Exhibit 10.17
WIND RIVER SYSTEMS, INC.
PURCHASE AGREEMENT
July 22, 1997
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, NY 10019
Ladies and Gentlemen:
Wind River Systems, Inc., a corporation incorporated under the law of the
State of Delaware (the "COMPANY"), proposes to issue and sell to you (the
"MANAGER") and the other several purchasers named in SCHEDULE 1 hereto
(collectively with the Manager, the "INITIAL PURCHASERS") $125,000,000 principal
amount of its 5% Convertible Subordinated Notes due 2002 (the "FIRM OFFERED
SECURITIES") to be issued pursuant to the provisions of an Indenture to be dated
as of July 29, 1997 (the "INDENTURE") between the Company and Deutsche Bank AG,
New York Branch, as Trustee (the "TRUSTEE").
The Company also proposes to issue and sell and deliver to the Initial
Purchasers not more than an additional $15,000,000 principal amount of its 5%
Convertible Subordinated Notes Due 2002 (the "ADDITIONAL OFFERED SECURITIES") if
and to the extent that you, as Manager, shall have determined to exercise on
behalf of the Initial Purchasers the right to purchase such 5% Convertible
Subordinated Notes due 2002 granted to the Initial Purchasers in Section 3
hereof. The Firm Offered Securities and the Additional Offered Securities are
hereinafter collectively referred to as the "OFFERED SECURITIES." The Offered
Securities will be convertible into Common Stock, par value $0.001 per share, of
the Company (the "UNDERLYING SECURITIES" and, together with the Offered
Securities, the "SECURITIES").
The sale of the Securities to you will be made without registration under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), in reliance on
the exemptions from the registration requirements of the Securities Act under
Section 4(2) thereof. Investors that acquire such Securities may only resell or
otherwise transfer such Securities if such Securities are hereafter registered
under the Securities Act or if an exemption from the registration requirements
of the Securities Act is available.
In connection with the offer, sale and delivery of the Securities, the
Company has prepared a preliminary offering memorandum (the "PRELIMINARY
MEMORANDUM") and will prepare a final offering memorandum (the "FINAL
MEMORANDUM" and, with the Preliminary Memorandum, each a "MEMORANDUM") setting
forth or including a description of the terms of the Securities, the terms of
the offering, a description of the Company and any material
developments relating to the Company occurring after the date of the most recent
financial statements included or incorporated by reference therein. As used
herein, the term "Memorandum" shall include in each case the documents
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Preliminary Memorandum or Final Memorandum that are filed
subsequent to the date of such Memorandum with the Securities and Exchange
Commission (the "COMMISSION") pursuant to the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, you that as of the date hereof:
(a) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in either Memorandum complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations thereunder and (ii) the Preliminary Memorandum
does not, and the Final Memorandum, in the form used by the Initial Purchasers
to confirm sales will not on the Closing Date (as defined in Section 3 hereof),
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this Section 1(a) do not apply to statements or
omissions in either Memorandum based upon information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
you expressly for use therein.
(b) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the State of Delaware, has the corporate power
and authority to own its property and to conduct its business as described in
each Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(c) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in each Memorandum and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
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(d) The Company and its subsidiaries have good and valid title to all
the properties and assets owned by them or reflected as owned by them in either
Memorandum, which are material to the business of the Company, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except: (i) those, if
any, reflected in the Memorandum; or (ii) those which are not material in amount
or do not materially and adversely affect the use made and proposed to be made
of such property by the Company or such subsidiary. The Company and its
subsidiaries hold their leased properties under valid and binding leases, with
such exceptions as are not material in relation to the business of the Company
and its subsidiaries taken as a whole. Except as disclosed in the Memorandum,
the Company and its subsidiaries own or lease all such properties as are
necessary to their combined operations as now conducted, or as proposed to be
conducted, in each case as discussed in or contemplated by either Memorandum.
(e) The authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in the
Final Memorandum.
(f) The shares of Common Stock, par value $0.001 per share, of the
Company (the "COMMON STOCK"), outstanding immediately prior to the issuance of
the Offered Securities have been duly authorized and are validly issued, fully
paid and nonassessable.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The Offered Securities have been duly authorized and, when
executed, authenticated and delivered to and paid for by the Initial Purchasers
in accordance with the terms of this Agreement and the Indenture will be:
(i) validly issued, fully paid and nonassessable and will not be subject to any
preemptive or similar rights; (ii) valid and binding obligations of the Company,
enforceable in accordance with their terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration, if applicable, and
the availability of equitable remedies may be limited by equitable principles of
general applicability; and (iii) entitled to the benefits of the Indenture
pursuant to which such securities are to be issued.
(i) The Underlying Securities reserved for issuance upon conversion
of the Offered Securities have been duly authorized and reserved in sufficient
numbers for such issue by the Company and, when executed and issued upon
conversion of such Offered Securities in accordance with the terms of such
Offered Securities, will be validly issued, fully paid and non-assessable and
will not be subject to any preemptive rights or similar rights.
(j) Each of the Indenture and the Registration Rights Agreement to be
dated as of July 29, 1997, among the Company and the Initial Purchasers (the
"REGISTRATION RIGHTS AGREEMENT"), has been duly authorized and, when executed
and delivered by the Company and the other parties thereto, will be a valid and
binding agreement of the Company, enforceable in
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accordance with its terms except: (i) as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and (ii) as the enforceability of indemnification and
contribution provisions in the Registration Rights Agreement may be limited by
public policy limitations.
