EXHIBIT 10.30
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
THIS IS A SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE ("Settlement
Agreement"), dated March 26, 1999 between BENTLEY SYSTEMS, INCORPORATED, a
Delaware corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇.▇.▇. ("BSI"), ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Bentleys") on the one hand, and INTERGRAPH CORPORATION,
a Delaware corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ("Intergraph") on the other hand, all of which are collectively
referred to as "the Parties".
WHEREAS, on April 17, 1987, BSI and Intergraph entered into a Software
License Agreement for MicroStation, which was amended from time to time with
Amendments 1 through 14 (the "SLA");
WHEREAS, various disputes arose among the parties relating to their
respective rights under the SLA and other matters;
WHEREAS, BSI initiated an arbitration proceeding before the American
Arbitration Association, titled Bentley Systems, Incorporated, Claimant, and
Intergraph Corporation, Respondent, case no. 30 Y 117 00094 96 (the
"Arbitration");
WHEREAS, hearings have been held in the Arbitration and final arguments
are scheduled to take place before the Arbitrators;
WHEREAS, BSI and Intergraph wish to settle all disputes and disagreements
between them;
NOW THEREFORE, the parties agree:
SECTION 1
Released Claims; No Fault or Wrongdoing; Closing
1.1 As used in this Settlement Agreement, "Released Claims" means any and
all actions and causes of action, claims and demands, theories of recovery,
suits, damages, costs, attorney's fees, expert fees, expenses, debts, dues,
accounts, bonds, covenants, contracts, agreements, compensation, payments,
royalties, interest, and profit disgorgement, and all sums of money known or
unknown, absolute or contingent, liquidated or unliquidated, at law or in
equity, that the Parties have or may have based upon any fact, matter, act,
omission or circumstance, known or unknown (collectively, "Claims"), from the
beginning of the world to the date of this Settlement Agreement, including, but
not limited to, those that have been asserted or may have been asserted or could
have been asserted in the Arbitration or otherwise; provided, however, that
"Released Claims" shall not include any Claims based upon a breach of
Intergraph's or BSI's obligations (i) under the Settlement Agreement, Software
License Agreement and letter agreement between Intergraph and BSI, all dated
March 10, 1999 and
entered into in settlement of the PlotLib litigation; and (ii) to make payment
for products or services obtained or provided in the normal course of business
since January 1, 1999.
1.2 Nothing in this Settlement Agreement, nor any actions taken by any
party in connection with this Settlement Agreement, constitutes or should be
construed as or deemed to be an admission of fault, liability or wrongdoing of
any kind whatsoever on the part of any party. All Parties expressly deny any
fault, liability or wrongdoing concerning the Released Claims and intend merely
to avoid continuing litigation with each other.
1.3 As used in this Settlement Agreement, the "Closing" means the time set
by mutual agreement of Intergraph and BSI for the payment and delivery of the
consideration, and the performance of other obligations to be performed at
Closing under this Settlement Agreement; provided, however, that the Closing
shall occur on or before April 1, 1999, or such later date to which Intergraph
and BSI may agree in writing. If the Closing does not occur by the close of
business on April 1, 1999 (or such extended date to which Intergraph and BSI
agree in writing), then this Settlement Agreement shall become null and void and
none of the Parties will have any further obligations hereunder. The
"Consummation of the Closing" hereunder shall occur when the Parties have paid
and delivered the consideration, and performed all other obligations to be
performed at Closing under this Settlement Agreement.
SECTION 2
Provisions Applicable to Intergraph
2.1 At the Closing:
(a) Intergraph shall pay BSI $12,000,000 (Twelve Million Dollars)
U.S. by wire transfer; and
(b) Intergraph shall transfer to BSI ownership of 3,000,000 (Three
Million) shares of Class A common stock of BSI owned by
Intergraph. Such transfer shall be accomplished by
Intergraph's delivery to BSI of the certificate for such
shares duly endorsed for transfer, and such transfer shall
convey title to the shares to BSI free and clear of any liens
or other encumbrances.
