EXHIBIT 7.2
SHAREHOLDER VOTING AGREEMENT
This Shareholder Voting Agreement (the "Agreement") is entered into as
of May 24, 1999, between the undersigned Xxxxxx Xxxxx, a shareholder (the
"Shareholder") of Texas Micro Inc., a Delaware corporation ("TMI"), and RadiSys
Corporation, an Oregon corporation ("RadiSys").
A. Contemporaneously with the execution and delivery of this
Agreement, TMI, RadiSys and Xxxxx Merger Corp. are entering into an Agreement of
Reorganization and Merger, dated as of the date hereof (the "Merger Agreement"),
pursuant to which Xxxxx Merger Corp. will merge with and into TMI (the
"Merger"), upon the terms and conditions set forth therein.
B. The Shareholder desires that the Merger occur and that the
Shareholder receive the Merger Consideration, as defined in the Merger
Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Shareholder. The Shareholder represents that he
(a) is the holder of 25,000 shares of the Common Stock of TMI (the Shareholder's
"Shares"), (b) does not beneficially own (as such term is defined in the
Securities Exchange Act of 1934, as amended (the "1934 Act")) any shares of the
Common Stock of TMI other than his Shares, but excluding any shares of the
Common Stock which he has the right to obtain upon the exercise of stock options
outstanding on the date hereof and (c) has full power and authority to make,
enter into and carry out the terms of this Agreement.
2. Agreement to Vote Shares. The Shareholder agrees to vote his Shares
and any New Shares (as defined in Section 6 hereof), and shall cause any holder
of record of his Shares or New Shares to vote to approve the Merger and to
approve and adopt the Merger Agreement. The Shareholder agrees to deliver to
Xxxxxxxx X. Xxxxx, Chairman of the Board of RadiSys, immediately upon request
therefor a proxy substantially in the form attached hereto as Exhibit A, which
proxy shall be irrevocable to the extent permitted by law (except that such
proxy shall be deemed automatically revoked upon a termination of this Agreement
in accordance with Section 12.4), with the total number of his Shares and any
New Shares correctly indicated thereon.
3. No Voting Trusts. After the date hereof, the Shareholder agrees
that he will not, nor will he permit any entity under his control to, deposit
any of his
Shares in a voting trust or subject any of his Shares to any arrangement with
respect to the voting of such Shares other than agreements entered into with
RadiSys.
4. No Proxy Solicitations. The Shareholder agrees that he will not,
nor will he permit any entity under his control to, (a) solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the 0000 Xxx) in opposition to or competition with the
consummation of the Merger, (b) subject to Section 10, directly or indirectly
solicit, encourage, initiate or otherwise facilitate any inquiries or the making
of any proposal or offer with respect to an Acquisition Transaction (as defined
in the Merger Agreement) or engage in any negotiation concerning, or provide any
confidential information or data to, or have any discussions with any person
relating to, an Acquisition Transaction proposal, (c) become a member of a
"group" (as such term is used in Section 13(d) of the 0000 Xxx) with respect to
any voting securities of TMI for the purpose of opposing or competing with the
consummation of the Merger, or (d) take any action which would prevent, burden
or materially delay the consummation of the transactions contemplated by this
Agreement.
5. Transfer and Encumbrance. Except for gifts given without
consideration where the recipient thereof agrees to execute a voting agreement
in form and substance similar to this Agreement, the Shareholder agrees not to
voluntarily transfer, sell, offer, pledge or otherwise dispose of or encumber
any of his Shares or New Shares during the period commencing on May 24, 1999 and
ending after the earlier of (a) the effective date of the Merger or (b) the date
this Agreement shall be terminated in accordance with its terms.
6. Additional Purchases. During the period commencing on May 24, 1999
and ending after the earlier of (a) the effective date of the Merger or (b) the
date this Agreement shall be terminated in accordance with its terms, the
Shareholder agrees that he will not (i) purchase or otherwise acquire beneficial
ownership of any shares of the Common Stock after the execution of this
Agreement ("New Shares"), or (ii) voluntarily acquire the right to vote or share
in the voting of any shares of the Common Stock other than the Shares, unless he
agrees to deliver to RadiSys immediately after such purchase or acquisition a
proxy substantially in the form attached hereto as Exhibit A with respect to
such New Shares, which proxy shall be irrevocable to the extent permitted by law
(except that such proxy shall be deemed automatically revoked upon a termination
of this Agreement in accordance with Section 12.4). The Shareholder also agrees
that any New Shares acquired or purchased by him shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
7. Specific Performance. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party
2
hereto severally agrees that injunctive relief or other equitable remedy, in
addition to remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the granting of such relief on the basis that the
other party has an adequate remedy at law. Each party hereto severally agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
8. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
9. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by all the parties hereto. No
waiver of any provisions hereof by any party shall be deemed a waiver of any
other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
10. Shareholder Capacity. The execution of this Agreement by
Shareholder shall be solely in his capacity as the beneficial owner of the
Shares held by Shareholder, and Shareholder makes no agreement or understanding
herein in his capacity, if any, as a director or officer of XXX.
00. Spousal Interests in Shares. To the extent that any of
Shareholder's Shares constitute the community property of Shareholder and his
spouse, Shareholder shall obtain the spouse's acknowledgment of and consent to
the existence and binding effect of this Agreement, by executing a spousal
consent in the form attached hereto as Exhibit B, and incorporated into this
Agreement by reference.
12. Miscellaneous.
12.1 This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the
State of Oregon.
12.2 If any provision of this Agreement or the application of
such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held
invalid and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, shall not be affected.
3
12.3 This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.
12.4 This Agreement shall terminate upon the earliest to occur of
(i) the consummation of the Merger or (ii) termination of the Merger
Agreement.
12.5 All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference
shall be derived therefrom.
12.6 The obligations of the Shareholder set forth in this
Agreement shall not be effective or binding upon him until after such time
as the Merger Agreement is executed and delivered by RadiSys, TMI and Xxxxx
Merger Corp. The parties agree that there is not and has not been any other
agreement, arrangement or understanding between the parties hereto with
respect to the matters set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
RADISYS: RADISYS CORPORATION
By: XXXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President and CEO
SHAREHOLDER: XXXXXX XXXXX
-----------------------------------------
Name: Xxxxxx Xxxxx
4
EXHIBIT A
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Xxxxxxxx
X. Xxxxx, Chairman of the Board of RadiSys Corporation, his proxy, with power of
substitution, to vote all shares of common stock of Texas Micro Inc., a Delaware
corporation ("TMI"), owned by the undersigned at the upcoming Special Meeting of
Stockholders of TMI, and at any adjournment thereof, FOR approval and adoption
of the Merger Agreement, dated as of May 24, 1999, between RadiSys Corporation,
TMI and Xxxxx Merger Corp. (the "Merger Agreement"). This proxy is coupled with
an interest and is irrevocable until such time as the Shareholder Voting
Agreement, dated as of May 24, 1999, among the undersigned and RadiSys
Corporation terminates in accordance with its terms.
Dated: __________________
_________________________________________
(Signature of Shareholder)
5
EXHIBIT B
FORM OF SPOUSAL CONSENT
I, the spouse of Xxxxxx Xxxxx, have read and hereby approve the
foregoing Agreement. I hereby agree to be irrevocably bound by the Agreement and
further agree that any community interest shall be similarly bound by the
Agreement. I hereby appoint my spouse as my attorney-in-fact with respect to any
amendment or exercise of any rights under the Agreement.
Dated: 5/24/99, 1999 XXXXXXX XXXXX
------- -----------------------------------------
6
