WIND RIVER SYSTEMS, INC.
EXECUTIVE OFFICERS' CHANGE OF CONTROL
INCENTIVE AND SEVERANCE BENEFIT PLAN
SECTION 1. INTRODUCTION.
This Wind River Systems, Inc. Executive Officers' Change of Control
Incentive and Severance Benefit Plan (the "Plan") was approved by the
Compensation Committee of the Board of Directors of Wind River Systems, Inc.
(the "Company") on November 16, 1995 (the "Effective Date"). The purpose of
the Plan is to encourage valued senior employees to work in the Company's
best interests during and following a Change of Control (defined below) by
providing for the payment of incentive and severance benefits as set forth
herein. This Plan shall supersede any group severance benefit plan, policy
or practice previously maintained by the Company for the employees described
herein. This Plan document also is the Summary Plan Description for the Plan.
SECTION 2. ELIGIBILITY FOR BENEFITS.
(a) GENERAL RULES. Subject to the requirements set forth in this
Section 2, and subject to further limitations set forth subsequently in this
Plan, the Company will award incentive benefits to Eligible Employees and
will grant severance benefits during the Benefit Period to Eligible
Employees. As a condition of receiving severance benefits under the Plan,
each Eligible Employee must execute a general waiver and release, on the form
provided by the Company, which releases the Company from any and all claims
the Eligible Employee may have against the Company.
(i) "ELIGIBLE EMPLOYEES" are, for purposes of the Plan's
incentive benefits, all employees employed at the level of Vice President or
above at the time of the occurrence of a Change of Control. This term, for
purposes of the Plan's severance benefits, shall mean all employees employed
at the level of Vice President or above whose employment with the Company is
involuntarily terminated other than for Cause or who voluntarily terminate
employment for Good Reason, at any time within twelve (12) months following a
Change of Control.
(ii) "CHANGE OF CONTROL" shall mean (i) a merger or consolidation
in which the Company is not the surviving corporation; (ii) a reverse merger
in which the Company is the surviving corporation but the shares of the
Company's common stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form of
securities, cash or otherwise; (iii) any other capital reorganization in
which the beneficial ownership of more than fifty percent (50%) of the shares
of the Company entitled to vote changes; (iv) a transaction or group of
related transactions involving the sale of all or substantially all of the
Company's assets; or (v) the acquisition by any person, entity or group
(excluding any employee benefit plan, or related trust, sponsored or
maintained by the Company
or any subsidiary of the Company) of the beneficial ownership, directly or
indirectly, of securities of the Company representing more than fifty percent
(50%) of the combined voting power in the election of directors.
(iii) "CAUSE" shall mean misconduct, including: (i) conviction of
any felony or any crime involving moral turpitude or dishonesty; (ii)
participation in a fraud or act of dishonesty against the Company; (iii)
conduct by Executive which based upon a good faith and reasonable factual
investigation and determination by the Company demonstrates gross unfitness
to serve; or (iv) intentional, material violation by Executive of any
contract between Executive and the Company or any statutory duty of Executive
to the Company that is not corrected within thirty (30) days after written
notice to Executive thereof. Physical or mental disability shall not
constitute "Cause".
(iv) "GOOD REASON" shall mean any one of the following events
which occurs on or after the date of the Change of Control: (i) reduction of
the Eligible Employee's rate of compensation; (ii) reduction in the package
of welfare benefit plans, taken as a whole, provided to the Eligible Employee
(except that employee contributions may be raised to the extent of any cost
increases imposed by third parties) or any action by the Company which would
adversely affect the Eligible Employee's participation or reduce the Eligible
Employee's benefits under any of such plans; (iii) change in the Eligible
Employee's responsibilities, authority, title, reporting relationship or
offices resulting in diminution of position, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith which
is remedied by the Company promptly after notice thereof is given by the
Eligible Employee; (iv) request that the Eligible Employee relocate to a
worksite that is more than 35 miles from his prior worksite, unless the
Eligible Employee accepts such relocation opportunity; (v) material reduction
in Eligible Employee's duties; (vi) failure or refusal of a successor to the
Company to assume the Company's obligations under the Plan; or (vii) material
breach by the Company or any successor to the Company of any of the material
provisions of the Plan.
