THIS SETTLEMENT AGREEMENT is made this 30th day of March, 2001, between WIND RIVER SYSTEMS KABUSHIKI KAISHA, a corporation organized and existing under the laws of Japan and having its registered office at Ebisu Prime Square Tower, 1-1-39 Hiroo, Shibuya-ku, Tokyo 150-0012, Japan ("WRSKK"), and NISSIN ELECTRIC CO., LTD., a corporation organized and existing under the laws of Japan and having its registered office at 47 Umezu-Takase-cho, Ukyo-ku, Kyoto, Japan ("Nissin") and

    WHEREAS, in 1989, Wind River Systems, Inc., a corporation organized and existing under the laws of the State of California, USA ("WRSI"), Nissin, and the other shareholders of WRSKK, entered into the Nihon Wind River Systems KK Joint Venture Agreement, which they amended by that certain Amended Joint Venture Agreement dated 1 October 1991 (These two agreements and their incidental and related agreements shall be referred to collectively herein as the "JVA");

    WHEREAS, WRSKK and Nissin entered into that certain Master Distributor Agreement dated 17 September 1990 (This agreement and its incidental and related agreements shall be referred to collectively herein as the "MDA");

    WHEREAS, WRSI, WRSKK, and Nissin terminated their business relationships involving WRSI computer software and other products ("WRSI Products") arising out of the JVA and MDA as of 31 December 2000; and

    WHEREAS, a number of unresolved issues remain from the termination of said JVA and MDA and the parties desire to resolve said issues upon the terms and conditions described below.


    Section 1.  Confirmation.  WRSI terminated sales of WRSI Products through distributors of WRSKK or through other distributors in Japan as of 31 December 2000. The parties have discussed, confirmed, and mutually agree upon the following facts:

    Section 2.  Customer Introduction Assistance.  

    Section 3.  Settlement Proceeds.  

    Section 4.  Allocation of Settlement Proceeds.  Based upon discussions between the parties regarding the customer information disclosed to WRSKK or its designee pursuant to Section 1.4 of this Agreement, the parties will decide by 27 April 2001 the particular breakdown of how the Settlement Proceeds will be allocated among the various matters (the "Final Allocation"). Furthermore, in accordance with the Final Allocation as determined hereinabove, WRSKK or its designee and Nissin by 27 April 2001 shall prepare and conclude a settlement agreement relating to the sale of Nissin's customer list, goodwill, etc. to WRSKK or its designee ("Customer List Settlement Agreement") and a settlement agreement relating to JVA and MDA termination claims, if any ("Termination Settlement Agreement"). The Settlement Proceeds payable to Nissin by WRSKK pursuant to this Agreement shall be allocated respectively to the Customer List Settlement Agreement and the Termination Settlement


Agreement pursuant to the Final Allocation determined hereinabove. If the Final Allocation of Settlement Proceeds results in an increase in any governmental taxes, duties, licenses, fees, excises, or tariffs now or hereafter imposed on the payment of the Settlement Proceeds, such charges shall be paid by the party obligated by law to make such payment, or in lieu thereof, the party obligated by law to make such payment shall provide an exemption certificate acceptable to the other party and the applicable authority. If revenue stamps are required under Japanese law to be affixed to this Agreement, the parties shall be required to bear the cost of such stamps for the copy in their possession. Each party shall be responsible for all costs and expenses incurred on its behalf, including but not limited to attorneys fees, related to this Agreement and the negotiations and consultations leading up to the formation of this Agreement.

    Section 5.  Law Governing.  This Settlement Agreement shall be governed by and construed in accordance with the laws of Japan. The parties hereto hereby agree that any suits brought hereunder shall be brought in the Tokyo District Court in Tokyo, Japan, which will have sole and exclusive jurisdiction for the first instance.

    Section 6.  Attorney Fees.  In the event a suit or action is brought by any party under this Agreement to enforce any of its terms, or in any appeal therefrom, it is agreed that the prevailing party shall be entitled to reasonable attorneys fees.

    Section 7.  Notices.  Any notice under this Agreement shall be in writing and shall be effective when actually delivered in person, or the next business day for notices sent by telefax and promptly confirmed in a manually signed writing, or three (3) days after being deposited in the mail, registered or certified, postage prepaid and addressed to the party at the address stated in this Agreement or such other address as any party may designate by written notice to the other.

    Section 8.  Waiver.  Failure of any party at any time to require performance of any provision of this Agreement shall not limit the party's right to enforce the provision, nor shall any waiver of any breach of any provision be a waiver of any succeeding breach of any provision or a waiver of the provision itself for any other provision.

    Section 9.  Assignment.  Except as otherwise provided within this Agreement, neither party hereto may transfer or assign this Agreement without prior written consent of the other party.

    Section 10.  Presumption.  This Agreement or any provision thereof shall not be construed against any party due to the fact that said Agreement or any provision thereof was drafted by said party.

    Section 11.  Titles and Captions.  All article, section and paragraph titles or captions contained in this Agreement are for convenience only and shall not be deemed part of the context nor affect the interpretation of this Agreement.

    Section 12.  Pronouns and Plurals.  All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the Person or Persons may require.

    Section 13.  Entire Agreement.  This Agreement contains the entire understanding between and among the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement.

    Section 14.  Agreement Binding.  This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto.


    Section 15.  Further Action.  The parties hereto shall execute and deliver all documents, provide all information and take or forbear from all such action as may be necessary or appropriate to achieve the purposes of this Agreement.

    Section 16.  Parties in Interest.  Except as expressly provided herein as to WRJ, nothing herein shall be construed to be to the benefit of any third party, nor is it intended that any provision shall be for the benefit of any third party.

    Section 17.  Savings Clause.  If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

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    IN WITNESS WHEREOF, this Agreement has been made in duplicate, each of the parties caused this Agreement to be executed by a duly authorized officer or agent as of the date first above written, and the parties hereto shall each keep one (1) original copy of the Agreement.

a Japan corporation



Giuseppe Kobayshi
Its: Representative Director



Place and Date of Signing: Tokyo, Japan, 30 March 2001




a Japan corporation





Yukitoshi Murata
Its: Representative Director, Senior Managing Director



Place and Date of Signing: Kyoto, Japan, 30 March 2001







Source: OneCLE Business Contracts.