VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of October , 1999, by and between
WIND RIVER SYSTEMS, INC., a Delaware corporation ("Parent"), and
("Shareholder").
RECITALS
A. Parent, University Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and Integrated Systems, Inc., a
California corporation (the "Company"), are entering into an Agreement and Plan
of Merger and Reorganization of even date herewith (the "Reorganization
Agreement") which provides (subject to the conditions set forth therein) for the
merger of Merger Sub into the Company (the "Merger").
B. In order to induce Parent and Merger Sub to enter into the Reorganization
Agreement, Shareholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound, agree
as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock, no par value, of
the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon which
the Reorganization Agreement is validly terminated, or (ii) the date upon
which the Merger becomes effective.
(c) Shareholder shall be deemed to "OWN" or to have acquired "Ownership"
of a security if Shareholder: (i) is the record owner of such security; or
(ii) is the "beneficial owner" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of such security.
(d) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental
authority.
(e) "SUBJECT SECURITIES" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) Owned by Shareholder as
of the date of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock) of
which Shareholder acquires Ownership during the period from the date of this
Agreement through the Expiration Date.
(f) A Person shall be deemed to have effected a "TRANSFER" of a security
if such Person directly or indirectly: (i) sells, pledges, encumbers, grants
an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS
AGREEMENT. Shareholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Shareholder shall not cause or
permit any Transfer of any of the Subject Securities to be effected unless each
Person to which any of such Subject Securities, or any interest in any of such
Subject Securities, is or may be transferred shall have: (a) executed a
counterpart of this Voting Agreement and a proxy in the form attached hereto as
Exhibit A (with such modifications as Parent may reasonably request); and
(b) agreed to hold such Subject Securities (or interest in such Subject
Securities) subject to all of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date, Shareholder
shall ensure that: (a) none of the Subject Securities is deposited into a voting
trust; and (b) except pursuant to this Voting Agreement, no proxy is granted,
and no voting agreement or similar agreement is entered into, with respect to
any of the Subject Securities which is inconsistent with the purposes of this
Voting Agreement.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Shareholder agrees that, during the period from the
date of this Voting Agreement through the Expiration Date:
(a) at any meeting of shareholders of the Company, however called,
Shareholder shall (unless otherwise directed in writing by Parent) cause all
outstanding shares of Company Common Stock that are Owned by Shareholder as of
the record date fixed for such meeting to be voted in favor of the approval of
the Reorganization Agreement and the approval of the principal terms of the
Merger, and in favor of each of the other actions contemplated by the
Reorganization Agreement; and
(b) in the event written consents are solicited or otherwise sought from
shareholders of the Company with respect to the approval of the
Reorganization Agreement, with respect to the approval of the principal terms of
the Merger or with respect to any of the other actions contemplated by the
Reorganization Agreement, Shareholder shall (unless otherwise directed in
writing by Parent) cause to be executed, with respect to all shares of Company
Common Stock that are Owned by Shareholder as of the record date fixed for the
consent to the proposed action, a written consent or written consents to such
proposed action.
This Voting Agreement is intended to bind Shareholder only with respect to the
specific matters set forth herein, and shall not prohibit Shareholder from
acting in accordance with his fiduciary duties as an officer or director of the
Company. Shareholder will retain at all times the right to vote the
Shareholder's Subject Securities, in Shareholder's sole discretion, on all
matters other than those set forth in this Section 3.1 which are at any time or
from time to time presented to the Company's shareholders generally.
3.2 PROXY. Contemporaneously with the execution of this Voting Agreement:
(i) Shareholder shall deliver to Parent a proxy in the form attached to this
Voting Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy");
and (ii) Shareholder shall cause to be delivered to Parent an additional proxy
(in the form attached hereto as Exhibit A) executed on behalf of the record
owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act
of 1934), but not of record, by Shareholder.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Shareholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that Shareholder or any other Person may have by virtue of the
ownership of any outstanding shares of Company Common Stock or other security
Owned by Shareholder.
