such amendment or supplementation
constitutes a material change, in Buyer's opinion, Buyer may
terminate the Agreement, and will be reimbursed by Seller upon
demand for Buyer's expenses and reasonable attorneys fees
incurred to the date of termination in connection with this
transaction. Buyer shall be deemed to have accepted such amended
or supplemented exhibit, schedule, warranty or representation
unless Buyer notifies Seller prior to the Closing Date of its
objection to such amendment or supplement. Unless Buyer so
notifies Seller, Buyer shall be deemed to have waived (i) its
rights under Paragraph 12.1 to terminate this Agreement, and (ii)
any claim against Seller or Huelsman based on any exhibit,
schedule, warranty or representation as it existed prior to being
amended or supplemented in accordance with the provisions of this
Paragraph 15.19.
16. 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 Buyer, Seller, the Shareholders, the members of
the board of directors of the Company who are voting trustees
under the Voting Trust Agreement and Bank One, Colorado, NA dated
December 22, 1995.
IN WITNESS WHEREOF, the parties hereto, by and through
their duly authorized representatives have executed this Agree-
ment, as of the day and year first above written.
Address for notice: INTELLIGRAPHICS, INC.,
741 N. Grand Avenue
Waukesha, WI 53186
Fax: (414) 544-4201 By:__/s/ A. William Huelsman__
Attn.: A. William Huelsman A. William Huelsman, Chairman
and Chief Executive Officer
Address for notice:
A. WILLIAM HUELSMAN
235 W. Broadway
Suite 40
Waukesha, WI 53186 __/s/ A. William Huelsman__
Fax: (414) 521-2490
Address for notice: ANALYTICAL SURVEYS, INC.,
1935 Jamboree Drive
Suite 100
Colorado Springs, CO 80920 By:_/s/ Sidney V. Corder
President and
Chief Executive Officer
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. William Huelsman, Gary
Miller, William Nantell, David Coates, David Kroes, Randy Vanek
and Hamid Akhavan (each a "Shareholder" and collectively the
"Shareholders") and John A. Thorpe, Sidney V. Corder, William H.
Hudson, Richard P. MacLeod, James T. Rothe, Robert H. Keeley and
Willem H. J. Andersen (each an "Individual Trustee" and
collectively, the "Trustee").
Recitals
A. The Company, Intelligraphics, Inc. (Intelligraphics")
and A. William Huelsman ("Huelsman") 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 Huelsman in partial satisfaction of
certain loans Huelsman 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, Huelsman 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 Huelsman is no longer indebted to the Bank, the
Company will deliver new certificates for Huelsman's 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 Huelsman no
longer is indebted to the Bank, the Trustee will: (i) distribute
the proceeds of any sale of Shares owned by Huelsman 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 Huelsman directly to the Bank. For purposes of
this Section, any deliveries to the Bank will be made to the
attention of Rusty Long at 111 East Wisconsin, Milwaukee,
Wisconsin 53202. The Trustee shall have no duty to collect
funds due for any sale of Shares by Huelsman.
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.
1935 Jamboree Drive
Colorado Springs, Colorado 80921
Company: Analytical Surveys, Inc.
1935 Jamboree Drive
Colorado Springs, Colorado 80921
Attn: Scott Benger
With a copy to: Daniel P. Edwards, P.C.
Suite 310
128 South Tejon
Colorado Springs, Colorado 80903
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, Joanne Huelsman, James Carpenter, 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/ Sidney V. Corder
Title: President and Chief
Executive Officer
SHAREHOLDER:
/s/ A. William Huelsman
A. William Huelsman
SHAREHOLDER:
Gary Miller
SHAREHOLDER:
William Nantell
SHAREHOLDER:
David Coates
SHAREHOLDER:
David Kroes
SHAREHOLDER:
Randy Vanek
SHAREHOLDER:
Hamid Akhavan
TRUSTEE
John Thorpe
Sidney Corder
William Hudson
Richard MacLeod
James Rothe
Robert Keeley
Willem Andersen
EXHIBIT A
Shareholder Shares
A. William Huelsman 179,200
Suite 40
235 W. Broadway
Waukesha, WI 53186
Gary Miller 6,769
4865 Cedar Circle
Dousman, WI 53118
William D. Nantell 13,537
523 W23124 Broadway
Waukesha, WI 53186
David R. Coates 10,187
W316 57740 Lake Crest Drive
Mukwonago, WI 53149
David Kroes 6,769
4182 Raymir Circle
Wauwatosa, WI 53222
Randy Vanek 6,769
560 Bolson Drive, #D
Oconomowoc, WI 53066
Hamid Akhavan 6,769
2040 Galloway Road
Hartford, WI 53027
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.