(k) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Registration Rights Agreement and the Offered Securities will not contravene any
provision of applicable law or the Certificate of Incorporation of the Company
or, except as set forth in the Final Memorandum, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Offered Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Securities and except as may be required under federal
securities laws with respect to the Company's obligations under the Registration
Rights Agreement.
(l) Except as expressly identified in the Final Memorandum, there has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Preliminary Memorandum.
(m) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of its
subsidiaries is subject other than proceedings accurately described in all
material respects in each Memorandum and proceedings that would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or on the power or ability of the Company to perform its obligations under this
Agreement, the Indenture or the Offered Securities or to consummate the
transactions contemplated by the Final Memorandum.
(n) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, which are necessary to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
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the Final Memorandum, except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(o) No default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instruments binding on
the Company or any of its subsidiaries, except such defaults that would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) Price Waterhouse, LLP (the "ACCOUNTANTS"), who have certified
certain financial statements of the Company and its subsidiaries, are
independent public accountants within the meaning of the Securities Act; the
consolidated financial statements of the Company and the other financial data of
the Company and its subsidiaries set forth in the Final Memorandum fairly
present in all material respects the financial condition of the entities to
which they relate as of the dates indicated, subject, in the case of any interim
statements, to year-end audit adjustments.
(q) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act, an "AFFILIATE") of the Company has
directly, or through any agent: (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Offered
Securities in a manner that would require the registration under the Securities
Act of the Offered Securities; or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the
Offered Securities (as those terms are used in Regulation D under the Securities
Act), or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(r) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(s) Assuming the accuracy of the representations of the Initial
Purchasers in Section 6, it is not necessary in connection with the offer, sale
and delivery of the Offered Securities to the Initial Purchasers in the manner
contemplated by this Agreement to register the Offered Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended.
(t) The Company and its subsidiaries: (i) are in material compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"); (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their
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respective businesses; and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except, in each case, where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(u) The effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries as currently conducted or as
proposed to be conducted (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties) would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(v) Except as disclosed in the Final Memorandum, the Company and each
of its subsidiaries owns or possesses, or can acquire on reasonable terms, all
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
currently employed by the Company in connection with the conduct of the business
as described in the Memorandum by them, except to the extent that the failure to
own, possess or acquire any of the foregoing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole. The expiration of
any trademarks, trade names, patent rights, copyrights, licenses, approvals or
governmental authorizations would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole. The Company has no knowledge of
any material infringement by it of trademarks, trade name rights, patent rights,
copyrights, licenses, trade secrets or similar rights of others and, except as
disclosed in the Final Memorandum, neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which, singly or
in the aggregate, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(w) None of the Company, its Affiliates or any person acting on its
or their behalf (other than the Initial Purchasers) has engaged in any directed
selling efforts (as that term is defined in Regulation S under the Securities
Act ("REGULATION S") with respect to the Offered Securities and the Company and
its Affiliates and any person acting on its or their behalf (other than the
Initial Purchasers) has complied with the offering restrictions requirement of
Regulation S.
(x) The Final Memorandum contains all information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Securities Act; and the
Offered Securities satisfy the eligibility requirements set forth in Rule
144A(d)(3) under the Securities Act.
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(y) To the extent separately agreed by the parties, each of the
Company's directors and executive officers has entered into a written agreement
with the Company in the form of EXHIBIT A hereto (each such agreement, a "LOCK-
UP AGREEMENT"), and executed originals of each Lock-up Agreement have been
delivered to you.
2. OFFERING. You have advised the Company that the Initial Purchasers
will make an offering of the Offered Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
3. PURCHASE AND DELIVERY. The Company hereby agrees to sell to the
several Initial Purchasers, and each of the Initial Purchasers, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agree, severally and not jointly, to purchase
from the Company the respective principal amount of Firm Offered Securities set
forth in SCHEDULE 1 hereto opposite their names at a purchase price of 96.875%
of the principal amount thereof plus accrued interest, if any, from July 29,
1997 to the date of payment and delivery.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, for a period thirty (30)
days from the date hereof the Company agrees to sell and deliver to the Initial
Purchasers the Additional Offered Securities, and the Initial Purchasers shall
have a one-time right to purchase, severally and not jointly, up to $15,000,000
Additional Offered Securities at a purchase price of 96.875% of the principal
amount thereof plus accrued interest, if any. Additional Offered Securities may
be purchased as provided in this Section 3 solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Offered
Securities. If any Additional Offered Securities are to be purchased, each
Initial Purchaser agrees, severally and not jointly, to purchase the number of
Additional Offered Securities (subject to such adjustments to eliminate
fractional portions as the Manager shall determine) that bears the same
proportion to the total number of Additional Offered Securities to be purchased
as the number of Firm Offered Securities set forth in SCHEDULE 1 opposite the
name of such Initial Purchaser bears to the total number of Firm Offered
Securities.
The Company agrees that, without your prior written consent, it will
not offer, sell, contract to sell or otherwise dispose of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
shares of Common Stock for a period of ninety (90) days after the date of this
Agreement, other than: (i) the Offered Securities to be sold hereunder;
(ii) the Underlying Securities; (iii) options to purchase Common Stock, and
Common Stock issued by the Company upon the exercise of such options, granted
under the Company's existing equity incentive plans; and (iv) Common Shares
issued pursuant to employee stock
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purchase plans and (v) the warrant to purchase shares of Common Stock issued to
Innotech Corporation.
