Exhibit 10.44


 


June 30,
2003


 


BY HAND
DELIVERY


 


Mr. Steve Kennedy


c/o Wind River Systems, Inc.


500 Wind River Way


Alameda, CA 94501


 


Dear Steve:


 


This letter sets forth the
substance of the agreement (the “Agreement”) that Wind River Systems, Inc. (the
“Company”) is offering to you in connection with your separation from the
Company and from Wind River Sales Co., Inc. 
(“Sales Co.”).


 


1.                                      RESIGNATION.  You
have tendered, and the Company has accepted, your resignation from employment
from the Company and Sales Co., as described herein. You resigned from your
position as the Company’s Group Vice President of Worldwide Sales and Marketing
and President of Sales Co. as of May 19, 2003. Your employment will
continue during the transition period described below until June 30, 2003,
on which date your employment with the Company, and any subsidiary thereof,
will terminate (the “Separation Date”). 
In addition to the job search activities referenced below in
Section 3, you will continue to provide reasonable services to the Company
as an employee until the Separation Date.


 


2.                                      ACCRUED SALARY AND PAID TIME
OFF.  On the Separation Date, the Company will pay
you your final check, including all salary and accrued and unused vacation
through the Separation Date, and commissions totaling $31,218.36 (which amount
represents all commission and bonus amounts owed to you through the Separation
Date), subject to standard payroll deductions and withholdings. You are
entitled to these payments regardless of whether you sign this Agreement.
Additionally, we will make the appropriate adjustments to your W-2 to reflect
the gross up covering your Compass Club Award trip.


 


3.                                      OUTPLACEMENT SERVICES.  The
Company has engaged the services of Spherion to assist you with your search for
new employment  for a period of 12
months, commencing no later than October 1, 2003.  As part of this Agreement, the Company will
allow you time to consult with [Spherion] and to conduct job search activities
consistent with your job responsibilities during the period of your employment
preceding the Separation Date.  You are
entitled to, and will be provided, these outplacement services whether or not
you sign a Release of Claims.


 


4.                                      SEVERANCE BENEFITS.  If
you choose to sign the Release of Claims attached hereto as Exhibit A
(the “Release”), as part of this Agreement, you will be eligible for a lump sum
severance payment equal to 52 weeks of your base salary (excluding incentive
pay, premium pay, overtime bonuses and other forms of variable compensation) at
the rate in effect during the last regularly scheduled payroll period
immediately preceding your Separation Date, less standard withholdings and
deductions.  This payment will be
subject to standard payroll withholdings and deductions and shall be made
promptly, but in no event more than ten (10) days after the Effective Date of
the Release.  You should not sign the
Release until on or after the Separation Date.


 

















 


5.                                      HEALTH INSURANCE.  If
you are enrolled in a Company -sponsored health, dental, vision plan or
employee assistance plan your coverage will continue until your Separation
Date.  After that time, you are eligible
to continue identical coverage under such health, dental, vision or employee
assistance plan (or to convert to an individual policy), under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”).  You will be provided a notification of your right to continue
such coverage at the time of termination pursuant to COBRA (“COBRA Continuation
Coverage”).  If COBRA Continuation Coverage
is timely elected and you choose to sign the Release, the Company will pay the
COBRA Continuation Coverage premium on your behalf for an identical health,
dental and vision plan for 12 months following the Separation Date, after which
such period ends, you will be responsible for the remaining payment of premiums
required under COBRA for the remainder of the period of COBRA Continuation
Coverage; provided, however, that in the event that you secure coverage
pursuant to subsequent employer’s health, dental, vision or employee assistance
plan, the Company’s obligation to pay such COBRA premiums shall immediately
terminate.  Later, you may be able to
convert to an individual policy through the provider of the Company’s health
insurance, if you wish. You will be provided with a separate notice of your
COBRA rights.


 


6.                                      STOCK OPTIONS.  Your
stock options will continue to vest until the Separation Date. You will then
have until the close of market on September 30, 2003 to exercise any
option shares that were vested as of the Separation Date. All other terms,
conditions, and limitations applicable to your options will remain in full
force and effect pursuant to the applicable stock option agreements between you
and the Company, the applicable stock option plan documents, and any other
documents applicable to the options. 
The attached Exhibit B specifically outlines the vesting schedule
of shares as of June 30, 2003.