William Huelsman, Gary Miller, William Nantell, David Coates,
David Kroes, Randy Vanek, Hamid Akhavan 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)
___________________________________________
(Street Address)
___________________________________________
(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.
John A. Thorpe
Sidney V. Corder
William H. Hudson
Richard P. MacLeod
Willem Andersen
James T. Rothe
Robert H. Keeley
LOCK-UP AGREEMENT
This Lock-Up Agreement ("Agreement") is made as of
December 22, 1995, by and among A. William Huelsman, Gary
Miller, William Nantell, David Coates, David Kroes, Randy
Vanek and Hamid Akhavan (each a "Shareholder" and
collectively, the "Shareholders"), and Analytical Surveys,
Inc., a Colorado corporation (the "Company"). Any
transferee of a Shareholder that is a "family member" (as
defined below) of such Shareholder, will for all purposes of
this Agreement be deemed a Shareholder.
Recitals
A. The Company, Intelligraphics, Inc.
("Intelligraphics") and A. William Huelsman ("Huelsman")
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 approximately
$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 Huelsman in partial
satisfaction of certain loans Huelsman has made to
Intelligraphics. The remainder of the Shares will be
distributed to key management personnel of Intelligraphics
in consideration for their services to Intelligraphics.
Pursuant to an Escrow Agreement dated December 22, 1995
between the Company, Intelligraphics, Huelsman and Bank One,
Colorado, NA, the Company will transfer $250,000 and 70,000
Shares directly into escrow.
B. The Shareholders own the Shares as follows:
Shareholder Shares
A. William Huelsman 179,200
Gary Miller 6,769
William Nantell 13,537
David Coates 10,187
Randy Vanek 6,769
David Kroes 6,769
Hamid Akhavan 6,769
C. The Shares are subject to a Voting Trust Agreement
dated December 22, 1995, between the Shareholders, the
Company and certain individuals who are members of the board
of directors of the Company, as trustee (the "Voting Trust
Agreement") which governs the voting rights of the Shares,
including without limitation, the provisions of Section 18
of the Voting Trust Agreement which requires the delivery of
the Shares or proceeds from the sale of Shares by Huelsman
in certain circumstances to Bank One, Milwaukee, N.A.
D. The Shareholders and the Company have entered into
a Registration Rights Agreement dated December 22, 1995 (the
"Registration Rights Agreement") pursuant to which the
Shareholders have been granted "piggy-back" registration
rights.
E. The parties desire to limit the transfer of the
Shares in the manner set forth in this Agreement.
Agreement
In consideration of the mutual promises contained in
this Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. General Restriction on Transfer. From the date of
this Agreement to, and including, December 22, 1999 (the
"Term"), except as expressly provided in this Agreement, no
Shareholder may transfer any of the Shares or any interest
in the Shares. 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 Family Members.
a. During the Term, any Shareholder may transfer
any or all of his Shares to a "family member." For purposes
of this Agreement, "family member" means such Shareholder's
spouse, ancestor, descendant (whether by blood or adoption),
spouse of any such descendant, or any trust for the sole
benefit of any one or more of such individuals.
b. Any family member may transfer any or all of
his or her Shares to another family member of the
Shareholder who owned such Shares as of the date of this
Agreement.
c. A transfer to a family member is not
effective until such family member executes a document in
the form of Exhibit A to this Agreement by which such family
member agrees to be bound by the terms of this Agreement and
the Voting Trust Agreement.
3. Shareholder Piggyback Registration Rights. During
the period beginning the date of this Agreement and ending
December 22, 1997, each Shareholder may transfer his Shares
pursuant to the terms of the Registration Rights Agreement.
