Exhibit 99.3
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Option Agreement") is entered into as
of October 21, 1999, by and between INTEGRATED SYSTEMS, INC., a California
corporation (the "Company"), and WIND RIVER SYSTEMS, INC., a Delaware
corporation (the "Grantee").
RECITALS
A. The Grantee, University Acquisition Corp., a Delaware corporation and
a wholly owned subsidiary of the Grantee ("Merger Sub"), and the Company are
entering into an Agreement and Plan of Merger and Reorganization of even date
(as amended from time to time, the "Reorganization Agreement"), which provides
(subject to the conditions set forth therein) for the merger of Merger Sub into
the Company (the "Merger").
B. As a condition to the willingness of the Grantee to enter into the
Reorganization Agreement, the Grantee has required that the Company enter into,
and in order to induce the Grantee to enter into the Reorganization Agreement,
the Company has agreed to enter into, this Option Agreement.
AGREEMENT
The parties to this Option Agreement, intending to be legally bound,
agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not defined in this
Option Agreement shall have the meanings ascribed to such terms in the
Reorganization Agreement.
2. GRANT OF OPTION. The Company hereby grants to the Grantee an
irrevocable option (the "Option") to purchase, out of the authorized but
unissued Company Common Stock, a number of shares of Company Common Stock equal
to up to 10% of the shares of Company Common Stock outstanding as of the date
hereof (as adjusted as set forth herein, the "Option Shares"), at a price per
Option Share equal to the Exercise Price. For purposes of this Option Agreement,
the "Exercise Price" shall be equal to $19.32.
3. TERM. The Option shall terminate on the earliest of the following
dates (the "Termination Date"): (a) the date on which the Merger becomes
effective; (b) 180 days after the date on which the Grantee receives written
notice from the Company of the occurrence of an Exercise Event (as defined in
Section 4(b)); or (c) the date on which the Reorganization Agreement is validly
terminated pursuant to Section 8.1 thereof, if an Exercise Event shall not have
occurred on or prior to such date; PROVIDED, HOWEVER, that with respect to
clause "(b)" of this sentence, if the Option cannot be exercised within such 180
day period by reason of any applicable law, regulation, order, judgment, decree
or other legal impediment, then (subject to the additional limitations set forth
in Section 4(d) hereof) the Termination Date shall be extended until the date 30
days after the date on which such impediment is removed. The rights and
obligations set forth in Section 7 shall not terminate on the Termination Date,
but shall extend to such time as is provided in that Section.
1.
4. EXERCISE OF OPTION.
(a) The Grantee may exercise the Option, in whole or in part, at any
time and from time to time on or before the Termination Date following the
occurrence of an Exercise Event (as defined in Section 4(b)). Notwithstanding
the occurrence of the Termination Date, the Grantee shall be entitled to
purchase those Option Shares with respect to which it has exercised the Option
in accordance with the terms hereof prior to the Termination Date.
(b) As used herein, an "Exercise Event" shall be deemed to have
occurred if:
(i) either the Grantee or the Company shall have the right to
terminate the Reorganization Agreement pursuant to Section 8.1(d)
thereof and an Acquisition Proposal shall have been previously
disclosed, announced, commenced, submitted or made; or
(ii) the Grantee shall have the right to terminate the
Reorganization Agreement pursuant to Section 8.1(f) thereof.
(c) In the event the Grantee wishes to exercise the Option with
respect to any Option Shares, the Grantee shall send to the Company a written
notice (the date of which being herein referred to as the "Notice Date")
specifying: (i) the number of Option Shares the Grantee will purchase; (ii) the
place at which such Option Shares are to be purchased; and (iii) the date on
which such Option Shares are to be purchased, which shall not be earlier than
two business days nor later than twenty business days after the Notice Date. The
closing of the purchase of such Option Shares (the "Closing") shall take place
at the place specified in such written notice and on the date specified in such
written notice (the "Closing Date"); PROVIDED, HOWEVER, that: (A) if such
purchase cannot be consummated by reason of any applicable law, regulation,
order, judgment, decree or other legal impediment, the Closing Date may be
extended by the Grantee to a date not more than 30 days after the date on which
such impediment is removed; and (B) if prior notification to or approval of any
governmental authority is required (or if any waiting period must expire or be
terminated) in connection with such purchase, the Company shall promptly cause
to be filed the required notice or application for approval and shall
expeditiously process the same (and the Company shall cooperate with the Grantee
in the filing of any such notice or application required to be filed by the
Grantee and the obtaining of any such approval required to be obtained by the
Grantee), and the Closing Date may be extended by the Grantee to a date not more
than 30 days after the date on which any required notification has been made,
approval has been obtained or waiting period has expired or been terminated.
