EXHIBIT 10.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 19, 2005, by and between Bentley Systems, Incorporated, Inc., a Delaware
corporation ("Bentley"), and Xxxxx X. Xxxxxxx (the "Stockholder"), an individual
whose business address is c/o IAT Reinsurance Company, 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 and who is a stockholder of netGuru, Inc., a Delaware
corporation (the "Company").
RECITALS
X. Xxxxxxx and the Company have each entered into an Asset
Purchase Agreement (as such agreement may hereafter be amended from time to time
in conformity with the provisions thereof (the "Asset Purchase Agreement")),
which provides for the sale of assets relating to the Company's engineering and
collaborative software division to Bentley (the "Sale").
B. As an inducement and a condition to entering into the Asset
Purchase Agreement, Bentley has requested that Stockholder agree, and
Stockholder has agreed (in the Stockholder's capacity as such), to enter into
this Agreement in order to facilitate the consummation of the Sale.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. DEFINITIONS.
(a) For the purposes of this Agreement, capitalized terms that
are used but not defined herein shall have the respective meanings ascribed
thereto in the Asset Purchase Agreement.
(b) "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Asset Purchase Agreement shall have been validly
terminated pursuant to its terms, or (ii) such date and time as the Sale shall
become consummated in accordance with the terms and conditions set forth in the
Asset Purchase Agreement.
(c) "Person" shall mean any individual, any corporation,
limited liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
(d) "Shares" shall mean: (i) all securities of the Company
(including all shares of preferred stock, common stock and all options, warrants
and other rights to acquire shares of Common Stock ("Company Options"))
beneficially owned by Stockholder as of the date of this Agreement, and (ii) all
additional securities of the Company (including all additional options, warrants
and other rights to acquire shares of common stock) of which Stockholder
acquires beneficial ownership during the period commencing with the execution
and delivery of this Agreement until the Expiration Date.
(e) A Person shall be deemed to have effected a "Transfer" of
a security if such Person directly or indirectly (i) offers for sale, sells,
assigns, pledges, encumbers, grants an option with respect to, transfers or
otherwise disposes of such security or any interest therein, or (ii) enters into
an agreement, commitment or other arrangement providing for the sale of,
assignment of, pledge of, encumbrance of, granting of an option with respect to,
transfer of or disposition of such security or any interest therein.
2. RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE; STOP
TRANSFER. Except as expressly contemplated by this Agreement, at all times
during the period commencing with the execution and delivery of this Agreement
and continuing until the Expiration Date, the Stockholder shall not (except as
may be specifically required by court order), directly or indirectly, (i) cause
or permit the Transfer of any of the Shares to be effected), or discuss,
negotiate or make any offer regarding any Transfer of any of the Shares, (ii)
grant any proxies or powers of attorney with respect to any of the Shares,
deposit any of the Shares into a voting trust or enter into a voting agreement
or other similar commitment or arrangement with respect to any of the Shares in
contravention of the obligations of Stockholder under this Agreement, (iii)
request that the Company register the Transfer of any certificate or
uncertificated interest representing any of the Shares, or (iv) take any action
that would make any representation or warranty of Stockholder contained herein
untrue or incorrect, or have the effect of preventing or disabling Stockholder
from performing any of Stockholder's respective obligations under this
Agreement, other than to a signatory under this Agreement in the case of (i),
(ii) or (iii). Stockholder hereby agrees that, in order to ensure compliance
with the restrictions referred to herein, the Company may issue appropriate
"stop transfer" instructions to its transfer agent in respect of the Shares.
3. VOTING AGREEMENT. At any meeting of the Company's stockholders
called with respect to the following, however called, and at every adjournment
or postponement thereof, Stockholder shall appear at such meeting, in person or
by proxy, or otherwise cause all of the Shares to be counted as present thereat
for purposes of establishing a quorum thereat, and Stockholder shall vote, or
cause to be voted (and on every action or approval by written consent of
Stockholder with respect to the following, act, or cause to be acted, by written
consent) with respect to all of the Shares that Stockholder is entitled to vote
or as to which Stockholder has the right to direct the voting, as of the
relevant record date:
(a) in favor of the approval of the Sale;
(b) against the approval of any proposal that would result in
a breach by the Company of the Asset Purchase Agreement; and
(c) against any proposal made in opposition to, or in
competition with, consummation of the Sale and the other transactions
contemplated by the Asset Purchase Agreement.
4. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Stockholder shall deliver to Bentley an irrevocable proxy in the form
attached hereto as Exhibit B (the "Proxy"), which shall be irrevocable to the
fullest extent permitted by applicable law, with respect to the Shares.