4. Transfers in Connection with Shareholder Approved
Transactions. During the Term, a Shareholder may transfer
any or all of his Shares in connection with a transaction
approved by a vote of the shareholders of the Company, or if
a majority of shareholders of the Company tender their
shares to the Company in connection with a tender offer
accepted by the Company, the Shareholders may tender their
Shares to the Company in connection with such tender offer.
5. Offers to Sell.
a. From the period beginning December 22, 1997,
through the remainder of the Term (the "Permitted Sales
Period"), a Shareholder may transfer Shares under the
provisions of this Section 5.
b. If a Shareholder desires to sell Shares
during the Permitted Sales Period , the Shareholder will
first offer such Shares to the Company. The offer will be
in writing and will specify the number, class (if
applicable) and price of the Shares being offered. The
purchase price per share will be the average of the closing
bid and asked prices for one share of common stock of the
Company, as reported on the National Market System of NASDAQ
for the twenty business days preceding the date the offer to
sell is made (the "Notice Date"). If, on the Notice Date,
the Shares are not traded on NASDAQ, the board of directors
of the Company will determine a substantially equivalent
method for determining the purchase price for the Shares.
The Shareholder or Shareholders who make the offer (whether
one or more, the "Offering Shareholder") will send the offer
to the Company, and the Company will have a period of ten
business days after the receipt of the offer from the
Offering Shareholder to accept the offer by giving notice of
acceptance to the Offering Shareholder (the "Acceptance
Period"). Each acceptance will indicate the number of
Shares as to which the offer is accepted (which may be less
than or equal to the number of Shares that the Offering
Shareholder initially proposes to sell). If the Company
does not accept the offer in a timely manner, the Company
will be deemed to have rejected the offer. If the Company
accepts the offer as to less than all of the Shares that the
Company had the right to purchase, the Company will be
deemed to have rejected the offer with respect to the
balance of such Shares.
c. If the Offering Shareholder's offer is
accepted with respect to any or all of the offered Shares,
the closing of the sale will occur at the principal offices
of the Company, at a time and date specified by the Company,
but, in any event, such closing will occur within sixty days
after the end of the Acceptance Period. At the closing, the
Offering Shareholder will deliver certificates representing
the Shares to be sold, free of any lien, claim, encumbrance
or restriction, other than restrictions imposed by this
Agreement or the Voting Trust Agreement, against payment of
the purchase price by the Company by cashier's check or
other means acceptable to the Offering Shareholder.
d. If any of the offered Shares are not
purchased by the Company as provided above, the Offering
Shareholder will be free to sell any or all of the remaining
offered Shares to a third party for a period of sixty days,
after which period the procedures of this Section 5 must be
reinitiated for any sale of Shares by such Offering
Shareholder.
e. The provisions of this Section 5 will not
apply to the extent that sales of Shares by a Shareholder
(aggregated with all sales of Shares made by all family
members of such Shareholder and the Shareholder) are less
than 5,000 Shares in any ninety day period. If the
foregoing restriction applies, the restriction will apply to
the first attempted sale of Shares in excess of 5,000
Shares.
6. Sale Volume Limitations. During the Permitted
Sales Period, except for sales by a Shareholder to a family
member of such Shareholder or a sale by a Shareholder
pursuant to the Registration Rights Agreement, but including
any sales of Shares to the Company under Section 5, the
number of Shares sold by a Shareholder in any ninety 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
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 Notice 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 Notice
Date.
All sales within the applicable period by all family members
of a Shareholder will be included in the calculation of
Shares sold by such Shareholder.
7. Endorsement on Stock Certificates. All stock
certificates representing Shares will bear the following
legend:
"The stock represented by this certificate is transferable only
in com
with the Company. Any transferee of the stock represented by
this cer
with that Agreement as to such transfer and agree to be bound by
that
8. 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.
9. Notices. Any notice to 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 and to the Company as set
forth below:
To the Shareholders: A. William Huelsman
235 West Broadway, Suite 40
Waukesha, WI 53186
Gary Miller
4865 Cedar Circle
Dousman, WI 53186
William Nantell
523 W23124 Broadway
Waukesha, WI 53186
David Coates
W316 55740 Lakecrest Drive
Mukwonago, WI 53149
Randy Vanek
560 Bolson Drive, #D
Oconomowoc, WI 53066
David Kroes
4182 Raymir Circle
Wauwatosa, WI 53222
Hamid Akhavan
2040 Gallway Road
Hartford, WI 53027
To the Company: Analytical Surveys, Inc.
