BANK ONE, COLORADO, NA
0000 XXXXXXXXXXX XXXXXX
XXXXXX, XX 00000
ESCROW AGREEMENT
This escrow agreement entered into by and between
Bank One, Colorado, NA, as Escrow Agent, and Analytical
Surveys, Inc., Intelligraphics, Inc. and A. Xxxxxxx
Xxxxxxxx. These instructions may be supplemented,
altered, amended, modified or revoked by writing only,
signed by all of the parties hereto, and approved by
the Escrow Agent, upon payment of all fees, costs and
expenses incident thereto.
No assignment, transfer, conveyance or
hypothecation of any right, title or interest in and to
the subject matter of this Escrow shall be binding upon
the Escrow Agent unless written notice thereof shall be
served upon the Escrow Agent and all fees, costs and
expenses incident thereto have been paid and then only
upon the Escrow Agent's assent thereto in writing.
Any notice required or desired to be given by the
Escrow Agent to any party to this Escrow may be given
by mailing he same addressed to such party at the
address give below the signature of such party or the
most recent address of such party shown on the records
of the Escrow Agent, and notice so mailed shall for all
purposes hereof be as effectual as though served upon
such party in person at the time of depositing such
notice in the mail.
The Escrow Agent may receive any payment called
for hereunder after the due date thereof unless
subsequent to the due date of such payment and prior to
the receipt thereof the Escrow Agent shall have been
instructed in writing to refuse any such payment.
The Escrow Agent shall not be personally liable
for any act it may do or omit to do hereunder as such
agent, while acting in good faith and in the exercise
of its own best judgment, and any act done or omitted
by it pursuant to the advice of its own attorneys shall
be conclusive evidence of such good faith.
The Escrow Agent is hereby expressly authorized to
disregard any and all notices or warnings given by any
of the parties hereto, or by any other person, firm or
corporation excepting only orders of process of court,
and is hereby expressly authorized to comply with and
obey any and all process, orders, judgments, or decrees
of any court and in case the Escrow Agent obeys or
complies with any such process, order, judgment or
decree of any court it shall not be liable to any of
the parties hereto or to any other person, firm, or
corporation by reason of such compliance,
notwithstanding any such process, order, judgment or
decree be subsequently reversed, modified, annulled,
set aside or vacated, or found to have been issued or
entered without jurisdiction.
In consideration of the acceptance of the escrow
by the Escrow Agent, the undersigned agrees, jointly
and severally, for themselves, their heirs, legal
representatives, successors and assigns, to pay the
Escrow Agent its charges hereunder and to indemnify and
hold it harmless as to any liability by it incurred to
any other person, firm or corporation by reason of its
having accepted the same, or its carrying out any of
the terms thereof, and to reimburse it for all its
expenses, including, among other things, counsel fees
and court costs incurred in connection herewith; and
that the Escrow Agent shall have a first and prior lien
upon all deposits made hereunder to secure the
performance of said agreement of indemnity and the
payment of its charges and expenses, hereby expressly
authorizing the Escrow Agent, in the event payment is
not received promptly from the undersigned, to deduct
such charges and expenses, without previous notice,
from any funds deposited hereunder, shall be as written
above the Escrow Agent's signature at the time of
acceptance hereof.
The Escrow Agent shall be under no duty or
obligation to ascertain the identity, authority or
rights of the parties executing or delivering or
purporting to execute or deliver these instructions or
any documents or papers or payments deposited or called
for hereunder, and assumes no responsibility or
liability for the validity or sufficiency of these
instructions or any documents or papers or payments
deposited or called for hereunder.
The Escrow Agent shall not be liable for the
outlawing of any rights under any Statute of
Limitations or by reason of laches in respect to the
instructions or any documents or papers deposited.
In the event of any dispute between the parties
hereto as to the facts of default, the validity or
meaning of these instructions or any other fact or
matter relating to the transaction between the parties,
the Escrow Agent is instructed as follows:
(a) See Section 6 of Addendum to Escrow Agreement.