 


7.                                      OTHER COMPENSATION OR
BENEFITS.  You acknowledge that, except as expressly
provided in this Agreement, following full payment by the Company of all
amounts owing hereunder, you will not receive any additional compensation,
severance or benefits from the Company.


 


8.                                      EXPENSE REIMBURSEMENT.  You
agree that, within ten (10) days following the Separation Date, you will submit
your final documented expense reimbursement statement reflecting all business
expenses you incurred through the Separation Date, if any, for which you seek
reimbursement. The Company will reimburse you in accordance with its regular
business practices.


 


9.                                      RETURN OF COMPANY PROPERTY.  You
agree that on or before the Separation Date you will return to the Company all
Company documents (and all copies thereof) and other Company property in your
possession or control, including, but not limited to, Company files,
correspondence, memoranda, notes, notebooks, drawings, books and records,
plans, forecasts, reports, proposals, studies, agreements, financial
information, personnel information, sales and marketing information, research
and development information, systems information, specifications,
computer-recorded information, tangible property and equipment (not including
the Company-issued PC which you may keep), credit cards, entry cards,
identification badges and keys; and any materials of any kind that contain or
embody any proprietary or confidential information of the Company (and all
reproductions thereof in whole or in part) (“Company Property”); provided,
however, that you may continue to possess, prior to the Separation Date, any
such documents or other Company materials necessary for your performance of
services to the Company during the period prior to the Separation Date.


 


10.                               NO ADMISSIONS.  You
understand and agree that the promises and payments in consideration of this
Agreement shall not be construed to be an admission of any liability or
obligation by the Company to you or to any other person, and that the Company
makes no such admission.


 


2

















 


11.                               PROPRIETARY INFORMATION OBLIGATIONS.  You
acknowledge your continuing obligation to comply with your Employee Proprietary Rights Agreement, a
copy of which is attached hereto as Exhibit C, at all times during, and
subsequent to the termination of, your employment with the Company.


 


12.                               CONFIDENTIALITY.  The
negotiations with respect to, and provisions of, this Agreement will be held in
strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever, provided, however, that: (a) you may disclose
this Agreement in confidence to your immediate family; (b) the parties may
disclose this Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (c) the Company
may disclose this Agreement as necessary to fulfill standard or legally
required corporate reporting or disclosure requirements, including without
limitation the filing of the Agreement with the Securities and Exchange
Commission; and (d) the parties may disclose this Agreement insofar as such
disclosure may be necessary to enforce its terms or as otherwise required by
law. In particular, and without limitation, you may not disclose the terms of
this Agreement to any current or former employee, consultant or independent
contractor of the Company.


 


13.                               NONDISPARAGEMENT.  Both
you and the Company (by its officers and directors) agree not to disparage the
other party, or the other party’s officers, directors, employees, shareholders
and agents, in any manner likely to be harmful to them or their business,
business reputation or personal reputation; provided that both you and the
Company may respond accurately and fully to any question, inquiry or request
for information when required by legal process, after giving reasonable advance
notice to the other party.


 


14.                               RELEASE.  In
exchange for and as a condition to receiving the severance payments, COBRA
premiums and other consideration under this Agreement to which you would not
otherwise be entitled, you agree to sign, deliver to the Company, and make
effective the Release.  You should sign
the Release on or after the Separation Date.


 


15.                               ARBITRATION.  To
ensure rapid and economical resolution of any disputes that arise under this
Agreement, you and the Company agree that any and all disputes or controversies
of any nature whatsoever (with the sole exception of disputes involving
enforcement of the Proprietary Information And Inventions Agreement), arising
from or regarding the interpretation, performance, enforcement or breach of
this Agreement (including Exhibit C) shall be resolved by confidential,
final and binding arbitration (rather than trial by jury or court or resolution
in some other forum), by a single arbitrator, conducted by Judicial Arbitration
and Mediation Services, Inc. (“JAMS”) in San Francisco, California, under the
then-existing JAMS employment arbitration rules and procedures. Nothing in this
Agreement shall prevent either party from seeking to obtain injunctive relief
in court to preserve the status quo or prevent irreparable harm pending the
conclusion of any such arbitration.