1935 Jamboree Drive
Colorado Springs, Colorado 80921
Attn: Scott Benger
with a copy to: Daniel P. Edwards, P.C.
Suite 310
128 South Tejon
Colorado Springs, Colorado 80903
or to such other address as each party may designate by
notice in writing to the other parties as provided above.
10. 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,
the Shareholders, Joanne Huelsman, James Carpenter, the
members of the board of directors of the Company who are
voting trustees under the Voting Trust Agreement and Bank
One, Colorado, NA dated December 22, 1995.
11. 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 Company and to each Shareholder.
(g) Transfer to Bank One, Milwaukee, N.A.. The
parties to this Agreement acknowledge and agree that
Huelsman may transfer his Shares or any interest in the
Shares to Bank One, Milwaukee, N.A. (the "Bank") and hereby
consent to such transfer upon the Bank's execution of an
agreement satisfactory to the parties to this Agreement
pursuant to which the Bank agrees to be bound by the terms
of this Agreement.
SHAREHOLDERS
/s/ A. William Huelsman
A. William Huelsman
Gary Miller
William Nantell
Randy Vanek
David Coates
David Kroes
Hamid Akhavan
COMPANY
ANALYTICAL SURVEYS, INC.
By: /s/ Sidney V.Corder
Title: President and Chief
Executive Officer
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"), hereby agrees to be bound by all of the terms of
a Lock-Up Agreement (the "Agreement") dated December 22,
1995, between the Company and the Shareholders (as defined
in the Agreement) and a Voting Trust Agreement dated
December 22, 1995, between the Company, the Shareholders and
certain individuals who are members of the board of
directors of the Company, as trustee (the "Voting Trust
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 and the Voting
Trust Agreement will apply to all Shares of the Company now
owned or hereafter acquired by the undersigned. The
undersigned's address and FAX number for purposes of Section
9 of the Agreement are set forth below:
___________________________________________
(Type or Print Name)
___________________________________________
(Street Address)
___________________________________________
(City, State and Zip Code)
___________________________________________
(Facsimile Number)
___________________________________________
(Signature)
___________________________________________
(Date)
ARBITRATION AGREEMENT
This Arbitration Agreement (this "Agreement") is made
as of December 22, 1995, among Analytical Surveys, Inc., a
Colorado corporation ("ASI"), Intelligraphics, Inc., a Wisconsin
corporation ("Intelligraphics"), A. William Huelsman, Gary
Miller, William Nantell, David Coates, David Kroes, Randy Vanek
and Hamid Akhavan (each a "Shareholder" and collectively, the
"Shareholders"), Joanne Huelsman, James Carpenter, Bank One,
Colorado, NA ("Escrow Agent") and the members of the board of
directors of ASI who are voting trustees under the Voting Trust
Agreement ("Trustee").
Recitals
A. ASI, Intelligraphics and A. William Huelsman
("Huelsman") have entered into an Asset Purchase Agreement dated
as of December 22, 1995 (the "Purchase Agreement") pursuant to
which ASI will purchase substantially all of the assets of
Intelligraphics in exchange for approximately $3,450,000 in cash,
as adjusted, and 230,000 restricted shares of ASI common stock
(the "Shares"). Certain of the Shares will be distributed to
Huelsman in partial satisfaction of certain loans Huelsman has
made to Intelligraphics. The remainder of the Shares will be
distributed to key management personnel of Intelligraphics in
consideration for their services to Intelligraphics. Pursuant
to an Escrow Agreement dated December 22, 1995 between ASI,
Intelligraphics, Huelsman and the Escrow Agent (the "Escrow
Agreement") ASI will transfer $250,000 and 70,000 Shares directly
into escrow.