(v) "BENEFIT PERIOD" shall mean the period commencing on the date
an employee of the Company becomes an Eligible Employee as defined in
paragraph (i) of this Subsection (a) (the "Termination Date") and continuing
for twelve (12) months (eighteen (18) months if the Eligible Employee is the
Company's Chief Executive Officer) following the Termination Date, if the
Termination Date occurs at any time within twelve (12) months after the
Change of Control.
(b) EXCEPTIONS. An employee who otherwise is an Eligible Employee will
not receive severance benefits under the Plan in any of the following
circumstances:
(i) The employee voluntarily terminates employment with the
Company other than for Good Reason.
(ii) The employee voluntarily terminates employment with the
Company in order to accept employment with another entity that is wholly or
partly owned (directly or
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indirectly) by the Company or a successor to the Company, or is wholly or
partly owned (directly or indirectly) by the parent or other affiliate of the
Company or its successor.
SECTION 3. AMOUNT OF INCENTIVE AND SEVERANCE BENEFITS.
(a) INCENTIVE BENEFITS. Individuals who are Eligible Employees at the
time of a Change of Control shall receive the following incentive benefits:
(i) If, on the date of the Change of Control, the Eligible
Employee has outstanding stock options to purchase shares in the stock of the
Company, the vesting schedule for such outstanding stock options, to the
extent not already vested, shall be accelerated by a period of one year.
(ii) If on the date of the Change of Control, the Eligible
Employee is the Chief Executive Officer of the Company, and the Chief
Executive Officer has outstanding stock options to purchase shares in the
stock of the Company, the vesting schedule for such outstanding stock
options, to the extent not already vested, shall be accelerated by a period
of two years.
(iii) Notwithstanding the provisions of the preceding paragraph
3(a)(ii), in the event that the Company shall determine that the acceleration
of the vesting schedule for the Chief Executive Officer's outstanding options
shall cause the Chief Executive Officer to become subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code (the "Code") because
some of the value of the option acceleration would constitute an excess
parachute payment within the meaning of Section 280G of the Code (the "Excise
Tax"), then the Company shall make a determination of the maximum number of
shares subject to such options which may receive accelerated vesting without
triggering the Excise Tax and the vesting schedule only with respect to those
shares shall be accelerated. In making this determination, the Company shall
first include those shares subject to options which would otherwise vest
immediately upon the occurrence of the date of the Change of Control, and if
all of those shares subject to option may vest without triggering the Excise
Tax, then the Company shall then include the maximum number of remaining
shares subject to options which may receive accelerated vesting without
triggering the Excise Tax in the order of the length of time which the Chief
Executive Officer must provide continued service in order to vest in those
shares, with the shares subject to the shortest remaining vesting period
being counted first. If all of the shares subject to options which would
otherwise vest immediately upon the occurrence of the date of the Change of
Control may not receive accelerated vesting without triggering the Excise
Tax, then the Company shall accelerate the vesting on the maximum number of
shares subject to options which is possible without triggering the Excise Tax
in the order of the exercise price which the Chief Executive Officer must pay
to purchase the shares, with the shares subject to the lowest exercise price
being counted first. The Company's determination shall be final and binding
upon all parties with an interest in these calculations, including the Chief
Executive Officer.
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(b) SEVERANCE BENEFITS. Eligible Employees whose employment is
terminated as described in Subsection 2(a) of this Plan will receive, subject
to Section 4 hereof, the following severance benefits:
(i) The Eligible Employee shall receive Compensation during the
Benefit Period. "Compensation" shall be the Eligible Employee's total base
pay and bonus (excluding draws, commissions, and other forms of additional
compensation). For purposes of this paragraph 3(b)(i), the amount of the
Eligible Employee's base pay shall be equal to the amount of base pay
actually paid to the Eligible Employee during the twelve (12) month period
(eighteen (18) months if the Eligible Employee is the Company's Chief
Executive Officer) immediately preceding the Termination Date. For purposes
of this paragraph 3(b)(i), the amount of the bonus shall be determined based
upon the bonus which the Eligible Employee would have been entitled to
receive under the terms of the Company's annual incentive bonus plan for the
Company's fiscal year in which the Termination Date occurs, assuming on-plan
performance by the Eligible Employee and the Company. If the Eligible
Employee is the Company's Chief Executive Officer, this bonus amount shall be
multiplied by a factor of 1.5.