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5. REPRESENTATIONS AND WARRANTIES. Stockholder hereby represents and
warrants to Bentley as follows:
(a) OWNERSHIP OF SHARES. All of the Shares owned by
Stockholder are listed on Exhibit A hereto. Stockholder is a beneficial owner
(as such term is defined under Rule 13(d)(3) promulgated under the Securities
Exchange Act of 1934, as amended, except that such term shall include Shares
that may be acquired more than sixty (60) days from the date hereof) of all of
the Shares. Stockholder has sole and/or shared voting power and the sole and/or
shared power of disposition with respect to the Shares.
(b) POWER; BINDING AGREEMENT. Stockholder has the legal
capacity, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Stockholder will not violate any agreement or court order to
which Stockholder is a party or is subject, including, without limitation, any
voting agreement or voting trust. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
(c) NO CONSENTS. To his knowledge, the execution and delivery
of this Agreement by Stockholder does not, and the performance by Stockholder of
his obligations hereunder will not, require Stockholder to obtain any consent,
approval, authorization or permit of, or to make any filing with or notification
to, any Governmental Body.
6. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in Bentley any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. Except as provided in this
Agreement, all rights, ownership and economic benefits relating to the Shares
shall remain vested in and belong to Stockholder and the other stockholders.
7. STOCKHOLDER NOTIFICATION OF ACQUISITION OF ADDITIONAL SHARES. At all
times during the period commencing with the execution and delivery of this
Agreement and continuing until the Expiration Date, Stockholder shall promptly
notify Bentley of the number of any additional shares of Common Stock and the
number and type of any other voting securities of Company acquired by
Stockholder, if any, after the date hereof.
8. COMPANY STOP TRANSFER INSTRUCTIONS. At all times commencing with the
execution and delivery of this Agreement and continuing until the Expiration
Date, Company shall not register the Transfer (by book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Shares unless
such Transfer is made pursuant to and in compliance with the terms and
conditions of this Agreement. Company shall instruct its transfer agent for
preferred stock and common stock (the "Transfer Agent") not to Transfer, at any
time commencing with the execution and delivery of this Agreement and continuing
until the Expiration Date, any certificate or uncertificated interest
representing any of the Shares unless and until the Transfer Agent has received
Bentley's consent to effect any such Transfer.
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9. TERMINATION. This Agreement shall terminate immediately and
automatically, without any action on the part of any party hereto, as of the
Expiration Date.
10. DIRECTORS AND OFFICERS. Notwithstanding anything in this Agreement
to the contrary, if Stockholder is a director or officer of Company, nothing
contained in this Agreement shall prohibit such director or officer from acting
in his capacity as such or from taking such action as a director or officer of
Company that may be required on the part of such person as a director or officer
of Company, including acting in compliance with the Asset Purchase Agreement.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement and the documents,
instruments and other agreements among the parties hereto as contemplated by or
referred to herein, including the Proxy, constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(b) CERTAIN EVENTS. This Agreement and the obligations
hereunder shall attach to all of the Shares and shall be binding upon any person
to whom legal or beneficial ownership of any of the Shares shall pass, whether
by operation of law or otherwise, except in the case of Shares Transferred in
connection with the payment of taxes. Notwithstanding any Transfer of any of the
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, this
Agreement and the obligations hereunder shall not attach to any Shares that are
Transferred, and shall not be binding upon any person to whom legal or
beneficial ownership of any of the Shares shall pass, in any Transfer effected
by Stockholder pursuant to the last sentence of Section 2 of this Agreement.
(c) ASSIGNMENT. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Any purported assignment in
violation of this Section shall be void.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (i) on the date of delivery
if delivered personally, (ii) on the date of confirmation of receipt (or, the
first business day following such receipt if the date is not a business day) of
transmission by telecopy or facsimile, or (iii) on the date of confirmation of
receipt (or, the first business day following such receipt if the date is not a
business day) if delivered by a nationally recognized courier service. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
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(i) If to Stockholder, to:
Xxxxx X. Xxxxxxx
c/o IAT Reinsurance Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: ________________
Telecopy: _________________
with copies to:
__________________________________
__________________________________
__________________________________
__________________________________
Fax No:___________________________
(ii) if to Company, to:
netGuru, Inc.
00000 Xxxx Xxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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(iii) if to Bentley, to:
Bentley Systems, Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000-0000
Attn: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
With copies to:
Drinker Xxxxxx & Xxxxx LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(f) SEVERABILITY. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the greatest extent possible,
the economic, business and other purposes of such void or unenforceable
provision.
(g) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(h) GOVERNING LAW; VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of law thereof. Each of parties irrevocably agrees that any legal action or
proceeding with respect to this Agreement or for recognition and enforcement of
any judgment in respect hereof brought by the other party hereto or its
successors or assigns may be brought and determined in the courts of the State
of Delaware, and each of parties hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect to its property, generally
and unconditionally, to the nonexclusive jurisdiction of the aforesaid courts.
The parties hereby agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 11(e)
hereof or in such other manner as may be permitted by applicable law, shall be
valid and sufficient service thereof.
