AMENDMENT TO THE AMENDED AND RESTATED RIGHTS AGREEMENT
BETWEEN
INTERGRAPH CORPORATION
AND
COMPUTERSHARE INVESTOR SERVICES, LLC
THIS AMENDMENT TO THE AMENDED AND RESTATED RIGHTS AGREEMENT (this
"Amendment") is made as of August 31, 2006, between Intergraph Corporation, a
Delaware corporation (the "Company"), and Computershare Investor Services, LLC
(the "Rights Agent"). Capitalized terms used but not otherwise defined in this
Amendment shall have the meanings given them in the Rights Agreement.
WHEREAS, the Company and the Rights Agent are parties to that certain
Amended and Restated Rights Agreement, dated as of March 5, 2002 (the "Rights
Agreement");
WHEREAS, the Company is contemplating entering into an Agreement and Plan
of Merger (as the same may be amended from time to time, the "Merger
Agreement"), by and among the Company, Cobalt Holding Company, a Delaware
corporation ("Parent"), and Cobalt Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub
will be merged with and into the Company with the Company as the surviving
corporation thereof (the "Merger");
WHEREAS, the Board of Directors of the Company has approved the Merger
Agreement and the Merger and determined that an amendment to the Rights
Agreement as set forth herein is desirable in connection with the execution and
delivery of the Merger Agreement, and the Company and the Rights Agent desire to
evidence such amendment in writing;
WHEREAS, upon the execution and delivery of the Merger Agreement, Parent,
Merger Sub and/or their Associates and Affiliates may be deemed to be Acquiring
Persons under the Rights Agreement, which would trigger certain events pursuant
to the terms of the Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Board of
Directors of the Company has approved this Amendment and authorized its
appropriate officers to execute and deliver the same to the Rights Agent.
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment of Section 1: Definition of "Acquiring Person." The
definition of "Acquiring Person" set forth in Section 1 of the Agreement is
hereby amended by adding the following sentence to the end of that definition:
"Notwithstanding anything in this Agreement to the contrary, no Person
shall be or become an Acquiring Person by reason of (i) the execution and
delivery of the
Merger Agreement (or any amendment thereto), or of any agreement or
document contemplated by the Merger Agreement or in furtherance of the
transactions contemplated thereby, or the public announcement of any of
the foregoing, or (ii) the consummation of the transactions contemplated
thereby, including the Merger."
2. Amendment of Section 1: Definition of "Adverse Person." The definition
of "Adverse Person" set forth in Section 1 of the Agreement is hereby amended by
adding the following sentence to the end of that definition:
"Notwithstanding anything in this Agreement to the contrary, "Adverse
Person" shall not mean Parent, Merger Sub or any of their Affiliates or
Associates."
3. Amendment of Section 1: Definition of "Distribution Date." The
definition of "Distribution Date" set forth in Section 1 of the Agreement is
hereby amended by adding the following sentence to the end of that definition:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred by reason of (i)
the execution and delivery of the Merger Agreement (or any amendment
thereto), or of any agreement or document contemplated by the Merger
Agreement or in furtherance of the transactions contemplated thereby, or
the public announcement of any of the foregoing, or (ii) the consummation
of the transactions contemplated thereby, including the Merger."
4. Amendment of Section 1: Definition of "Share Acquisition Date." The
definition of "Share Acquisition Date" set forth in Section 1 of the Agreement
is hereby amended by adding the following sentence to the end of that
definition:
"Notwithstanding anything in this Agreement to the contrary, a Share
Acquisition Date shall not be deemed to have occurred by reason of (i) the
execution and delivery of the Merger Agreement (or any amendment thereto),
or of any agreement or document contemplated by the Merger Agreement or in
furtherance of the transactions contemplated thereby, or the public
announcement of any of the foregoing, or (ii) the consummation of the
transactions contemplated thereby, including the Merger."