(ii) The Eligible Employee shall receive a bonus payment for the
year in which the Termination Date occurs if the Eligible Employee received a
bonus payment for the year immediately preceding the year in which the
Termination Date occurs. The amount of the bonus payment payable for the
year in which the Termination Date occurs shall be equal to the amount of the
bonus payment, if any, paid to the Eligible Employee for the year immediately
preceding the year in which the Termination Date occurs, multiplied by a
fraction, the numerator of which shall be the number of months the Eligible
Employee works for the Company during the year in which the Termination Date
occurs, including the month in which the Termination Date occurs, and the
denominator of which shall be twelve.
(iii) If, on the Termination Date, the Eligible Employee has
outstanding stock options to purchase shares in the stock of the Company,
such outstanding stock options, to the extent they would otherwise vest if
the Eligible Employee completed twelve months of employment with the Company
following the Termination Date, shall become vested and exercisable on the
Termination Date. In addition, to the extent that any portion of the
outstanding stock options of the Company's Chief Executive Officer did not
become fully vested under paragraph 3(a)(ii) of the Plan because of the
limitation of paragraph 3(a)(iii) of the Plan, such options shall become
vested and exercisable on the Termination Date.
(iv) If the Eligible Employee elects continuation coverage, the
Company shall pay the Eligible Employee's health or dental plan premiums for
coverage required under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") as set forth in further detail under Subsection 9(a) below.
SECTION 4. LIMITATION ON AMOUNT OF BENEFIT; GOLDEN PARACHUTE TAXES.
(a) Notwithstanding any other provision of the Plan to the contrary,
any benefits payable to an Eligible Employee under this Plan shall be offset,
to the maximum extent permitted
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by law, by any severance benefits payable by the Company to such individual
under any other arrangement covering the individual.
(b) Notwithstanding any other provision of the Plan to the contrary,
(i) the severance benefits under this Plan are in lieu of any other benefit
provided under any other group severance plan of the Company and (ii)
severance benefits under this Plan shall be reduced by the amount of any
payment to which the Eligible Employee is entitled under any individual
severance agreement then in effect between the Eligible Employee and the
Company. In addition, the Company shall withhold appropriate federal, state,
local and foreign income and employment taxes from any payments hereunder.
(c) Notwithstanding any other provision of the Plan to the contrary, in
the event it shall be determined, either by the Company or by a final
determination of the Internal Revenue Service, that any payment or
distribution by the Company to or for the benefit of an Eligible Employee,
whether paid or payable or distributed or distributable pursuant to the terms
of the Plan or otherwise (the "Payments"), with the exception of incentive
benefits described under Subsection 3(a) of the Plan, would cause the
Eligible Employee to become subject to the excise tax imposed by Section 4999
of the Code (the "Excise Tax"), then the Company shall pay to the Eligible
Employee, within the later of ninety (90) days of the Termination Date or
ninety (90) days of the date of determination referred to above, an
additional amount (the "Gross-Up Payment") such that the net amount retained
by the Eligible Employee, after deduction of any Excise Tax and any federal
(and state and local) income and employment taxes on the Gross-Up Payment,
shall be equal to the Payments. For purposes of determining the amount of
the Gross-Up Payment, the Eligible Employee shall be deemed to pay federal,
state and local income taxes at the highest nominal marginal rate of such
federal, state and local income taxation in the calendar year in which the
Gross-Up Payment is made, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
In the event that the Excise Tax is subsequently determined to be less than
the amount taken into account to determine the amount of the Gross-Up
Payment, then the Eligible Employee shall repay to the Company at that time
