SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)
3Dlabs Inc. Ltd.
----------------
(Name of Issuer)
Common Stock
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(Title of Class of Securities)
G8846W 10 3
--------------
(CUSIP Number)
David Vance Lucas
Vice President, General Counsel
Intergraph Corporation
Mailstop: IW2008
Huntsville, Alabama 35894-0001
(256) 730-2032
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 28, 2001
------------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(e), (f) or (g), check the following box. X
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*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
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1 NAME OF REPORTING PERSON
I.R.S IDENTIFICATION NO. OF ABOVE PERSON
Intergraph Corporation (63-0573222)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)___
(b)___
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) ___
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0 shares of Common Stock (1)
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 11,179,345 shares of Common Stock (1)
---------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,179,345 shares of Common Stock (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES ___
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
37.3%
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14 TYPE OF REPORTING PERSON
CO
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(1) Shares of Common Stock are subject to an Irrevocable
Proxy dated July 21, 2000 granted by Intergraph
Corporation to the Board of Directors of the issuer and attached
hereto as Exhibit 1.
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the common stock,
par value $0.01 per share (the "Common Stock") of 3Dlabs Inc.
Ltd., a Bermuda corporation (the "Company"). The principal
executive offices of the Company are located at Clarendon House,
2 Church Street, Hamilton, HM11, Bermuda.
Item 2. Identity and Background.
This statement is being filed by Intergraph Corporation, a
Delaware corporation ("Intergraph"). Intergraph's principal
business is as a worldwide provider of end-to-end technical
solutions and systems integration services, and its principal
offices are located at One Madison Industrial Park, Huntsville,
Alabama 35894-0001.
During the past five years, neither Intergraph nor, to the
best of Intergraph's knowledge, any of its directors or executive
officers, has been: (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors); or (ii) a
party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
The name, business address, present principal occupation or
employment, and the name and principal business of any
corporation or other organization in which such employment is
conducted, of each of the directors and executive officers of
Intergraph is set forth in Schedule I hereto, which is
incorporated herein by reference.
Item 3. Source and Amount of Funds or Other Consideration.
The shares of Common Stock of the Company acquired by
Intergraph as described in Item 4 were purchased in exchange for
certain assets previously used in the business of Intergraph's
Intense3D division.
Item 4. Purpose of Transaction.
On April 7, 2000, Intergraph entered into an agreement (the
"Agreement") with the Company whereby Intergraph would sell, at a
future date, certain assets used in the business of Intergraph's
Intense 3D division in exchange for a specified number of shares
of Common Stock of the Company. On July 22, 2000, Intergraph
acquired 3,588,060 shares of Common Stock of the Company in
partial satisfaction of the terms of the Agreement. On March 28,
2001, an additional 7,591,285 shares of Common Stock of the
Company were issued to Intergraph by the Company pursuant to the
terms of the Agreement. Intergraph acquired the total of
11,179,345 shares of Common Stock of the Company for the purpose
of obtaining a substantial equity ownership interest in the
Company.
Except as described in this Item 4, neither Intergraph nor, to
the best of Intergraph's knowledge, any of the individuals named
in Schedule I hereto, presently has any plan or proposal that
relates to or would result in any of the transactions described
in subparagraphs (a) through (j) of Item 4 of
Schedule 13D.
Item 5. Interests in Securities of the Issuer.
(a) Intergraph is the beneficial owner of 11,179,345 shares
of the Common Stock pursuant to Rule 13d-3 under the 1934 Act,
representing 37.3% of the issued and outstanding Common Stock.
Except as set forth in this Item 5, none of Intergraph, or to the
best of Intergraph's knowledge, any of the individuals named in
Schedule I hereto beneficially owns any Common Stock.
(b) Subject to the Irrevocable Proxy dated July 21, 2000
granted by Intergraph to the Board of Directors of the Company
(the "Irrevocable Proxy") attached as Exhibit 1 and the
Shareholder and Voting Agreement dated as of July 21, 2000 by and
among the Company, Intergraph and certain individuals named
therein, which is attached as Exhibit 2, Intergraph has the sole
power to dispose of or to direct the disposition of, but not
vote, all 11,179,345 shares of the Common Stock.
