Exhibit 10.33


 


 


NON-COMPETITION
AGREEMENT


 


This NON-COMPETITION
AGREEMENT (this “Agreement”) is entered as of June 5,
2009 (the “Closing Date”), by and between Sundari Mitra, an individual
(the “Employee”), and MOSYS, INC., a
Delaware corporation (“MoSys”).


 


WHEREAS, simultaneously with
the effectiveness of this Agreement, MoSys shall acquire (the “Transaction”)
substantially all of the assets of Prism Solutions, Inc., a Delaware
corporation (“Prism”), together with the goodwill of Prism, upon the
terms and subject to the conditions set forth in the Agreement for the Purchase
and Sale of Assets, dated as of June 5, 2009, by and between MoSys and
Prism (the “Purchase Agreement”). 
The Employee owns 1,939,835 shares of common stock of
Prism.  The Purchase Agreement provides
that the parties’ entry into this Agreement is a condition of MoSys’ obligation
to consummate the Transaction.


 


NOW, THEREFORE, in order to
induce MoSys to consummate the Transaction, the Employee hereby agrees as
follows:


 


SECTION 1  Covenants


 


1.1  General.  The Employee acknowledges
and understands that: (a) as of the Closing Date, Prism is engaged in the
business of designing,
developing and licensing integrated circuit serial interconnect/ I/O design and
high-speed memory parallel interconnect technology, including, but not limited
to, SerDes and DDR3/2, and providing related services (the “Business”)
and that, following the Closing Date, MoSys and/or a subsidiary of MoSys will
continue to conduct the Business; (b) the Employee has had access to trade
secrets of and confidential information concerning the Business not readily
available to the public; and (c) the agreements and covenants contained in
this Agreement are essential to protect the business and goodwill of Prism
which is being acquired by MoSys.  Any
reference to MoSys in this Section 1 is deemed to refer also to every
subsidiary (direct and indirect) of MoSys during the term of this Agreement.


 


1.2  Location of
Business.  The parties hereto acknowledge and agree that
the Business is currently conducted by means of domestic and international
sales and services arrangements and the Internet and, as such, is conducted in
all counties of California and all continents, countries and cities outside
California.


 


1.3  Non-Competition Provisions.


 


(a)  Agreement Not to Compete. 
For a period of eighteen (18) months from the Closing Date (the “Restricted
Period”), and provided that the Employee receives from the Company any and
all compensation and benefits required pursuant to the terms of his or her
employment agreement (or offer letter) with the Company, the Employee shall not
(i) engage in the Business anywhere or (ii) serve as an employee or
director of, or a consultant to, or own more than 1% of the outstanding voting
equity securities of, any Competing Entity (as defined below) anywhere in the
world.


 


Notwithstanding the
termination of the Restricted Period, the Employee shall remain subject to the
restrictions and obligations contained in the Employment, Confidential Information and Invention
Assignment Agreement entered into
with MoSys on or around the Closing Date.


 


For purposes of this
Agreement, the term “Competing Entity” shall mean:  (i) a corporation or other entity the
principal business function of which is the Business; or (ii) a
corporation, or business unit of a 


 


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corporation, or other entity
that derives significant gross revenues from the Business in any given fiscal
year.  Notwithstanding anything to the
contrary contained in this Agreement, the Employee may (without being deemed to
have breached any provision of this Agreement) serve as an employee of any
Competing Entity if the services performed by the Employee for such Competing
Entity, or the primary responsibilities of the Employee as an employee of such
Competing Entity, do not relate directly or indirectly to the Business whether
in a supervisory or support capacity.


 


(b)  Engage in Business. 
For purposes of this Section 1.3, the term “engage in business”
shall include, without limitation, maintenance of business assets and
properties, and dealings with actual or potential customers, licensees,
suppliers, vendors, partners, channel affiliates or co-marketers, the principal
business function of which is the Business.


