AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT ("Affiliate Agreement") is being executed and
delivered as of October 21, 1999 by ________________ ("Shareholder") in favor of
and for the benefit of WIND RIVER SYSTEMS, INC., a Delaware corporation
("Parent").
RECITALS
A. Shareholder is a shareholder of, and is an officer and/or
director of, INTEGRATED SYSTEMS, INC., a California corporation (the
"Company").
B. Parent, the Company and University Acquisition Corp., a wholly
owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement and
Plan of Merger and Reorganization dated as of October 21, 1999 (the
"Reorganization Agreement"), providing for the merger of Merger Sub into the
Company (the "Merger"). The Reorganization Agreement contemplates that, upon
consummation of the Merger, (i) holders of shares of the common stock of the
Company will receive shares of common stock of Parent ("Parent Common Stock")
in exchange for their shares of common stock of the Company and (ii) the
Company will become a wholly owned subsidiary of Parent. It is accordingly
contemplated that Shareholder will receive shares of Parent Common Stock in
the Merger.
C. Shareholder understands that the Parent Common Stock being
issued in the Merger will be issued pursuant to a registration statement on
Form S-4, and that Shareholder may be deemed an "affiliate" of Parent: (i) as
such term is defined for purposes of paragraphs (c) and (d) of Rule 145 under
the Securities Act of 1933, as amended (the "Securities Act"); and (ii) for
purposes of determining Parent's eligibility to account for the Merger as a
"pooling of interests" under Accounting Series Releases 130 and 135, as
amended, of the Securities and Exchange Commission (the "SEC"), and under
other applicable "pooling of interests" accounting requirements.
AGREEMENT
Shareholder, intending to be legally bound, agrees as follows:
1. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder
represents and warrants to Parent as follows:
(a) Shareholder is the holder and "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of the number of outstanding shares of common stock of the Company set forth
beneath Shareholder's signature on the signature page hereof (the "Company
Shares"), and Shareholder has good and valid title to the Company Shares,
free and clear of any liens, pledges, security interests, adverse claims,
equities, options, proxies, charges, encumbrances or restrictions of any
nature. Shareholder has the sole right to vote and to dispose of the Company
Shares.
(b) Shareholder is the holder of options to purchase the
number of shares of common stock of the Company set forth beneath
Shareholder's signature on the signature page hereof (the "Company Options"),
and Shareholder has good and valid title to the Company
Options, free and clear of any liens, pledges, security interests, adverse
claims, equities, options, proxies, charges, encumbrances or restrictions of
any nature.
(c) Shareholder does not own, of record or beneficially,
directly or indirectly, any securities of the Company other than the Company
Shares and the Company Options.
(d) Shareholder has carefully read this Affiliate Agreement
and, to the extent Shareholder felt necessary, has discussed with counsel the
limitations imposed on Shareholder's ability to sell, transfer or otherwise
dispose of the Company Shares, the Company Options, the shares of Parent
Common Stock that Shareholder is to receive in the Merger (the "Parent
Shares"), and the options to purchase shares of Parent Common Stock that
Shareholder is to receive in respect of the Company Options in connection
with the Merger. Shareholder fully understands the limitations this Affiliate
Agreement places upon Shareholder's ability to sell, transfer or otherwise
dispose of securities of the Company and securities of Parent.
(e) Shareholder understands that the representations,
warranties and covenants set forth in this Affiliate Agreement will be relied
upon by Parent and its counsel and accountants for purposes of determining
Parent's eligibility to account for the Merger as a "pooling of interests"
and for purposes of determining whether Parent should proceed with the Merger.