(c) Except for the transaction described herein, Intergraph
has not effected any transactions in shares of the Common Stock
during the past 60 days. Except for the transaction described
herein, to the best knowledge of Intergraph, none of the
individuals named in Schedule I hereto has effected any
transactions in any shares of the Common Stock during the last 60
days.
(d) Intergraph affirms that, except as disclosed in this
Item 5, to the best of its knowledge, no other person has the
right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, the 11,179,345 shares of
Common Stock currently held by Intergraph.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings, or
Relationships with Respect to Securities of the Issuer.
Except for the Irrevocable Proxy attached as Exhibit 1 and the
Shareholder and Voting Agreement attached as Exhibit 2, there are
no other contracts, arrangements, understandings or relationships
(legal or otherwise) among the persons referred to in Item 2 and
between such persons and any person with respect to any
securities of the Company, including but not limited to, transfer
or voting of any of such securities, finder's fees, joint
ventures, loan or option agreements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1. Irrevocable proxy dated July 21, 2000 granted by
Intergraph Corporation to the Board of Directors of
the Company.
Exhibit 2. Shareholder and Voting Agreement dated July 21,
2000 by and among Intergraph Corporation, the
Company, Osman Kent and Yavuz Ahiska.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Date: June 21, 2001
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By: /s/ David Vance Lucas
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(Signature)
Name: David Vance Lucas
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Title: Vice President, General Counsel
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SCHEDULE I
DIRECTORS AND OFFICERS
OF INTERGRAPH CORPORATION
The name, citizenship, present principal occupation or
employment, and the name of any corporation or other organization
in which such employment is conducted, of each of the directors
and executive officers of Intergraph Corporation is set forth
below. Unless otherwise indicated below, the business address of
each director and executive officer is One Madison Industrial
Park, Huntsville, Alabama 35894-0001.
PRESENT PRINCIPAL OCCUPATION
NAME AND CITIZENSHIP OR EMPLOYMENT
Directors:
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James F. Taylor Jr. Chief Executive Officer
American Intergraph Corporation
Larry J. Laster Chief Financial Officer
American Intergraph Public Safety, Inc.
Sidney L. McDonald Retired
American 215 Timberlake Drive
Union Grove, AL 35175
Thomas J. Lee President
American Lee and Associates
230 Walden Lane
New Market, AL 35761
Lawrence R. Greenwood Vice President of Research
American University of Alabama in Huntsville
301 Sparkman Drive (VBRH-M17)
Huntsville, AL 35899
Joseph C. Moquin Retired
American 183 Stoneway Trail
Madison, AL 35758
Linda L. Green Chief Executive Officer
American Colonial Bank/Northern Region
405 Church Street
Huntsville, AL 35801
Executive Officers:
-------------------
James F. Taylor Jr. Chief Executive Officer
American Intergraph Corporation
Roger O. Coupland President
American Intergraph Corporation and
Intergraph Public Safety, Inc.
Graeme J. Farrell Executive Vice President
Australian and Managing Director
Asia Pacific Operations
Intergraph Asia-Pacific, Inc.
32 Walker Street, Level 4
North Sydney 2060
Australia
William E. Salter President
American Intergraph Government Solutions
K. David Stinson Jr. President
American Process and Building Solutions
Preetha R. Pulusani Executive Vice President
American Mapping and GIS Solutions
Edward A. Wilkinson Executive Vice President
American Intergraph Corporation
Jack C. Ickes Vice President of Corporate Services
American Intergraph Corporation
David Vance Lucas Vice President and General Counsel
American Intergraph Corporation
Larry T. Miles Vice President of Finance
American Intergraph Corporation
Eugene H. Wrobel Vice President and Treasurer
American Intergraph Corporation
EXHIBIT 1.
IRREVOCABLE PROXY
TO VOTE STOCK OF
3DLABS INC. LTD.
