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Exhibit
10.30
MUTUAL SEPARATION AND
GENERAL RELEASE AGREEMENT
This Mutual Separation and General
Release Agreement (“Separation Agreement”) is made by
and between Dennis McKenna (“McKenna”) and Silicon
Graphics, Inc. (the “Company”). McKenna and the Company
enter into this Separation Agreement to resolve any disputes
between them and to set forth the terms of the termination of
McKenna’s employment. In consideration of the promises below,
the Company and McKenna agree as follows:
A. THE COMPANY
1. Severance Pay. Within the time
period set forth in Section A.3, the Company shall pay McKenna a
lump sum severance payment of Five Hundred Thousand Dollars
($500,000).
2. COBRA Continuation. If McKenna
is eligible and timely elects to continue group health coverage
under COBRA, the Company will pay the COBRA premiums for him and
his eligible dependents for up to the first twelve months of
continuing coverage. Upon completion of the first twelve months of
continuing coverage, the Company will cease paying the COBRA
premiums and McKenna will be responsible for all further COBRA
payments.
3. Delayed Commencement of
Benefits. Notwithstanding any provision to the contrary in this
Agreement, as of the Termination Date (as defined below), because
McKenna is deemed at the time of such separation from service a
“key employee” within the meaning of that term under
Internal Revenue Code Section 416(i) in order to avoid a
prohibited distribution under Internal Revenue Code
Section 409A(a)(2): the payment under Section A1 of this
Agreement shall not be paid or provided to McKenna prior to the
earlier of (i) the date that is six (6) months following
his “separation from service” with the Corporation (as
such term is defined in Treasury Regulations issued under Internal
Revenue Code Section 409A) or (ii) the date of his death.
Upon the expiration of the applicable Code Section 409A(a)(2)
deferral period, all payments actually deferred pursuant to this
Section A6 shall be paid in a lump sum to McKenna, and any
remaining payments which thereafter become due under this Agreement
shall be paid in accordance with the normal payment dates specified
for them herein
B. MCKENNA
1. Resignation From Board/Termination
of Employment. McKenna hereby resigns his position as a member
of the Board of Directors of the Company effective April 6,
2007 (the “Termination Date”). McKenna further agrees
that effective on the Termination Date, his employment will end and
he will no longer perform services for the Company in any capacity,
nor will he hold himself out as a representative or agent of the
Company.
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2. Release of All
Claims.
(a) Except as set forth in
Section B.2.(c) below, which identifies claims expressly excluded
from this release, in consideration for the benefits provided by
the Company under Section A. above, McKenna releases the Company,
any affiliated companies, and the current and former officers,
directors, agents, employees and assigns of the Company and any
affiliated companies, to the maximum extent permitted by law, from
any and all known and unknown claims up through the date that
McKenna executes this Separation Agreement. The claims which
McKenna is releasing include, but are not limited to, those related
to: McKenna’s employment with the Company; the
Company’s Chapter 11 Bankruptcy proceedings; McKenna’s
Employment Agreement dated January 27, 2006, and its amendment
dated April 17, 2006; McKenna’s Restricted Stock
Agreement dated February 1, 2006, and its amendment dated
April 17, 2006; and McKenna’s NonStatutory Stock Option
Grant Agreement dated February 1, 2006. All such claims
(including related claims for attorneys’ fees and costs) are
barred without regard to whether those claims are based on any
alleged breach of a duty arising in statute, contract, or tort.
This expressly includes waiver and release of all claims for
monetary damages and any other form of personal relief and any
claims arising under any and all laws, rules, regulations, or
ordinances, including but not limited to Title VII of the Civil
Rights Act of 1964; the Age Discrimination in Employment Act
(ADEA); the Americans with Disabilities Act; the Employee
Retirement Income Security Act; the Equal Pay Act of 1963; the
California Fair Employment and Housing Act; the California Business
and Professions Code; and any similar law of any other state or
governmental entity.
McKenna further waives any
rights under Section 1542 of the Civil Code of the State of
California or any similar state statute. Section 1542 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 to him, must have
materially affected his settlement with the
debtor.”
(b) McKenna hereby represents
and warrants that he has
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