(d) Notwithstanding Sections 3 and 4(c), in no event shall any
Closing Date be more than 12 months after the related Notice Date, and, if the
Closing Date shall not have occurred within 12 months after the related Notice
Date, the exercise of the Option effected on the Notice Date shall be deemed to
have expired.
2.
5. PAYMENT and DELIVERY OF CERTIFICATES.
(a) On each Closing Date, the Grantee shall pay to the Company in
immediately available funds by wire transfer to a bank account designated by the
Company an amount equal to the Exercise Price multiplied by the Option Shares to
be purchased on such Closing Date.
(b) At each Closing, simultaneously with the delivery of immediately
available funds as provided in Section 5(a), the Company shall deliver to the
Grantee a certificate or certificates representing the Option Shares to be
purchased at such Closing, which Option Shares shall be duly authorized, validly
issued, fully paid and nonassessable and free and clear of all liens, security
interests, charges or other encumbrances ("Encumbrances").
(c) Certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend that shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED
AS OF OCTOBER 21, 1999. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO
THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY THE COMPANY OF A
WRITTEN REQUEST THEREFOR.
A new certificate or certificates evidencing the same number of shares of the
Company Common Stock will be issued to the Grantee in lieu of the certificate
bearing the above legend, and such new certificate shall not bear such legend,
insofar as it applies to the Securities Act, if the Grantee shall have delivered
to the Company a copy of a letter from the staff of the SEC, or an opinion of
counsel in form and substance reasonably satisfactory to the Company and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act.
6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) In the event of any change in the Company Common Stock by reason
of a stock divided, split-up, combination, recapitalization, exchange of shares
or similar transaction, the type and number of shares or securities subject to
the Option, and the Exercise Price therefor, shall be adjusted appropriately,
and proper provision shall be made in the agreements governing such transaction,
so that the Grantee shall receive upon exercise of the Option the same class and
number of outstanding shares or other securities or property that Grantee would
have received in respect of the Company Common Stock if the Option had been
exercised immediately prior to such event or the record date therefor, as
applicable. If any additional shares of Company Common Stock are issued after
the date of this Option Agreement (other than pursuant to an event described in
the first sentence of this Section 6(a)), the number of shares of Company Common
Stock then remaining subject to the Option shall be adjusted so that, after such
issuance of additional shares, such number of shares then remaining subject to
the Option, together with any shares theretofore issued pursuant to the Option,
equals 10% of the number of shares of the Company Common Stock then issued and
outstanding.
3.
(b) If the Company shall enter into an agreement (i) to consolidate,
exchange, shares or merge with any Person, other than the Grantee or one of the
Grantee's subsidiaries, and, in the case of a merger, shall not be the
continuing or surviving corporation, (ii) to permit any Person, other than the
Grantee or one of the Grantee's subsidiaries, to merge into the Company and the
Company shall be the continuing or surviving corporation, but, in connection
with such merger, the then outstanding shares of Company Common Stock shall be
changed into or exchanged for stock or other securities of the Company or any
other Person or cash or any other property, or the shares of Company Common
Stock outstanding immediately before such merger shall after such merger
represent less than 50% of the common shares and common share equivalents of the
Company outstanding immediately after the merger, or (iii) to sell, lease or
otherwise transfer all or substantially all of its assets to any Person, other
than the Grantee or one of the Grantee's subsidiaries, then, and in each such
case, proper provision shall be made in the agreement governing such
transactions so that the Option shall, upon the consummation of any such
transaction and upon the terms and conditions set forth herein, become
exercisable for the stock, securities, cash or other property that would have
been received by the Grantee if the Grantee had exercised this Option
immediately prior to such transaction or the record date for determining the
stockholders entitled to participate therein, as appropriate.
(c) The provisions of Section 7 shall apply with appropriate
adjustments to any securities for which the Option becomes exercisable pursuant
to this Section 6.