The undersigned stockholder of 3Dlabs Inc. Ltd., a
corporation organized under the laws of Bermuda (the "Company"),
hereby irrevocably appoints the members of the Board of Directors
of the Company (the "Board"), and each of them, or any other
designee of the Board, 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 fullest 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 (but only to the extent that such shares are still
beneficially owned by the undersigned at the time the Board
exercise its right to vote such shares pursuant to this
Irrevocable Proxy) (collectively, the "Shares") in accordance
with the terms of this Irrevocable Proxy. The Shares beneficially
owned by the undersigned stockholder of Company as of the date of
this lrrevocable Proxy are listed on the final page of this
Irrevocable Proxy. Upon the undersigned's execution of this
Irrevocable Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with
respect to the Shares until after the Expiration Date (as defined
below) without the written consent of the Company.
This Irrevocable Proxy is irrevocable (to the fullest
extent provided by applicable law), is coupled with an interest,
including, but not limited to, that certain Asset Purchase
Agreement dated as April 7, 2000, by and among the Company and
the undersigned (the "Asset Purchase Agreement"), and is granted
in consideration of the Company entering into the Asset Purchase
Agreement. As used herein, the term "Expiration Date" shall mean
the earliest to occur of (i) the third anniversary of the date
hereof or (ii) the date on which the undersigned stockholder
holds less than five percent (5%) of the Company's outstanding
common stock.
The attorneys and proxies named above, and each of
them are hereby authorized and empowered by the undersigned, at
any time prior to the Expiration Date, to act as the
undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power
to execute and deliver written consents pursuant to applicable
law), at every annual, special or adjourned meeting of the
stockholders of the Company and in every written consent in lieu
of such meeting on all matters.
All authority herein conferred shall survive the
liquidation or dissolution of the undersigned and any obligation
of the undersigned hereunder shall be binding upon the successors
and assigns of the undersigned.
This Irrevocable Proxy is coupled with an interest as
aforesaid and is irrevocable.
Dated: July 21, 2000
By: /s/ John Wilhoite
----------------------
Name: John Wilhoite
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Its: CFO
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Shares of common stock beneficially owned: 3,588,060
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EXHIBIT 2.
SHAREHOLDER AND VOTING AGREEMENT
SHAREHOLDER AND VOTING AGREEMENT ("Agreement"), dated as of
July 21, 2000 by and among 3Dlabs Inc. Ltd., a company organized
under the laws of Bermuda ("3Dlabs"), Osman Kent, Yavuz Ahiska,
and Intergraph Corporation, a Delaware corporation
("Intergraph"). Each of Osman Kent, Yavuz Ahiska. Intergraph and
any other individual, corporation, limited liability company,
partnership, trust, unincorporated organization, other entity or
a government or any agency or political subdivision thereof (a
"Person") who shall become a party to or agree to be bound by the
terms of this Agreement after the date hereof is sometimes
hereinafter referred to as a "Shareholder" and collectively as
the "Shareholders."
W IT N E S S E T H:
WHEREAS, the Shareholders are or will be the owners
beneficially and of record of the number of shares of common
stock, par value $.01 per share (the "Common Stock"), of 3Dlabs
set forth below each of their names on the signature pages
hereto; and
WHEREAS, the Shareholders desire for their mutual benefit
and protection to enter into this Agreement for the purpose of
regulating certain aspects of their relationship and to set forth
certain of their respective rights and obligations with respect
to their Common Stock (whether issued or acquired hereafter,
including all Common Stock issuable upon the exercise of
warrants, options or other rights to acquire Common Stock, or
upon the conversion or exchange of any security).
NOW, THEREFORE, in consideration of the covenants and
representations set forth herein, and for other good and valuable
consideration, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
(b) "affiliate" shall mean, with respect to any
Person, any other Person directly or indirectly controlling,
controlled by, or under common control with such Person;
provided, however, that no Person shall be deemed to be an
affiliate of another Person solely by reason of such Person's
investment in 3Dlabs.
(c) "Board of Directors" shall mean the Board of
Directors of 3Dlabs.