2.2 Upon Consummation of the Closing, Intergraph does for itself and each
of its subsidiaries, its representatives, officers, directors, affiliates,
successors and assigns, and all persons claiming by, through or under it, hereby
remise, release and discharge (a) BSI and each of its subsidiaries, and their
respective officers, directors, shareholders, subsidiaries, employees, agents,
servants, attorneys, heirs and personal representatives, (b) each of the
Bentleys, and (c) all persons, corporations or other entities that might be
claimed to be jointly or severally liable with BSI and/or one or more of the
Bentleys, from the Released Claims (as defined in Section 1.1), except any
claims for violation of this Settlement Agreement.
2.3 Intergraph agrees that it will forever refrain from demanding,
instituting prosecuting, participating in or instigating any derivative claim or
derivative proceeding on behalf of BSI against the Bentleys based on the
Released Claims.
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2.4 Intergraph is solvent and will be solvent immediately after giving
effect to the transactions contemplated by this Settlement Agreement.
SECTION 3
Provisions Applicable to BSI and the Bentleys
3.1 At the Closing, BSI must deliver to Intergraph properly signed papers
necessary to effect the dismissal or withdrawal as applicable, with prejudice
and without attorney fees, costs or expenses to any party, of the Arbitration.
3.2 Upon Consummation of the Closing, BSI does for itself and each of its
subsidiaries, its representatives, officers, directors, affiliates, successors
and assigns, and all persons claiming by, through or under it, hereby remise,
release and discharge Intergraph and each of its subsidiaries, and their
respective officers, directors, shareholders, subsidiaries, employees, agents,
servants, attorneys, heirs and personal representatives, and all persons,
corporations or other entities that might be claimed to be jointly or severally
liable with Intergraph and/or one or more of its subsidiaries, from the Released
Claims (as defined in Section 1.1), except any claims for violation of this
Settlement Agreement.
3.3 Upon Consummation of the Closing, each of the Bentleys individually
does for himself, his representatives, affiliates, successors, heirs and
assigns, and all persons claiming by, through or under him, hereby remise,
release and discharge Intergraph and each of its subsidiaries, and their
respective officers, directors, shareholders, subsidiaries, employees, agents,
servants, attorneys, heirs and personal representatives, and all persons,
corporations or other entities that might be claimed to be jointly or severally
liable with Intergraph and/or one or more of its subsidiaries, from the Released
Claims (as defined in Section 1.1), except any claims for violation of this
Settlement Agreement.
3.4 The Bentleys and BSI agree that they will forever refrain from
demanding, instituting, prosecuting, participating in or instigating any
derivative claim or derivative proceeding on behalf of Intergraph against
Intergraph's officers, directors, subsidiaries or any of the subsidiaries'
officers or directors based on the Released Claims.
3.5 If Intergraph delivers to BSI its stock certificate No. 28 evidencing
its ownership of 10,804,595 shares of Class A Common Stock of BSI for use
pursuant to Section 2.1(b) of this Settlement Agreement, then:
(a) If there is a Consummation of Closing, BSI shall cancel
certificate No. 28 and, simultaneously with the Consummation of Closing,
deliver to Intergraph a duly authorized and executed certificate for
7,804,595 shares of BSI Class A Common Stock.
(b) If there is no Consummation of Closing, BSI shall forthwith
return to Intergraph stock certificate No. 28.
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SECTION 4
Registration Rights; Voting Proxy
4.1 Piggyback Registration in IPO.
4.1.1 Notice of Piggyback Registration and Inclusion of Intergraph's
BSI Shares. In the event that BSI, in its sole discretion, decides to register
for sale to the public generally any of its Common Stock on a form that would be
suitable for the initial public offering of its Common Stock in an underwritten
offering (whether on a firm commitment or "best-efforts" basis) registered under
the Securities Act of 1933 (the "IPO"), BSI will: (i) promptly give Intergraph
written notice thereof (which shall include a list of the jurisdictions in which
BSI intends to attempt to qualify such securities under the applicable Blue Sky
or other state securities laws) and (ii) include in such IPO all of the BSI
Class A Common Stock owned by Intergraph and specified in a written request
delivered to BSI by Intergraph within 15 days after delivery of such written
notice from BSI; provided that the number of shares owned by Intergraph to be
included in the IPO shall not exceed twenty percent (20%) of the total number of
BSI shares included in the IPO.
