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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 Peter R.
Kellogg (the "Stockholder"), an individual
whose business address is c/o IAT
Reinsurance Company, 48 Wall Street, 30th
Floor, New York, NY 10005 and who is a
stockholder of netGuru, Inc., a Delaware
corporation (the "Company").
RECITALS
A. Bentley 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.
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(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
suc