(d) "Chipset" shall mean one or more Integrated
Circuits (that may include one or more digital logic products),
that alone or together (i) electrically interface directly (with
or without buffering or pin reassignment) with a General Purpose
Processor via a processor bus to form the connection between the
General Purpose Processor and any other computer system device
including, without limitation, General Purpose Processors,
input/output devices, displays, and memory; or (ii) communicating
with any General Purpose Processor through a processor bus.
(e) "Competitor" shall mean those Persons engaged in
the design, development and commercialization of Graphics Cores,
Graphics Accelerators, Integrated Graphics Accelerators, Graphics
Boards and related software throughout the world which are listed
on Schedule A hereto, it being understood that 3Dlabs may update
such schedule as necessary as approved by Intergraph, which
approval shall not be unreasonably withheld.
(f) "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common
control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through the ownership of voting securities or by contract
or otherwise.
(g) "General Purpose Processor" shall mean one or more
Integrated Circuits that alone or together, perform general
electronic central processing functions by the execution of a
general machine language instruction set (including, without
limitation, fetching instructions, decoding instructions,
executing instructions, arithmetic instructions, loading and
storing operands), and may include bus interface circuitry
operably coupled, via interconnections (e.g., input/output
buffers) to one or more host buses (such as a microprocessor,
microcontroller, or digital signal processor), all intended to be
used for general computing functions and purposes.
(h) "Graphics Accelerator" shall mean one or more
Integrated Circuits dedicated to performing hardware accelerated
pixel generation of 2D, 3D, and video data.
(i) "Graphics Core" shall mean human or machine
readable computer
programs and/or hardware description language code which are
intended to implement hardware accelerated pixel generation of
2D, 3D, and video data in a Graphics Accelerator or Integrated
Graphics Accelerator.
(j) "Graphics Board" shall mean a printed circuit
board incorporating a Graphics Accelerator and/or Integrated
Graphics Accelerator, which is intended for inclusion in a
computer system as the principal display component.
(k) "Integrated Circuit" shall mean an integral unit
comprising one or more active and/or passive circuit elements
associated on one or more substrates, such unit forming, or
contributing to the formation of, a circuit for performing
electrical functions and, if provided therewith, housing,
packaging, and/or supporting means.
(l) "Integrated Graphics Accelerator" shall mean an
Integrated Circuit that performs hardware accelerated pixel
generation of 2D, 3D, and video data types and also includes a
Chipset or a General Purpose Processor.
2. Voting of Shares. Each Shareholder hereby agrees that
to the extent that such Shareholder has any voting rights with
respect to the Common Stock owned by them, such Shareholder
hereby agrees to vote such shares of Common Stock as recommended
by the Board of Directors at any general meeting of the
shareholders of 3Dlabs (or in any action by written consent) and
hereby appoints the Board of Directors, and each of them, or any
other designee of the Board of Directors, as his, her, or its
irrevocable proxy to exercise such voting rights on their behalf.
3. Standstill. Intergraph hereby agrees that during the
term of this Agreement it will not, and will not permit any of
its affiliates to, without the prior written approval of 3Dlabs:
(a) make any public offer, solicitation or bid to
acquire any stock of or interest or right in 3Dlabs; or
(b) effect or seek, offer or propose (whether publicly
or otherwise) to effect, or cause or participate in or in any way
assist any other person to effect or seek, offer or propose
(whether publicly or otherwise) to effect or participate in:
(i) any acquisition of any securities (or
beneficial ownership thereof) or assets of
3Dlabs or any of its subsidiaries;
(ii) any tender or exchange offer, merger, or
other business combination involving 3Dlabs;
(iii)any recapitalization, restructuring,
liquidation, dissolution or other
extraordinary transaction with respect to
3Dlabs; or
(iv) any "solicitation" of "proxies" or become a
participant in an "election contest" (as
such terms are in Regulation l4A under the
1934 Act) or consents to vote any voting
securities of 3Dlabs;
(c) form, join or in any way participate in a "group"
(as defined under the 1934 Act);
(d) otherwise act, alone or in concert with others, to
seek to control or influence management, the Board of Directors,
or policies of 3Dlabs; or
(e) enter into any discussions or arrangements with
any third party with respect to any of the foregoing.