Intergraph shall enter into the underwriting agreement along with
BSI for the IPO, which, with respect to Intergraph, shall contain such terms and
provisions as are customarily applicable to selling shareholders. After the
notice of a BSI IPO as contemplated by Section 4.1.1, then BSI will, from time
to time, keep Intergraph advised as to the status of the underwriting offering,
including the initiation and completion of the offering and the occurrence of
material events or developments relating to or affecting the offering.
4.1.2 Withdrawal in Piggyback Registration. If Intergraph
disapproves of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to BSI and the underwriter delivered at least seven
days prior to the effective date of the IPO registration statement.
4.1.3 Blue Sky in Piggyback Registration. In the event of any
registration of Intergraph's BSI shares in the IPO, BSI will exercise its best
efforts to register and qualify the securities covered by the registration
statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably appropriate for the distribution of such securities;
provided, however, that (i) BSI shall not be required to qualify to do business
or to file a general consent to service of process in any such states or
jurisdictions, and (ii) notwithstanding anything in this Settlement Agreement to
the contrary, in the event any jurisdiction in which the securities shall be
qualified imposes a non-waivable requirement that expenses incurred in
connection with the qualification of the securities be borne by selling
shareholders, such expenses shall be payable pro rata by selling shareholders.
In the event the registered offering is effected on a "best-efforts" basis, the
shares of stock to be sold thereby will be allocated among new shares to be
issued by BSI and shares to be sold by Intergraph on a pro rata basis relative
to the number of shares to be registered on behalf of each such party.
4.1.4 Expenses of Registration. All Registration Expenses (as
defined below) incurred in connection with any registration pursuant to this
Settlement Agreement shall be
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borne by BSI. All Selling Expenses (as defined below) incurred in connection
with any registration of Intergraph's BSI shares shall be borne by Intergraph
pro rata on the basis of the number of shares registered.
(a) "Registration Expenses" shall mean all expenses incurred by BSI
in complying with the registration of Intergraph's BSI shares in the IPO,
including, without limitation, all federal and state registration,
qualification and filing fees, printing expenses, fees and disbursements
of counsel for BSI and Intergraph, Blue Sky fees and expenses, and
accounting fees and expenses, but excluding Selling Expenses.
(b) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the sale of
Intergraph's BSI shares in the IPO.
4.1.5 Information Furnished by Intergraph. It shall be a condition
precedent of BSI's obligations under this Section 4 of this Settlement Agreement
that Intergraph furnish to BSI such information regarding Intergraph and the
distribution proposed by Intergraph as BSI may reasonably request for purposes
of including Intergraph's shares in the IPO.
4.1.6 Indemnification.
(a) BSI's Indemnification of Intergraph. To the extent permitted by
law, BSI will indemnify Intergraph, each of its officers, directors and each
person controlling Intergraph, with respect to the inclusion of Intergraph's
shares in the IPO, and each underwriter, if any, and each person who controls
any underwriter, against all claims, losses, damages, liabilities or expenses
(or actions in respect thereof) to the extent such claims, losses, damages,
liabilities or expenses arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus or
other document (including any related registration statement) incident to any
such registration, qualification or compliance, or are based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation (or
alleged violation) by BSI of any rule or regulation promulgated under the
Securities Act applicable to BSI and relating to action or inaction required of
BSI in connection with any such registration, qualification or compliance; and
BSI will reimburse Intergraph; each such underwriter and each person who
controls Intergraph or such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, expense or action; provided, however, that the
indemnity contained in this Section 4.1.6 shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if settlement is
effected without the consent of BSI (which consent will not unreasonably be
withheld); and provided, further, that BSI will not be liable in any such case
to the extent that any such claim, loss, damage, liability or expense arises out
of or is based upon any untrue statement or omission based upon written
information furnished to BSI by Intergraph, or such underwriter, or controlling
person and stated to be for use in connection with the offering of securities of
BSI.