Payment for the Firm Offered Securities shall be made against delivery
of the Firm Offered Securities at a closing to be held at the office of Cooley
Godward LLP, Palo Alto, California at 10:00 A.M., New York City time, on
July 29, 1997, or at such other time on the same or such other date, not later
than August 10, 1997, as the Initial Purchasers and the Company shall agree.
The time and date of such payment are herein referred to as the Closing Date.
Payment for the Firm Offered Securities shall be made in same day funds.
Payment for any Additional Offered Securities shall be made against
delivery of the Additional Offered Securities at a closing to be held at the
office of Cooley Godward LLP, Palo Alto, California on such date (which may be
the same as the Closing Date but shall in no event be earlier than the Closing
Date nor later than ten (10) business days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from the
Manager to the Company of the Manager's determination, on behalf of the Initial
Purchasers, to purchase a number, specified in said notice, of Additional
Offered Securities, or on such other date, in any event not later than
August 21, 1997 as shall be designated in writing by the Manager. The time and
date of such payment are hereinafter referred to as the "OPTION CLOSING DATE."
Payment for the Additional Offered Securities shall be made in same day funds.
The notice of the determination to exercise the option to purchase Additional
Offered Securities and of the Option Closing Date may be given at any time
within thirty (30) days after the date of this Agreement.
Certificates for the Offered Securities shall be in global form and
registered in such names and in such denominations as you shall request in
writing not less than two (2) full business days prior to the Closing Date or
the Option Closing Date, as the case may be. The certificates evidencing the
Offered Securities shall be delivered to you on the Closing Date or the Option
Closing Date, as the case may be, for the respective accounts of the several
Initial Purchasers, with any transfer taxes payable in connection with the
transfer of the Offered Securities to the Initial Purchasers duly paid, against
payment of the purchase price therefor. The Company will deliver the portion of
the Offered Securities represented by one or more definitive global Offered
Securities in book-entry form to the Manager's account by causing Depository
Trust Company ("DTC") to credit such Offered Securities to the Manager's account
at DTC.
4. CONDITIONS TO CLOSING. The several obligations of the Initial
Purchasers under this Agreement to purchase the Firm Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the performance and observance by the Company in all material
respects of all covenants and agreements herein contained on its part to be
performed and observed and the following conditions:
(a) Subsequent to the date of this Agreement and prior to the Closing
Date,
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(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Company and its subsidiaries, taken
as a whole, from that set forth in the Preliminary Memorandum that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Final Memorandum.
(b) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of the Company, to the
effect set forth in clause (a)(i) and (a)(ii) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of
independent counsel for the Company, an opinion for each of the Material
Subsidiaries (as defined in Exhibit C hereto) from the applicable special
foreign counsel qualified to give such opinion, and an opinion of special New
York counsel to the Company, each dated the Closing Date, to the effect set
forth in EXHIBIT B, EXHIBIT C, and EXHIBIT D, respectively.
(d) You shall have received on the Closing Date opinions of Venture
Law Group, A Professional Corporation, counsel for the Initial Purchasers, and
an opinion of special New York counsel to the Initial Purchasers, dated the
Closing Date, to the effect set forth in EXHIBIT E and EXHIBIT F, respectively.
(e) You shall have received, on each of the date hereof and the
Closing Date a letter, dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to you, from the Company's
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into each Memorandum.
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(f) You shall have received written waivers in form satisfactory to
your counsel of all rights, if any, to have securities registered as part of the
registrations required to be effected by the Company pursuant to the
Registration Rights Agreement
(g) The Registration Rights Agreement and the Indenture shall have
been executed and delivered by all of the parties thereto.
The Initial Purchasers' obligation to purchase Additional Offered
Securities hereunder is subject to the delivery to you on the Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Offered Securities and other matters related to the issuance of the Additional
Offered Securities.
5. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Initial Purchasers contained in this Agreement, the Company covenants as
follows:
(a) To furnish to you, without charge, during the period mentioned in
paragraph (c) below, as many copies of the Final Memorandum, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and, in the case of the Final Memorandum, to furnish
copies of the Final Memorandum in New York City, prior to 3:00 P.M. on the
business day following the date of this Agreement, or at such other time as the
parties shall agree, in such quantities as you reasonably request.
(b) Before amending or supplementing either Memorandum, other than by
filing documents under the Securities Exchange Act of 1934, as amended, that are
incorporated by reference therein, to furnish to you a copy of each such
proposed amendment or supplement and not to use any such proposed amendment or
supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the
date on which all of the Offered Securities shall have been sold by the Initial
Purchasers, any event shall occur or condition exist as a result of which it is
necessary in your good faith judgment to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of the
circumstances when such Memorandum is delivered to a purchaser, not misleading,
or if, with the opinion of counsel to the Initial Purchasers it is necessary to
amend or supplement such Memorandum to comply with applicable law, forthwith to
prepare and furnish, at its own expense, to the Initial Purchasers, either
amendments or supplements to such Memorandum so that the statements in such
Memorandum as so amended or supplemented will not, in the light of the
circumstances when such Memorandum is delivered to a purchaser, be misleading or
so that such Memorandum, as so amended or supplemented, will comply with
applicable law.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided, however the
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Company shall not be required to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not otherwise so subject.