4. Restrictions on Transfer
(a) General Restrictions on Transfer. Subject to
Sections 4(b), 4(c), 5, and 6 below, and except as agreed in
writing by 3Dlabs, each Shareholder agrees that it will not,
without the prior written consent of 3Dlabs, directly or
indirectly, sell, hypothecate, give, bequeath, transfer, assign
or in any other way whatsoever encumber or dispose of (any such
event, a "Transfer") any Common Stock now or hereafter at any
time owned by it to another Person ("Transferee"), unless the
Transferee agrees in writing to be bound by this Agreement. The
provisions of this Section 4(a) shall not apply to the following
Transfers to Persons who are not affiliates of Intergraph:
(i) sales of Common Stock in the open market
other than in block trades; and
(ii) sales of Common Stock, whether in the open
market or otherwise, in block trades less
than 5% of the Common Stock then
outstanding, and
(iii)a pledge to or security interest
granted by Intergraph to any lender or
lenders in connection with financing
arrangements entered into by Intergraph;
provided, however, that if such lender
executes on its pledge or security interest
upon a foreclosure or default then such
execution shall be deemed a Transfer
requiring such lender to agree to be bound
to this Agreement.
(b) Transfers to Competitors. Each Shareholder agrees
that it will not, without prior written consent of 3Dlabs,
directly or indirectly, Transfer any Common Stock now or
hereafter at any time owned by it to a Competitor of 3Dlabs,
whether through block trades in the public market or otherwise.
Prior to any Transfer, each Shareholder shall inform 3Dlabs of
the identity of the Transferee so that 3Dlabs can reasonably
determine whether such Transferee is a Competitor. The
determination whether a prosepctive Transferee constitutes a
Competitor of 3Dlabs shall be at the reasonable discretion of
3Dlabs and 3Dlabs may withhold consent to any Transfer to a
Competitor in its sole and absolute disrection.
(c) Involuntary Transfer. In the case of any Transfer
of title or beneficial ownership of the Common stock by a
Shareholder upon default, foreclosure, forfeit, court order, or
otherwise than by a voluntary decision on the part of Intergraph
(an "Involuntary Transfer"), such Shareholder shall promptly (but
in no event later than two (2) business days after such
Involuntary Transfer) furnish written notice to 3Dlabs indicating
that the Involuntary Transfer has occurred, specifying the name
of the Person to whom such Common Stock have been transferred,
giving a detailed description of the circumstances giving rise
to, and stating the legal basis for, the Involuntary Transfer.
Notwithstanding anything to the contrary contained herein, upon
the occurrence of an Involuntary Transfer vesting legal and
beneficial ownership of the Common Stock in any lender(s) of
Intergraph, such lender(s) shall not be subject to Section 5 of
this Agreement.
5. Right of First Offer.
(a) If at any time during the term of this Agreement
Intergraph desires to sell, other than sales of Common Stock
through a broker into the public market, any Common Stock, it
shall deliver a notice of such election (the "First Offer
Notice") in writing to 3Dlabs prior to entering into any
discussions or negotiations with any third party. Such notice
shall be deemed an offer by Intergraph to sell all of the Common
Stock that are subject to the First Offer Notice (the "First
Offered Shares") at a purchase price and on the terms and
conditions to be negotiated in good faith between the parties.
3Dlabs shall have three (3) days from the date it receives the
First Offer Notice from Intergraph to agree to purchase all but
only all of the First Offered Shares, for a price and upon the
terms and conditions to be negotiated in good faith between the
parties, by giving written notice to Intergraph. In the event
3Dlabs reaches agreement with Intergraph to acquire any of the
First Offered Shares, settlement thereof shall be made within
thirty (30) days after the date such agreement is reached.
