Exhibit 10.2
E XECUTIVE E MPLOYMENT A GREEMENT
This Executive Employment Agreement
(the “Agreement”), dated June 4, 2009 (the
“Agreement Date”), is entered into by and among Wind
River Systems, Inc., a Delaware corporation (the
“Company”), Intel Corporation, a Delaware corporation
(“Parent”), and Kenneth R. Klein
(“Executive”) (collectively, the
“parties”).
RECITALS
WHEREAS, pursuant to the Agreement
and Plan of Merger (the “Merger Agreement”), dated
June 4, 2009 among Parent, APC II Acquisition Corporation, a
Delaware corporation and a wholly owned subsidiary of Parent
(“Merger Sub”) , and the Company, Merger Sub
shall be merged with and into the Company, and the Company shall
continue as the surviving corporation and a wholly owned subsidiary
of Parent (the “Transaction”);
WHEREAS, the parties wish to provide
for Executive’s employment with Company following the
Transaction;
WHEREAS, as a condition and material
inducement for Parent to enter into the Merger Agreement and
consummate the Transaction, Executive is entering into this
Agreement concurrently with the execution of the Merger
Agreement;
WHEREAS, subject to
Executive’s prior completion of a background check to
Parent’s satisfaction, this Agreement shall become effective
upon the Acceptance Date , as defined in the Merger
Agreement (the “Effective Date”); and
WHEREAS, the Company and Executive
have entered into that certain Employment Agreement, originally
dated November 5, 2003, as amended through January 30,
2009 (the “Prior Employment Agreement”), which,
effective as of the Effective Date, shall be terminated and
replaced in its entirety by this Agreement. This Agreement shall
govern the employment relationship between Executive and the
Company from and after the Effective Date and supersedes and
negates all previous agreements with respect to such relationship,
including, without limitation, the Prior Employment
Agreement.
NOW, THEREFORE, in consideration of
the covenants, promises and representations set forth herein, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
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I.
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POSITION AND
RESPONSIBILITIES
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A. Position
. As of the Effective Date,
Executive shall be employed by the Company for the Period of
Employment (as defined in Section I.D) to render services to the
Company in the position of President of the Company (a subsidiary
of Parent), reporting to the Software Group of Parent. During the
Period of Employment, Executive shall perform such duties and
responsibilities of the subsidiary operations as are normally
related to such position in accordance with the standards of the
industry and any additional duties commensurate with such position
now or hereafter assigned to Executive by the Company or Parent.
Executive shall abide by the verbal or written directions of
Executive’s direct supervisor at Parent and the written
rules, regulations, and practices as adopted or modified from time
to time in the Company’s sole discretion that have been made
available to Executive.
B. Other Activities
. Except upon the prior written
consent of the Company, Executive will not, during the term of this
Agreement, (i) accept any other employment, or
(ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that
might interfere with Executive’s duties and responsibilities
hereunder or create a conflict of interest with the Company;
provided, however, that Executive may also serve in any capacity
with any civic, educational or charitable organization.
Executive’s service on the boards of directors (or similar
body) of other business entities is subject to Parent policy and,
accordingly, is subject to the approval of Parent; provided,
however, that Executive shall be permitted to remain a member of
the board of directors (and committees thereof) of Amberpoint and
Big Fix (where Executive is lead director), subject to the
successful conclusion of Parent’s conflict of interest
review. The Company shall have the right to require Executive to
resign from any board or similar body which he may then serve if
the Company or Parent reasonably determines in writing that
Executive’s service on such board or body interferes with the
effective discharge of Executive’s duties and
responsibilities to the Company or that any business related to
such service is then in competition with any business of the
Company or any of its affiliates, successors or assigns.
C. No Conflict
. Executive represents and warrants
that Executive’s execution of this Agreement, employment with
the Company, and the performance of Executive’s proposed
duties under this Agreement shall not violate any obligations
Executive may have to any other employer, person or entity,
including any obligations with respect to proprietary or
confidential information of any other person or entity.