SECTION 5. NO SOLICITATION
Shareholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Shareholder shall not, directly or
indirectly, and Shareholder shall ensure that his Representatives (as defined in
the Reorganization Agreement) do not, directly or indirectly: (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal (as defined in the Reorganization Agreement) or take any
action that could reasonably be expected to lead to an Acquisition Proposal;
(ii) furnish any information regarding the Company or any direct or indirect
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subsidiary of the Company to any Person in connection with or in response to an
Acquisition Proposal or inquiry or indication of interest that could lead to an
Acquisition Proposal; or (iii) engage in discussions with any Person with
respect to any Acquisition Proposal. Shareholder shall immediately cease and
discontinue, and Shareholder shall ensure that his Representatives immediately
cease and discontinue, any existing discussions with any Person that relate to
any Acquisition Proposal. The restrictions and covenants in this Section 5 shall
apply to Shareholder only in his capacity as a shareholder and not to
Shareholder in his capacity as a director or officer of the Company.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Shareholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Shareholder and constitute legal, valid and binding obligations of Shareholder,
enforceable against Shareholder in accordance with their terms, subject to
(i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
6.2 NO CONFLICTS OR CONSENTS
(a) The execution and delivery of this Voting Agreement and the Proxy by
Shareholder do not, and the performance of this Voting Agreement and the
Proxy by Shareholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Shareholder or by which he
or any of his properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Shareholder is a party or by which Shareholder or any of his affiliates or
properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement and the Proxy by
Shareholder do not, and the performance of this Voting Agreement and the
Proxy by Shareholder will not, require any consent or approval of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement:
(a) Shareholder holds of record (free and clear of any encumbrances or
restrictions) the number of outstanding shares of Company Common Stock set forth
under the heading "Shares Held of Record" on the signature page hereof;
(b) Shareholder holds (free and clear of any encumbrances or restrictions) the
options, warrants and other rights to acquire shares of Company Common Stock set
forth under the heading "Options and Other Rights" on the signature page hereof;
(c) Shareholder Owns the additional securities of the Company set forth under
the heading "Additional Securities Beneficially Owned" on the signature page
hereof; and (d) Shareholder does not directly or indirectly Own any shares of
capital stock or other securities of the Company, or any option, warrant or
other right to acquire (by purchase, conversion or otherwise) any shares of
capital stock or other securities of the Company, other than the shares and
options, warrants and other rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
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SECTION 7. MISCELLANEOUS
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Shareholder shall (at Parent's expense) execute and deliver, or
cause to be executed and delivered, such additional transfers, assignments,
endorsements, proxies, consents and other instruments, and shall (at Parent's
expense) take such further actions, as Parent may reasonably request for the
purpose of carrying out and furthering the intent of this Voting Agreement.
7.2 EXPENSES. Except as contemplated by Section 7.1, all costs and expenses
incurred in connection with the transactions contemplated by this Voting
Agreement shall be paid by the party incurring such costs and expenses.
7.3 NOTICES. Any notice or other communication required or permitted to be
delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received (a) upon receipt when
delivered by hand, or (b) two business days after sent by courier or express
delivery service or by facsimile, provided that in each case the notice or other
communication is sent to the address or facsimile telephone number set forth
beneath the name of such party below (or to such other address or facsimile
telephone number as such party shall have specified in a written notice given to
the other party):
IF TO SHAREHOLDER:
at the address set forth below Shareholder's signature on the
signature page hereof
IF TO PARENT:
Wind River Systems, Inc.
000 Xxxx Xxxxx Xxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000)000-0000
7.4 SEVERABILITY. If any provision of this Voting Agreement or any part of
any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
7.5 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
7.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Shareholder and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Shareholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
elsewhere in this
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Voting Agreement, this Voting Agreement shall be binding upon any Person to whom
any Subject Securities are transferred. Nothing in this Voting Agreement is
intended to confer on any Person (other than Parent and its successors and
assigns) any rights or remedies of any nature.