(b) In the event that 3Dlabs determines not to
purchase all of the Offered Shares pursuant to its right of first
offer in Section 5(a) above, Intergraph shall then deliver to
each of Osman Kent, and Yavuz Ahiska (together with Osman Kent,
(the "Shareholder Offerees") the First Offer Notice. Each
Shareholder Offeree shall have two (2) days from the date they
receive the First Offer Notice from Intergraph to agree to
purchase all but only all of the First Offered Shares not
purchased by 3Dlabs, for a price and upon the terms and
conditions to be negotiated in good faith between the parties, by
giving written notice to Intergraph. In the event any Shareholder
Offeree reaches agreement with Intergraph to acquire any of the
First Offered Shares, settlement thereof shall be made in cash
within thirty (30) days after the date such agreement is reached.
(c) In the event 3Dlabs and the Shareholder Offerees
do not agree to purchase all of the First Offered Shares,
Intergraph shall be free to enter into negotiations and to sell
(subject to the provisions of Section 6 below) the First Offered
Shares not purchased by 3Dlabs and the Shareholder Offerees on
terms no more favorable to Intergraph than those set forth in the
First Offer Notice.
6. Right of First Refusal.
(a) If at any time during the term of this Agreement
Intergraph receives from an unrelated third party, or makes to an
unrelated third party (subject to the requirements of Section 5
above), a bona fide offer in writing to purchase or sell, as the
case may be, all or a portion of the Common Stock held by
Intergraph, other than sales of Common Stock through a broker
into the public market (a "Shareholder Offer"), and Intergraph
desires to sell such Common Stock pursuant to the Shareholder
Offer, it shall deliver notice of such election (the "Offer
Notice") in writing to 3Dlabs together with a copy of such
Shareholder Offer. Such notice shall state the terms of such
Shareholder Offer and the identity and business address of the
offeror (the "Offeror") and shall be deemed an offer by
Intergraph to sell all of its Common Stock that are subject to
the Shareholder Offer (the "Offered Shares") at a purchase price
and on the terms and conditions as set forth in the Offer Notice.
3Dlabs shall have the first option (the "First Option") to
purchase all but only all of the Offered Shares. 3Dlabs shall
have ten (10) days from the date it receives the Offer Notice
from Intergraph to agree to purchase all but only all of the
Offered Shares, for the price and upon the terms and conditions
specified in the Offer Notice, by giving written notice to
Intergraph. In the event 3Dlabs timely elects to acquire any of
the Offered Shares, settlement thereof shall be made in cash
within thirty (30) days after the date the Offer Notice and
Shareholder Offer are received by 3Dlabs; provided that if the
terms of payment set forth in the Offer Notice and Shareholder
Offer are other than cash against delivery, 3Dlabs shall pay cash
for such Offered Shares in amount equal to the fair market value
of such other consideration.
(b) In the event that 3Dlabs determines not to purchase the
Offered Shares pursuant to its right of first refusal in Section
6(a) above, Intergraph shall then deliver to each of the
Shareholder Offerees the Offer Notice together with a copy of the
Shareholder Offer. Each Shareholder Offeree shall have ten (10)
days from the date they receive the Offer Notice from Intergraph
to agree to purchase all of such Shareholder Offeree's pro rata
share (such pro rata share to be based solely upon the holdings
of Common Stock of the Shareholder Offerees, the "Pro Rata
Share") of such Offered Shares, for the price and upon the terms
and conditions specified in the Offer Notice, by giving written
notice to such to Intergraph stating therein the quantity of such
Offered Shares to be purchased. If any Shareholder Offeree fails
to agree to purchase his full Pro Rata Share within such ten
(10) day period, Intergraph will give the other Shareholder
Offeree who did so agree (the "Electing Shareholder") notice (the
"Second Offer Notice") of the number of Offered Shares which were
not subscribed for. The Second Offer Notice may be by telephone
if followed by written confirmation within two (2) days. The
Electing Shareholder shall have five (5) days from the date of
the Second Offer Notice to agree to purchase all of the Offered
Shares not purchased by such other Shareholder Offeree. In the
event any Shareholder Offeree timely elects to acquire the
Offered Shares as specified in the Offer Notice or Second Offer
Notice, settlement thereof shall be made in cash within thirty
(30) days after the date the Offer Notice or Second Offer Notice,
as applicable, was received by such Electing Shareholder;
provided that if the terms of payment set forth in the Offer Notice
are other than cash against delivery, such Electing Shareholder
shall pay cash for such Offered Shares in amount equal to the
fair market value of such other consideration.