 


16.                               MISCELLANEOUS.  This
Agreement, including all exhibits thereto, constitutes the complete, final, and
exclusive embodiment of your entire agreement with the Company, and supersedes
all prior and contemporaneous agreements, promises and representations, with
regard to its subject matters. It is entered into without reliance on any
promise or representation, written or oral, other than those expressly
contained herein.  This Agreement may
not be modified except in a writing signed by you and a duly authorized officer
of the Company. This Agreement shall be deemed to have been entered into and
shall be construed and enforced in accordance with the laws of the State of
California as applied to contracts made and to be performed entirely within
California. This Agreement shall bind the heirs, personal representatives,
successors, and assigns of both you and the Company, and inure to the benefit
of you and the Company, their heirs, successors, and assigns.  The failure to enforce any breach of this
Agreement shall not be deemed to be a waiver of any other or subsequent breach.
For purposes of 


 


3

















 


construing this Agreement,
any ambiguities shall not be construed against either party as the drafter. If
any provision of this Agreement is determined to be invalid or unenforceable,
in whole or in part, this determination will not affect any other provision of
this Agreement and the provision in question will be modified so as to be
rendered enforceable in a manner consistent with the intent of the parties
insofar as possible. This Agreement may be executed in counterparts or with
facsimile signatures, which shall be deemed equivalent to originals.


 


4

















 


If this Agreement is
acceptable to you, please sign below and return one original to me, and sign
and return to me the Release on or after June 30, 2003. I wish you all the
best in your future endeavors.


 


Sincerely,


 


	
  WIND
  RIVER SYSTEMS, INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  John  Brennan

  	
   

  
	
   

  	
  John
  Brennan

  
	
   

  	
  Vice
  President, Human Resources

  
	
   

  
	
  Exhibit A— Release of
  Claims

  
	
  Exhibit B— Personnel
  Option Status

  
	
  Exhibit C— Employee
  Proprietary Rights Agreement

  
	
   

  
	
   

  
	
  I
  UNDERSTAND AND AGREE TO THE

  TERMS SET FORTH ABOVE:

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  Steve Kennedy

  	
   

  
	
   

  	
  Steve
  Kennedy

  
	
   

  
	
  Dated: 

  	
  7/8/2003

  	
   

  
					



 


5

















 


EXHIBIT A


 


FORM OF RELEASE OF CLAIMS


 


In exchange for and as a
condition to receiving the severance payments, COBRA premiums, and other
consideration under the separation agreement between Wind River Systems, Inc.
(the “Company”) and me dated June 30, 2003 (the “Separation Agreement”), I
hereby release, acquit and forever discharge the Company, its parents and subsidiaries,
and their respective its officers, directors, agents, servants, employees,
shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known and unknown, suspected and unsuspected, disclosed
and undisclosed (other than any claim or duty for indemnification I may have as
a result of any third party action against me based on my employment with the
Company), arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the date I sign this Release,
including but not limited to: all such claims and demands directly or indirectly
arising out of or in any way connected with my employment with the Company or
the termination of that employment; including but not limited to, claims of
intentional and negligent infliction of emotional distress, any and all tort
claims for personal injury, claims or demands related to salary, bonuses,
commissions, stock, stock options, or any other ownership interests in the
Company, vacation pay, fringe benefits, expense reimbursements, severance pay,
or any other form of compensation; claims pursuant to any federal, state or
local law, statute, or cause of action including, but not limited to, the
federal Civil Rights Act of 1964, as amended; the federal Americans with
Disabilities Act of 1990; the federal Age Discrimination in Employment Act of 1967,
as amended, (“ADEA”); the California Fair Employment and Housing Act, as
amended; tort law; contract law; wrongful discharge; discrimination;
harassment; fraud; defamation; emotional distress; and breach of the implied
covenant of good faith and fair dealing.