(b) Intergraph's Indemnification of BSI. To the extent permitted by
law, Intergraph will, if its BSI shares are included in the securities as to
which such registration,
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qualification or compliance is being effected pursuant to this Settlement
Agreement, indemnify BSI, each of its directors and officers, each legal counsel
and independent accountant of BSI, each underwriter, if any, of BSI's securities
covered by such a registration statement, and each person who controls BSI or
such underwriter within the meaning of the Securities Act, against all claims,
losses, damages, liabilities or expenses (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation (or alleged violation) by
Intergraph of any rule or regulation promulgated under the Securities Act
applicable to Intergraph and relating to action or inaction required of
Intergraph in connection with any such registration, qualification or
compliance; and will reimburse BSI, such directors, officers, partners, persons,
law and accounting firms, underwriters or control persons for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, expense or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to BSI by Intergraph and stated
to be specifically for use in connection with the offering of securities of BSI;
provided, however, that the indemnity contained in this Section 4.1.6 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of Intergraph
(which consent will not unreasonably be withheld); and provided further that
Intergraph's liability under this Section 4.1.6 shall not exceed its proceeds
from the offering of securities made in connection with such registration.
(c) Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 4.1.6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 4.1.6, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim; provided, however, that the indemnifying party
shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of BSI
and Intergraph in conducting the defense of such action, suit or proceeding by
reason of recognized claims for indemnity under this Section 4.1.6, then counsel
for such party shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interest of such
party. The failure to notify an indemnifying party promptly of the commencement
of any such action, if prejudicial to the ability of the indemnifying party to
defend such action, shall relieve such indemnifying party, to the extent so
prejudiced, of any liability to the indemnified party under this Section 4.1.6,
but the omission so to notify the indemnifying party will not relieve such party
of any liability that such party may have to any indemnified party other than
under this Section 4.1.6.
(d) Contribution. If the indemnification provided for in this
Section 4.1.6 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party,
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in lieu of indemnifying such indemnified party hereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage, or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such loss, liability, claim, damage, or expense as well as any
other relevant equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Underwriting Agreement. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) Survival. The obligations of BSI and Intergraph under this
Section 4.1 shall survive the completion of any offering of registrable
securities in a registration statement under this Settlement Agreement, and
otherwise.
4.2 Lock-Up Commitment. In connection with the IPO, Intergraph shall
execute and deliver, in a form reasonably satisfactory to the underwriter(s) in
the IPO, a form of "lock-up" agreement pursuant to which Intergraph will agree
not to sell any of its BSI shares (other than those included in the IPO pursuant
to Section 4.1 hereof) for a period equal to that lock-up period as contained in
comparable "lock-up" agreements signed by the Bentleys who remain as BSI
shareholders at the time of the IPO.
4.3 Proxy. At the Closing, Intergraph must execute and deliver to BSI an
irrevocable proxy, covering the BSI shares owned by Intergraph, in the form
attached hereto as Exhibit A. As long as such proxy remains in effect,
Intergraph shall not acquire beneficial ownership of additional BSI shares.
SECTION 5
Provisions Applicable to All Parties
5.1 Bentley and Intergraph agree to keep confidential all of the terms and
conditions of this Settlement Agreement and not disclose the terms and
conditions to any third party except as may be required by or in connection
with: (a) IRS, SEC or other similar domestic or foreign, federal, state or local
reporting or disclosure requirements; (b) an order of a court of competent
jurisdiction; (c) disclosures to accountants, advisors, lawyers and investors in
the normal course of those parties' dealings with the Parties; or (d) a business
transaction that requires the disclosure of such agreements or their terms under
a confidentiality agreement which specifies that the terms and conditions of any
confidential information will not be disclosed; provided, that (i) Intergraph's
first public disclosure of this settlement in a report filed with the SEC under
the Securities Act of 1934 shall include a statement that following the
settlement, Intergraph's equity
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interest in BSI was reduced to approximately 33%, and (ii) after either party
makes a public disclosure of the terms and conditions of this Settlement
Agreement, the other Parties may make disclosures of the same terms and
conditions.
5.2 The Parties acknowledge that they have voluntarily entered into this
Settlement Agreement, have had the advice of counsel regarding this Settlement
Agreement, and are not acting under duress in entering into this Settlement
Agreement.