D. Period of
Employment . Provided this Agreement
becomes effective, the “Period of Employment” shall be
a period of two (2) years commencing on the Effective Date and
ending at the close of business on the second (2
nd
) anniversary
of the Effective Date. Notwithstanding the foregoing, the Period of
Employment is subject to earlier termination as provided below in
this Agreement.
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II.
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COMPENSATION
AND BENEFITS
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A. Base Salary
. In consideration of the services
to be rendered under this Agreement, during the Period of
Employment, the Company shall pay Executive a salary at the rate of
five hundred thousand Dollars ($500,000) per year (“Base
Salary”). The Base Salary shall be paid in accordance with
the Company’s regularly established payroll practice. During
the Period of Employment, Executive’s Base Salary will be
reviewed from time to time in accordance with the established
procedures of the Company or Parent for increasing salaries for
similarly situated employees and may be increased, but not
decreased, in the sole discretion of Parent.
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B. Bonus . During the Period of Employment, Executive
shall be eligible to receive an annual incentive bonus (the
“Bonus”). The annual target amount of the Bonus shall
be $500,000, subject to a minimum amount of $185,000, which latter
amount shall be paid quarterly in four (4) equal installments.
The amount of the Bonus paid shall be determined by
Executive’s supervisors in their sole discretion, based on
performance objectives established for the Company in consultation
with Executive for the relevant period. Any amount of the Bonus
that is not paid quarterly as provided above will be paid no later
than two and one-half (2-/12) months following the first and second
anniversary of the Effective Date, respectively.
C. Benefits
. During the Period of Employment,
Executive shall be eligible to participate in the benefits made
generally available by the Company to similarly-situated
executives, in accordance with the benefit plans established by the
Company, and as may be amended from time to time in Parent’s
sole discretion.
D. Expenses
. The Company shall reimburse
Executive for reasonable business expenses incurred in the
performance of Executive’s duties hereunder in accordance
with the Company’s expense reimbursement
guidelines.
E. Prior Plans
. Prior to the Effective Date,
Executive was a participant in the Company’s Executive
Officers’ Change of Control Incentive and Severance Benefit
Plan (the “CIC Plan”), and was eligible for
participation in the Company’s Vice Presidents’
Severance Benefit Plan (the “Severance Plan”).
Effective as of immediately prior to the Effective Date, Executive
shall no longer be eligible to participate in the CIC Plan or the
Severance Plan.
F. Equity Awards
.
1. If Executive holds any outstanding Equity Awards
at the Effective Date, the vesting schedule for such outstanding
Equity Awards, other than the Performance Shares (as defined in
Section II.G.), to the extent not already vested, shall be
accelerated by a period of two (2) years, and shall thereafter
continue vesting at the same rate as immediately prior to the
Effective Date, subject to Executive’s continuous service
with the Company.
2. As used herein, “ Equity Awards
” shall mean all incentive or non-statutory stock
options, restricted stock, restricted stock units, stock
appreciation rights, performance shares, performance units,
deferred stock units, or other equity or equity award granted to
Executive pursuant to an equity incentive plan of the Company and
which were outstanding on the Effective Date.
G. Performance Shares
. Pursuant to the Notice and Grant
of Performance Shares, dated March 20, 2009 (the
“Performance Share Award Agreement”), Executive was
previously awarded 200,000 Company Performance Shares (the
“Performance Shares”). Executive hereby agrees that,
effective as of the Effective Date, the vesting conditions
applicable to the Performance Shares shall be as set forth in
Appendix A, which shall supersede the vesting terms of the
Performance Share Award Agreement in their entirety.
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III.
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AT-WILL
EMPLOYMENT; TERMINATION OF EMPLOYMENT
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A. At-Will Termination by
Company .
Executive’s employment with the Company shall be
“at-will” at all times. The Company may terminate
Executive’s employment with the Company at any time, without
any advance notice, for any reason or no reason at all,
notwithstanding anything to the contrary contained in or arising
from any statements, policies or practices of the Company relating
to the employment, discipline or termination of its employees. Upon
and after such termination, all obligations of the Company under
this Agreement shall cease, except as otherwise provided
herein.
