Prepared by MERRILL CORPORATION




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Exhibit 10.38  


 
 

SETTLEMENT AGREEMENT    
  


    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 KOBE STEEL, LTD., a corporation organized and existing under the laws of Japan and having its
registered office at 5-1 Wakinohama-Kaigandori 1-chome, Chuo-ku, Kobe, Japan ("Kobe") and 


    WHEREAS,
in 1989, Wind River Systems, Inc., a corporation organized and existing under the laws of the State of California, USA ("WRSI"), Kobe, 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 Kobe entered into that certain Master Distributor Agreement dated 3 December 1990 (This agreement and its incidental and related agreements shall be referred
to collectively herein as the "MDA"); 


    WHEREAS,
WRSI, WRSKK, and Kobe 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. 


    NOW,
THEREFORE, IT IS AGREED AS FOLLOWS: 


    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: 




	1.
	As
a result of Kobe conveying its shares in WRSKK to WRSI on 28 December 2000, the JVA was amicably terminated.



	2.
	The
MDA was amicably terminated as of 31 December 2000.



	3.
	Kobe
has introduced and will continue to introduce any customers it has developed pursuant to its activities under the MDA to WRSKK or its designee and will assist in the orderly
continuation of all transactions dealing with WRSI Products. However, WRSKK and its designee shall not be responsible for or assume any of Kobe's liabilities (not only monetary liabilities, but
service liabilities, and any and all liabilities of any type and nature) to any of Kobe's customers even if WRSKK or its designee received an introduction to the customer from Kobe and entered into a
business relationship with said customer.



	4.
	Pursuant
to the terms and conditions of this Agreement, WRSKK agrees to pay to Kobe a sum certain to settle any claims arising out of the termination of the JVA and MDA, if any, and
for Kobe's customer list, goodwill, etc. (hereinafter referred to collectively as "Settlement Proceeds"). The particular breakdown of how the Settlement Proceeds will be allocated among the various
matters will be determined upon discussions between the parties hereto as provided in Section 4 below. Upon WRSKK's payment and Kobe's receipt of the Settlement Proceeds, each party,
representing all of each party's respective subsidiaries, affiliated companies, directors, officers, and employees thereof, releases and forever discharges the other party, representing all of said
party's subsidiaries, affiliated companies, directors, officers, and employees thereof, for all claims arising out of or resulting from the termination of the JVA and MDA. 







 


	5.
	To
date Kobe has purchased from WRSI and retains in its current inventory a certain quantity of a WRSI Product called a "Chip Bundle". The parties agree that Kobe shall be entitled
to continue to sell its current inventory of said Chip Bundles in Japan. Kobe agrees not to make additional new purchases of said Chip Bundles and WRSKK agrees not to purchase and will not allow WRSI
to purchase any Chip Bundles from Kobe.



	6.
	The
parties hereto agree that as between them there are no claims, debts, obligations, or liabilities arising out of the termination of the JVA and MDA other than those specifically
identified in this Agreement. 





    Section 2.  Customer Introduction Assistance.  




	1.
	Kobe
has disclosed and shall disclose to WRSKK or its designee the following information immediately after the parties execute this Agreement:



	a.
	A
list of all customers with whom Kobe has or had business transactions under the MDA;



	b.
	The
contents of any contracts or maintenance agreements between Kobe and any customers identified in the preceding clause; and



	c.
	A
list of potential customers discovered during Kobe's business activities during the period from 1 January 2001 to 30 March 2001 with whom Kobe believes that WRSKK or
its designee have a chance to conclude an agreement and a report on the status of all negotiations in progress. 









	2.
	Kobe
agrees that WRSKK or its designee are free to conclude contracts for WRSI Products and other products with the persons or entities identified by Kobe in the preceding clauses
and Kobe agrees to cooperate in such activities with WRSKK and its designee.



	3.
	The
prior clauses notwithstanding, upon the expiration of the one (1) year term of any maintenance agreements identified in clause 1.b. of this Section 2 above,
WRSKK or its designee shall succeed to the rights of Kobe under said maintenance agreements. However, WRSKK or its designee may propose in advance whatever terms and conditions it may require in order
to succeed to said maintenance agreements. In addition, Kobe agrees to cooperate with WRSKK or its designee in the orderly succession of said maintenance agreements without additional compensation
unless the parties mutually determine in writing in advance that Kobe should receive and that WRSKK should pay additional compensation for any such services. 





    Section 3.  Settlement Proceeds.  




	1.
	WRSKK
hereby recognizes that it has a duty to pay to Kobe as Settlement Proceeds the sum of Three Hundred Million Japanese Yen (JPY300,000,000). Said Settlement Proceeds shall be
paid by wire transfer to an account designated by Kobe by 30 March 2001.



	2.
	WRSKK
hereby agrees that it or its designee shall make payment to Kobe as provided in the preceding clause. Moreover, WRSKK agrees that it will bear the cost of the telegraphic
transfer handling charges. 





    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
Kobe by 27 April 2001 shall prepare and conclude a settlement agreement relating to the sale of Kobe's 


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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 Kobe 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. 


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    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 WRSI, 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. 


[The remainder of this page is intentionally left blank.]


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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. 



	WIND RIVER SYSTEMS KABUSHIKI KAISHA,

a Japan corporation	 	 
	

By	
 	

/s/ GUISEPPE KOBAYASHI   
 Giuseppe Kobayashi

Its: Representative Director	
 	

 
	

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

 
	

KOBE STEEL, LTD.,

a Japan corporation	
 	

 
	

By	
 	

/s/ HIROSHI SATOH   
 Hiroshi Satoh

Its: Director and Senior Officer	
 	

 
	

Place and Date of Signing: Kobe, Japan, 30 March 2001
	
"Kobe"	
 	

 




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SETTLEMENT AGREEMENT