B. Concurrently with the execution of the Purchase
Agreement, ASI and the Shareholders have entered into a Lock-Up
Agreement dated December 22, 1995 (the "Lock-Up Agreement") which
governs the transferability of the Shares, and a Voting Trust
Agreement dated December 22, 1995 (the "Voting Trust Agreement")
between ASI, the Shareholders and the Trustee which governs the
voting rights of the Shares.
C. Concurrently with the execution of the Purchase
Agreement, ASI and each of A. William Huelsman, Joanne Huelsman
and James Carpenter, have entered into a Non-Competition
Agreement dated December 22, 1995 (the "Non-Competition
Agreement") pursuant to which each of such individuals is
precluded from competing with ASI and disclosing confidential
information about ASI under certain circumstances.
D. Concurrently with the execution of the Purchase
Agreement, ASI and Intelligraphics have entered into an
Assignment and Assumption of Lease dated December 22, 1995 (the
"Assignment Agreement") pursuant to which Intelligraphics assigns
its obligations under the Lease (as defined in the Assignment
Agreement) to ASI and ASI assumes Intelligraphic's obligations
under the Lease effective as of the closing of the transactions
contemplated under the Purchase Agreement.
E. Concurrently with the execution of the Purchase
Agreement, ASI and each of William D. Nantell, David R. Coates,
David Kroes, Gary Miller, Randy Vanek and Hamid Akhavan have
entered into Employment Agreements dated December 22, 1995 (each
an "Employment Agreement" and collectively, the "Employment
Agreements") pursuant to which each of such individuals is
employed by ASI.
F. Concurrently with the execution of the Purchase
Agreement, ASI and the Shareholders have entered into a
Registration Rights Agreement dated December 22, 1995 (the
"Registration Rights Agreement") pursuant to which the Shares
held by the Shareholders will be registered under the Securities
Act of 1933 by ASI under certain circumstances.
G. Concurrently with the execution of the Purchase
Agreement, ASI and Intelligraphics have entered into an
Assignment and Assumption of Lease dated December 22, 1995 (the
"Lease Assignment") pursuant to which the Lease (as defined in
the Lease Assignment) is assigned by Intelligraphics to ASI as of
the Closing.
H. Concurrently with the execution of the Purchase
Agreement, ASI and Intelligraphics have entered into an
Assignment and Assumption Agreement dated December 22, 1995 (the
"Assignment and Assumption Agreement") and Intelligraphics has
executed a Bill of Sale dated December 22, 1995 ("Bill of Sale")
in connection with the transfers contemplated under the Purchase
Agreement.
I. Concurrently with the execution of the Purchase
Agreement, Intelligraphics has executed a Trademark Assignment
dated December 22, 1995 (the "Trademark Assignment") pursuant to
which Intelligraphics is transferring all of its right, title and
interest to its Marks and Registrations (as defined in the
Trademark Assignment) to ASI as of the Closing
J. The parties desire that any and all disputes
arising out of the Purchase Agreement, the Escrow Agreement, the
Lock-Up Agreement, the Voting Trust Agreement, the Non-
Competition Agreement, the Assignment Agreement, the Employment
Agreements, the Registration Rights Agreement, the Lease
Assignment, the Assignment and Assumption Agreement, the Bill of
Sale and the Trademark Assignment (collectively, the "Transaction
Agreements") be governed and settled pursuant to this Agreement.
Agreement
1. Arbitration and Governing Law
a. Disputes and Claims. All disputes arising
out of or related to the Transaction Agreements, and
the exhibits to the Transaction Agreements, including
any claims that all or any part of any such agreements
is invalid, illegal, voidable, or void, will be settled
by arbitration, to be conducted in accordance with the
provisions of this Section. Any party to this
Agreement may compel arbitration by notice to the other
parties. The parties' duty to arbitrate under this
Agreement will survive the cancellation or termination
of this Agreement.
b. The arbitration proceedings will be conducted
by one arbitrator in Chicago, Illinois, in
accordance with the Commercial Arbitration Rules of the
American Arbitration Association located at 225 North
Michigan Avenue, Suite 2527, Chicago, Illinois 60601
("AAA") as then in effect. Applicable substantive law
will be the law of the State of Colorado. Within five
days after the notice compelling arbitration, the
parties will select the arbitrator; if they fail to
agree within such five-day period, then the arbitrator
will be selected by the AAA in Chicago, Illinois. The
arbitrator will establish a schedule for the
proceedings, which will include a discovery period not
to exceed 30 days, and will issue a final decision in
writing.