B. Termination by the Company or by Death .
Executive’s employment by the Company, and the Period of
Employment, may be terminated at any time by the Company:
(i) with Cause (as defined in Section III.F),
(ii) without Cause, or (iii) in the event that the
Company determines in good faith that Executive has a Disability
(as defined in Section III.F). Executive’s employment, and
the Period of Employment, shall terminate automatically upon
Executive’s death.
C. Termination by Executive .
Executive’s employment by the Company, and the Period of
Employment, may be terminated by Executive with no less than
thirty (30) days advance notice to the Company.
D. Benefits upon Termination . If
Executive’s employment by the Company is terminated during
the Period of Employment for any reason by the Company or by
Executive, or upon or following the expiration of the Period of
Employment (in any case, the date that Executive’s employment
by the Company terminates is referred to as the “Severance
Date”), the Company shall have no further obligation to make
or provide to Executive, and Executive shall have no further right
to receive or obtain from the Company, any payments or benefits
except as follows:
1. The Company shall pay Executive (or, in the
event of his death, Executive’s estate) any Accrued
Obligations (as defined in Section III.F);
2. If, during the Period of Employment,
Executive’s employment with the Company terminates as a
result of an Involuntary Termination or is terminated voluntarily
by Executive for Good Reason (both as defined herein), Executive
shall be entitled to the following benefits:
a. The Company shall pay Executive
(in addition to the Accrued Obligations), subject to tax
withholding and other authorized deductions, an amount equal to the
sum of (i) an amount equal to the base salary actually paid to
Executive for the eighteen month period prior to the Severance Date
(which amount shall not be less than $750,000), (ii) the
difference between (x) one hundred fifty percent
(150%) of the target Bonus for the fiscal year in which the
termination occurs and (y) any amount of the Bonus already
received by Executive during the fiscal year in which the
termination occurs on account of such fiscal year (e.g., quarterly
bonus amounts already paid), and (iii) an amount equal to the
actual Bonus paid for the fiscal year prior to the fiscal year in
which the termination occurs, pro-rated according to the number of
months Executive is employed by the Company during the year in
which the termination occurs, including in the numerator the month
in which the termination occurs.
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b. Any Equity Awards outstanding on
the Severance Date shall become fully vested and exercisable as of
the Severance Date.
c. The Company shall continue to
make available to Executive, to the extent required under the
Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”) or similar state law, group health insurance
coverage. If Executive timely elects continuation of such coverage,
the Company will reimburse Executive for the total applicable
premium cost paid for medical, dental and vision coverage under
COBRA for a period of eighteen (18) months following the
Severance Date. Such reimbursement shall be made within thirty
(30) days of the premium payment.
d. If such termination of employment
occurs prior to the First Retention Date (as defined in Section
III.G.1), Executive shall be entitled to receive the First
Retention Bonus (as defined in Section III.G.1), determined based
on the actual achievement of the applicable performance goals
through the First Retention Date, pro-rated by multiplying such
amount by a fraction, the numerator of which is the number of full
months of Executive’s employment with the Company prior to
the First Retention Date, and the denominator of which is twelve
(12).
e. If such termination of employment
occurs after the First Retention Date, but prior to the Second
Retention Date (as defined in Section III.G.2), Executive shall be
entitled to receive the Second Retention Bonus (as defined in
Section III.G.2), determined based on the actual achievement of the
applicable performance goals through the Second Retention Date,
pro-rated by multiplying such amount by a fraction, the numerator
of which is the number of full months of Executive’s
employment with the Company after the First Retention Date, and the
denominator of which is twelve (12).
Notwithstanding the foregoing
provisions of this Section III.D, if Executive breaches any
obligations pursuant to Section V at any time, and any such breach
that is susceptible to cure remains uncured by Executive five
(5) days after receiving written notice from the Company of
such breach and specifying the purported grounds for such breach,
from and after the date of the lapse of such cure period, or from
the date of the breach with respect to an incurable breach,
Executive will no longer be entitled to, and the Company will no
longer be obligated to pay, any remaining unpaid severance benefits
otherwise payable pursuant to this Section III.D (other than the
Accrued Obligations).
