Exhibit 10.3
NON-COMPETITION
AGREEMENT
THIS NON-COMPETITION AGREEMENT (this
“ Agreement ”) is made and entered into as of
June 4, 2009, by and among Intel Corporation, a Delaware
corporation, its subsidiaries, affiliates, successors, or assigns
(collectively, the “ Buyer ”), Wind River
Systems, Inc., a Delaware corporation (the “ Company
”), and Kenneth R. Klein (the “ Shareholder
”).
RECITALS
A. The Shareholder owns 173,644
shares of common stock of the Company, such amount representing
.2258% of the Company’s outstanding capital
shares.
B. The Buyer and the Company are
parties to that certain Agreement and Plan of Merger dated as of
the date hereof (the “ Merger Agreement ”),
pursuant to which the Buyer has agreed to purchase all outstanding
securities of the Company (the “ Transaction
”).
C. The Shareholder will receive
substantial consideration as a result of the consummation of the
Transaction, which consideration reflects the goodwill associated
with the Company’s business.
D. The parties acknowledge that the
Company is currently engaged in the development of technologies,
services and products relating to selling or licensing (and
associated developing, marketing, servicing, supporting and
consulting on) operating systems, middleware and software
development tools for use in or with non-enterprise products, such
non-enterprise products including but not limited to consumer,
handheld, cellular, automotive, aerospace, industrial control and
networking/network infrastructure products (the “
Business ”), and the life expectancy of such
technologies and the services and products to be developed based on
such technologies is expected to be at least five
(5) years.
E. The parties acknowledge that the
relevant market for the technologies that the Company is
developing, and the relevant market for the products and services
the Company is proposing or has targeted to develop, is worldwide
in scope and that intense worldwide competition exists for such
technologies.
F. As a condition and material
inducement for the Buyer to the enter into the Merger Agreement and
consummate the Transaction, and to preserve the value and good will
of the business being acquired by the Buyer pursuant thereto, the
Merger Agreement contemplates, among other things, that the
Shareholder will enter into this Agreement concurrently with the
execution of the Merger Agreement and that this Agreement will
become effective as of the Acceptance Date.
G. The parties intend this Agreement
to be in compliance with California Business and Professions Code
Section 16601 and further intend for it to be fully
enforceable.
NOW, THEREFORE, in consideration of
the foregoing premises, and the covenants, agreements,
representations and warranties set forth herein, and for other good
and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged and accepted, and intending to be
legally bound hereby, the parties hereto hereby agree as
follows:
1. Effective Time . This
Agreement shall be effective only at and as of the Acceptance
Date.
2. Defined Terms . All
capitalized terms that are used but not defined herein shall have
the respective meanings ascribed thereto in the Merger Agreement.
For all purposes of and under this Agreement, the following
capitalized terms shall have the following respective
meanings:
(a) “
Restricted Period ” shall mean the period beginning at
and as of the Acceptance Date and ending on the third (3
rd
) anniversary
of the Shareholder’s termination of employment with the
Company for any reason.
(b) “ Restricted
Territory ” shall mean each and every country, province,
state, city, or other political subdivision of the world in which
the Company is currently engaged in business or otherwise proposing
to or targeting to distribute, license or sell its products,
services or technologies.
3. Covenant Not to Compete
.
(a) The Shareholder acknowledges
that during the course of the Shareholder’s employment with
the Company, the Shareholder has received and has been privy to
confidential information and trade secrets of the Company and will
continue to receive and be privy to confidential information and
trade secrets of the Company and the Buyer during the course of the
Shareholder’s employment following the Transaction. The
Shareholder further acknowledges that the Buyer has a legitimate
interest in ensuring that such confidential information and trade
secrets remain confidential and are not disclosed to third parties.
Thus, to avoid the actual or threatened misappropriation of such
confidential information and trade secrets, and to preserve the
value and good will of the business being acquired by the Buyer
pursuant to the Merger Agreement, the Shareholder agrees that, at
all times during the Restricted Period, the Shareholder shall not,
directly or indirectly:
(i) engage or participate in the
development of any technologies, products or services relating to
the Business (whether as an employee, agent, consultant, advisor,
independent contractor, proprietor, principal, partner,
stockholder, trustee, officer or director) or have an ownership or
financial interest (except for ownership of one percent
(1%) or less of any publicly held entity or two percent
(2%) or less in any privately-held entity) in any person (as
defined in the Merger Agreement) engaged in the Business, anywhere
in the Restricted Territory. The phrase “directly or
indirectly” as used herein, includes, for purposes of
clarification, but is not limited to, (A) engaging in,
participating in, or having an ownership or financial interest in a
person engaged in the Business through one or more intermediaries
under circumstances where the Shareholder provides advice or
guidance on behalf of or for the benefit of such intermediary or
intermediaries or any portfolio company of such intermediary or
intermediaries, in either case, that engages in or participates in
the Business, (B) forming any entity in order to engage in or
participate in the Business, and (C) contacting marketing,
channel or technology partners of the Company on behalf of any
person engaged in the Business; or
2
(ii) take any action with the
objective of interfering with the business of the Company or
solicit any customers of the Company for any products or services
competitive with the Business.
(b) The covenants set forth in
Section 3(a) hereof shall be construed as a series of separate
covenants, one for each country, province, state, city or other
political subdivision of the Restricted Territory. Except for
geographic coverage, each such separate covenant shall be deemed
identical in terms to the covenants set forth in
Section 3(a) hereof. If, in any judicial proceeding, a
court refuses to enforce any of such separate covenants (or any
part thereof), then such unenforceable covenant (or such part)
shall be eliminated from this Agreement to the extent necessary to
permit the remaining separate covenants (or portions thereof) to be
enforced. To the extent that the provisions of
Section 3(a) hereof are deemed to exceed the time,
geographic or scope limitations permitted by applicable law, then
such provisions shall be reformed to the maximum time, geographic
or scope limitations, as the case may be, permitted by applicable
laws.
(c) The Shareholder acknowledges
that:
(i) the Shareholder is familiar with
the foregoing covenant not to compete; (ii) the covenant set
forth in Section 3(a) hereof represents only a limited
restraint and allows the Shareholder to pursue the
Shareholder’s livelihood and occupation without unreasonable
or unfair restrictions; (iii) the Shareholder is an officer,
key employee, and/or key member of the management of the Company;
(iv) the goodwill associated with the existing business,
customers a