7.7 SPECIFIC PERFORMANCE. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Voting Agreement or the
Proxy was not performed in accordance with its specific terms or was otherwise
breached. Shareholder agrees that, in the event of any breach or threatened
breach by Shareholder of any covenant or obligation contained in this Voting
Agreement or in the Proxy, Parent shall be entitled (in addition to any other
remedy that may be available to it, including monetary damages) to seek and
obtain (a) a decree or order of specific performance to enforce the observance
and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Shareholder further agrees that
neither Parent nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 7.7, and Shareholder irrevocably waives
any right he may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
7.8 NON-EXCLUSIVITY. The rights and remedies of Parent under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of Shareholder under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Shareholder's obligations, or the rights or remedies of Parent, under any
Affiliate Agreement between Parent and Shareholder; and nothing in any such
Affiliate Agreement shall limit any of Shareholder's obligations, or any of the
rights or remedies of Parent, under this Voting Agreement.
7.9 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed in accordance
with, and governed in all respects by, the laws of the State of California
(without giving effect to principles of conflicts of laws).
(b) In any action between any of the parties arising out of or relating
to this Voting Agreement or any of the transactions contemplated by this
Voting Agreement: (a) each of the parties irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the state and
federal courts located in the State of California; (b) if any such action is
commenced in a state court, then, subject to applicable law, no party shall
object to the removal of such action to any federal court located in the
Northern District of California; (c) each of the parties irrevocably waives the
right to trial by jury; and (d) each of the parties irrevocably consents to
service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in
accordance with Section 7.3.
7.10 COUNTERPARTS. This Voting Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
7.11 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
7.12 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought by one party against the other party, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements (in addition to any other relief to which the prevailing party may
be entitled).
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7.13 WAIVER. No failure on the part of Parent to exercise any power, right,
privilege or remedy under this Voting Agreement, and no delay on the part of
Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Parent; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7.14 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of
this Voting Agreement and Exhibits to this Voting Agreement.
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Voting Agreement
to be executed as of the date first written above.
WIND RIVER SYSTEMS, INC.
BY: __________________________________
(SIGNATURE)
______________________________________
(Print Name)
SHAREHOLDER
______________________________________
(SIGNATURE)
______________________________________
(Print Name)
Address: _____________________________
__
Facsimile: ___________________________
OPTIONS AND OTHER RIGHTS ADDITIONAL SECURITIES
SHARES HELD OF RECORD ----------------------------- BENEFICIALLY OWNED
----------------------------- -----------------------------
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned shareholder of Integrated Systems, Inc., a California
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Xxxxxxx X. Xxxxxx, Xxxxx Xxx Xxxxx and Wind
River Systems, Inc., a Delaware corporation ("Parent"), and each of them, the
attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's voting rights on the
matters referred to in the third paragraph of this proxy with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire record ownership of on or after
the date hereof. (The shares of the capital stock of the Company referred to in
clauses "(i)" and "(ii)" of the immediately preceding sentence are collectively
referred to as the "Shares.") Upon the execution hereof, all prior proxies given
by the undersigned with respect to any of the Shares are hereby revoked, and the
undersigned agrees that no subsequent proxies will be given with respect to any
of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Merger Sub and the
Company (the "Reorganization Agreement").
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the shareholders of
the Company, however called, or in connection with any solicitation of written
consents from shareholders of the Company, in favor of the approval of the
Reorganization Agreement and the approval of the principal terms of the Merger,
and in favor of each of the other actions contemplated by the Reorganization
Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
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This proxy shall terminate upon the earlier of the valid termination of the
Reorganization Agreement or the effective time of the Merger.
Dated: October , 1999.
(SIGNATURE)
(Print Name)
NUMBER OF SHARES OF COMMON STOCK OF THE
COMPANY OWNED OF RECORD AS OF THE DATE OF
THIS PROXY:
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