E. Release; Payment of Severance;
Exclusive Remedy .
1. This Section III.E shall apply notwithstanding
anything else contained in this Agreement or any stock option or
other equity-based award agreement to the contrary. As a condition
precedent to any Company obligation to Executive pursuant to
Section III.D (other than an obligation to pay the Accrued
Obligations), Executive shall, upon or promptly following his last
day of employment with the Company, provide the Company with a
valid, executed general release agreement (the
“Release”) (a form of which is attached hereto as
Exhibit B), and the Release shall have not been revoked by
Executive pursuant to any revocation rights afforded by applicable
law.
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2. Subject to the prior effectiveness of the
Release and the nonexistence of any cure period under
Section III.D following a breach of Section V, payment of
the severance benefits provided in Section III.D.2(a) shall be made
in a lump sum upon a regularly scheduled Company payroll date, as
soon as practicable following and in no event later than sixty
(60) days following the Severance Date, subject to any delay
required to avoid additional tax under
Section 409A.
3. Subject to the prior effectiveness of the
Release and the nonexistence of any cure period under
Section III.D following a breach of Section V, payment of
the severance benefits provided in Sections III.D.2(d) and
(e) shall be made in a lump sum upon a regularly scheduled
Company payroll date, as soon as practicable following the
determination of the degree to which the applicable performance
targets were achieved, but in any event shall be made no later than
two and one-half (2.5) months following the end of the
calendar year in which falls the First Retention Date or the Second
Retention Date, as applicable, subject to any delay required to
avoid additional tax under Section 409A.
4. Executive agrees that the payments and benefits
contemplated by Section III.D (including the Accrued
Obligations) shall constitute the exclusive and sole remedy for any
termination of his employment and Executive covenants not to assert
or pursue any other remedies, at law or in equity, with respect to
any termination of employment.
F. Certain Defined
Terms .
1. As used herein, “Accrued
Obligations” means:
a. any Base Salary that had accrued
but had not been paid (including accrued and unpaid vacation time)
on or before the Severance Date; and
b. any reimbursement due to
Executive pursuant to Section II.D for expenses incurred by
Executive on or before the Severance Date.
2. As used herein, “Cause” shall mean,
as reasonably determined by the Company or Parent,
(i) Executive’s willful, repeated or grossly negligent
failure to perform his duties hereunder or to comply with any
reasonable or proper direction given by or on behalf of
Executive’s direct supervisor(s), including the board of
directors or chief executive officer of Parent, or
Executive’s gross negligence in the performance of his duties
hereunder, which failure remains uncured for greater than thirty
(30) days after Executive’s receipt of formal written
notice of such failure; (ii) Executive’s conviction of,
or plea of guilty or no contest to, a felony or other crime
involving moral turpitude, or any act of fraud, theft or dishonesty
against the Company or Parent; or (iii) Executive’s
violation of any of the material terms, covenants, representations
or warranties contained in this Agreement, which violation remains
uncured for greater than thirty (30) days after
Executive’s receipt of formal written notice of such
violation.
3. As used herein, “Disability” shall
mean a physical or mental impairment which, as reasonably
determined by the Company, renders Executive unable to perform the
essential functions of his employment with the Company, even with
reasonable accommodation
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that does not impose an undue
hardship on the Company, for more than ninety (90) consecutive
days or more than one hundred eighty (180) days in any twelve-
(12-) month period, unless a longer period is required by federal
or state law, in which case that longer period would
apply.
4. As used herein, “Involuntary
Termination” shall mean a termination of Executive by the
Company without Cause. For purposes of clarity, the term
Involuntary Termination does not include a termination of
Executive’s employment due to Executive’s death or
Disability.