 


I acknowledge that I am
knowingly and voluntarily waiving and releasing any rights I may have under
ADEA.  I also acknowledge that the
consideration given for the waiver and release in the preceding paragraph
hereof is in addition to anything of value to which I was already
entitled.  I further acknowledge that I
have been advised by this writing, as required by the ADEA, that:  (a) my waiver and release do not apply to
any rights or claims that may arise after I execute this Agreement; (b) I have the
right to consult with an attorney prior to executing this Agreement; (c) I have
twenty-one (21) days from the date I receive this Agreement to consider this
Agreement (although I voluntarily may choose to execute this Agreement
earlier); (d) I have seven (7) days following the execution of this Agreement
to revoke the Agreement; and (e) this Agreement shall not be effective until
the later of (i) the date upon which the revocation period has expired, which
shall be the eighth (8th) day after I execute this Agreement, and (ii) the date
I return this Agreement, fully executed, to the Company.


 


I UNDERSTAND THAT THIS
AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving this
release, which includes claims which may be unknown to me at present, I
acknowledge that I have read and understand Section 1542 of the California
Civil Code, which states: “A general release
does not extend to claims which the creditor does not know or suspect to exist
in his favor at the time of executing the release, which if known by him must
have materially affected his settlement with the debtor.” I hereby
expressly waive and relinquish all rights and benefits under that
section and any law of any jurisdiction of similar effect with respect to
my release of any unknown or unsuspected claims I may have against the Company,
its affiliates, and the entities and persons specified above.


 

















 


	
   

  	
  /s/  Steve Kennedy

  
	
   

  	
  Steve Kennedy

  



 


2

















 


EXHIBIT B


PERSONNEL OPTION STATUS


 


 


	
  Personnel Option Status

  	
   

  	
  Wind River Systems, Inc.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ID:  94-2873391

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  500 Wind River
  Way

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Alameda, CA
  94501

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AS OF 6/30/2003

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stephen A. Kennedy

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
							



 


 


	
  Option

  Number

  	
   

  	
  Date

  	
   

  	
  Plan

  	
   

  	
  Type

  	
   

  	
  Granted

  	
   

  	
  Price

  	
   

  	
  Exercised

  	
   

  	
  Vested

  	
   

  	
  Cancelled

  	
   

  	
  Unvested

  	
   

  	
  Outstanding

  	
   

  	
  Exercisable

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  014426

  	
   

  	
  9/27/2001

  	
   

  	
  98EI

  	
   

  	
  NQ

  	
   

  	
  20,000

  	
   

  	
  $

  	
  10.25

  	
   

  	
  0

  	
   

  	
  8,750

  	
   

  	
  0

  	
   

  	
  11,250

  	
   

  	
  20,000

  	
   

  	
  8,750

  	
   

  
	
  016063

  	
   

  	
  7/10/2002

  	
   

  	
  87EI

  	
   

  	
  NQ

  	
   

  	
  100,000

  	
   

  	
  $

  	
  5.00

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  100,000

  	
   

  	
  100,000

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  120,000

  	
   

  	
   

  	
   

  	
  0

  	
   

  	
  8,750

  	
   

  	
  0

  	
   

  	
  111,250

  	
   

  	
  120,000

  	
   

  	
  8,750

  	
   

  



 


 


Information
Currently on File


 


	
  Tax

  	
   

  	
  Rate %

  	
   

  	
  Option SDS Broker

  	
   

  	
  Registration

  	
   

  	
  Alternate Address

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Federal

  	
   

  	
  27.000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Medicare

  	
   

  	
  1.450

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Social
  Security

  	
   

  	
  6.200

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  none

  	
   

  	
  0.000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  none

  	
   

  	
  0.000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


EXHIBIT C


 


EMPLOYEE PROPRIETARY RIGHTS AGREEMENT


(FOR
US-BASED PERSONNEL ONLY)


 


In consideration of my
employment or continued employment by Wind River Systems, Inc. or its
subsidiaries and affiliates (the “Company”), and the compensation now and
hereafter paid to me, I hereby represent and agree as follows:


 


1.               I understand that the Company is engaged in a
continuous program of research, development, production and marketing in
connection with its business and that, as an essential part of my employment
with the Company, I am expected to make new contributions to and/or create
inventions of value for the Company.


