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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
AMENDMENT NO. 2
(Mark One)
[x] Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the quarterly period ended April 30, 1996 or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from to .
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Commission file number 0-21342
WIND RIVER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-2873391
(State of incorporation) (I.R.S. Employer Identification No.)
1010 ATLANTIC AVENUE, ALAMEDA, CALIFORNIA 94501
(Address of principal executive office)
(510) 748-4100
(Telephone number)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
(1) Yes x No
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(2) Yes x No
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Indicate the number of shares outstanding of each of each of the issuers classes
of common stock, as of the latest practicable date.
COMMON STOCK: 13,883,053 SHARES OUTSTANDING AS OF MAY 31, 1996
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PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
10.1* Employee Stock Purchase Plan, as amended to date
10.2* 1995 Non-Employee Directors' Stock Option Plan
10.3* 1987 Equity Incentive Plan, as amended to date
10.4** Amendment, dated January 25, 1995, to Master
Distributor Agreement between Wind River Systems, K.K.
and Innotech Corporation
10.12 Amended and restated Deferred Compensation Agreement
between the Registrant and Ronald A. Abelmann, dated as
of February 23, 1996.
(b) No reports on form 8-K have been filed for the quarter ended April 30,
1996.
No other items.
SIGNATURE
Pursuant to the Securities Exchange Act of 1934, the Registrant has duly caused
this amendment to be signed on its behalf by the undersigned thereunto
authorized.
WIND RIVER SYSTEMS, INC.
Date: July 11, 1996 RICHARD W. KRABER
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Richard W. Kraber
Chief Financial Officer
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* Incorporated by reference to the registrant's Registration Statement on
Form S-8 (File No. 333-06921)
** Filed as an exhibit to the Form 10-Q/A, Amendment No. 1, for the quarterly
period ended April 30, 1996, and incorporated herein by reference
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EXHIBIT INDEX
Exhibit No. Exhibit Name
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10.12 Amended and restated Deferred Compensation
Agreement between the Registrant and Ronald
A. Abelmann, dated as of February 23, 1996.
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WIND RIVER SYSTEMS, INC.
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the 23rd
day of February, 1996, by and among Wind River Systems, Inc., a Delaware
corporation (the "Company"), and Ronald A. Abelmann ("Employee").
WHEREAS, in consideration of services rendered on behalf of the Company, as
well as to provide an inducement for ongoing valuable services in the future,
the Company wishes to provide deferred compensation benefits to Employee.
NOW THEREFORE, the Company and Employee mutually agree as follows:
1. DEFERRAL OF SALARY PAYMENTS.
(a) Employee agrees to defer receipt of salary earned after the date
hereof as follows:
(i) the first eighty thousand dollars ($80,000) earned after the
date hereof during 1996 or 1997 shall be paid on the first anniversary of
Employee's termination of employment from the Company; and
(ii) next, the first ninety-five thousand dollars ($95,000) out
of Employee's remaining salary earned during 1996 or 1997 shall be paid on the
second anniversary of Employee's termination of employment from the Company.
Notwithstanding the foregoing, the maximum amount which Employee may elect to
defer shall be limited to the gross amount of Employee's salary, reduced by (i)
the amount of any applicable employment taxes and (ii) the amount of any
election to purchase either non-taxable employee benefits pursuant to section
125 of the Internal Revenue Code of 1986, as amended (the "Code") or other
employee health and welfare benefits.
(b) Any election by Employee pursuant to this Section 1 shall be
irrevocable.
2. DEFERRAL OF BONUS PAYMENTS.
(a) Employee agrees to defer receipt of bonuses earned after the date
hereof as follows:
(i) Employee's bonus with respect to fiscal year 1997 shall be
paid on the third anniversary of Employee's termination of employment from the
Company;
1.
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(ii) Employee's bonus with respect to fiscal year 1998 shall be
paid on the fourth anniversary of Employee's termination and employment with the
Company;
(iii) Employee's bonus with respect to fiscal year 1999 shall be
paid on the fifth anniversary of Employee's termination of employment from the
Company; and
(iv) Employee's bonus with respect to fiscal year 2000 shall be
paid on the sixth anniversary of Employee's termination and employment with the
Company.
Notwithstanding the foregoing, the maximum amount which Employee may elect to
defer shall be limited to the gross amount of Employee's bonus, reduced by (i)
the amount of any applicable employment taxes and (ii) the amount of any
election to purchase either non-taxable employee benefits pursuant to section
125 of the Internal Revenue Code of 1986, as amended (the "Code") or other
employee health and welfare benefits.
(b) Any election by Employee pursuant to this Section 2 shall be
irrevocable, provided that Employee may modify or cancel the election to defer a
bonus payment by written notice to the Company at any time prior to the fiscal
year for which the bonus is to be earned.