(b) That it shall be under no obligation to act,
except under process or order of court, or until it has
been adequately indemnified to its full satisfaction,
and shall sustain no liability for its failure to act
pending such process or court order of indemnification.
If the deposits hereunder are not withdrawn before
___________________ the Escrow Agent may mail the same
as follows:
In the event of non-delivery as specified above,
the Escrow Agent is authorized and directed to close
this account and place all documents in their closed
files.
The provisions of these instructions shall be
binding upon the legal representatives, heirs,
successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the undersigned have hereunto
affixed their signatures as of this date 12/22/95.
Name: /s/ X.X. Xxxxxx Name: /s/ A. Xxxxxxx Xxxxxxxx
-------------------- -----------------------
Analytical Surveys, Inc. Intelligraphics, Inc.
Address: 0000 Xxxxxxxx Xxxxx Address: 000 X.Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
No. of copies signed 5
Accepted
Bank One, Colorado, NA, as Escrow Agent
/s/ A. Xxxxxxx Xxxxxxxx By /s/ Xxx Xxxxxxx
----------------------- ----------------
A. Xxxxxxx Xxxxxxxx
Address: Xxxxx 00
000 Xxxxxxxx
Xxxxxxxx, XX 00000
EXHIBIT A
Acceptance Fee $1,000
Recurring Fees:
Annual Administration $1,000
Each deposit/withdrawal $20
Each wire $25
Each check $20
ADDENDUM TO ESCROW AGREEMENT
1. Exculpation and Indemnification of Escrow Agent
(a) The Escrow Agent shall have no duties or
responsibilities other than those expressly set
forth herein. The Escrow Agent shall have no duty
to enforce any obligation of any person to make
any payment or delivery or to direct or cause any
payment or delivery to be made, or to enforce any
obligation of any person to perform any other act.
The Escrow Agent shall be under no liability to
any party hereto or to anyone else by reason of
any failure on the part of any party hereto or any
make, guarantor, endorser or other signatory of
any document or any other person to perform such
person's obligations under any such document.
Except for amendments to this Agreement referred
to in Section 5(b) of this Addendum and except for
instruction given to the Escrow Agent by the other
party hereto relating to the Escrow Account, the
Escrow Agent shall not be obligated to recognize
any agreement between any or all of the persons
referred to herein, notwithstanding that
references thereto may be made herein and whether
or not it has knowledge thereof.
(b) The Escrow Agent shall not be liable to any other
party hereto or to anyone else for any action
taken or omitted by it, or any action suffered by
it to be taken or omitted, in good faith and in
the exercise of its own best judgment except for
fraud, negligence, or willful misconduct. The
Escrow Agent may rely conclusively and shall be
protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel
(including counsel chosen by the Escrow Agent),
statement, instrument, report or other paper or
document (not only as to its due execution and the
validity and effectiveness of its provisions, but
also as to the truth and acceptability of any
information therein contained) that is believed by
the Escrow Agent to be genuine and to be signed or
presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or
demand, or any waiver, modification, termination
or rescission of this Agreement or any of the
terms hereof, unless evidenced by a writing
delivered to the Escrow Agent signed by the proper
party or parties and, if the duties or rights of
the Escrow agent are affected, unless it shall
give its prior written consent thereto.
(c) The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form of, or the
execution, validity, value or genuineness of, any
document or property received or held by it
hereunder, or of any signature or endorsement
thereon, or for any lack of endorsement thereon,
or for any description therein, nor shall the
Escrow Agent be responsible or liable to the other
parties hereto or to anyone else in any respect on
delivering or purporting to execute or deliver any
document or property or this Agreement, other than
on behalf of or in the name of the Escrow Agent.
