EXHIBIT 10.23
WIND RIVER SYSTEMS, INC.
NONSTATUTORY STOCK OPTION
(1998 EQUITY PLAN)
_________________________, Optionee:
WIND RIVER SYSTEMS, INC. (the "Company"), pursuant to its 1998 EQUITY
INCENTIVE PLAN (the "Plan"), has granted to you, the optionee named above, an
option to purchase shares of the common stock of the Company ("Common
Stock"). This option is not intended to qualify as and will not be treated as
an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is ____________________
(______).
2. VESTING. Subject to the limitations contained herein, 1/4th of the
shares covered by this option will vest (become exercisable) on ____________,
19__ (12 months after the date of grant) and 1/48th of the shares will then
vest each month thereafter until either (i) you cease to provide services to
the Company for any reason, or (ii) this option becomes fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option is
_______________________ ($____) per share, being not less than 85% of the
fair market value of the Common Stock on the date of grant of this option.
(b) METHOD OF PAYMENT. Payment of the exercise price per share is
due in full upon exercise of all or any part of each installment that has
accrued to you. You may elect, to the extent permitted by applicable
statutes and regulations, to make payment of the exercise price under one of
the following alternatives:
(i) Payment of the exercise price per share in cash
(including check) at the time of exercise;
(ii) Payment pursuant to a program developed under Regulation
T as promulgated by the Federal Reserve Board which, prior to the issuance of
Common Stock, results in either the receipt of cash (or check) by the Company
or the receipt of irrevocable instructions to pay the aggregate exercise
price to the Company from the sales proceeds;
(iii) Provided that at the time of exercise the Company's
Common Stock is publicly traded and quoted regularly in the Wall Street
Journal, payment by delivery of already-owned shares of Common Stock, held
for the period required to avoid a charge to the Company's reported earnings,
and owned free and clear of any liens, claims, encumbrances or
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security interests, which Common Stock shall be valued at its fair market
value on the date of exercise; or
(iv) Payment by a combination of the methods of payment
permitted by subsection 3(b)(i) through 3(b)(ii) above.
4. WHOLE SHARES. This option may not be exercised for any number of
shares that would require the issuance of anything other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the
contrary contained herein, this option may not be exercised unless the shares
issuable upon exercise of this option are then registered under the
Securities Act of 1933, as amended (the "Securities Act"), or, if such shares
are not then so registered, the Company has determined that such exercise and
issuance would be exempt from the registration requirements of the Securities
Act.
6. TERM. The term of this option commences on __________, 19__, the
date of grant, and expires at midnight on ______________________ (the
"Expiration Date," which is the day before the tenth anniversary from the
date of grant), unless this option expires sooner as set forth below or in
the Plan. In no event may this option be exercised on or after the
Expiration Date. This option shall terminate prior to the Expiration Date of
its term as follows: three (3) months after the termination of your
Continuous Status as an Employee, Director or Consultant (as defined in the
Plan) with the Company or an Affiliate of the Company unless one of the
following circumstances exists:
(a) If your termination of Continuous Status as an Employee,
Director or Consultant is due to your permanent and total disability (within
the meaning of Section 422(c)(6) of the Code), then this option will then
expire on the earlier of the Expiration Date set forth above or twelve (12)
months following such termination.
(b) If your termination of Continuous Status as an Employee,
Director or Consultant is due to your death or your death occurs within three
(3) months following such termination, then this option will then expire on
the earlier of the Expiration Date set forth above or eighteen (18) months
after your death.
(c) If during any part of such three (3) month period you may not
exercise your option solely because of the condition set forth in Section 5
above, then your option will not expire until the earlier of the Expiration
Date set forth above or until this option shall have been exercisable for an
aggregate period of three (3) months after your termination of Continuous
Status as an Employee, Director or Consultant.
However, this option may be exercised following termination of
Continuous Status as an Employee, Director or Consultant only as to that number
of shares as to which it was exercisable on the date of such termination under
the schedule set forth in Section 2 of this option.
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7. EXERCISE.
(a) This option may be exercised, to the extent specified above,
by delivering a notice of exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require
pursuant to subsection 10(e) of the Plan.
(b) By exercising this option you agree that, as a precondition to
the completion of any exercise of this option, the Company may require you to
enter an arrangement providing for the payment by you to the Company of any
tax withholding obligation of the Company arising by reason of (1) the
exercise of this option; (2) the lapse of any substantial risk of forfeiture
to which the shares are subject at the time of exercise; or (3) the
disposition of shares acquired upon such exercise.