3. THE ACCOUNT.
(a) The Company shall maintain for Employee an account (the
"Account") that shall be credited, as of the date amounts deferred under this
Agreement would have otherwise been paid to Employee, with the amounts deferred
under this Agreement, less such amounts as the Company is required to withhold
under the Federal Insurance Contributions Act, under other applicable laws
governing the withholding of employment taxes, or pursuant to a pre-existing
election to purchase employee benefits as described in Section 1 above.
(b) The amounts credited to the Account shall earn interest at the
rate of seven percent (7%), compounded monthly, until paid.
4. PAYMENT UPON DEATH.
In the event of Employee's death prior to receiving the entire value
of the Account, the then remaining value of the Account shall be paid to
Employee's designated beneficiary (if no beneficiary has been designated, then
to Employee's estate) in a lump sum payment as soon as administratively
practical after Employee's death, but in no event later than sixty (60) days
after the Company receives notice of Employee's death
5. LIMITATION ON PAYMENTS.
The Company shall not be required to pay within the times specified
that portion of the remaining value of the Account which, when added to the
other compensation paid or to be paid to Employee or his beneficiary or estate
by the Company during the applicable fiscal year, would cause the total
compensation paid by the Company to Employee or his beneficiary or estate
2.
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to exceed the limitation on the deductibility of executive compensation set
forth in Internal Revenue Code Section 162(m) as then in effect. Any amount not
paid by reason of the foregoing limitation shall be paid by the tenth business
day of the first fiscal year of the Company in which such limitation would not
be exceeded.
6. PAYMENT UPON UNFORESEEABLE EMERGENCY.
In the event of an unforeseeable emergency of Employee, Employee may
request payment from the Company of up to the entire value of the Account;
provided, however, that such payment shall not exceed the amount reasonably
necessary to meet the unforeseeable emergency. An unforeseeable emergency shall
be an unanticipated emergency of Employee that is caused by an event beyond the
reasonable control of Employee and that would result in a severe financial
hardship to Employee if an early withdrawal of the Account were not made. The
Board of Directors of the Company shall in its good faith judgment determine
whether an unforeseeable emergency of Employee has occurred and shall in its
discretion determine what portion, if any, of the value of the Account is to be
paid to Employee as a result.
7. NO SEGREGATION OF FUNDS.
Nothing contained in this Agreement and no action taken pursuant to
the provisions of this Agreement shall create or be construed to create a trust
of any kind, or a fiduciary relationship between the Company and Employee or any
other person. Any funds that may be invested to meet the Company's obligations
hereunder shall continue for all purposes to be part of the general funds of the
Company, and no person other than the Company shall, by virtue of the provisions
hereof, have any interest in such funds. The Company shall have no obligation
to segregate any funds that arise from the Company's obligations hereunder. It
is the intention of Employee and the Company that this Agreement shall be
unfunded. Employee or his designated beneficiary shall be regarded as a general
unsecured creditor of the Company with respect to any rights created under this
Agreement. This Agreement shall constitute a mere promise by the Company to
make payments of deferred compensation in the future.
8. TAXES.
The risk of any adverse tax consequence or tax liability which may be
experienced by Employee as a result of executing this Agreement or making any
election hereunder will be borne solely by Employee. Nothing in this Agreement
shall be construed to impose any such tax liability upon the Company, or to
require that the Company indemnify, hold harmless or otherwise reimburse
Employee for any such tax liability or other costs which may be incurred by
Employee as a result of this Agreement. All payments under this Agreement will
be subject to applicable withholding laws.
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9. NO ASSIGNMENT.
No right of Employee or any other person to the payment of deferred
compensation under this Agreement shall be assigned, transferred, pledged,
alienated, sold, garnished or encumbered except by will or by the laws of
descent and distribution.
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10. NO EMPLOYMENT CONTRACT.
This Agreement does not constitute a contract of employment or impose
on Employee any obligation to remain as an employee, or impose on the Company
any obligation (a) to retain Employee as an employee, (b) to change the status
of Employee as an at-will employee, or (c) to change the Company's policies
regarding termination of employment.
11. IMPACT ON CALCULATION OF EMPLOYEE BENEFITS.
Any deferred compensation paid or otherwise made available under this
Agreement shall not be deemed salary or other compensation to Employee for the
purpose of computing benefits paid by the Company to which Employee may be
entitled under any retirement plan or other arrangement of the Company for the
benefit of its employees.
12. MODIFICATION.
No provision of this Agreement or of any election made hereunder may
be modified except by the express written consent of a majority of the
disinterested members of the Board of Directors of the Company and Employee.
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement
as of the date first above written, each intending to be legally bound by it.
COMPANY
WIND RIVER SYSTEMS, INC.
By: /S/ Richard W. Kraber
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Its /S/ Chief Financial Officer
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EMPLOYEE
/S/ Ronald A. Abelmann
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Ronald A. Abelmann
5.