(e) Whether or not any sale of such Offered Securities is
consummated, to pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation of each Memorandum and all
amendments and supplements thereto; (ii) the preparation, issuance and delivery
of the Securities; (iii) the fees and disbursements of the Company's counsel and
accountants, the Trustee and its counsel and the listing agent; (iv) the
qualification of such Securities under securities or Blue Sky laws in accordance
with the provisions of Section 5(d), including filing fees and the fees and
disbursements of counsel for the Initial Purchasers in connection therewith and
in connection with the preparation of any Blue Sky or legal investment
memoranda, which fees and expenses shall not exceed $5,000 in the aggregate;
(v) the printing and delivery to the Initial Purchasers in quantities as herein
above stated of copies of the Memorandum and any amendments or supplements
thereto; (vi) the fees and expenses, if any, incurred in connection with the
admission of such Securities for trading in any appropriate market system; and
(vii) the fees and expenses of Euroclear, CEDEL and any other depository used in
connection with the Offered Securities and of any transfer or conversion agent
or registrar for the Offered Securities or the Underlying Securities issuable
upon conversion of the Offered Securities.
(f) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act), or
permit any Affiliate to do any of the foregoing, which could be integrated with
the sale of the Offered Securities in a manner which would require the
registration under the Securities Act of such Securities.
(g) Not to solicit any offer to buy or offer or sell the Offered
Securities by means of any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(h) While any of the Offered Securities remain "restricted
securities" within the meaning of the Securities Act, to make available, upon
request, to any seller of such Offered Securities the information specified in
Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act.
(i) To include information substantially in the form set forth in
EXHIBIT E in each Memorandum.
(j) To use its best efforts to: (i) permit the Offered Securities to
be designated PORTAL securities in accordance with the rules and regulations
adopted by the National
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Association of Securities Dealers, Inc. relating to trading in the PORTAL
Market; and (ii) to list for quotation the Underlying Securities on the Nasdaq
National Market.
(k) Not to engage, or permit any Affiliate or any person acting on
its behalf (other than the Initial Purchasers) to engage in any directed selling
efforts (as that term is defined in Regulation S) with respect to the Offered
Securities, and the Company will and the Company will use its best efforts to
cause its Affiliates and each person acting on its or their behalf (other than
the Initial Purchasers) to comply with the offering restrictions of Regulation
S.
6. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER.
(a) Each Initial Purchaser, severally and not jointly, represents and
warrants that it is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a "QIB") or an "institutional accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
Each Initial Purchaser, severally and not jointly, agrees with the Company that:
(a) it has not and will not solicit offers for, or offer to sell, such Offered
Securities by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act; and (b) it will solicit offers for such Offered Securities only from, and
will offer such Offered Securities only to, persons that it reasonably believes
to be: (A) in the case of offers inside the United States, QIBs; and (B) in the
case of offers outside the United States, persons other than U.S. persons
("FOREIGN PURCHASERS," which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust to the extent provided in
Regulation S)) that, in each case, in purchasing such Offered Securities are
deemed to have represented and agreed as provided in EXHIBIT E. To the extent
necessary to comply with the terms of this Agreement, the Manager agrees to act
as selling agent for the other Initial Purchasers with respect to offers and
sales of the Offered Securities pursuant to this Agreement.
(b) Each Initial Purchaser, severally and jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) it understands that no action has been or will be taken in
any jurisdiction by such Initial Purchaser that would permit a public offering
of the Offered Securities, or possession or distribution of either Memorandum or
any other offering or publicity material relating to the Offered Securities, in
any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser has and will comply with all
applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Offered Securities or has in its possession or
distributes either Memorandum or any such other material, in all cases at its
own expense;
-12-
(iii) the Offered Securities have not been and will not be
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act or pursuant to another
exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Offered Securities
and will offer and sell the Offered Securities: (A) as part of their
distribution at any time; and (B) otherwise until 40 days after the later of the
commencement of the Offering and the latest original issue date of the Offered
Securities (the "RESTRICTED PERIOD"), only in accordance with Rule 903 of
Regulation S. Accordingly, none of such Initial Purchaser, its Affiliates or
any persons acting on its or their behalf has engaged or will engage in any
directed selling efforts (within the meaning of Regulation S) with respect to
the Offered Securities, and such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S;
(v) such Initial Purchaser has: (A) not offered or sold or
invited any person to offer to purchase and, prior to the expiration of the
period six months from the date the Offered Securities are purchased by the
Initial Purchaser will not offer or sell or invite any person to offer to
purchase, any Offered Securities or Common Shares issuable upon conversion
thereof in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995 ("REGULATIONS"); and (B) complied and will comply
with all applicable provisions of the Financial Services Act 1986 and the
Regulations with respect to anything done by it in relation to the Offered
Securities or Common Shares issuable upon conversion thereof, to a person who is
of a kind described in Article 11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exemptions) Order 1996 of Great Britain or is a
person to whom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser understands that the Offered
Securities have not been and will not be registered under the Securities and
Exchange Law of Japan, and represents that it has not offered or sold, and
agrees that it will not offer or sell, any Offered Securities, directly or
indirectly in Japan or to or from any resident of Japan except: (A) pursuant to
an exemption from the registration requirements of the Securities and Exchange
Law of Japan; and (B) in compliance with any other applicable requirements of
Japanese law; and
(vii) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Offered Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Offered Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
-13-
The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended, (the "SECURITIES ACT") and may not
be offered and sold within the United States or to, or for the account
or benefit of, U.S. persons: (a) as part of their distribution at any
time or (b) otherwise until 40 days after the later of the
commencement of the offering and the latest original issue date of the
Notes, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above
have the meaning given to them by Regulation S.