 


2.               I will promptly disclose in confidence to the
Company all inventions, improvements, original works of authorship, algorithms,
processes, methods, computer programs, schematics, databases and customer and
competitive information (“Intellectual Property”), whether or not patentable,
copyrightable or protectable as trade secrets, that are or have been made,
discovered, conceived or first reduced to practice by me, either alone or
jointly with others, during the period of my employment, which are related in
any way to the business of the Company, similar to or competitive with the
products or research and development activities of the Company, or sold to the
Company’s customers or potential customers.


 


3.               To the extent not already assigned to the
Company by operation of law, I agree that all Intellectual Property that — (a)
is or has been developed using equipment, supplies or facilities of the Company
(except for any permitted personal use of Company equipment in connection with
a home office or any permitted personal use of mobile Company computing
equipment outside of Company facilities), (b) is or has been developed using
trade secrets of the Company, (c) results or has resulted from work performed
by me for the Company or (d) relates to the business or the actual or
anticipated research or development of the Company — will be the sole and
exclusive property of and is hereby assigned to the Company (including any
right to sue and collect damages for past infringements).  The provisions of this paragraph do not
apply to any invention that may not be assigned to the Company according to
Section 2870 of the California Labor Code, which is set forth in the
Appendix to this Agreement.


 


4.               I acknowledge that all original works of authorship
which are or have been made by me (solely or jointly with others) within the
scope of my employment and which are protectable by copyright are “works made
for hire,” as that term is defined in the United States Copyright Act (17
U.S.C. Section 101).


 


5.               I agree to assist the Company in every proper
way to obtain for the Company and enforce patents, copyrights and other legal
protections for the Company’s Intellectual Property in any and all
countries.  I will execute any documents
that the Company may reasonably request for use in obtaining or enforcing such
patents, copyrights and other legal protections. My obligations under this
paragraph will continue beyond the termination of my employment with the
Company, provided that the Company will compensate me at a reasonable rate
after such termination for time actually spent by me at the Company’s request
on such assistance.


 


6.               To preclude any possible uncertainty, I have
set forth on Exhibit A attached hereto a list of Intellectual Property that I
believe I have, alone or jointly with others, made, discovered, conceived or
first reduced to practice prior to the commencement of my employment with the
Company, that I consider to be my property or the property of third parties and
that I believe to be excluded from the scope of this Agreement.  If disclosure of any such Intellectual
Property on Exhibit A would cause me to violate any prior confidentiality
obligations, I understand that I am not to list such Intellectual Property in
Exhibit A but I am to indicate that all such Intellectual Property has not been
listed for that reason.


 


7.               I understand that my employment by the
Company creates a relationship of confidence and trust with respect to any
information of a confidential or secret nature that may be developed by me or
disclosed to me that relates to the business of the Company or to the business
of any customer or supplier of the Company or other third party (“Confidential
Information”).  Such Confidential Information
includes but is not limited 


 

















 


to,
patent applications, works of authorship, inventions, data, know-how,
developments, algorithms, processes, methods, designs, marketing plans, product
plans, business strategies, partnering strategies, financial information,
forecasts, competitive analyses, personnel information and customer (and
potential customer) information. 
Confidential Information shall not include any information that (through
no fault of my own) was or has become a matter of public knowledge, was or is
disclosed by the Company to a third party without a duty of confidentiality on
the third party, or becomes publicly disclosed under operation of law.


 


8.               At all times, both during my employment and
after its termination, I will keep all such Confidential Information in
confidence and trust, and I will not use or disclose any of such Confidential
Information without the written consent of the Company, except as may be
necessary to perform my duties as an employee of the Company.  Upon termination of my employment with the
Company, I will promptly deliver to the Company all documents and materials of
any nature pertaining to my work with the Company and I will not retain any
documents or materials or copies thereof containing any Confidential
Information.


 


9.               I agree that during the period of my
employment by the Company I will not engage in any employment or business
activity outside of my employment with the Company that might conflict with my
obligations to the Company (including my obligations under this Agreement
regarding Confidential Information and relating to Intellectual Property),
including any duty of loyalty to the Company imposed by law.  I agree that I will not engage in any
business activity during the period of my employment outside of my employment
with the Company that involves any competitors of the Company in any of the
fields in which the Company participates. 
I agree further that for the period of my employment with the Company
and for one (1) year after the date of termination of my employment with the
Company, I will not (i) solicit (or aid in the solicitation of) any employee of
the Company to leave the employ of the Company, or (ii) solicit the business of
any client or customer of the Company (other than on behalf of the Company).