2. PROHIBITIONS AGAINST TRANSFER.
(a) Shareholder agrees that, during the period from 30 days
preceding the Closing Date (as defined in the Reorganization Agreement) of
the Merger through the date on which financial results covering at least 30
days of post-Merger combined operations of Parent and the Company have been
published by Parent (within the meaning of the applicable "pooling of
interests" accounting requirements):
(i) Shareholder shall not sell, transfer or otherwise
dispose of, or reduce Shareholder's interest in or risk relating to,
(A) any capital stock of the Company (including, without limitation,
the Company Shares and any additional shares of capital stock of the
Company acquired by Shareholder, whether upon exercise of a stock
option or otherwise), except pursuant to and upon consummation of
the Merger, or (B) any option or other right to purchase any shares
of capital stock of the Company, except pursuant to and upon
consummation of the Merger; and
(ii) Shareholder shall not sell, transfer or otherwise
dispose of, or reduce Shareholder's interest in or risk relating to,
(A) any shares of capital stock of Parent (including without
limitation the Parent Shares and any additional shares of capital
stock of Parent acquired by Shareholder, whether upon exercise of a
stock option or otherwise), or (B) any option or other right to
purchase any shares of capital stock of Parent.
(b) Shareholder agrees that Shareholder shall not effect any
sale, transfer or other disposition of any Parent Shares unless:
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(i) such sale, transfer or other disposition is effected
pursuant to an effective registration statement under the Securities
Act;
(ii) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145 under the Securities
Act, as evidenced by a broker's letter and a representation letter
executed by Shareholder (satisfactory in form and content to Parent)
stating that such requirements have been met;
(iii) counsel reasonably satisfactory to Parent shall have
advised Parent in a written opinion letter (satisfactory in form and
content to Parent), upon which Parent may rely, that such sale,
transfer or other disposition will be exempt from the registration
requirements of the Securities Act; or
(iv) an authorized representative of the SEC shall have
rendered written advice to Shareholder to the effect that the SEC
would take no action, or that the staff of the SEC would not
recommend that the SEC take action, with respect to such sale,
transfer or other disposition, and a copy of such written advice and
all other related communications with the SEC shall have been
delivered to Parent.
3. STOP TRANSFER INSTRUCTIONS; LEGEND.
Shareholder acknowledges and agrees that (a) stop transfer
instructions will be given to Parent's transfer agent with respect to the
Parent Shares, and (b) each certificate representing any of such shares shall
bear a legend identical or similar in effect to the following legend
(together with any other legend or legends required by applicable state
securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145(d) OF THE SECURITIES ACT OF 1933
APPLIES AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH RULE AND IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT DATED AS OF OCTOBER __, 1999, BETWEEN THE REGISTERED
HOLDER HEREOF AND THE ISSUER, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICES OF THE ISSUER."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend) and Parent shall instruct its transfer agent to
remove such legend, if Shareholder delivers to Parent (i) satisfactory written
evidence that the Parent Shares have been sold in compliance with Rule 145 (in
which case, the substitute certificate will be issued in the name of the
transferee), or (ii) an opinion of counsel, in form and substance reasonably
satisfactory to Parent, that such sale, transfer or other disposition will be
exempt from the registration requirements of the Securities Act.
4. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Shareholder set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or
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arrangement between Shareholder, on the one hand, and the Company or Parent,
on the other. The existence of any claim or cause of action by Shareholder
against the Company or Parent shall not constitute a defense to the
enforcement of any of such covenants or obligations against Shareholder.
5. SPECIFIC PERFORMANCE. Shareholder agrees that in the event of
any breach or threatened breach by Shareholder of any covenant, obligation or
other provision contained in this Affiliate Agreement, Parent shall be
entitled (in addition to any other remedy that may be available to Parent)
to: (a) a decree or order of specific performance or mandamus to enforce the
observance and performance of such covenant, obligation or other provision;
and (b) an injunction restraining such breach or threatened breach.
Shareholder further agrees that neither Parent nor any other person or entity
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 5, and Shareholder irrevocably waives any right he may have to
require the obtaining, furnishing or posting of any such bond or similar
instrument.
6. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall
limit any of the rights or remedies of Parent under the Reorganization
Agreement, or any of the rights or remedies of Parent or any of the
obligations of Shareholder under any agreement between Shareholder and Parent
or any certificate or instrument executed by Shareholder in favor of Parent;
and nothing in the Reorganization Agreement or in any other agreement,
certificate or instrument shall limit any of the rights or remedies of Parent
or any of the obligations of Shareholder under this Affiliate Agreement.
7. NOTICES. Any notice or other communication required or
permitted to be delivered to either party under this Affiliate 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 PARENT:
Wind River Systems, Inc.
000 Xxxx Xxxxx Xxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
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IF TO SHAREHOLDER:
__________________________________
__________________________________
__________________________________
Attn:_____________________________
Fax: (___) _______________________
8. SEVERABILITY. If any provision of this Affiliate 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 Affiliate
Agreement. Each provision of this Affiliate Agreement is separable from every
other provision of this Affiliate Agreement, and each part of each provision
of this Affiliate Agreement is separable from every other part of such
provision.
9. APPLICABLE LAW; JURISDICTION. This Affiliate Agreement 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). In any action between any of the parties arising out of or relating to
this Affiliate Agreement or any of the transactions contemplated by this
Affiliate 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.
10. WAIVER; TERMINATION. No failure on the part of Parent to
exercise any power, right, privilege or remedy under this Affiliate
Agreement, and no delay on the part of Parent in exercising any power, right,
privilege or remedy under this Affiliate 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 arising out of this
Affiliate Agreement, or any power, right, privilege or remedy under this
Affiliate 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
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which it is given. If the Reorganization Agreement is terminated, this
Affiliate Agreement shall thereupon terminate.
11. CAPTIONS. The captions contained in this Affiliate Agreement
are for convenience of reference only, shall not be deemed to be a part of
this Affiliate Agreement and shall not be referred to in connection with the
construction or interpretation of this Affiliate Agreement.
12. FURTHER ASSURANCES. Shareholder shall execute and/or cause to
be delivered to Parent such instruments and other documents and shall take
such other actions as Parent may reasonably request to effectuate the intent
and purposes of this Affiliate Agreement.
13. ENTIRE AGREEMENT. This Affiliate Agreement, the Reorganization
Agreement and any Voting Agreement or Noncompetition Agreement between
Shareholder and Parent collectively set forth the entire understanding of
Parent and Shareholder relating to the subject matter hereof and thereof and
supersede all other prior agreements and understandings between Parent and
Shareholder relating to the subject matter hereof and thereof.
14. NON-EXCLUSIVITY. The rights and remedies of Parent hereunder
are not exclusive of or limited by any other rights or remedies which Parent
may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative).
15. AMENDMENTS. This Affiliate Agreement may not be amended,
modified, altered or supplemented other than by means of a written instrument
duly executed and delivered on behalf of Parent and Shareholder.
16. ASSIGNMENT. This Affiliate Agreement and all obligations of
Shareholder hereunder are personal to Shareholder and may not be transferred
or delegated by Shareholder at any time. Parent may freely assign any or all
of its rights under this Affiliate Agreement, in whole or in part, to any
other person or entity without obtaining the consent or approval of
Shareholder.
17. BINDING NATURE. Subject to Section 16, this Affiliate Agreement
will inure to the benefit of Parent and its successors and assigns and will
be binding upon Shareholder and Shareholder's representatives, executors,
administrators, estate, heirs, successors and assigns.
18. SURVIVAL. Each of the representations, warranties, covenants
and obligations contained in this Affiliate Agreement shall survive the
consummation of the Merger.
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Shareholder has executed this Affiliate Agreement on October 21, 1999.
____________________________________
(SIGNATURE)
____________________________________
(Print Name)
NUMBER OF OUTSTANDING SHARES OF
COMMON STOCK OF THE COMPANY
HELD BY SHAREHOLDER:
_________________________________
NUMBER SHARES OF COMMON STOCK OF THE COMPANY
SUBJECT TO OPTIONS HELD BY SHAREHOLDER:
_________________________________
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