Terms used in Sections 6(a) and 6(b) hereof have the meanings given to them by
Regulation S.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, and each person, if any, who controls such Initial Purchaser within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled by, such Initial
Purchaser, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
by any Initial Purchaser or any such controlling of affiliated person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
either Memorandum (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Initial Purchaser, but only
with reference to information furnished to the Company in writing by such
Initial Purchaser through you expressly for use in either Memorandum or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"INDEMNIFIED PARTY") shall promptly notify the
-14-
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless: (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel; or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Manager in the case of parties indemnified pursuant to paragraph
(a) above and by the Company in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 7 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities: (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchasers on the other hand from the
offering of such Offered Securities; or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Initial
Purchasers on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Initial Purchasers the other hand in connection
with the offering of such Offered Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Offered
Securities (before deducting
-15-
expenses) received by the Company and the total discounts and commissions
received by the Initial Purchasers in respect thereof, in each case as set forth
in the Final Memorandum, bear to the aggregate offering price of such Offered
Securities. The relative fault of the Company on the one hand and of the
Initial Purchasers on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of Offered Securities they have
purchased hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
PRO RATA allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities resold by it in the initial placement of such Offered
Securities were offered to investors exceeds the amount of any damages that such
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The indemnity and contribution
provisions contained in this Section 7 and the representations and warranties of
the Company contained in this Agreement shall remain operative and in full force
and effect regardless of: (i) any termination of this Agreement; (ii) any
investigation made by or on behalf of the Initial Purchasers or any person
controlling any Initial Purchaser or by or on behalf of the Company, its
officers or directors or any person controlling the Company; and
(iii) acceptance of and payment for any of the Offered Securities. The remedies
provided for in this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
8. TERMINATION. This Agreement shall be subject to termination by notice
given by you to the Company, if: (a) after the execution and delivery of this
Agreement and prior to the Closing Date or the Option Closing Date, as the case
may be: (i) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Luxembourg Stock Exchange, the Chicago Board of Options Exchange, the Chicago
-16-
Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse; and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Final Memorandum.
9. MISCELLANEOUS. If, on the Closing Date, or the Option Closing Date,
as the case may be, any one or more of the Initial Purchasers shall fail or
refuse to purchase Offered Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Offered Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of Offered Securities to be purchased on such date, the other Initial
Purchasers shall be obligated severally in the proportions that the principal
amount of Firm Offered Securities set forth opposite their respective names in
SCHEDULE 1 bears to the aggregate principal amount of Firm Offered Securities
set forth opposite the names of all such non-defaulting Initial Purchasers, or
in such other proportions as you may specify, to purchase the Offered Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Offered Securities that any Initial Purchaser has agreed to
purchase pursuant to Section 3 be increased pursuant to this Section 11 by an
amount in excess of one-ninth of such principal amount of Offered Securities
without the written consent of such Initial Purchaser. If, on the Closing Date
or the Option Closing Date, as the case may be, any Initial Purchaser or Initial
Purchasers shall fail or refuse to purchase Offered Securities which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount of Offered Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Offered Securities to be
purchased on such date and arrangements satisfactory to you and the Company for
the purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or of the Company. In any such case either you
or the Company shall have the right to postpone the Closing Date, or the Option
Closing Date, as the case may be, but in no event for longer than seven days, in
order that the required changes if any, in the Final Memorandum or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
-17-
If this Agreement shall be terminated by the Initial Purchasers, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Initial Purchasers or such
Initial Purchasers as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Initial Purchaser in
connection with this Agreement or the offering contemplated hereunder.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
-18-
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement between us.
Very truly yours,
WIND RIVER SYSTEMS, INC.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Agreed, July 22, 1997
DEUTSCHE MORGAN GRENFELL INC.
Acting severally on behalf of itself
and the several Initial Purchasers named herein.
By: DEUTSCHE MORGAN GRENFELL INC.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
SCHEDULE 1
Principal Amount
Initial Purchaser Offered Securities to Be Purchased
----------------- ----------------------------------
Deutsche Morgan Grenfell Inc. $112,000,000
Hambrecht & Quist LLC 14,000,000
Wessels, Arnold & Henderson, L.L.C 14,000,000
------------
Total $140,000,000
------------
------------
EXHIBIT A
WIND RIVER SYSTEMS, INC.
LOCK-UP AGREEMENT
July __, 1997
Deutsche Morgan Grenfell Inc.
Hambrecht & Quist LLC
Wessels, Arnold & Henderson, L.L.C.
c/o Deutsche Morgan Grenfell Inc.
31 West 52nd Street, 6th Floor
New York, NY 10019
Ladies and Gentlemen:
The undersigned understands that you, as initial purchasers (the "Initial
Purchasers"), propose to enter into a Purchase Agreement with Wind River
Systems, Inc. (the "Company"), with regard to the issuance by the Company of its
Convertible Subordinated Notes due 2002 (the "Convertible Notes"), which will be
convertible into shares of Common Stock, par value $0.001 per share (the "Common
Stock"), of the Company at the conversion price set forth therein.