the portion of the Gross-Up Payment attributable to such reduction (plus an
amount equal to any tax reduction, whether of the Excise Tax, any applicable
income tax, or any applicable employment tax, which the Eligible Employee may
enjoy as a result of such initial repayment). In the event that the Excise
Tax is subsequently determined, whether by the Company or by a final
determination of the Internal Revenue Service, to be more than the amount
taken into account to determine the amount of the Gross-Up Payment, then the
Company shall pay to the Eligible Employee an additional amount, which shall
be determined using the same methods as were used for calculating the
Gross-Up Payment, with respect to such excess. For purposes of this
Subsection 4(c), a determination of the Internal Revenue Service as to the
amount of Excise Tax for which an Eligible Employee is liable shall not be
treated as final until the time that either (i) the Company agrees to
acquiesce to the determination of the Internal Revenue Service or (ii) the
determination of the Internal Revenue Service has been upheld in a court of
competent jurisdiction and the Company decides not to appeal such judicial
decision or such decision is not appealable. If the Company chooses to
contest the determination of the
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Internal Revenue Service, then all costs, attorneys fees, and other expenses
shall be borne by the Company.
SECTION 5. NOTICE OF TERMINATION.
Any termination by the Company, whether or not for Cause, or by the
Eligible Employee for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given by hand delivery or by registered
or certified mail, return receipt requested, postage prepaid, if to the
Eligible Employee, then to the Eligible Employee at the Eligible Employee's
address as set forth in the Company's records, and, if to the Company, to
Wind River Systems, Inc., 1010 Atlantic Avenue, Alameda, CA 94501 Attention:
Chief Financial Officer. For purposes of the Plan, a Notice of Termination
means a written notice which (i) indicates the specific termination provision
in the Plan relied upon and (ii) if the Termination Date is other than the
date of receipt of such notice, specifies the Termination Date (which date
shall be not more than fifteen (15) days after the giving of such notice).
The failure by the Company or the Eligible Employee to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing
of Cause or of Good Reason shall not waive any right of the Company or of the
Eligible Employee, respectively, or preclude the Company or the Eligible
Employee, respectively, from asserting such fact or circumstance in enforcing
its, his or her rights hereunder.
SECTION 6. TIME OF PAYMENT AND FORM OF BENEFIT.
The Company reserves the right to pay the salary continuation severance
payments described in paragraph 3(b)(i) of the Plan in accordance with its
regular payroll cycle or to choose an alternative accelerated timing for such
payments. Bonus payments described in paragraph 3(b)(ii), if any, may be
paid by the Company in the normal course of business, or at such other time
as may be determined by the Company, but in no event later than the time on
which bonuses for the fiscal year of the Company in which the Termination
Date occurs would regularly be paid to those individuals remaining employed
by the Company. Notwithstanding the foregoing, all payments under this Plan
will be completed within twelve (12) months of an Eligible Employee's
Termination Date (eighteen (18) months if the Eligible Employee is the
Company's Chief Executive Officer). If an Eligible Employee is indebted to
the Company at his or her Termination Date, the Company reserves the right to
offset any severance benefits under the Plan by the amount of such
indebtedness. In no event shall payment of any Plan benefit payable in cash
be made prior to the Eligible Employee's Termination Date.
SECTION 7. MITIGATION.
The Eligible Employee shall not be required to mitigate the amount of
the severance benefits payable under this Plan by seeking other employment or
otherwise, and any amount earned by the Eligible Employee after the
Termination Date shall not reduce or otherwise affect the amount of such
severance benefits, including salary continuance, during the Benefit Period.
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SECTION 8. RIGHT TO INTERPRET PLAN; AMEND AND TERMINATE; OTHER
ARRANGEMENTS.
