Shareholder's Agreement
This Shareholder's Agreement (this "Agreement") is made and entered into as
of this 29th day of June 2001, among RadiSys Corporation, an Oregon corporation
("Parent"), Drake Merger Sub, Inc., an Iowa corporation and a wholly owned
subsidiary of Parent ("Purchaser"), and Motorola, Inc. (the "Shareholder").
Recitals
A. Microware Systems Corporation, an Iowa corporation (the "Company"), and
Parent and Purchaser desire to enter into an Agreement and Plan of Merger dated
as of the date hereof (as the same may be amended or supplemented, the "Merger
Agreement") with respect to the merger of Purchaser with and into the Company
(the "Merger"); and
B. As a condition to the Merger, Parent and Purchaser have requested that
the Shareholder execute this Agreement as an inducement to Parent to enter into
and execute, and to cause Purchaser to enter into and execute, the Merger
Agreement.
Now, therefore, in consideration of the execution and delivery by Parent
and Purchaser of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
Agreement
1. Representations and Warranties. The Shareholder represents and warrants
to Parent and Purchaser as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares of Common Stock of the Company (the "Company Common Stock") set
forth opposite his name on the attached Annex I (as may be adjusted from
time to time pursuant to Section 5, the Shareholder's "Shares"). Except for
the Shareholder's Shares and any other shares of Company Common Stock
subject to this Agreement, the Shareholder is not the record or beneficial
owner of any shares of Company Common Stock.
(b) This Agreement constitutes the legal, valid and binding obligation
of the Shareholder, enforceable against the Shareholder in accordance with
its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally. Neither the execution and
delivery of this Agreement nor the completion by the Shareholder of the
transactions contemplated by this Agreement will result in a violation of,
or a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which
the Shareholder is a party or bound or to which any of the Shareholder's
Shares are subject. To the best of the Shareholder's knowledge, completion
by the Shareholder of the transactions contemplated hereby will not
violate, or require any consent, approval, or notice under, any provision
of any judgment, order, decree, statute, law, rule or regulation applicable
to the Shareholder or the Shareholder's Shares.
(c) The Shareholder's Shares and the certificates representing such
Shares are now and at all times during the term of this Agreement will be
held by the Shareholder, or by a nominee or custodian for the benefit of
the Shareholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any encumbrances or proxies
arising under this Agreement or as listed on Annex I.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission from Parent, Purchaser or the Company in connection with
the transactions contemplated hereby based upon arrangements made by or on
behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Parent is
entering into, and causing Purchaser to enter into, the Merger Agreement in
reliance upon the Shareholder's execution and delivery of this Agreement.
The Shareholder acknowledges that the irrevocable proxy set forth in
Section 4 of this Agreement is granted in consideration for the execution
and delivery of the Merger Agreement by Parent and Purchaser.
2. Agreement to Commence Offer; Modification of Offer.
(a) Parent agrees to cause Purchaser to, and Purchaser agrees to, make
the Offer for all of the Shares within the time and upon the terms as
provided for in the Merger Agreement, and subject to the conditions therein
contained.
(b) Parent agrees that it will not cause or permit the Purchaser to,
and Purchaser agrees not to, amend, modify or change the Offer without the
prior written consent of the Shareholder if, the effect of ay such
amendment, modification or change would be to (i) reduce the number of
Common Shares subject to the Offer, (ii) reduce the Per Share Amount, (iii)
impose any other conditions to the Offer other than the Offer Conditions or
modify the Offer Conditions (other than to waive any Offer Conditions to
the extent permitted by the Merger Agreement), (iv) except as provided by
the second sentence of Section 1.1.4 of the Merger Agreement, extend the
Offer, (v) change the form of consideration payable in the Offer, or (vi)
amend any other term of the Offer in any manner adverse to the Shareholder.