The Escrow Agent shall have no responsibility with
respect to the use or application of any funds or
other property paid or delivered by the Escrow
Agent pursuant to the provision hereof. Except as
provided in Section 1(b) above, the Escrow Agent
shall not be liable to any other party hereto or
to anyone else for any loss that may be incurred
by reason of any investment of any monies that it
holds hereunder.
(d) The Escrow Agent shall have the right to assume,
in the absence of written notice to the contrary
from the proper person or persons, that a fact or
an event by reason of which an action would or
might be taken by the Escrow Agent does not exist
or has not occurred, without incurring liability
to the other parties hereto or to anyone else for
any action taken or omitted, or any action
suffered by it to be taken or omitted, in good
faith and in the exercise of its own best
judgment, in reliance upon such assumption;
provided, however, that the Escrow Agent shall be
liable for any such liability resulting from its
own fraud, negligence or willful misconduct.
(e) To the extent that the Escrow Agent becomes liable
for the payment of taxes, including withholding
taxes, in respect of income derived from the
investment of funds held hereunder or any payment
made hereunder, and held harmless against any
liability for taxes and for any penalties or
interest in respect of taxes, on such investment
income or payments in the manner provided in
Section 1(f).
(f) The Escrow Agent shall be indemnified and held
harmless from and against any and all expenses,
including reasonable counsel fees and
disbursements, or loss suffered by the Escrow
Agent in connection with any action, suit or other
proceeding involving any claim, or in connection
with any claim or demand, that in any way,
directly or indirectly, arises out of or relates
to this Agreement, the services of the Escrow
Agent hereunder, the monies or other property held
by it hereunder or any income earned from
investment of such monies, provided, however, that
if the Escrow Agent has been determined to be
guilty of fraud, negligence or willful misconduct,
the Escrow Agent shall not be entitled to
indemnification hereunder. Promptly after the
receipt by the Escrow Agent of notice of any such
action, suit or other proceeding, the Escrow Agent
shall, if a claim in respect thereof is to be made
against any of the other parties hereto, notify
such other parties thereof in writing; the failure
by the Escrow Agent to give such notices shall
relieve such other parties from any liability that
such parties may have to the Escrow Agent under
this Section 1 (f) as the particular item for
which indemnification is being sought, but not
from any other liability that any of them may have
to the Escrow Agent. Each of the other parties
hereto will be entitled to participate in the
defense of any action, suit or proceeding for
which indemnification is sought hereunder and, to
the extent any of them so desires, jointly with
any of the other parties hereto, to assume such
defense, with counsel who shall be reasonably
satisfactory to the Escrow Agent, and after notice
from any of the other parties hereto to the Escrow
Agent of such parties' election so to assume such
defense, none of the other parties hereto will be
liable to the Escrow Agent under this Section 1
(f) for any legal or other expense subsequently
incurred by the Escrow Agent in connection with
such defense other than reasonable costs of
investigation.
2. Compensation of Escrow Agent
The Escrow Agent shall be entitled to reasonable
compensation for the services rendered by it
hereunder, as set forth on Exhibit A. The Escrow
Agent shall also be entitled to reimbursement for
all expenses (pre-approved) paid or incurred by it
in the administration of its duties hereunder,
including, but not limited to, all counsel
advisors' and agents' fees and disbursements and
all taxes or other governmental charges.
3. Termination of Agreement and Resignation of Escrow
Agent
(a) This Agreement shall terminate on the final
disposition of the monies and property held in
escrow hereunder, provided that the rights of the
Escrow Agent and the obligations of the other
parties hereto under Sections 1 and 2 shall
survive the termination hereof.
(b) The Escrow Agent may resign at any time and be
discharged from its duties as Escrow Agent
hereunder by giving the other parties hereto at
least 60 days' notice thereof. The Escrow Agent
may be removed at any time by giving to the other
parties hereto at least 30 days' notice hereof.