In consideration of the agreement of the Initial Purchasers to purchase and
make an offering of the Convertible Notes, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby
agrees, for a period of ninety (90) days after the last date of original
issuance of the Convertible Notes to the Initial Purchasers (the "Lockup
Period"), not to offer to sell, contract to sell or otherwise sell, dispose of,
loan, pledge or grant any rights with respect to (collectively, a "Disposition")
any shares of Common Stock, any options or warrants to purchase any shares of
Common Stock or any securities convertible into or exchangeable for shares of
Common Stock (collectively, "Securities"), now owned or hereafter acquired
directly by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, otherwise than (i) as to any
individual, during his or her lifetime or upon death, by gift, will or
intestacy, to his or her immediate family or to a trust the beneficiaries of
which are exclusively the undersigned and/or a member or members of his or her
immediate family; provided any donee or transferee thereof agree in writing to
be bound by this Lockup Agreement, or (ii) with the prior written consent of
Deutsche Morgan Grenfell Inc. The foregoing restriction is expressly agreed to
preclude the holder of the Securities from engaging in any hedging or other
transaction which is designed to or reasonably expected to lead to or result in
a Disposition of Securities during the Lockup Period even if such Securities
would be disposed of by someone other than the undersigned. Such prohibited
hedging or other
transactions would include without limitation any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any Securities or with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from
Securities.
Notwithstanding the foregoing restriction, the undersigned may participate
in a Disposition with respect to a maximum aggregate of fifty thousand (50,000)
shares of Common Stock during the Lockup Period without the prior written
consent of Deutsche Morgan Grenfell Inc.
Furthermore, the undersigned hereby agrees and consents to the entry of
stop transfer instructions with the Company's transfer agent against the
transfer of the Securities held by the undersigned except in compliance with
this Lockup Agreement. In the event that the Convertible Notes shall not have
been issued on or before September 30, 1997, this Lockup Agreement shall be of
no further force or effect.
Very truly yours,
Name:
---------------------------------------
Address:
------------------------------------
------------------------------------
------------------------------------
The Company requests that this Lockup Agreement be completed and delivered to
counsel for the Initial Purchasers, Venture Law Group, 2800 Sand Hill Road,
Menlo Park, CA 94025, Attn: Tamara L. Thompson, Esq.
-2-
EXHIBIT B
OPINION OF COOLEY GODWARD LLP
The opinion of Cooley Godward LLP, counsel for the Company, to be
delivered pursuant to Section 4(c) of the Purchase Agreement, shall be to the
effect that:
1. Each of the Purchase Agreement, the Indenture and the Registration
Rights Agreement, has been duly authorized, executed and delivered by the
Company.
2. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Final Memorandum (references herein to the Final Memorandum
being taken to mean the same, as amended or supplemented), and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
3. The Offered Securities have been duly authorized by all necessary
corporate action on the part of the Company and have been executed and
authenticated.
4. The Common Stock initially issuable on conversion of the Offered
Securities has been duly authorized and reserved by the Company for issuance
upon such conversion and, when issued upon conversion in accordance with the
terms of the Indenture, will have been validly issued, fully paid and non-
assessable, and there are no preemptive or, to such counsel's knowledge, other
rights to subscribe for or purchase any of the Common Stock issuable upon
conversion of the Offered Securities pursuant to the Company's Certificate of
Incorporation or, to the knowledge of such counsel, any Reviewed Agreement
(defined as any agreement which would be required to be filed as an exhibit to
the Company's filings under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").)
5. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and the
Offered Securities and the Registration Rights Agreement will not contravene any
provision of applicable U.S. federal or state law, or of the Certificate of
Incorporation or Bylaws of the Company, or, to the knowledge of such counsel and
except as set forth in each Memorandum, any Reviewed Agreement binding upon the
Company or any of its subsidiaries, or any judgment, order or decree of any U.S.
federal or state governmental body, agency or court having jurisdiction over the
Company or any of its properties or any of its subsidiaries or any of their
property, and no consent, approval, authorization or order of or qualification
with any U.S. federal or state governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
the Indenture and the Offered Securities except such as are specified and have
been obtained and such as may be required by the securities or Blue Sky laws of
the various states in connection with the purchase and distribution of the
Offered Securities by you.
6. Such counsel does not know of any legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its subsidiaries is subject other
than proceedings fairly summarized in all material respects in each Memorandum
and, to such counsel's knowledge, proceedings that would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under this Agreement,
the Indenture or the Offered Securities.
7. The statements in the Final Memorandum under the captions
"Description of Notes," "Description of Capital Stock," and "Notice to
Investors", insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly summarize in all
material respects the matters referred to therein to the extent required if the
Final Memorandum were a prospectus in a registration statement on Form S-3 under
the Securities Act of 1933, as amended.
8. The statements in the Final Memorandum under the caption "Certain
Federal Income Tax Considerations," insofar as such statements represent matters
of law or legal conclusions, are accurate and fairly summarize the material
federal income tax consequences relevant to an investment in the Notes, subject
to the qualifications and limitations contained in such statements.
9. Each document incorporated by reference in the Final Memorandum
(except for financial statements and schedules and other financial data and
statistical data included therein as to which such counsel need not express any
opinion), complied as to form when filed with the Commission in all material
respects with the Exchange Act and the rules and regulations of the Commission
thereunder.