c. Arbitrator's Decision. The arbitrator's
decision will be final and binding on the parties and
may be enforced in any court having jurisdiction. If a
party to this Agreement does not act in a timely
fashion in accordance with the terms of this Agreement
then, without further notice, the arbitrator may enter
any relief against such party as the arbitrator deems
proper.
d. Costs and Fees. Each party will advance an
equal share of the arbitrator's fees and administrative
fees of arbitration. However, the arbitrator will
award to the prevailing party, if any, as determined by
the arbitrator, all of the prevailing party's costs and
fees. "Costs and fees" means all reasonable pre- and
post-award expenses of the arbitration, including the
arbitrator's fees, administrative fees of arbitration,
travel expenses, out-of-pocket expenses (such as
copying and telephone), court costs, witness fees, and
attorneys' fees. In addition, in the event of any
action or proceeding to enforce an award or
determination made under this Agreement, the prevailing
party will be entitled to recover from the other party
its reasonable attorneys' fees, costs and expenses
incurred in connection with such action or proceeding.
2. Further Assurances. The parties agree to perform
all such acts, including without limitation, the execution of
documents, as may reasonably be requested by the other parties to
this Agreement or the arbitrator in order to more fully
effectuate the purposes of this Agreement.
3. Successors and Assigns. Except as otherwise
expressly provided in this Agreement, all covenants and
agreements contained in this Agreement by or on behalf of any of
the parties will bind and inure to the benefit of the respective
successors and assigns of the parties whether so expressed or
not. Except as expressly prohibited or restricted by the terms
of this Agreement, ASI may assign any or all of its rights under
this Agreement to any affiliate of ASI (as the term "affiliate"
is used in Rule 144 of the Securities Act of 1933), but ASI will
remain responsible for each of ASI's obligations so assigned.
4. Severability. Whenever possible, each provision
of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating
the remainder of this Agreement.
5. Descriptive Headings. Whenever used in this
Agreement, the term "including" will be deemed to be followed by
the words "without limitation." Words used in the singular
number will include the plural, and vice-versa, and any gender
will be deemed to include each other gender. The captions and
headings of the Sections and subsections of this Agreement are
intended for convenience of reference only, and will not be
deemed to define or limit the provisions of this Agreement.
6. Notices. All notices, demands or other
communications to any party under this Agreement will be in
writing (including facsimile transmission); will be sent only by
facsimile, by nationally recognized courier service, or by
personal delivery; and will be given in accordance with the
provisions of the Purchase Agreement, provided that, the address
for notice for the Trustee and the Shareholders will be the
address set out in the Voting Trust Agreement, the addresses for
notice for ASI, Intelligraphics, A. William Huelsman and the
Escrow Agent will be the addresses set out in the Escrow
Agreement and the addresses for notice for Joanne Huelsman and
James Carpenter will be the addresses set out in the Non-
Competition Agreement.
7. General Provisions. This Agreement (a) contains
the entire agreement between the parties, (b) may not be
modified, altered or amended except by an instrument in writing
signed by each party, (c) 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 and
(d) will be governed and construed in accordance with the laws
of the State of Colorado.
ANALYTICAL SURVEYS, INC.
By /s/ Sidney v. Corder
Its President and Chief
Executive Officer
INTELLIGRAPHICS, INC.
By /s/ A. William Huelsman
Its Chairman and Chief
Executive Officer
SHAREHOLDER:
/s/ A. William Huelsman
SHAREHOLDER:
Gary Miller
SHAREHOLDER:
William Nantell
SHAREHOLDER:
David Coates
SHAREHOLDER:
David Kroes
SHAREHOLDER:
Randy Vanek
SHAREHOLDER:
Hamid Akhavan
BANK ONE, COLORADO, N.A.
By:
Its:
Joanne Huelsman
James Carpenter
TRUSTEE
John Thorpe
Sidney Corder
William Hudson
Richard MacLeod
James Rothe
Robert Keeley
Willem Andersen
