WIND RIVER SYSTEMS INC files for employee plan.
IFN Smart Edgar News - September 01, 1999 19:59
Excerpted from S-8 filed on 09/01 by WIND RIVER SYSTEMS INC:
WIND RIVER SYSTEMS INC files for employee plan.
CALCULATION OF REGISTRATION FEE
TABLE
CAPTION
========================== ====================== ========================= ========================== =========================
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM
BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION
SHARE (1) (1) FEE
========================== ====================== ========================= ========================== =========================
S C C C C
Stock Options and Common 1,650,000 $15.59 $25,723,500 $7,151
Stock (par value $.001)
========================== ====================== ========================= ========================== =========================
TABLE
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The offering price per share
and aggregate offering price are based upon the average of the high and
low prices of Registrant's Common Stock on August 25, 1999 as reported
on the Nasdaq National Market.
===============================================================================
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Wind River Systems, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1999;
(b) The Company's quarterly report on Form 10-Q for the quarter
ended April 30, 1999; and
(c) The description of the Company's Common Stock set forth in its
Registration Statement on Form 8-A filed with the Commission on March 12, 1993.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act"). The Company's By-laws also
provide that the Company will indemnify its directors and executive officers,
and may indemnify its other officers, employees and other agents, to the fullest
extent not prohibited by Delaware law.
The Company's Restated Certificate of Incorporation (the "Restated
Certificate") provides that the liability of its directors for monetary damages
shall be eliminated to the fullest extent permissible under Delaware law.
Pursuant to Delaware law, this includes elimination of liability for monetary
damages for breach of the directors' fiduciary duty of care to the Company and
its stockholders. These provisions do not eliminate the directors' duty of care
and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Company, for acts omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
any transaction from which the director derived an improper personal benefit,
and for payment of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law. The provision also does not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws.
The Company has been authorized by the Board to enter into agreements
with its directors and officers that require the Company to indemnify such
persons to the fullest extent authorized or permitted by the provisions of the
Restated Certificate and Delaware law against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director, officer, employee or other agent
of the Company or any of its affiliated enterprises. Delaware law permits such
indemnification provided such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interest of the
Company and, with respect to any criminal proceeding, had o reasonable cause to
believe his or her conduct was unlawful. The indemnification agreements also set
forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the Company as to which indemnification is being sought
nor is the Company aware of any threatened litigation that may result in claims
for indemnification by any officer or director.
EXHIBITS
EXHIBIT
NUMBER
Item. 5.1 Opinion of Cooley Godward LLP
Item. 23.1 Consent of PricewaterhouseCoopers LLP
Item. 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
Item. 24.1 Power of Attorney is contained on the signature page
Item. 99.1 1993 Employee Stock Purchase Plan, as amended
Item. 99.2 1998 Non-Officer Stock Option Plan, as amended
UNDERTAKINGS
Item. 1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) (Section 230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the issuer pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
Item. 2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Item. 3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Alameda, State of California, on August 31,
Item. 1999.
WIND RIVER SYSTEMS, INC.
By: /s/ Richard W. Kraber
Richard W. Kraber
CHIEF FINANCIAL OFFICER AND
VICE PRESIDENT
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jerry L. Fiddler and Richard W. Kraber,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
TABLE
CAPTION
SIGNATURE TITLE DATE
S C C
/s/ Richard W. Kraber Chief Financial Officer August 31, 1999
-------------------------------------------- (Principal Financial Officer)
(Richard W. Kraber)
/s/ Jerry L. Fiddler Chairman of the Board August 31, 1999
(Jerry L. Fiddler)
/s/ Ronald A. Abelmann Director August 31, 1999
(Ronald A. Abelmann)
/s/ William B. Elmore Director August 31, 1999
(William B. Elmore)
/s/ Grant M. Inman Director August 31, 1999
(Grant M. Inman)
/s/ David B. Pratt Director August 31, 1999
(David B. Pratt)
TABLE
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
Item. 5.1 Opinion of Cooley Godward LLP
Item. 23.1 Consent of PricewaterhouseCoopers LLP
Item. 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
Item. 24.1 Power of Attorney is contained on the signature page
Item. 99.1 1993 Employee Stock Purchase Plan, as amended
Item. 99.2 1998 Non-Officer Stock Option Plan, as amended
TYPEEX-5.1
(End of Item Excerpt)
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