10. Based upon the representations, warranties and agreements of the
Company in Sections 1(q), 1(w), 1(x), 5(f), 5(g), 5(h) and 5(k) of the Purchase
Agreement and of the Initial Purchasers (as defined in the Final Memorandum) in
Section 6 of the Purchase Agreement and on the representations and agreements of
the Initial Purchasers and each of the purchasers of the Offered Securities and
the Shares in the initial resale by the Initial Purchasers contained in the
Final Memorandum, and assuming compliance therewith, the offer and sale of the
Offered Securities and the Shares to the Initial Purchasers under the Purchase
Agreement and the initial resale of such Offered Securities and the Shares by
the Initial Purchasers in accordance with Section 6 of the Purchase Agreement is
exempt from or not subject to the registration requirements of the Securities
Act of 1933, as amended, and the Indenture is exempt from the qualification
requirements of the Trust Indenture Act of 1939, as amended, it being understood
that no opinion is expressed as to any subsequent resale of any Offered Security
or Shares.
-2-
In addition, such counsel shall state that nothing has come to the
attention of such counsel which causes such counsel to believe that (except for
financial statements and schedules and other financial data and statistical data
included or incorporated by reference therein as to which such counsel need not
express any belief) the Final Memorandum when issued contained, or as of the
date such opinion is delivered contains, any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. With respect to this paragraph, counsel may state their
opinion and belief are based upon their participation in the preparation of the
Final Memorandum and review and discussion of the contents thereof, including
incorporated documents, but are without independent check or verification except
as specified.
Such counsel's opinions may include such assumptions, qualifications,
exceptions and limitations as are customary for opinions with respect to the
foregoing matters.
Such counsel's opinions shall relate to California, Delaware corporate and
United States federal law.
-3-
EXHIBIT C
MATERIAL SUBSIDIARY OPINIONS
The opinions of qualified counsel to be delivered pursuant to Section 4(c)
of the Purchase Agreement shall be to the effect that each Material Subsidiary
of the Company has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as described in the Final Memorandum, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole. For purposes of the Purchase Agreement and this
Exhibit to the Purchase Agreement, Wind River Systems K.K., Wind River Systems
UK Ltd. and Wind River Systems GmbH, Germany, are each a "Material Subsidiary".
EXHIBIT D
OPINION OF ZIEGLER, ZIEGLER & ALTMAN
The opinion of Ziegler, Ziegler & Altman, special New York counsel for the
Company, to be delivered pursuant to Section 4(c) of the Purchase Agreement
shall be to the effect that:
1. The Purchase Agreement is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms (assuming
due execution and delivery by the Initial Purchasers).
2. The Indenture is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms (assuming due
execution and delivery by the Trustee).
3. The Offered Securities when executed and authenticated in
accordance with the provisions of the Indenture and delivered and paid for by
the Initial Purchasers, will be valid and binding obligations of the Company and
the Initial Purchasers will be entitled to the benefits of the Indenture.
Such counsel's opinions may include such assumptions, qualifications,
exceptions and limitations as are customary for opinions with respect to the
foregoing matters.
Such counsel's opinions shall relate solely to New York law.
EXHIBIT E
OPINION OF VENTURE LAW GROUP
The opinion of Venture Law Group, A Professional Corporation, to be
delivered pursuant to Section 4(d) of the Purchase Agreement shall be to the
effect that:
1. Based upon the representations, warranties and agreements of the
Company in sections 1(q), 1(w), 1(x), 5(f), 5(g), 5(h) and 5(k) of the Purchase
Agreement and of the Initial Purchasers (as defined in the Final Memorandum) in
Section 6 of the Purchase Agreement and on the representations and agreements
contained in the Final Memorandum, it is not necessary in connection with the
offer, sale and delivery of the Offered Securities to the Initial Purchasers
under the Purchase Agreement or in connection with the initial resale of such
Offered Securities by the Initial Purchasers in accordance with Section 6 of the
Purchase Agreement to register the Offered Securities or the Shares under the
Securities Act of 1933, as amended, or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended, it being understood that no opinion is
expressed as to any subsequent resale of any Offered Security or Share.
2. The statements in the Final Memorandum under the captions "Description
of Notes," "Description of Capital Stock," "Plan of Distribution," and "Notice
to Investors," insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly summarize in all
material respects the matters referred to therein.
3. The statements in the Final Memorandum under the caption "Taxation"
insofar as such statements constitute a summary of the United States federal tax
laws referred to therein, are accurate and fairly summarize in all material
respects the United States federal tax laws referred to therein.
In addition, such counsel shall state that nothing has come to the
attention of such counsel which causes such counsel to believe that (except for
financial statements and schedules and other financial data included therein as
to which such counsel need not express any belief) the Final Memorandum when
issued contained, or as of the date such opinion is delivered contains, any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. With respect to this
paragraph, counsel may state their opinion and belief are based upon their
participation in the preparation of the Final Memorandum (and any amendments or
supplements thereto) and the documents incorporated therein by reference and
review and discussion of the contents thereof, including incorporated documents,
but are without independent check or verification except as specified.
Such counsel's opinions may include such assumptions, qualifications,
exceptions and limitations as are customary for opinions with respect to the
foregoing matters.
Such counsel's opinions shall relate to California, Delaware corporate and
United States federal law.
-2-
EXHIBIT F
OPINION OF CLEARY, GOTTLIEB, STEEN & HAMILTON
The opinion of Cleary, Gottlieb, Steen & Hamilton, special New York
counsel for the Initial Purchasers, to be delivered pursuant to Section 4(d) of
the Purchase Agreement, shall be to the effect that:
1. The Purchase Agreement has been duly executed and delivered by the
Company under the law of the State of New York.
2. The Indenture has been duly executed and delivered by the Company
under the law of the State of New York, and is a valid, binding and enforceable
agreement of the Company.