(a) EXCLUSIVE DISCRETION. The Plan Administrator (as defined in
Subsection 13(a) below) shall have the exclusive discretion and authority to
establish rules, forms, and procedures for the administration of the Plan,
and to construe and interpret the Plan and to decide any and all questions of
fact, interpretation, definition, computation or administration arising in
connection with the operation of the Plan, including, but not limited to, the
eligibility to participate in the Plan and amount of benefits paid under the
Plan. The rules, interpretations, computations and other actions of the Plan
Administrator shall be binding and conclusive on all persons.
(b) AMENDMENT OR TERMINATION. The Compensation Committee of the Board
of Directors of the Company reserves the right to amend or discontinue this
Plan or the benefits provided hereunder at any time; provided, however, that
no such amendment or termination shall affect the right to any unpaid benefit
of any Eligible Employee whose Termination Date has occurred prior to
amendment or termination of the Plan. Any action amending or terminating the
Plan shall be in writing and executed by the Chief Executive Officer or Chief
Financial Officer of the Company.
SECTION 9. CONTINUATION OF EMPLOYMENT BENEFITS.
(a) COBRA CONTINUATION. Each Eligible Employee who is enrolled in a
health or dental plan sponsored by the Company may be eligible to continue
coverage under such health or dental plan (or to convert to an individual
policy), at the time of the Eligible Employee's termination of employment.
The Company agrees to pay the premiums for COBRA continuation coverage for
the Eligible Employee and his or her qualified beneficiaries for the period
ending on the earlier of (i) the end of the Benefit Period or (ii) the date
on which the Eligible Employee is no longer entitled to COBRA continuation
coverage as provided by law. The Company will notify the individual of any
such right to continue health coverage at the time of termination. No
provision of this Plan will affect the continuation coverage rules under
COBRA, except that the Company's payment of any applicable insurance premiums
will be credited as payment by the Eligible Employee for purposes of the
Eligible Employee's payment required under COBRA. Therefore, the period
during which an Eligible Employee must elect to continue the Company's group
medical or dental coverage under COBRA, the length of time during which COBRA
coverage will be made available to the Eligible Employee, and all other
rights and obligations of the Eligible Employee under COBRA (except the
obligation to pay insurance premiums that the Company pays) will be applied
in the same manner that such rules would apply in the absence of this Plan.
At the conclusion of the period, described above, during which the Company
will pay the Eligible Employee's COBRA premiums, the Eligible Employee will
be responsible for the entire payment of premiums required under COBRA, if
any, for the duration of the COBRA period.
(b) OTHER EMPLOYEE BENEFITS. All non-health benefits (such as life
insurance and disability coverage) terminate as of the employee's Termination
Date as provided under the
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terms of those benefit plans in effect at such time (except to the extent
that any conversion privilege is available thereunder).
SECTION 10. INDEMNIFICATION.
The Company shall continue to indemnify the Eligible Employee against
potential civil liability claims arising during the period during which such
Eligible Employee was an employee of the Company in accordance with the
indemnification policies and agreements applicable to such Eligible Employee
on the date of termination to the extent permitted by applicable law. Such
indemnification shall continue from the date of termination until the statute
of limitations period expires on such potential civil liability claims.
SECTION 11. NO IMPLIED EMPLOYMENT CONTRACT.
The Plan shall not be deemed (i) to give any employee or other person
any right to be retained in the employ of the Company and shall not be deemed
(ii) to interfere with the right of the Company to discharge any employee or
other person at any time and for any reason, which right is hereby reserved.
SECTION 12. LEGAL CONSTRUCTION.
This Plan is intended to be governed by and shall be construed in
accordance with the Employee Retirement Income Security Act of 1974 ("ERISA")
as a "welfare benefit plan" as defined in Section 3(1) of ERISA, and, to the
extent not preempted by ERISA, the laws of the State of California. If any
term, provision, covenant or restriction of the Plan is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of the Plan shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
SECTION 13. CLAIMS, INQUIRIES AND APPEALS.
(a) APPLICATIONS FOR BENEFITS AND INQUIRIES. Any application for
benefits, inquiries about the Plan or inquiries about present or future
rights under the Plan must be submitted to the Plan Administrator in writing.