 


(c)  Exception.  Nothing in this Section 1.3 shall
prevent the Employee from owning less than 1% of the outstanding shares of any
corporation listed on a national securities exchange or actively traded on an
over-the-counter market.  Furthermore, if
MoSys fails to pay the Employee the compensation and benefits (including
severance benefits) required pursuant to the terms of his employment agreement
(or offer letter) with the Company, none of the restrictions set forth herein
shall apply and any Restricted Period shall terminate on the date of
termination of Employee’s employment. 
Furthermore, if MoSys terminates the Employee’s employment without Cause
(as defined in the Employee’s employment agreement or offer letter) and pays
severance benefits to the Employee during the Restricted Period, the
restrictions set forth herein shall cease to apply and the Restricted Period
shall terminate on the last day of the period determined by the amount of
severance benefits paid to the Employee, as determined in accordance with
Employee’s employment agreement or offer letter.


 


(d)  Termination.  This Agreement shall terminate and
expire, and shall cease to be of any force or effect, upon the expiration of
the Restricted Period.


 


1.4  Customers and
Vendors; Non-Disparagement.   During the
Restricted Period, the Employee will not (i) request or advise any
customer, subscriber, supplier, vendor, partner, channel affiliate or
co-marketer of MoSys or any Beneficiary (as defined below) to curtail or
otherwise adversely change, or to cancel, such person’s or entity’s patronage
of or relationship with MoSys or any Beneficiary, or (ii) make statements
to any such person or entity with the intent of having any such effects or
which are reasonably likely to have any of such effects or (iii) make
public statements, or statements to any current or prospective employee,
consultant, agent, customer or vendor of MoSys or any Beneficiary, which are
reasonably likely to adversely affect the public standing of MoSys or any
Beneficiary or such entity’s services. 
Notwithstanding the preceding sentence, the Employee shall not be
restricted from making statements regarding MoSys or any Beneficiary or such
entity’s services otherwise prohibited by this Section 1.4 when giving
evidence in connection with any administrative, judicial or arbitral
proceeding, provided the Employee has been advised by its, his or her counsel
that giving evidence in connection with such proceeding is required.


 


SECTION 2  General


 


2.1  Rights and
Remedies upon Breach.  If the Employee breaches any of
the provisions of Section 1, Prism, MoSys and any corporation or other
entity to which a substantial part of the Business is transferred or which
otherwise succeeds to a substantial part of the Business (each a “Beneficiary”
and collectively, the “Beneficiaries”) shall have the following rights
and remedies, each of which rights and remedies shall be independent of the
others and severally enforceable, and each of which is in addition to, and not
in lieu of, any other rights and remedies available to any of the Beneficiaries
under law or in equity.


 


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(a)  Specific Performance.  The right and remedy to
have the provisions of Section 1 specifically enforced by any court of
competent jurisdiction by way of an injunction or other legal equitable relief,
it being agreed that any breach of the covenants specified in Section 1
would cause irreparable injury to the Beneficiaries and that pecuniary
compensation would not afford adequate relief to the Beneficiaries, or it would
be extremely difficult to ascertain the amount of compensation which would
afford adequate relief.  Therefore, the
Employee agrees that, in the event of any such breach or threatened breach of Section 1,
the Beneficiaries will have the right to seek and obtain injunctive relief.


 


(b)  Accounting.  The right
and remedy to require the Employee, if he is in knowing breach of the
Agreement, to account for and pay over to the Beneficiaries any and all
compensation received by the Employee pursuant to his employment agreement as a
result of the termination of his employment with the Company, net gains or
other benefits received by the Employee as the result of any action
constituting a breach of this Agreement.


 


2.2  Severability of
Covenants.  The Employee
acknowledges and agrees that the covenants contained in Section 1 are
reasonable and valid in duration and geographical scope and in all other
respects.  If any court determines that
any of such covenants, or any part thereof, is invalid or unenforceable in any
respect, such covenant shall not thereby be affected in any other respect and
shall be given full effect in all other respects.  If any court determines that any of such
covenants, or any part thereof, is unenforceable because of the duration or
geographical scope of such provision, the parties intend that such court shall
reduce the duration or geographical scope of such provision, as the case may
be, and, in its reduced form, enforce such provision.  The covenants of this Agreement are
independent of and separable from each other, and no covenant shall be affected
or rendered invalid or unenforceable by virtue of the fact that any other
covenant may be invalid or unenforceable in whole or in part for any reason.