5.3 This Settlement Agreement is not assignable.
5.4 Each party represents and warrants that it or he has the right and
authority to enter into this Settlement Agreement and that this Settlement
Agreement constitutes its or his valid and binding obligation.
5.5 Each party represents and warrants that it or he is the sole owner of
the Released Claims being released by it or him and that it or he has not
previously assigned or transferred to any person or entity any of the Released
Claims.
5.6 This Settlement Agreement is governed by the law of the State of
Delaware.
5.7 This Settlement Agreement may be executed in counterparts, which
together constitute a single agreement.
5.8 This Settlement Agreement is the product of joint draftsmanship and
will not be construed against one party more strictly than against the other.
5.9 The headings in this Settlement Agreement are inserted merely for the
purpose of convenience and will not affect the meaning or interpretation of this
Settlement Agreement.
5.10 The Parties understand, acknowledge and agree that if any matter of
fact or law in their negotiations, discussions or correspondence regarding this
Settlement Agreement is found hereafter to be different from the fact or law now
known by them or any of them, they expressly accept and assume all risks of any
such difference of fact or law, and they agree that this Settlement Agreement
shall remain binding and effective notwithstanding any such difference of fact
or law.
5.11 Upon Consummation of the Closing, the Parties shall execute an
acknowledgement that Consummation of the Closing has occurred.
5.12 The Parties acknowledge and agree that all written agreements between
or among them that are in effect on the date of the Closing shall remain in full
force and effect following Consummation of the Closing.
5.13 This Settlement Agreement sets forth the entire agreement among the
Parties with respect to the subject matter hereof and may not be amended or
modified except by written agreement signed by the Parties, except that Section
4 may be modified by a written amendment or subsequent written agreement(s)
signed by BSI and Intergraph.
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BENTLEY SYSTEMS, INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Its: Senior Vice President
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INTERGRAPH CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Executive Vice President
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EXHIBIT A
IRREVOCABLE PROXY
Intergraph Corporation ("Intergraph") hereby appoints the Secretary of
Bentley Systems, Incorporated ("BSI") as its proxy, with the power of
substitution, to vote at any meeting of stockholders, or to express written
consent or dissent with respect to, all shares of Class A Common Stock of BSI
now or hereafter held of record by Intergraph and any entity controlling,
controlled by or under common control with Intergraph, and all shares issued
hereafter in respect of such shares as a dividend, stock split or combination,
or share reclassification (collectively, the "Shares"), in each case in
accordance with instructions from BSI's Board of Directors.
This is an irrevocable proxy, coupled with an interest, which is being
granted pursuant to a Settlement Agreement and Mutual General Release dated
April l, 1999, among Intergraph, BSI and other parties (the "Settlement
Agreement"). Intergraph agrees that:
1. This irrevocable proxy shall remain in effect as to the Shares for a
period expiring on March 31, 2001, unless sooner terminated as to all or some
Shares;
2. Any sale or other transfer of Shares prior to BSI's IPO (as defined in
the Settlement Agreement) shall be subject to this irrevocable proxy and the
transfer of such Shares shall be conditioned upon the transferee's execution of
a comparable irrevocable proxy and delivery of it to BSI;
3. Any sale or other transfer of Shares in the IPO or thereafter shall not
be subject to this irrevocable proxy if the sale or transfer is an open market
sale (not privately negotiated) or if the transferee in a privately negotiated
transfer beneficially owns (as defined in Section 4 below), after such transfer,
less than 5% of BSI's outstanding voting stock. Any other sale or transfer shall
be subject to this irrevocable proxy and shall be conditioned upon the
transferee's execution of a comparable irrevocable proxy and delivery of it to
BSI.
4. This irrevocable proxy shall terminate at such time as the Bentleys (as
defined in the Settlement Agreement) transfer beneficial ownership (as defined
for purposes of Section 13(d) of the Securities Exchange Act of 1934) of more
than 50% of the BSI shares owned collectively by them on the date hereof to
third parties such that such shares cease to be beneficially owned by one or
more Bentleys.
5. The certificates for Shares shall bear a legend disclosing that the
Shares are subject to this irrevocable proxy.
INTERGRAPH CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Dated as of April l, 1999 Title: Executive Vice President
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