The Plan Administrator is:
Wind River Systems, Inc.
1010 Atlantic Avenue
Alameda, CA 94501
(b) DENIAL OF CLAIMS. In the event that any application for benefits
is denied in whole or in part, the Plan Administrator must notify the
applicant, in writing, of the denial of the application, and of the
applicant's right to review the denial. The written notice of denial will be
set forth in a manner designed to be understood by the employee, and will
include specific reasons for the denial, specific references to the Plan
provision upon which the denial is based, a description of any information or
material that the Plan Administrator needs to complete the review and an
explanation of the Plan's review procedure.
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This written notice will be given to the employee within 90 days after
the Plan Administrator receives the application, unless special circumstances
require an extension of time, in which case, the Plan Administrator has up to
an additional 90 days for processing the application. If an extension of
time for processing is required, written notice of the extension will be
furnished to the applicant before the end of the initial 90-day period.
This notice of extension will describe the special circumstances
necessitating the additional time and the date by which the Plan
Administrator is to render its decision on the application. If written
notice of denial of the application for benefits is not furnished within the
specified time, the application shall be deemed to be denied. The applicant
will then be permitted to appeal the denial in accordance with the review
procedure described below.
(c) REQUEST FOR A REVIEW. Any person (or that person's authorized
representative) for whom an application for benefits is denied (or deemed
denied), in whole or in part, may appeal the denial by submitting a request
for a review to the Plan Administrator within 60 days after the application
is denied (or deemed denied). The Plan Administrator will give the applicant
(or his or her representative) an opportunity to review pertinent documents
in preparing a request for a review. A request for a review shall be in
writing and shall be addressed to:
Wind River Systems, Inc.
1010 Atlantic Avenue
Alameda, CA 94501
A request for review must set forth all of the grounds on which it is based,
all facts in support of the request and any other matters that the applicant
feels are pertinent. The Plan Administrator may require the applicant to
submit additional facts, documents or other material as it may find necessary
or appropriate in making its review.
(d) DECISION ON REVIEW. The Plan Administrator will act on each
request for review within 60 days after receipt of the request, unless
special circumstances require an extension of time (not to exceed an
additional 60 days), for processing the request for a review. If an
extension for review is required, written notice of the extension will be
furnished to the applicant within the initial 60-day period. The Plan
Administrator will give prompt, written notice of its decision to the
applicant. In the event that the Plan Administrator confirms the denial of
the application for benefits in whole or in part, the notice will outline, in
a manner calculated to be understood by the applicant, the specific Plan
provisions upon which the decision is based. If written notice of the Plan
Administrator's decision is not given to the applicant within the time
prescribed in this Subsection (d), the application will be deemed denied on
review.
(e) RULES AND PROCEDURES. The Plan Administrator will establish rules
and procedures, consistent with the Plan and with ERISA, as necessary and
appropriate in carrying out its responsibilities in reviewing benefit claims.
The Plan Administrator may require an applicant who wishes to submit
additional information in connection with an appeal from the denial (or
deemed denial) of benefits to do so at the applicant's own expense.
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(f) EXHAUSTION OF REMEDIES. No legal action for benefits under the
Plan may be brought until the claimant (i) has submitted a written
application for benefits in accordance with the procedures described by
Subsection 13(a) above, (ii) has been notified by the Plan Administrator that
the application is denied (or the application is deemed denied due to the
Plan Administrator's failure to act on it within the established time
period), (iii) has filed a written request for a review of the application in
accordance with the appeal procedure described in Subsection 13(c) above and
(iv) has been notified in writing that the Plan Administrator has denied the
appeal (or the appeal is deemed to be denied due to the Plan Administrator's
failure to take any action on the claim within the time prescribed by
Subsection 13(d) above).
SECTION 14. BASIS OF PAYMENTS TO AND FROM PLAN.
All benefits under the Plan shall be paid by the Company. The Plan
shall be unfunded, and benefits hereunder shall be paid only from the general
assets of the Company.
SECTION 15. OTHER PLAN INFORMATION.