As soon as practicable after its resignation or
removal, the Escrow Agent shall turn over to a
successor escrow agent appointed by the other
parties hereto all monies and property held
hereunder (less such amount as the Escrow Agent is
entitled to retain pursuant to Section 1(e)) upon
presentation of the document appointing the new
escrow agent and its acceptance thereof. If no
new escrow agent is so appointed within the 60-day
period following such notice of resignation or the
30-day period following such notice of removal,
the Escrow Agent may deposit the aforesaid monies
and property with any court in the State of
Colorado, it deems appropriate. If the Escrow
Agent is removed, it shall be entitled to (i) the
full payment of its flat fee, (ii) compensation
for services rendered prior to such removal and
(iii) pre-approved out-of-pocket expenses incurred
prior to such removal, all as set forth on Exhibit
A.
4. Notices
All notices, requests, demands and other
communications provided for herein shall be in
writing, shall be delivered by hand, first-class
mail or overnight express, shall be deemed given
when received and shall be addressed to the
parties hereto at their respective addresses
listed below or to such other persons or addresses
as the relevant party shall designate as to itself
from time to time in writing delivered in like
manner.
5. Miscellaneous
(a) All amounts referred to herein are expressed in
United States dollars and all payments by the
Escrow Agent shall be made in such dollars.
(b) This agreement shall be binding upon and inure to
the benefit of each party's respective successors,
heirs and permitted assigns. No other person
shall acquire or have any rights under of by
virtue of this Agreement. This Agreement may not
be changed orally or modified, amended or
supplemented without an express written agreement
executed by the Escrow Agent and the other parties
hereto.
(c) This Agreement shall be governed by and construed
in accordance with the laws of the State of
Colorado. The representations and warranties
contained in this Agreement shall survive the
execution and delivery hereof and any
investigation made by any party. The headings in
this Agreement are for purposes of reference only
and shall not limit or otherwise affect any of the
terms hereof.
6. 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
Analytical Surveys, Inc. (the "Company"),
Intelligraphics, Inc., and certain former
employees of Intelligraphics, the members of the
board of directors of the Company who are voting
trustees under the Voting Trust Agreement, Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxxx, and Bank One, Colorado,
NA dated December 22, 1995.
December 22, 1995
VIA HAND DELIVERY
Bank One, Colorado, NA
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Re: Escrow of $250,000 and 70,000
shares of common stock of Analytical
Surveys, Inc. ("ASI") in connection with
an Asset Purchase Agreement between ASI,
Intelligraphics, Inc. ("Intelligraphics")
and A. Xxxxxxx Xxxxxxxx ("Xxxxxxxx") dated
December 22, 1995 (the "Purchase Agreement")
Dear Xx. Xxxxxx:
Pursuant to sections 1.3 and 1.8 of the
Purchase Agreement, ASI has delivered to Bank One,
Colorado, NA (the "Escrow Agent") $250,000 and 70,000
shares of ASI common stock (the "Escrow Stock").
The $250,000 delivered by ASI to the Escrow
Agent is comprised of two parts: (i) $170,000 related
to the delivery of a consent to assignment of a
Subcontractor Agreement between Electronic Data
Systems, Inc. ("EDS") and Intelligraphics (the "EDS
Consent Funds") and (ii)$80,000 in connection with the
delivery of eight consents to assignment for eight
contracts of Intelligraphics that ASI will assume
pursuant to the Purchase Agreement (the "Contract
Consent Funds").
A. The EDS Consent Funds will be
distributed by the Escrow Agent as
follows:
1. On or before February 28, 1996, if
ASI receives either (i) a Subcontractor Agreement
between ASI and EDS or (ii) a document in the form of
Exhibit A to this letter executed by EDS (for purposes
of this Section A, either document the "EDS Document"),
then within three business days after receipt of the
EDS Document, ASI will deliver a copy of the EDS
Document to the Escrow Agent. Upon receipt of the EDS
Document, the Escrow Agent is instructed to pay to Bank
One, Milwaukee, N.A. the EDS Consent Funds.