 


2.3  Enforceability in
Jurisdictions; Governing Law. MoSys and the Employee
intend to and hereby confer nonexclusive jurisdiction to enforce this Agreement
upon the courts of any jurisdiction within the geographical scope of the
covenants set forth in Section 1. 
If the courts of any one or more of such jurisdictions hold any portion
of this Agreement unenforceable under the law applied by such court, it is the
intention of the parties that such determination not bar or in any way affect
the right of the Beneficiaries to the relief provided above in the courts of
any other jurisdiction within the geographical scope of the provisions of this
Agreement as to breaches of such provisions in such other respective
jurisdictions, such provisions as they relate to each jurisdiction being, for
this purpose, severable into diverse and independent covenants.  As to activities of the Employee in
California, this Agreement shall be governed by California law.  As to activities of the Employee outside
California, this Agreement shall be governed by the law of the jurisdiction in
which such activities are conducted.


 


2.4  Assignability.  This
Agreement is binding upon the parties hereto and shall inure to the benefit of
every Beneficiary.


 


2.5  Amendment and
Modification; Waiver.  This Agreement
may not be amended, modified or supplemented, except by an instrument in
writing signed on behalf of each party and otherwise as expressly set forth
herein.  No failure or delay of either
party in exercising any right or remedy hereunder shall operate as a waiver
thereof.  Any such waiver by a party
shall be valid only if set forth in writing by such party.


 


2.6  Notices.  All notices and other
communications hereunder shall be in writing and shall be deemed duly given if
delivered personally or sent by facsimile, overnight courier or registered or
certified mail, postage prepaid, to:


 


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if to MoSys:


 


	
   

  	
  MoSys, Inc.

  755 N. Mathilda Avenue

  Sunnyvale, CA 94085

  Fax: (408) 731-1893

  Attn: Chief Financial Officer

  	
   

  



 


with a copy to:


 


	
   

  	
  Bingham McCutchen LLP

  1900
  University Avenue

  East
  Palo Alto, CA  94303

  Facsimile: (650) 849-4800

  Attention:  Alan B. Kalin

  	
   

  



 


if to the Employee:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
	
   

  	
  Email:

  	
   

  	
   

  



 


2.7  Other Provisions.


 


(a)  Attorneys’ Fees.  If
any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and necessary disbursements, in addition to any other
relief to which he, she or it may be entitled.


 


(b)  Entire Agreement; Not Binding Until Executed.  This Agreement constitutes the entire
agreement, and supersedes all prior written agreements, arrangements and
understandings and all prior and contemporaneous oral agreements, arrangements
and understandings between the parties with respect to the subject matter of
this Agreement.  No party to this
Agreement shall have any legal obligation to enter into the transactions
contemplated hereby unless and until this Agreement shall have been executed
and delivered by each of the parties.


 


(c)  Descriptive Headings. 
The headings of the sections and paragraphs of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part
of this Agreement.


 


(d)  Mutual Drafting.  The
parties hereto have participated jointly in the negotiation and drafting of
this Agreement and have been represented by their own legal counsel in
connection with the transactions contemplated by this Agreement, with the
opportunity to seek advice as to their legal rights from such counsel.  In the event an ambiguity or question of
intent or interpretation arises, this Agreement is to be construed as jointly
drafted by the parties hereto and no presumption or burden of proof is to arise



 


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favoring or disfavoring any
party by virtue of the authorship of any provision of this Agreement or by
reason of the extent to which any such provision is inconsistent with any prior
draft hereof.


 


(e)  Counterparts.  This
Agreement may be executed in counterparts, all of which shall be considered one
and the same instrument and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party.


 


[Remainder of Page Intentionally Left Blank.]


 


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IN WITNESS WHEREOF, the
parties have signed this Non-Competition Agreement as of the date first above
written.


 


	
   

  	
  MOSYS,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Leonard
  Perham

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Sundari
  Mitra

  
	
   

  	
  [                        ]

  



 


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