 


10.         I represent that my performance of all terms
of this Agreement and my duties as an employee of the Company will not breach
any intellectual property assignment or confidentiality agreement with any
former employer or other party.  I
represent that I will not bring with me to the Company or use in the
performance of my duties for the Company any Intellectual Property of a former
employer, or documents or materials of a former employer that are not generally
available to the public.  Not withstanding
the forgoing, I agree that if I incorporate (or cause the incorporation of)
Intellectual Property to which I claim to have an interest into the
developments, services or processes of the Company, such Intellectual Property
is hereby licensed to the Company on a perpetual, royalty-free basis to the
full extent of my interest in such Intellectual Property, including all
copyrights and patent rights.


 


11.         This Agreement will be governed by and
construed according to the laws of the State of Delaware.  If any provision of this Agreement is deemed
unenforceable by law, then such provision will be deemed stricken from this
Agreement, unless it can be modified by a court so as to render it enforceable
consistent with the intent of the Agreement, and the remaining provisions will
continue in full force and effect.  I
understand that in the event of a breach or threatened breach of this Agreement
by me the Company may suffer irreparable harm and will therefore be entitled to
injunctive relief to enforce this Agreement.


 


12.         This Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof
and supersedes all prior representations. 
No modification of or amendment to this agreement, nor any waiver of any
rights under this Agreement, will be effective unless in writing and signed by
the party to be charged.


 


13.         The provisions of this Agreement shall
survive the termination of my employment and the assignment of this Agreement
by the Company to any successor in interest or other assignee.


 


14.         I understand that this Agreement does not
constitute a contract of employment or obligate the Company to employ me for
any stated period of time.  This
Agreement shall be effective as of the first day of my employment by the
Company.


 


2

















 


I HAVE READ
THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.  I HAVE COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.


 


	
  EMPLOYEE

  	
  COMPANY

  
	
   

  	
   

  	
   

  
	
  BY:

  	
  /s/ Steve Kenndy

  	
   

  	
  BY:

  	
  /s/ Jo Chew

  	
   

  
	
   

  	
   

  	
   

  
	
  TITLE:

  	
  Vice President

  	
   

  	
  TITLE:

  	
  HR Assistant

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
  January 10, 2002

  	
   

  	
  DATE:

  	
  1/14/2002

  	
   

  
	
   

  	
   

  	
   

  
							



 


3

















 


EXHIBIT A


PRIOR
INTELLECTUAL PROPERTY


 


The following is a list of
Intellectual Property that may be relevant to the subject matter of my
employment by the Company that have been made, discovered, conceived or first
reduced to practice by me alone or jointly with others prior to my engagement
by the Company:


 


ý            No Intellectual Property.


 


o            See Below:


 


o            Due to confidentiality agreements with prior
employer, I cannot disclose certain Intellectual Property that would otherwise
be included on the above-described list.


 


o            Additional sheets attached.


 


	
   

  	
   /s/ Steve Kennedy

  	
   

  
	
   

  	
  EMPLOYEE SIGNATURE

  
	
   

  	
   

  
	
   

  	
   Steve Kennedy

  	
   

  
	
   

  	
  EMPLOYEE — PRINT NAME

  	
   

  
	
   

  	
   

  
	
   

  	
  January 15, 2002

  	
   

  
	
   

  	
  DATE

  	
   

  



 

















 


APPENDIX


California
Labor Code Section 2870


 


(a)                                  Any provision in an employment agreement
which provides that an employee shall assign, or offer to assign, any of his or
her rights in an invention to his or her employer shall not apply to an
invention that the employee developed entirely on his or her own time without
using the employer’s equipment, supplies, facilities, or trade secret
information except for those inventions that either:


 


(1)                                  Relate at the time of conception or reduction
to practice of the invention to the employer’s business, or actual or
demonstrably anticipated research or development of the employer; or


 


(2)                                  Result from any work performed by the
employee for the employer.


 


(b)                                 To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is against
the public policy of this state and is unenforceable.