5. Amendment of Section 1: Other Definitions. Section 1 of the Rights
Agreement is hereby further amended by adding the following subparagraphs at the
end thereof:
(p) "Amendment" shall mean the Amendment to the Agreement dated as
of August 31, 2006 between the Company and the Rights Agent.
(q) "Parent" shall have the meaning set forth in Section 34 hereof.
(r) "Merger Sub" shall have the meaning set forth in Section 34
hereof.
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(r) "Merger" shall have the meaning set forth in the Merger
Agreement.
(s) "Merger Agreement" shall have the meaning set forth in Section
34 hereof.
6. Amendment of Section 11(a)(ii). Section 11(a)(ii) of the Rights
Agreement is hereby amended by adding the following sentence to the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither (i)
the execution and delivery of the Merger Agreement (or any amendment
thereto), or of any agreement or document contemplated by the Merger
Agreement or in furtherance of the transactions contemplated thereby, or
the public announcement of any of the foregoing, nor (ii) the consummation
of the transactions contemplated thereby, including the Merger, shall be
deemed to be an event described in this Section 11(a)(ii) or cause the
Rights to be adjusted or to become exercisable in accordance with this
Section 11 or otherwise."
7. Amendment of Section 13(a). Section 13(a) of the Rights Agreement is
hereby amended by adding the following sentence to the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither (i)
the execution and delivery of the Merger Agreement (or any amendment
thereto), or of any agreement or document contemplated by the Merger
Agreement or in furtherance of the transactions contemplated thereby, or
the public announcement of any of the foregoing, nor (ii) the consummation
of the transactions contemplated thereby, including the Merger, shall be
deemed to be an event described in this Section 13 or cause the Rights to
be adjusted or to become exercisable in accordance with this Section 13 or
otherwise."
8. Addition of Section 34. The Rights Agreement is hereby further
modified, supplemented and amended by adding the following new Section 34:
"SECTION 34. MERGER WITH COBALT MERGER CORP.
The Company, Cobalt Holding Company, a Delaware corporation
("Parent"), and Cobalt Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), have entered into an
Agreement and Plan of Merger, dated on or about August 31, 2006, (as it
may be amended from time to time, the "Merger Agreement") pursuant to
which Company agrees, among other things, to merge with Merger Sub, with
the Company being the surviving entity and a wholly-owned subsidiary of
Parent following the consummation of the merger, according to the terms
and conditions set forth in the Merger Agreement (the "Merger").
Notwithstanding anything in this Agreement to the contrary, if the Merger
Agreement shall be terminated for any reason, then all of the amendments
to this Agreement effected by the Amendment shall be deemed
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repealed and deleted without any further action on the part of the Company
or the Rights Agent."
9. Effectiveness. This Amendment shall be deemed effective as of,
and immediately prior to, the execution and delivery of the Merger
Agreement. The Rights Agreement, as amended by this Amendment, shall
remain in full force and effect in accordance with its terms and shall be
otherwise unaffected hereby.
10. Successors. All the covenants and provisions of this Amendment
by or for the benefit of the Company or the Rights Agent shall bind and
inure to the benefit of their respective successors and assigns hereunder.
11. Benefits of this Amendment. Nothing in this Amendment shall be
construed to give to any Person other than the Company, the Rights Agent
and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the associated Common Shares) any legal or equitable
right, remedy or claim under this Amendment or the Rights; but this
Amendment shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights (and, prior to the
Distribution Date, the associated Common Shares).
12. Severability. The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of any
other term or provision hereof. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Amendment shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated.
13. Governing Law. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of said State
applicable to contracts to be made and performed entirely within said
State.
14. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the date and year first above written.
INTERGRAPH CORPORATION
By: /s/ X. Xxxxxx Xxxx
------------------------------------------
Name: X. Xxxxxx Wise
Title: President & Chief Executive Officer
COMPUTERSHARE INVESTOR SERVICES, LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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