(c) In the event a Shareholder Offeree fails to
exercise the right of first refusal to purchase all, but not less
than all, of the Offered Shares within said ten (10) day period
plus the five (5) day period specified above (the "Notice
Period"), Intergraph shall have ninety (90) days thereafter to
sell the Offered Shares not elected to be purchased at the price
and upon the terms and conditions no more favorable to the
purchasers of such Offered Shares than specified in Offer Notice
and Shareholder Offer. In the event Intergraph has not sold the
Offered Shares within said ninety (90) day period, Intergraph
shall not thereafter sell any Offered Shares without first
offering such Offered Shares to 3Dlabs and the Shareholder
Offerees in the manner provided in Sections 5 and 6.
7. Representations and Warranties of the Shareholders.
Each of the Shareholders represents and warrants to 3Dlabs and to
each other as follows:
(a) Organization. If it is an entity, it is a
corporation, limited partnership or other entity duly organized
and validly existing under the laws of its respective
jurisdiction of organization.
(b) Authority. It has full power and authority to
execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby.
(c) Binding Obligation. The execution, delivery and
performance of this Agreement by it and the consummation by it of
the transactions contemplated hereby have been duly and validly
authorized by all necessary action on its part, and this
Agreement constitutes its binding obligation, enforceable against
it in accordance with its terms, except insofar as enforceability
may be limited by bankruptcy, insolvency, moratorium or other
laws which may affect creditors' rights and remedies generally
and by principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).
(d) No Conflict. The execution, delivery and
performance of this Agreement by it and the consummation by it of
the transactions contemplated hereby will not, with or without
the giving of notice or the lapse of time, or both, (i) violate
any provision of law, statute, rule or regulation to which it is
subject, (ii) violate any order, judgment or decree applicable to
it, or (iii) conflict with, or result in a breach or default
under, any term or condition of its certificate of incorporation,
bylaws or equivalent governing document or any material agreement
or other material instrument to which it is a party or by which
it or its property is bound.
8. Legend on Certificates. Each Shareholders agrees that
the following legend or such legend as shall be substituted
therefor by amendment of this Agreement shall be placed on the
certificate(s) representing any Common Stock owned by such
Shareholder so long as the applicable restrictions contained in
this Agreement remain in effect:
"THE SHARES EVIDENCED BY THIS CERTIFiCATE ARE SUBJECT TO
THE PROVISIONS OF A SHAREHOLDER AND VOTING AGREEMENT
DATED AS OF APRIL __, 2000 (THE "SHAREHOLDERS' AGREEMENT"),
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE
SHAREHOLDERS' AGREEMENT, A COPY OF WHiCH IS ON FILE WITH
THE SECRETARY OF THE COMPANY."
9. Term of Agreement. This Agreement shall terminate upon
the earliest to occur of (i) the third anniversary of this
Agreement and (ii) the date upon which Intergraph holds less than
5% of the Common Stock outstanding on the date of this Agreement.
10. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be
deemed to have been duly given on the date of delivery, if
personally delivered, or if mailed (registered or certified mail
(in the case of international mailings, by first-class air-mail),
postage prepaid, return receipt requested), on the fifth (5th)
business day following mailing as follows:
(a) If to 3Dlabs:
3Dlabs Inc. Ltd.
3Dlabs, Inc.
480 Potrero Avenue
Sunnyvale, CA 94086
Attention: Vice President, Finance
with a copy to:
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
Attention: Stephen J. Schrader
(b) if to ICS or Intergraph:
Intergraph Corporation
One Madison Industrial Park
Huntsville, Alabama 35894-0001
Attention: John W. Wilhoite
with a copy to:
Balch & Bingham, LLP
1901 Sixth Avenue North, Suite 2600
Birmingham, Alabama 35203
Attention: Phillip A. Nichols
11. Further Assurances. Each party hereto agrees to execute
any and all further documents and writings within its powers and
to perform such other actions which may be or become necessary or
expedient to effectuate and carry out this Agreement.