2. On or before February 28, 1996, if
Xxxxxxxx reasonably believes that ASI has received the
EDS Document, then Xxxxxxxx may notify the Escrow Agent
(the "EDS Notice"). Within five business days after
receipt of the EDS Notice, the Escrow Agent will
provide a copy of the EDS Notice to ASI. If ASI does
not object to the EDS Notice by written notice to the
Escrow Agent within five business days after receipt of
the EDS Notice, then the Escrow Agent is instructed to
pay to Bank One, Milwaukee, N.A. the EDS Consent Funds.
Notwithstanding the foregoing, if within five business
days of receipt after the EDS Notice, ASI objects to
the EDS Notice by written notice to the Escrow Agent,
then the Escrow Agent will deposit the EDS Consent
Funds with the American Arbitration Association and the
matter will be submitted to arbitration pursuant to
Section 6 of the Addendum to Escrow Agreement between
ASI, Xxxxxxxx, Intelligraphics and the Escrow Agent
(the "Escrow Agreement").
3. On February 29, 1996, the Escrow
Agent will pay to ASI the EDS Consent Funds not
previously delivered under the terms of this Section A,
except for EDS Consent Funds for which the procedures
of this Section A have been initiated.
B. The Contract Consent Funds will be
distributed by the Escrow Agent only when the following
conditions have been met:
1. On or before February 28, 1996, if
ASI receives an executed document in the form of
Exhibit A to this letter (for purposes of this Section
B, a "Consent") from a party listed on Exhibit B to
this letter ("Owner"), then within three business days
after receipt of the Consent, ASI will deliver a copy
of the Consent to the Escrow Agent. Upon receipt of
the Consent, the Escrow Agent is instructed to pay to
Bank One, Milwaukee, N.A. $10,000 of the Contract
Consent Funds.
2. On or before February 28, 1996, if
Xxxxxxxx reasonably believes that ASI has received a
Consent, then Xxxxxxxx may notify the Escrow Agent (the
"Consent Notice") (identifying the Owner to which the
Consent applies). Within five business days after
receipt of a Consent Notice, the Escrow Agent will
provide a copy of the Consent Notice to ASI. If ASI
does not object to the Consent Notice within five
business days after receipt of the Consent Notice, the
Escrow Agent is instructed to pay to Bank One,
Milwaukee, N.A. $10,000 of the Contract Consent Funds.
Notwithstanding the foregoing, if within five business
days after receipt of the Consent Notice, ASI objects
to the Consent Notice by written notice to the Escrow
Agent, then the Escrow Agent will deposit the $10,000
with the American Arbitration Association and the
matter will be submitted to arbitration pursuant to
Section 6 of the Addendum to the Escrow Agreement.
3. On February 29, 1996, the Escrow
Agent will pay to ASI Contract Consent Funds not
previously delivered under the terms of this Section B,
except for funds for which the procedures of this
Section B have been initiated.
4. The procedures of this Section B
will be commenced and acted upon separately for each
Consent.
C. The Escrow Stock will be distributed by
the Escrow Agent only when the following conditions
have been met:
1. On or before December 22, 1996, if
the Escrow Agent receives a notice from ASI regarding
payment due under the indemnification provisions of the
Purchase Agreement in connection with a breach of a
representation, warranty or covenant of Intelligraphics
or Xxxxxxxx (the "Breach Notice") then within five
business days after receipt of a Breach Notice, the
Escrow Agent will provide a copy of the Breach Notice
to Xxxxxxxx. If Xxxxxxxx does not object to the Breach
Notice by written notice to the Escrow Agent within
five business days after receipt of the Breach Notice,
the Escrow Agent is instructed to transfer Escrow Stock
equivalent in value to the amount referenced in the
Breach Notice (the "Payment Stock") to ASI. For
purposes of determining such value, the Escrow Stock
will be valued at a per share price of 50% of the
Market Price of such Escrow Stock. The Market Price
shall mean the average of the closing bid and asked
prices for the ASI common stock on the date of transfer
as reported on the National Market System of NASDAQ
(the National Association of Securities Dealers
Automated Quotation System("NASDAQ"), or (If NASDAQ is
closed on such date, on the next preceding date on
which the NASDAQ is operated), as conclusively
determined in a written notice delivered to the Escrow
Agent by the Denver office of Hanifen, Imhoff, Inc.