8. TRANSFERABILITY. This option is not transferable, except by will
or by the laws of descent and distribution, and is exercisable during your
life only by you. Notwithstanding the foregoing, by delivering written
notice to the Company, in a form satisfactory to the Company, you may
designate a third party who, in the event of your death, shall thereafter be
entitled to exercise this option.
9. OPTION NOT A SERVICE CONTRACT. This option is not an employment
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the
Company or an Affiliate, or of the Company or an Affiliate to continue your
employment. In addition, nothing in this option shall obligate the Company or
any Affiliate of the Company, or their respective stockholders, Board of
Directors, officers or employees to continue any relationship that you might
have as a Director or Consultant for the Company or Affiliate.
10. NOTICES. Any notices provided for in this option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by the Company to you, five (5) days after
deposit in the United States mail, postage prepaid, addressed to you at the
address specified below or at such other address as you hereafter designate
by written notice to the Company.
11. CHANGE OF CONTROL.
(a) In the event of: (1) a dissolution or liquidation of the
Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; or (3) 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, then, subject to paragraph (c) of this Section 11, at the sole
discretion of the Board and to the extent permitted by applicable law: (i)
any surviving corporation shall assume any Options outstanding under the Plan
or shall substitute similar Options for those outstanding under the Plan,
(ii) such Stock Awards shall continue in full force and effect, or (iii) the
time during which such Stock Awards become vested or may be exercised shall
be accelerated and any outstanding unexercised rights under any Stock
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Awards terminated if not exercised prior to such event. In the event any
surviving corporation or acquiring corporation refuses to assume such Options
or to substitute similar Options for those outstanding under the Plan, then
with respect to Options held by Optionees whose Continuous Service has not
terminated, the vesting shall be accelerated in full, and the Options shall
terminate if not exercised at or prior to such event. With respect to any
other Options outstanding under the Plan, such Options shall terminate if not
exercised prior to such event.
(b) In the event of either (i) the acquisition by any person,
entity or group within the meaning of Section 13(d) or 14(d) of the Exchange Act
or any comparable successor provisions (excluding any employee benefit plan, or
related trust, sponsored or maintained by the Company or an Affiliate of the
Company) of the beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act, or comparable successor rule) of securities
of the Company representing at least fifty percent (50%) of the combined voting
power entitled to vote in the election of directors, which acquisition has not
been approved by resolution of the Company's Board of Directors, or (ii) a
change in a majority of the membership of the Company's Board of Directors
within a twenty-four (24) month period where the selection of such majority
either (A) was not approved by a majority of the members of the Board of
Directors at the beginning of such twenty-four (24) month period or (B) occurred
as the result of an actual or threatened "Election Contest" (as described in
Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of any person other than the
Board (a "Proxy Contest"), including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest, then to the extent not
prohibited by applicable law, the time during which options outstanding under
the Plan may be exercised shall be accelerated prior to such event, but only to
the extent that such options would have become exercisable within thirty (30)
months of the date of such event, and the options terminated if not exercised
after such acceleration and at or prior to such event.
12. GOVERNING PLAN DOCUMENT. This option is subject to all the
provisions of the Plan, a copy of which is attached hereto and its provisions
are hereby made a part of this option, including without limitation the
provisions of Section 6 of the Plan relating to option provisions and Section
13 relating to adjustments upon changes in stock, and is further subject to
all interpretations, amendments, rules and regulations which may from time to
time be promulgated and adopted pursuant to the Plan. In the event of any
conflict between the provisions of this option and those of the Plan, the
provisions of the Plan shall control.
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Dated the ____ day of __________________, 19__.
Very truly yours,
WIND RIVER SYSTEMS, INC.
By: ___________________________________
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
Wind River Systems, Inc. 1998 Equity Incentive Plan
Notice of Exercise
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* * * *
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein and understands that all rights and
liabilities with respect to this option are set forth in the option and the
Plan; and
(b) Acknowledges that as of the date of grant of this option, it
sets forth the entire understanding between the undersigned optionee and the
Company and its Affiliates regarding the acquisition of stock in the Company
under this option and supersedes all prior oral and written agreements on
that subject with the exception of (i) the options previously granted and
delivered to the undersigned under stock option plans of the Company, and
(ii) the following agreements only:
NONE __________________
(Initial)
OTHER __________________________________
__________________________________
__________________________________
_____________________________________________
OPTIONEE
Address: ____________________________________
_____________________________________________
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