Exhibit 10.4
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 Ian Halifax (“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 Offer Letter, originally dated
January 30, 2007, as amended through October 16, 2008
(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 Transition Executive of the Company
(which is a subsidiary 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 President of the Company, the Company or Parent.
Executive shall
abide by the verbal or written directions of his
direct manager, as well as the General Manager of the Software
Group and the Software Group Controller, and 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.
Executive’s service on the boards of directors (or similar
body) of other business entities is subject to the approval of the
Parent. 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 one (1) year commencing
on the Effective Date and ending at the close of business on the
first (1st) 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
four hundred thousand Dollars ($400,000) 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.
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 $200,000, payable in two (2) installments. The amount of
each installment of the Bonus paid shall be determined by
Executive’s supervisors in their sole discretion, based on
performance objectives established for the Company for the relevant
period. The Bonus installments will be paid no later than two and
one-half (2-/12) months following the six- (6-) month anniversary,
and the one- (1) year anniversary of the Effective Date,
respectively.
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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 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, to the extent not already vested, shall be
accelerated by a period of one (1) year 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 by the Company and which were outstanding on the
Effective Date, including any non-plan grants.
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III.
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RETENTION
PAYMENTS; AT-WILL EMPLOYMENT; TERMINATION OF
EMPLOYMENT
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A. Retention
Payments.
1. In the event Executive’s employment with
the Company has not terminated on or prior to the six- (6-) month
anniversary of the Effective Date (the “First Retention
Date”), Executive shall receive the following
benefits:
a. A cash payment equal to the sum
of (i) twelve (12) months’ Base Salary as in effect
on First Retention Date, and (ii) an amount equal to one
hundred percent (100%) of Executive’s actual Bonus for
the fiscal year prior to the fiscal year in which the termination
occurs; and
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b. Any Equity Awards outstanding on
the First Retention Date shall become fully vested and exercisable
as of the First Retention Date.
2. Upon the earlier of (i) the one- (1-) year
anniversary of the Effective Date, provided that Executive’s
employment with the Company has not terminated on or prior to such
date, or (ii) the successful completion, following the
Effective Date, of an appropriate transition period of the Company
in connection with the Transaction, as determined by the Company or
Parent (such date, the “Second Retention Date”), the
Company shall pay Executive the following:
a. A cash payment equal to the
amount of Base Salary earned by Executive from the Effective Date
through the Second Retention Date (disregarding any amounts earned
pursuant to Section III.A.1); and
b. A bonus payment in the amount of
$200,000 (the “Second Retention Date Bonus”). In the
event the Second Retention Date occurs prior to the one- (1-) year
anniversary of the Effective Date, the amount of such bonus payment
shall be pro-rated by multiplying the resulting amount by a
fraction, the numerator of which is the number of full months of
Executive’s employment with the Company following the First
Retention Date, and the denominator of which is six (6).
3. Payment of the retention benefits provided in
this Section III.A 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 First Retention Date (in the case of benefits under Section
III.A.1) or Second Retention Date (in the case of benefits under
Section III.A.2), 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.
B. 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.
C. 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.G),
(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.G). Executive’s employment, and
the Period of Employment, shall terminate automatically upon
Executive’s death.
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D. 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.
E. 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 (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.G);
2. If, prior to the six- (6-) month anniversary of
the Effective Date, Executive’s employment with the Company,
and the Period of Employment, terminates as a result of an
Involuntary Termination or is terminated voluntarily by the
Executive for Good Reason (both as defined herein), Executive shall
be entitled to (a) those benefits set forth in Section
III.A.1, and (b) the total Bonus for the year in which the
termination occurs, in such amount as determined based on the
actual achievement of the applicable performance goals for the
period relevant to each Bonus installment, and further 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, and the denominator of which is 12. In addition, in that
event, if Executive timely elects continuation of group health
insurance coverage made available to Executive to the extent
required under the Consolidated Omnibus Budget Reconciliation Act
of 1985 (“COBRA”) or similar state law, 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.
3. If, after the First Retention Date, but prior to
the Second Retention Date, Executive’s employment with the
Company, and the Period of Employment, terminates as a result of an
Involuntary Termination or is terminated voluntarily by the
Executive for Good Reason, Executive shall be entitled
to:
a. A cash payment equal to the
amount of Base Salary earned by Executive from the Effective Date
through the Severance Date (disregarding any amounts earned
pursuant to Sections III.A.1 or III.E.2);
b. The Bonus for the year in which
the termination occurs, in such amount as determined based on the
actual achievement of the applicable performance goals for the
relevant period, minus any amount of the Bonus already received,
and further 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, and the denominator
of which is six (6); and
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c. The Second Retention Date Bonus,
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 following the First Retention Date, and
the denominator of which is six (6).
Notwithstanding the foregoing
provisions of this Section III.E, 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.E (other than the
Accrued Obligations).
F. Release; Payment of Severance;
Exclusive Remedy.
1. This Section III.F 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.E (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.
2. Subject to the prior effectiveness of the
Release and the nonexistence of any cure period under
Section III.E following a breach of Section V, payment of
the severance benefits provided in Sections III.E.2 and III.E.3
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 taxes under
Section 409A, except with respect to any pro-rated Bonus
provided under Section III.E.2 or III.E.3(b), which amounts shall
be payable 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 six- (6) month
anniversary of the Effective Date (in the case of the first
installment of the Bonus) or the one- (1) year anniversary of
the Effective Date (in the case of the second installment of the
Bonus), subject to any delay required to avoid additional taxes
under Section 409A.
3. Executive agrees that the payments and benefits
contemplated by Section III.E (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.
G. 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
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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 the Managing
Director of the Company, 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 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) reporting to someone
other than the President of the Company, the General Manager of the
Parent Software Group or the Controller of the Parent Software
Group, (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.
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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 Sylvia Shapiro, 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’s or Parent’s trade secrets or by otherwise
engaging in conduct that amounts to unfair competition. Nothing in
this Section V.B shall alter or diminish Executive’s
obligations pursuant to the CIPCP Agreement or any other
restrictive covenants between or among Executive and the Company
and/or Parent.
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VI.
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AMENDMENTS;
WAIVERS; REMEDIES
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This Agreement may not be amended or
waived except by a writing signed by Executive and by a duly
authorized representative of the Company other than Executive.
Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this
Agreement shall not operate as a waiver of any subsequent breaches.
All rights or remedies specified for a party herein shall be
cumulative and in addition to all other rights and remedies of the
party hereunder or under applicable law.
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VII.
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ASSIGNMENT;
BINDING EFFECT
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A. Assignment
. The performance of Executive is
personal hereunder, and Executive agrees that Executive shall have
no right to assign and shall not assign or purport to a