Notwithstanding the foregoing, if within five business
days after receipt of a Breach Notice, Xxxxxxxx objects
to the Breach Notice by written notice to the Escrow
Agent, then the Escrow Agent will deposit the Payment
Stock with the American Arbitration Association and the
matter will be submitted to arbitration pursuant to
Section 6 of the Addendum to Escrow Agreement.
2. On December 23, 1996, the Escrow
Agent is instructed to deliver to the Trustee (as
defined in the Purchase Agreement) all Escrow Stock
which has not previously been delivered under the
foregoing terms of this Section C, except for Escrow
Stock for which the procedures of this Section C have
been initiated.
D. Notwithstanding the foregoing
provisions, the Escrow Agent will deliver the Escrow
Consent Funds, EDS Funds and the Escrow Stock to any
other party as may be specified by a written notice
executed by each of ASI, Intelligraphics and Xxxxxxxx
and delivered to the Escrow Agent, provided, however,
that any portion of the Contract Consent Funds, the EDS
Consent Funds or the Escrow Stock to be received by
Xxxxxxxx will be delivered directly to Bank One,
Milwaukee, N.A.
Any notice given to the Escrow Agent, ASI,
the Trustee (care of ASI) or Xxxxxxxx under this letter
will be given in accordance with the provisions for
notice set forth in the Escrow Agreement and will be
given also to Bank One, Milwaukee, N.A. at the
following address:
Bank One, Milwaukee, N.A.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx.
ANALYTICAL SURVEYS, INC.
By /s/ X. X. Xxxxxx
-----------------------
Its President and Chief
Executive Officer
INTELLIGRAPHICS, INC.
By /s/ A. Xxxxxxx Xxxxxxxx
--------------------------
Its Chairman and Chief Executive
Officer
/s/ A. Xxxxxxx Xxxxxxxx
------------------------
A. XXXXXXX XXXXXXXX
EXHIBIT A
Consent of Owner
In connection with the contract dated _______________
(the "Contract") between ___________________________ ("Owner") and
Intelligraphics, Inc., ("Intelligraphics"), Owner consents to Intelligraphics'
assignment of its rights and obligations under the Contract to Analytical
Surveys, Inc. ("ASI") or any wholly-owned subsidiary of ASI, effective as of
the consummation of the Asset Purchase Agreement between Intelligraphics, ASI
and A. Xxxxxxx Xxxxxxxx dated December __, 1995. As of the date of this
Consent, to the knowledge of Owner, Intelligraphics is not in breach of any
provision of the Contract. The execution of this Consent by Owner does not
relieve Intelligraphics from any of its obligations under the Contract.
Dated as of _____________________
OWNER:
By:_______________________________
Title:____________________________
EXHIBIT B
1. American Electric Power for work being conducted
for Appalachian Power Company under contract dated
1/19/94 and for work being conducted for Indiana
Michigan Power under contract dated 8/28/95.
2. Electronic Data Systems for contract dated 8/17/95
for BellSouth Tele-Communications Work.
3. British Telecom for contract dated 12/19/94.
4. China Power and Light Company, Limited for
contract dated 9/26/94.
5. Iowa-Illinois Gas & Electric for contract dated
9/19/94.
6. Intergraph Corporation for contract dated 4/18/95.
7. Wisconsin Electric Power Company for contract
dated 3/9/94.
8. Michigan Consolidated Gas Company for contract
dated 9/16/93.