7. REGISTRATION RIGHTS.
(a) The Company shall, if requested by the Grantee at any time and
from time to time within two years of the first exercise of the Option (the
"Registration Period"), as expeditiously as practicable, prepare, file and cause
to be made effective up to two registration statements under the Securities Act
if such registration is necessary or desirable in order to permit the offering,
sale and delivery of any or all shares of Company Common Stock or other
securities that have been acquired by or are issuable to the Grantee upon
exercise of the Option in accordance with the intended method of sale or other
disposition stated by the Grantee, including, at the sole discretion of the
Company, a "shelf" registration statement under Rule 415 under the Securities
Act or any successor provision, and the Company shall use all reasonable efforts
to qualify such shares or other securities under any applicable state securities
laws. Without the Grantee's prior written consent, no other securities may be
included in any such registration. The Company shall use all reasonable efforts
to cause each such registration statement to become effective, to obtain all
consents or waivers of other parties that are required therefor and to keep such
registration effective for such period not in excess of 60 days from the day
such registration statement first becomes effective as may be as reasonably
necessary to effect such sale or other disposition. The obligations of the
Company hereunder to file a registration statement and to maintain its
effectiveness may be suspended for one or more periods of time not exceeding 60
days in the aggregate if the Board of Directors of the Company shall have
determined in good faith that the filing of such registration or the maintenance
of its effectiveness would require disclosure of nonpublic information that
would materially and adversely affect the Company. For purposes of determining
whether two requests have been made under this Section 7, only requests relating
to a registration statement that has become effective under the Securities Act
and pursuant to which the Grantee has disposed of all shares
4.
covered thereby in the manner contemplated therein shall be counted unless the
Grantee has requested that the registration request be withdrawn.
(b) The expenses associated with the preparation and filing of any
such registration statement pursuant to this Section 7 and any sale covered
thereby (including any fees related to blue sky qualifications and filing fees
in respect of the National Association of Securities Dealers, Inc.)
("Registration Expenses") shall be for the account of the Company except for
underwriting discounts or commissions or brokers' fees in respect to shares to
be sold by the Grantee and the fees and disbursement of the Grantee's counsel;
PROVIDED, HOWEVER, that the Company shall not be required to pay for any
Registration Expenses with respect to such registration if the registration
request is subsequently withdrawn at the request of the Grantee unless the
Grantee agrees to forfeit its right to request one registration; and PROVIDED,
FURTHER that, if at the time of such withdrawal the Grantee has learned of a
material adverse change in the results of operations, condition (financial or
other), business or prospects of the Company from that known to the Grantee at
the time of its request and has withdrawn the request with reasonable promptness
following disclosure by the Company of such material adverse change, then the
Grantee shall not be required to pay any of such expenses and shall retain all
remaining rights to request registration.
(c) The Grantee shall provide all information reasonably requested
by the Company for inclusion in any registration statement to be filed
hereunder. If during the Registration Period the Company shall propose to
register under the Securities Act the offering, sale and delivery of Company
Common Stock for cash for its own account or for any other the Company of the
Company pursuant to a firm underwriting, it shall, in addition to the Company's
other obligations under this Section 7, allow the Grantee the right to
participate in such registration provided that the Grantee participates in the
underwriting; PROVIDED, HOWEVER, that, if the managing underwriter of such
offering advises the Company in writing that in its opinion the number of shares
of Company Common Stock requested to be included in such registration exceeds
the number that can be sold in such offering, the Company shall, after fully
including therein all securities to be sold by the Company, include the shares
requested to be included therein by Grantee pro rata (based on the number of
shares intended to be included therein) with the shares intended to be included
therein by Persons other than the Company. In connection with any offering, sale
and delivery of Company Common Stock pursuant to a registration statement
effected pursuant to this Section 7, the Company and the Grantee shall provide
each other and each underwriter of the offering with customary representations,
warranties and covenants, including covenants of indemnification and
contribution.
8. PROFIT LIMITATION. If the Grantee receives proceeds in connection with
any sales of Option Shares plus any dividends (or equivalent distributions)
received by the Grantee declared on Option Shares, of more than the sum of (a)
the amount, if any, by which (i) $16,000,000, EXCEEDS (ii) the amount of any
payment received by the Grantee pursuant to Section 8.3(b) of the Reorganization
Agreement, plus (b) the Exercise Price multiplied by the number of Company
Shares purchased by the Grantee pursuant to the Option, then all proceeds to the
Grantee in excess of such sum shall be promptly remitted in cash by the Grantee
to the Company.
5.
9. LISTING. If at the time of the occurrence of an Exercise Event the
Company Common Stock is (or any other securities subject to the Option are) then
listed on The Nasdaq National Market or on any other market or exchange, the
Company, upon the occurrence of an Exercise Event, shall promptly file an
application to list on The Nasdaq National Market and on such other market or
exchange the shares of the Company Common Stock or other securities then subject
to the Option, and shall use all reasonable efforts to cause such listing
application to be approved as promptly as practicable.
10. REPLACEMENT OF AGREEMENT. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Option Agreement, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancellation of
this Option Agreement, if mutilated, the Company will execute and deliver a new
Option Agreement of like tenor and date.