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(i) OTHER REMEDIES; SPECIFIC PERFORMANCE.
(i) OTHER REMEDIES. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached.
(ii) SPECIFIC PERFORMANCE. It is accordingly agreed
that the parties shall be entitled to seek an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
(j) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF Bentley, STOCKHOLDER AND COMPANY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(k) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
(l) FURTHER ASSURANCES. At the request of any party to another
party or parties to this Agreement, such other party or parties shall execute
and deliver such instruments or documents to evidence or further effectuate (but
not to enlarge) the respective rights and obligations of the parties and to
evidence and effectuate any termination of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed, or caused this
Agreement to be executed by a duly authorized officer, as of the date first
written above.
BENTLEY SYSTEMS, INCORPORATED
By: /S/ XXXXX XXXXXX
-------------------------------
Name: Xxxxx Xxxxxx
Title: SVP
ACKNOWLEDGED AND AGREED TO (with respect to Section 8):
NETGURU, INC.
By: /S/ XXXXX X.XXX
---------------------------
Name: Xxxxx X. Xxx
Title: CEO
[SIGNATURE PAGE TO VOTING AGREEMENT]
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STOCKHOLDER
/S/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT A
BENEFICIAL OWNERSHIP OF COMPANY CAPITAL STOCK
-------------------------------------- -------------------- ---------------------------------------
Number of Shares of Common Stock
No. of Shares of Issuable Upon Exercise of
Stockholder's Name and Address Common Stock Outstanding Options or Warrants
-------------------------------------- -------------------- ---------------------------------------
Xxxxx X. Xxxxxxx 3,835,800 0
c/o IAT Reinsurance Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx XX 00000
-------------------------------------- -------------------- ---------------------------------------
A-1
EXHIBIT B
IRREVOCABLE PROXY
The undersigned Stockholder (the "Stockholder") of netGuru, Inc., a
Delaware corporation ("Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints each of Xxxxx Xxxxxx and Xxx Xxxxx of Xxxxxxx (as
defined below), as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock of
Company that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of Company issued or issuable in
respect thereof on or after the date hereof (collectively, the "Shares"), in
accordance with the terms of this Proxy. The Shares beneficially owned by
Stockholder as of the date of this Proxy are listed on the final page of this
Proxy, along with the number(s) of the stock certificate(s) that represent such
Shares. Upon Stockholder's execution of this Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and
Stockholder agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith (the "Voting Agreement") by and between Bentley
Systems, Incorporated, a Delaware corporation ("Bentley") and the undersigned
Stockholder of Company, and is granted in consideration of Bentley entering into
that certain Asset Purchase Agreement of even date herewith (as it may hereafter
be amended from time to time in accordance with the provisions thereof, the
"Asset Purchase Agreement") by and among Bentley and Company. The Asset Purchase
Agreement provides for the sale of the Assets (as such term is defined in the
Asset Purchase Agreement) (the "Sale"). As used in this Proxy, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Asset Purchase Agreement shall have been validly terminated pursuant to its
terms, or (ii) such date and time as the Sale shall be consummated in accordance
with the terms and conditions set forth in the Asset Purchase Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by Stockholder, at any time prior to the Expiration
Date, to act as Stockholder's attorney and proxy to vote all of the Shares, and
to exercise all voting, consent and similar rights of the undersigned with
respect to all of the Shares (including, without limitation, the power to
execute and deliver written consents) at every annual or special meeting of
stockholders of Company (and at every adjournment or postponement thereof), and
in every written consent in lieu of such meeting:
(a) in favor of the approval and adoption of the Asset
Purchase Agreement and approval of the Sale;
(b) against the approval of any proposal that would result in
a breach by Company of the Asset Purchase Agreement; and
B-1
(c) against any proposal made in opposition to, or in
competition with, consummation of the Sale and the other transactions
contemplated by the Asset Purchase Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided in clauses (a), (b) and (c) above.
Stockholder may vote the Shares on all other matters. Notwithstanding anything
in this Proxy to the contrary, if Stockholder is a director or officer of
Company, nothing contained in this Proxy shall prohibit such director or officer
from acting in his/her capacity as such or from taking such action as a director
or officer of Company that may be required on the part of such person as a
director or officer of Company, including acting in compliance with the Asset
Purchase Agreement.
Any obligation of Stockholder hereunder shall be binding upon the
successors and assigns of Stockholder.
This Proxy shall terminate and be of no further force and effect,
automatically upon the Expiration Date.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Stockholder has caused this Irrevocable Proxy to be
duly executed as of the day and year first above written.
STOCKHOLDER:
/S/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Address: c/o IAT Reinsurance Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000 000-0000
-------------------------
Telecopy: 000 000-0000
-------------------------
Shares beneficially owned:
3,835,800 Common Stock
---------
0 Common Stock issuable upon
--------- exercise of outstanding
options or warrants
B-3