2. Tender or Sell.
(a) The Shareholder agrees that during the term of this Agreement he
shall tender his Shares into the Offer (as defined in the Merger Agreement)
and that he shall not withdraw any Shares so tendered (it being understood
that the obligation contained in this sentence is unconditional during the
term of this Agreement.
(b) The Shareholder shall tender his Shares not later than five
business days following commencement of the Offer.
3. Covenants. For the term of this Agreement, the Shareholder agrees with,
and covenants to, Parent and Purchaser as follows:
(a) The Shareholder shall not, except as contemplated by the terms of
this Agreement, (i) transfer (for purposes of this Agreement, the term
"transfer" includes, without limitation, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of
any or all of such Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization or consent in or with respect to
such Shares except with respect to election of directors at the Company's
annual meeting, (iv) deposit such Shares into a voting trust or enter into
a voting agreement or arrangement with respect to such Shares or (v) take
any other action that would in any way restrict, limit or interfere with
the performance of its obligations under this Agreement or the transactions
contemplated by this Agreement, provided, however, the Shareholder shall be
permitted to transfer any or all of the Shareholders's Shares to a
subsidiary of the Shareholder who agrees to be bound by the terms of this
Agreement.
(b) Subject to Section 8, the Shareholder shall not, nor shall he
engage any investment banker, attorney or other adviser or representative
to act on the Shareholder's behalf in order to, directly or indirectly, (i)
solicit, initiate or encourage the submission of, any Company Takeover
Proposal (as defined in the Merger Agreement) or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any
information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Company Takeover Proposal.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder irrevocably (during the term of this Agreement)
grants to, and appoints, Parent and Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and
any other individual who shall hereafter be designated by Parent, the
Shareholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of the Shareholder, to vote the
Shareholder's Shares, or grant a consent or approval in respect of such
Shares, at any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, against (i) any Company Takeover Proposal and
(ii) any amendment of the Company's Restated and Amended Articles of
Incorporation or Restated and Amended Bylaws or other proposal or
transaction (including any consent solicitation to remove or elect any
directors of the Company) involving the Company or any of its subsidiaries
which amendment or other proposal or transaction would in any manner
impede, frustrate, prevent or nullify, or result in a breach of any
covenant, representation or warranty or any other obligation or agreement
of the Company under or with respect to, the Offer, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder affirms that the irrevocable proxy set forth in
this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked prior to the termination
of this Agreement. The Shareholder ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof.
Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 490.722 of the Iowa Business
Corporation Act (the "Corporation Law").
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation the Shareholder's heirs, guardians, administrators or successors. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Company Common Stock, or the acquisition of additional shares of
Company Common Stock or other securities or rights of the Company by the
Shareholder, the number of Shares listed on Annex I beside the name of the
Shareholder shall be adjusted appropriately and this Agreement and the
obligations under this Agreement shall attach to any additional shares of
Company Common Stock or other securities or rights of the Company issued to or
acquired by the Shareholder.
6. Stop Transfer. The Company agrees with, and covenants to, Parent that
the Company shall not register the transfer of any certificate representing any
Shareholder's Shares, unless such transfer is made to Parent or Purchaser or
otherwise in compliance with this Agreement.
7. Voidability. If, prior to the execution of this Agreement, the Board of
Directors of the Company shall not have duly and validly authorized and approved
by all necessary corporate action the acquisition of Company Common Stock by
Parent and Purchaser and the other transactions contemplated by this Agreement
and the Merger Agreement, so that by the execution and delivery of this
Agreement, Parent or Purchaser would become, or could reasonably be expected to
become, an "interested shareholder" with whom the Company would be prevented for
any period pursuant to Section 490.1110 of the Corporation Law from engaging in
any "business combination" (as such terms are defined in Section 490.1110 of the
Corporation Law) then this Agreement shall be void and unenforceable until such
time as such authorization and approval shall have been duly and validly
obtained.
8. Shareholder Capacity. The Shareholder does not make any agreement or
understanding in his capacity as a director or officer of the Company. The
Shareholder signs solely in his capacity as the record holder and beneficial
owner of his Shares and nothing herein shall limit or affect any actions taken
by the Shareholder in his capacity as a director or officer of the Company.