5. As used herein, “Good Reason” shall
mean the occurrence of any of the following events or circumstances
without Executive’s consent: (i) Executive being
required to report to another Company employee; (ii) a
material breach by the Company or Parent of the terms of this
Agreement; or (iii) the relocation of Executive’s
worksite to a place outside of a 35-mile radius from his prior
worksite. In order to establish a “Good Reason” for
terminating employment, Executive must provide written notice to
the Company and Parent of the existence of the condition giving
rise to the Good Reason, which notice must be provided within
thirty (30) days of the initial existence of such condition,
the Company or Parent must fail to cure the condition within thirty
(30) days thereafter, and Executive’s termination of
employment must occur no later than ninety (90) days following
the initial existence of the condition giving rise to Good
Reason.
G. Retention Payments
.
1.
In the event the
Executive’s employment with the Company has not terminated on
or prior to the first (1 st ) anniversary of the
Effective Date (the “First Retention Date”), Executive
shall be eligible to receive a retention bonus (the “First
Retention Bonus”). The target amount of the First Retention
Bonus shall be $1,000,000. The actual amount of the First Retention
Bonus paid shall be determined by Executive’s supervisors in
their sole discretion based on the achievement of predetermined
EBIT goals established for the Company in consultation with
Executive for the relevant period, and shall be subject to a
maximum amount of $2,000,000.
2.
In the event the
Executive’s employment with the Company has not terminated on
or prior to the second (2 nd ) anniversary of the
Effective Date (the “Second Retention Date”), Executive
shall be eligible to receive a retention bonus (the “Second
Retention Bonus”). The target amount of the Second Retention
Bonus shall be $1,500,000. The actual amount of the Second
Retention Bonus paid shall be determined by Executive’s
supervisors in their sole discretion based on the achievement of
predetermined EBIT goals established for the Company in
consultation with Executive for the relevant period, and shall be
subject to a maximum amount of $3,000,000.
3. Payment of the retention bonuses provided in
this Section III.G shall be made in a lump sum, subject to tax
withholding and other authorized deductions, upon a regularly
scheduled Company payroll date, as soon as practicable following
the determination of the degree to which the applicable performance
targets were achieved, but in any event shall be made no later than
two and one-half (2.5) months following the end of the
calendar year in which falls the First Retention Date or the Second
Retention Date, as applicable.
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IV.
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TERMINATION
OBLIGATIONS
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A. Return of Property
. Executive agrees that all property
(including without limitation all equipment, tangible proprietary
information, documents, records, notes, contracts and
computer-generated materials) furnished to or created or prepared
by Executive incident to Executive’s employment belongs to
the Company and shall be promptly returned to the Company upon
termination of Executive’s employment.
B. Resignation and
Cooperation . Upon
termination of Executive’s employment, Executive shall be
deemed to have resigned from all offices and directorships then
held with the Company. Following any termination of employment,
Executive shall cooperate with the Company in the winding up of
pending work on behalf of the Company and the orderly transfer of
work to other employees. Executive shall also cooperate with the
Company in the defense of any action brought by any third party
against the Company that relates to Executive’s employment by
the Company.
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V.
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INVENTIONS
AND PROPRIETARY INFORMATION; PROHIBITION ON THIRD PARTY
INFORMATION
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A. Employee Confidentiality,
Intellectual Property and Computer Privacy Agreement
. Executive agrees to sign and be
bound by the terms of the Parent’s Employee Confidentiality,
Intellectual Property and Computer Privacy Agreement that is
attached as Exhibit A (“CIPCP
Agreement”).
B. Non-Solicitation
. Executive acknowledges that
because of Executive’s position in the Company, Executive
will have access to material intellectual property and confidential
information. During the term of Executive’s employment and
for one year thereafter, in addition to Executive’s other
obligations hereunder or under the CIPCP Agreement, Executive shall
not, for Executive or any third party, directly or indirectly
(i) solicit, induce, recruit or encourage any person employed
by the Company or Parent to terminate his or her employment;
provided , however , that this provision shall not
apply to Executive’s assistant Jana Wilson-Wade, or
(ii) divert or attempt to divert from the Company or Parent
any business with any customer, client, member, business partner or
supplier about which Executive obtained confidential information
during his employment with the Company, by using the
Company&rs