3. Upon the execution of the Notes by the Company and the authentication
of the Notes by the Trustee in accordance with the Indenture, and upon delivery
of the Notes in accordance with the Purchase Agreement, the Notes will be the
valid, binding and enforceable obligations of the Company, entitled to the
benefits of the Indenture.
4. The statements set forth under the headings "Description of Notes" in
the Offering Memorandum, insofar as such statements purport to summarize certain
provisions of the Notes and the Indenture, provide a fair summary of such
provisions.
Such counsel's opinions may include such assumptions, qualifications,
exceptions and limitations as are customary for opinions with respect to the
foregoing matters.
Such counsel's opinions shall relate solely to New York law.
EXHIBIT G
Each Memorandum shall contain language to the following effect:
"Each purchaser of Notes will be deemed to have represented and agreed as
follows (terms used in this paragraph that are defined in Rule 144A or
Regulation S under the Securities Act are used herein as defined therein):
(1) The purchaser is either (A) a qualified institutional buyer (a "QIB"),
is aware that the sale of the Notes to it is being made in reliance on Rule 144A
and is acquiring such Notes for its own account or for the account of a QIB, as
the case may be, (B) to an institution that is an accredited investor within the
meaning of 501(a)(1), (2), (3) or (7) under the Securities Act in a transaction
exempt from the registration requirements thereof, or (C) a person other than a
U.S. Person (including dealers or the professional fiduciaries) acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust) and is acquiring the Notes in reliance upon Regulation S under the
Securities Act.
(2) The purchaser understands that the Restricted Notes are being offered
only in a transaction not involving any public offering in the U.S. within the
meaning of the Securities Act, that such Notes and the Common Stock issuable
upon conversion thereof have not been registered under the Securities Act and
that (A) it may not resell, pledge or otherwise transfer any such Notes or
Common Stock except (i) to a person who the seller reasonably believes is a QIB
in a transaction meeting the requirements of Rule 144A, (ii) in an offshore
transaction complying with Rule 903 or Rule 904 of Regulation S, (iii) to an
institution that is an accredited investor within the meaning of Rule
501 (a)(1), (2), (3) or (7) under the Securities Act in a transaction exempt
from the registration requirements thereof, (iv) pursuant to the exemption from
registration under the Securities Act provided by Rule 144 thereunder (if
available), or (v) pursuant to an effective registration statement under the
Securities Act, and in each of cases (i) through (v) in accordance with any
applicable securities laws of the States and other jurisdictions of the U.S.,
and (B) the purchaser will, and each subsequent holder of such Notes or holder
of such Common Stock is required to, notify any purchaser of such Notes or
Common Stock from it of the resale restrictions referred to in (A) above.
(3) The purchaser understands that the Restricted Notes will bear legends
to the following effect unless the Company determines otherwise in compliance
with applicable law:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON ITS
CONVERSION MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THIS NOTE MAY ONLY BE
SOLD IN ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR
INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
TRUSTEE. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS
NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF WIND RIVER SYSTEMS, INC.
(THE "COMPANY") THAT (A) THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON ITS
CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE
PROVISIONS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(III) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 (a) (1), (2), (3) or (7) UNDER THE SECURITIES ACT IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS THEREOF, (IV) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE U.S., AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER OF THIS NOTE OR ANY COMMON STOCK ISSUABLE UPON ITS CONVERSION IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS NOTE OR SUCH COMMON STOCK ISSUABLE UPON ITS
CONVERSION FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
THIS NOTE, ANY COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS NOTE AND
ANY SUCH STOCK TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF
RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY SUCH STOCK
SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH STOCK TO HAVE AGREED
TO ANY SUCH AMENDMENT OR SUPPLEMENT.
Common Stock issuable upon conversion of Notes will bear comparable
legends.
NO REPRESENTATION CAN BE MADE AS TO AVAILABILITY OF THE EXEMPTION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT FOR THE RESALE OF THE NOTES OR ANY COMMON
STOCK ISSUABLE UPON CONVERSION THEREOF."
Each Memorandum shall also contain language to the following effect:
"Each person receiving this Offering Memorandum acknowledges that (i) such
person has been afforded an opportunity to request from the Company and to
review, and has received, all additional information considered by it to be
necessary to verify the accuracy of, or to supplement, the information herein,
(ii) it has not relied on the Initial Purchasers or any person affiliated with
the Initial Purchasers in connection with its investigation of the accuracy of
such information or its investment decision and (iii) no person has been
authorized to give any information or to make any representation concerning the
Company or the Notes or the Common Stock offered hereby other than as contained
herein and information given by duly authorized officers and employees of the
Company in connection with investors' examination of the Company and the terms
of the offering, and, if given or made, such other information or
representations should not be relied upon as having been authorized by the
Company or the Initial Purchasers."
Each Memorandum shall also contain language to the following effect:
"Each purchaser of Notes offered hereby will be deemed to have represented
and agreed that such purchaser understands that the Notes (and the Common Stock
issuable upon conversion thereof) have not been registered under the Securities
Act and may not be offered, sold or delivered in the United States or to, or for
the account of, any U.S. Person, unless the Notes (and such Common Stock) are
registered under the Securities Act or an exemption from the registration
requirements thereof is available and the Notes and such Common Stock will bear
a legend to this effect, unless the Company determines otherwise in compliance
with applicable laws (terms used above that are defined in Regulation S are used
above as therein defined)."