Exhibit 10.2
WIND RIVER SYSTEMS,
INC.
SECOND AMENDMENT TO EXECUTIVE
EMPLOYMENT AGREEMENT
This Second Amendment to the
Executive Employment Agreement (the “Second Amendment”)
is made effective as of the last date signed below, by and between
Wind River Systems, Inc. (the “Company”), and Kenneth
R. Klein (the “Executive”).
RECITALS
WHEREAS , the Company and Executive entered into that
certain Executive Employment Agreement dated November 5, 2003
(the “Agreement”).
WHEREAS , the Company and Executive previously amended
the Agreement in 2008 to comply with the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “First Amendment”).
WHEREAS , the Company and Executive now desire to
further amend the Agreement to replace the golden parachute excise
tax gross-up provisions with a “best results” golden
parachute excise tax provision, in consideration of the Company
separately granting Executive a restricted stock unit award
covering fifty thousand restricted stock units.
NOW, THEREFORE
, the Company and Executive agree
that in consideration of the foregoing and the promises and
covenants contained herein, the parties agree as
follows:
AGREEMENT
1. Parachute Payments .
Section 7.3 of the Agreement, entitled “Parachute
Payments,” is hereby amended in its entirety to read as
follows:
7.3 Parachute Payments
. In the event that the severance
and other benefits provided for in this Agreement or otherwise
payable or provided to Executive (i) constitute
“parachute payments” within the meaning of
Section 280G of the Internal Revenue Code (the
“Code”), and (ii) but for this Section 7.3,
would be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”), then the Executive’s
benefits shall be either (a) delivered in full, or
(b) delivered as to such lesser extent which would result in
no portion of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by the Executive on an after-tax basis,
of the greatest amount of benefits, notwithstanding that all or
some portion of such Plan benefits may be taxable under
Section 4999 of the Code.
Unless the Company and the Executive
otherwise agree in writing, any determination required under this
Section 7.3 will be made in writing by a national “Big
Four” accounting firm selected by the Company or such other
person or entity to which the
parties mutually agree (the
“Accountants”), whose determination will be conclusive
and binding upon the Executive and the Company for all purposes.
For purposes of making the calculations required by this
Section 7.3, the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application
of Se