(a) EMPLOYER AND PLAN IDENTIFICATION NUMBERS. The Employer
Identification Number assigned to the Company (which is the "Plan Sponsor" as
that term is used in ERISA) by the Internal Revenue Service is 94-2873391.
The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the
instructions of the Internal Revenue Service is 503.
(b) ENDING DATE FOR PLAN'S FISCAL YEAR. The date of the end of the
fiscal year for the purpose of maintaining the Plan's records is December 31.
(c) AGENT FOR THE SERVICE OF LEGAL PROCESS. The agent for the service
of legal process with respect to the Plan is: Wind River Systems, Inc., 1010
Atlantic Avenue, Alameda, CA 94501, Attn: Chief Financial Officer. Service
of legal process also may be made upon the Plan Administrator.
(d) PLAN SPONSOR AND ADMINISTRATOR. The "Plan Sponsor" and the "Plan
Administrator" of the Plan is Wind River Systems, Inc. 1010 Atlantic Avenue,
Alameda, CA 94501. The Plan Sponsor's and Plan Administrator's telephone
number is (510) 748-4100. The Plan Administrator is the named fiduciary
charged with the responsibility for administering the Plan.
SECTION 16. STATEMENT OF ERISA RIGHTS.
Participants in this Plan (which is intended to be an ERISA welfare
benefit plan sponsored by Wind River Systems, Inc.) are entitled to certain
rights and protections under ERISA. If you are an Eligible Employee, you are
considered a participant in the Plan and, under ERISA, you are entitled to:
(a) Examine, without charge, at the Plan Administrator's office and at
other specified locations, such as work sites, all Plan documents and copies
of all documents filed by the Plan with the U.S. Department of Labor, such as
detailed annual reports;
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(b) Obtain copies of all Plan documents and Plan information upon
written request to the Plan Administrator. The Administrator may make a
reasonable charge for the copies;
(c) Receive a summary of the Plan's annual financial report, in the
case of a plan which is required to file an annual financial report with the
Department of Labor. (Generally, all pension plans and welfare plans with
100 or more participants must file these annual reports.)
In addition to creating rights for Plan participants, ERISA imposes
duties upon the people responsible for the operation of the employee benefit
plan. The people who operate the Plan, called "fiduciaries" of the Plan,
have a duty to do so prudently and in the interest of you and other Plan
participants and beneficiaries.
No one, including your employer or any other person, may fire you or
otherwise discriminate against you in any way to prevent you from obtaining a
Plan benefit or exercising your rights under ERISA. If your claim for a Plan
benefit is denied in whole or in part, you must receive a written explanation
of the reason for the denial. You have the right to have the Plan review and
reconsider your claim.
Under ERISA, there are steps you can take to enforce the above rights.
For instance, if you request materials from the Plan and do not receive them
within 30 days, you may file suit in a federal court. In such a case, the
court may require the Plan Administrator to provide the materials and pay you
up to $100 a day until you receive the materials, unless the materials were
not sent because of reasons beyond the control of the Plan Administrator. If
you have a claim for benefits that is denied or ignored, in whole or in part,
you may file suit in a state or federal court. If it should happen that the
Plan fiduciaries misuse the Plan's money, or if you are discriminated against
for asserting your rights, you may seek assistance from the U.S. Department
of Labor, or you may file suit in a federal court. The court will decide who
should pay court costs and legal fees. If you are successful, the court may
order the person you have sued to pay these costs and fees. If you lose, the
court may order you to pay these costs and fees, for example, if it finds
your claim is frivolous.
If you have any questions about the Plan, you should contact the Plan
Administrator. If you have any questions about your rights under ERISA, you
should contact the nearest area office of the U.S. Labor - Management
Services Administration, Department of Labor.
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SECTION 17. EXECUTION.
To record the adoption of the Plan as set forth herein, effective as of
November 16, 1995, Wind River Systems, Inc. has caused its duly authorized
officer to execute the same this ____ day of __________, 1995.
WIND RIVER SYSTEMS, INC.
By:
--------------------------------
Title:
-----------------------------
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