9. Further Assurances. The Shareholder shall, upon request of Parent or
Purchaser, execute and deliver any additional documents and take such further
actions as may
reasonably be deemed by Parent or Purchaser to be necessary or desirable to
carry out the provisions of this Agreement and to vest the power to vote the
Shareholder's Shares as contemplated by Section 4 in Parent and the other
irrevocable proxies described therein.
10. Termination. This Agreement, and all rights and obligations of the
parties under this Agreement, shall terminate upon the earlier of (a) the date
upon which the Merger Agreement is terminated in accordance with its terms, (b)
the date that Parent or Purchaser shall have purchased and paid for the Shares
of the Shareholder pursuant to Section 2; and (c) September 30, 2001 if the
Offer has not been completed by such date; provided, however, that Shareholder
may terminate this Agreement if the Offer does not substantially conform with,
or subject to Section 2(b) hereof is amended, modified or changed in a manner so
as not to conform with, the description of the Offer provided to Shareholder in
the Draft Merger Agreement provided to Shareholder on June 27, 2001 or Shares
deposited under the Offer (including Shareholder's Shares) have not, for any
reason, been taken up and paid for on or before the end of the tenth day
following expiry of the Offer; provided, further, however, the termination of
this Agreement shall not relieve any party of liability for breach of this
Agreement prior to termination.
11. Public Announcements. The Shareholder will consult with Parent before
issuing, and provide Parent with the opportunity to review and comment upon, any
press release or other public statements with respect to the transactions
contemplated by this Agreement and the Merger Agreement, and shall not issue any
such press release or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange.
12. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger
Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice): (i) if to Parent
or Purchaser, to the address set forth in Section 8.5 of the Merger
Agreement; and (ii) if to the Shareholder, to the address set forth on
Annex I hereto, or such other address as may be specified in writing by the
Shareholder.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to in this Agreement) constitutes the entire agreement, and supersedes all
prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter of this Agreement.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the state of Oregon, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior
written consent of the other parties, except by laws of descent. Any
assignment in violation of the foregoing shall be void.
(h) If any term, provision, covenant or restriction in this Agreement,
or the application thereof to any circumstance, shall, in any event, be
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions in this Agreement and the application thereof to any other
circumstances, shall remain in full force and effect, shall not in any way
be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
(i) The Shareholder agrees that irreparable damage would occur and
that Parent and Purchaser would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that Parent and Purchaser shall be entitled to an
injunction or injunctions to prevent breaches by any Shareholder of this
Agreement and to enforce specifically the terms and provisions of this
Agreement. Each of the parties to this Agreement (i) consents to submit
itself to the personal jurisdiction of any federal court located in the
state of Oregon in the event any dispute arises out of this Agreement or
any of the transactions contemplated by this Agreement, and (ii) agrees
that it will not attempt to deny or defeat the personal jurisdiction
consented to in (i) above by motion or other request for leave from the
applicable court. The prevailing party in any judicial action shall be
entitled to receive from the other party reimbursement for the prevailing
party's reasonable attorneys' fees and disbursements, and court costs.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such party.
[Signature page follows.]
In witness whereof, Parent, Purchaser and the Shareholder have caused this
Shareholder's Agreement to be duly executed and delivered as of the date first
written above.
Shareholder
Motorola, Inc.
Print Name:/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Address for Notices:
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: 000 000-0000
Purchaser
Drake Merger Sub, Inc.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxx
-------------------------------------
Title: President
------------------------------------
Parent
Radisys Corporation
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxx
-------------------------------------
Title: Chief Executive Officer
------------------------------------
Acknowledged and agreed
to as to Sections 6:
Company
Microware Systems Corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------
Title: Chief Executive Officer
-----------------------
Annex I To
Shareholder's Agreement
Number of Shares Owned: 1,526,232 shares