12. Entire Agreement. Except for the terms and provisions
of the Asset Purchase Agreement, this Agreement shall constitute
the entire agreement of the parties relating to the subject
matter of this Agreement and shall supersede all other prior or
contemporary agreements, understandings, negotiations and
discussions whether oral or written.
13. Amendment and Waivers. Any term or provision of this
Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only by a
writing signed by the party to be bound thereby. The waiver by a
party of any breach hereof or default in the performance hereof
will not he deemed to constitute a waiver of any other default or
any succeeding breach or default.
14. Assignment; Binding Upon Successors and Assigns. Except
as expressly provided herein, neither party hereto may assign any
of its rights or obligations hereunder, by operation of law or
otherwise, without the prior written consent of the other party
hereto. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
15. Headings. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement.
l6. Counterparts. This Agreement may be executed in
counterparts, each of which will be an original as regards any
party whose signature appears thereon and all of which together
will constitute one and the same instrument. This Agreement will
become binding when one or more counterparts hereof, individually
or taken together, bear the signatures of all the parties
reflected hereon as signatories.
17. Governing Law. The internal laws of the State of New
York, (irrespective of its conflicts of law principles) will
govern the validity of this Agreement, the construction of its
terms, and the interpretation and enforcement of the rights and
duties of the parties hereto.
18. No Arbitration. No dispute or disagreement arising
hereunder shall be required to be decided by binding arbitration
and no party hereto shall be required to enter into binding
arbitration with respect to such disputes or disagreements.
19. Severability. If any provision of this Agreement, or
the application thereof, is for any reason held to any extent to
be invalid or unenforceable, the remainder of this Agreement and
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 extent possible,
the economic, business and other purposes of the void or
unenforceable provision.
20. Recapitalization, Exchanges. As used in this Agreement,
Common Stock include any such shares issued upon exercise of
stock options, warrants or other convertible securities. The
provisions of this Agreement shall apply to the full extent set
forth herein with respect to (a) the Common Stock and any option,
right or warrant to acquire Common Stock owned on the date hereof
or hereafter acquired, and (b) any and all shares of capital
stock of 3Dlabs or any successor or assign of 3Dlabs (whether by
merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution for the
Common Stock, by combination, recapitalization, reclassification,
merger, consolidation or otherwise. In the event of any change in
the capitalization of 3Dlabs, as a result of any stock split,
stock dividend or stock combination, the provisions of this
Agreement shall be appropriately adjusted.
21. Injunctive Relief. Each of the parties to this
Agreement acknowledges and agrees that in the event of any breach
of this Agreement, the non-breaching party or parties would be
irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties will waive the
defense in any action for injunctive relief, including specific
performance, that a remedy at law would be adequate and that the
parties, in addition to any other remedy to which they may be
entitled to at law or in equity, shall be entitled to injunctive
relief, including specific performance, to enforce this Agreement
in any action instituted in any court in the State of California
or any state thereof having subject matter jurisdiction for such
action.
22. No Third Party Benefit. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any
third party beneficiary.
23. Information Regarding Beneficial Ownership. Each
Shareholder agrees to promptly provide to 3Dlabs and the other
Shareholders any information or representations that 3Dlabs or
such other Shareholders may reasonably request regarding such
Shareholder's beneficial ownership of the Common Stock.
-Balance of the Page Intentionally Left Blank-
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it as of the day and year first
written above.
INTERGRAPH CORPORATION
By: /s/ John Wilhoite
-----------------
Name: John Wilhoite
-------------
Its: CFO
---
3DLABS INC. LTD.
By: /s/ Osman Kent
--------------
Name: Osman Kent
----------
Its: CEO
---
/s/ Osman Kent
--------------
Osman Kent
/s/ Yavuz Ahiska
----------------
Yavuz Ahiska
SCHEDULE A to the SHAREHOLDER AND VOTING AGREEMENT
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