11. MISCELLANEOUS.
(a) WAIVER. No failure on the part of any party to exercise any
power, right, privilege or remedy under this Option Agreement, and no delay on
the part of any party in exercising any power, right, privilege or remedy under
this Option 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. No party shall be deemed to have waived any
claim arising out of this Option Agreement, or any power, right, privilege or
remedy under this Option 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 such party; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
(b) NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this Option Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) 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 parties
hereto):
if to the Company, to it at:
Integrated Systems, Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
6.
with a copy to:
Fenwick & West
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Xxxx Xxxxxxxxx
Facsimile No. (000) 000-0000
if to the Grantee, to it at:
Wind River Systems, Inc.
000 Xxxx Xxxxx Xxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Cooley Godward LLP
Five Palo Alto Square
0000 XX Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
(c) ENTIRE AGREEMENT; COUNTERPARTS. This Option Agreement and the
Reorganization Agreement constitute the entire agreement and supersede all other
prior agreements and understandings, both written and oral, among or between any
of the parties with respect to the subject matter hereof and thereof. This
Option Agreement may be executed in several counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same
instrument.
(d) BINDING EFFECT; BENEFIT; ASSIGMENT. This Option Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns, but neither this Option Agreement
nor any of the rights, interest or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties. Notwithstanding anything contained in this Option Agreement to the
contrary, nothing in this Option Agreement, expressed or implied, is intended to
confer on any Person other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Option Agreement.
(e) AMENDMENT AND MODIFICATION. Subject to applicable law, this
Option Agreement may be amended, modified and supplemented, or provisions hereof
waived, in writing by the parties hereto in any and all respects before the
Termination Date, by action taken by the respective Boards of Directors of the
Company or the Grantee or by the respective officers
7.
authorized by such Boards of Directors. This Option Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
(f) FURTHER ACTIONS. Each of the parties hereto agrees that, subject
to its legal obligations, it will use its reasonable efforts to do all things
reasonably necessary to consummate the transactions contemplated hereby.
(g) HEADINGS. The descriptive headings of the several Sections of
this Option Agreement are inserted for convenience only, do not constitute a
part of this Option Agreement and shall not affect in any way the meaning or
interpretation of this Option Agreement.
(h) APPLICABLE LAW; JURISDICTION. This Option Agreement shall be
governed by, and construed in accordance with, the laws of the State of
California, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. In any action between any of the
parties arising out of or relating to this Option Agreement or any of the
transactions contemplated by this Option Agreement: (i) 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; (ii) 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; (iii) each of the
parties irrevocably waives the right to trial by jury; and (iv) 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 11(b).
(i) SEVERABILITY. If any term, provision, covenant or restriction
contained in this Option Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions
contained in this Option Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
(j) SPECIFIC PERFORMANCE. The Company agrees that (i) in the event
of any breach or threatened breach by the Company of any covenant, obligation or
other provision set forth in this Option Agreement, the Grantee shall be
entitled (in addition to any other remedy that may be available to them), 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, and (ii) neither the
Grantee nor any other Person shall be required to provide any bond or other
security in connection with any such decree, order or injunction or in
connection with any related action or proceeding.
(k) ATTORNEYS' FEES. In any action at law or suit in equity to
enforce this Option Agreement or the rights of any of the parties hereunder, the
prevailing party in such action or suit shall be entitled to receive a
reasonable sum for its attorneys' fees and all other reasonable costs and
expenses incurred in such action or suit.
(l) NON-EXCLUSIVITY. The rights and remedies of the Grantee under
this Option 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
8.
not alternative). Without limiting the generality of the foregoing, the rights
and remedies of the Grantee under this Option Agreement, and the obligations and
liabilities of the Company under this Option Agreement, are in addition to their
respective rights, remedies, obligations and liabilities under common law
requirements and under all applicable statutes, rules and regulations. The
covenants and obligations of the Company set forth in this Option Agreement
shall be construed as independent of any other agreement or arrangement between
the Company, on the one hand, and the Grantee, on the other. The existence of
any claim or cause of action by the Company against the Grantee shall not
constitute a defense to the enforcement of any of such covenants or obligations
against the Company.
9.
IN WITNESS WHEREOF, the Company and the Grantee have caused this Option
Agreement to be signed by their respective officers thereupon duly authorized,
all as of the day and year first written above.
INTEGRATED SYSTEMS, INC.:
By:
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Name:
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Title:
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WIND RIVER SYSTEMS, INC.:
By:
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Name:
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Title:
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10.
