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As filed with the Securities and Exchange Commission on September 28, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WIND RIVER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 94-2873391
(State of Incorporation) (I.R.S. Employer Identification No.)
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500 WIND RIVER WAY
ALAMEDA, CALIFORNIA 94501
(510) 748-4100
(Address of principal executive offices)
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1993 EMPLOYEE STOCK PURCHASE PLAN
1998 NON-OFFICER STOCK OPTION PLAN
(Full title of the plans)
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MICHAEL ZELLNER
CHIEF FINANCIAL OFFICER
WIND RIVER SYSTEMS, INC.
500 WIND RIVER WAY
ALAMEDA, CALIFORNIA 94501
(510) 748-4100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copies to:
ANDREA VACHSS, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================= ==================== =========================== ========================== ========================
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE (1) AGGREGATE OFFERING PRICE FEE
(1)
----------------------------- -------------------- --------------------------- -------------------------- ------------------------
<S> <C> <C> <C> <C>
Stock Options and Common
Stock (par value $.001)..... 4,000,000 $28.13 - $48.25 $178,555,920 $47,139
============================= ==================== =========================== ========================== ========================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the
Securities Act of 1933, as amended. The offering price per share
and aggregate offering price are based upon (a) the weighted average
exercise price of approximately $36.18 for shares subject to
outstanding options granted under the 1998 Non-Officer Stock Option
Plan or (b) the average of the high and low prices of Registrant's
Common Stock on September 22, 2000 as reported on the Nasdaq
National Market. The following chart illustrates the calculation of
the registration fee:
<TABLE>
<CAPTION>
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Title of Securities Number of Shares Offering Price Per Share Aggregate Offering Price
to be Registered
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<S> <C> <C> <C>
Shares issuable pursuant
to outstanding options
under the 1998 Non-Officer
Stock Option Plan 381,377 $28.13 - $48.25 (a) $ 13,800,015
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Common Stock reserved for
future issuance under the
Plans 3,618,623 $45.53 (b) $164,755,905
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</TABLE>
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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, 2000 as amended by Forms 10-K/A filed May 26, 2000 and May
30, 2000;
(b) The Company's quarterly reports on Form 10-Q for the quarters
ended April 30 and July 31, 2000;
(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 as amended through the date hereof.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (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 Amended and 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
or 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 no 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.
2
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EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement
24.1 Power of Attorney is contained on the signature page
99.1 1993 Employee Stock Purchase Plan, as amended
99.2 1998 Non-Officer Stock Option Plan, as amended
</TABLE>
UNDERTAKINGS
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) 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.
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
3
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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.
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.
4
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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 September 28,
2000.
WIND RIVER SYSTEMS, INC.
By: /s/ Michael Zellner
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Michael Zellner
Chief Financial Officer
and Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas St. Dennis and Michael Zellner,
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/ Thomas St. Dennis Chief Executive Officer September 28, 2000
------------------------------------ and Director (Principal Executive
(Thomas St. Dennis) Officer)
/s/ Michael Zellner Vice President and Chief Financial September 28, 2000
------------------------------------ Officer (Principal Financial Officer)
(Michael Zellner)
/s/ Narendra K. Gupta Director September 28, 2000
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(Narendra K. Gupta)
/s/ Grant M. Inman Director September 28, 2000
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(Grant M. Inman)
/s/ John C. Bolger Director September 28, 2000
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(John C. Bolger)
Director September __, 2000
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(William B. Elmore)
/s/ David B. Pratt Director September 28, 2000
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(David B. Pratt)
/s/ Jerry L. Fiddler Director September 28, 2000
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(Jerry L. Fiddler)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Cooley Godward LLP (see Exhibit 5.1)
99.1 1993 Employee Stock Purchase Plan, as amended
99.2 1998 Non-Officer Stock Option Plan, as amended
</TABLE>
