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Exhibit 10.1
RELEASE OF CLAIMS
This Release of Claims ("Release")
is made by and between McAfee, Inc. (the "Company") and George
Samenuk ("Employee").
RECITALS
1. Employee was employed by
the Company prior to his resignation and retirement on
October 10, 2006.
2. The Company and Employee
(collectively referred to as "the Parties") have previously entered
into an employment agreement specifying that certain severance
benefits would be provided to Employee upon certain terminations of
employment (as amended through the date hereof, the "Employment
Agreement").
3. Notwithstanding the
severance benefit provisions of the Employment Agreement, which are
hereby superseded in their entirety, the specific severance
benefits that the Company shall provide to Employee are listed on
Appendix A to this Release.
4. Unless otherwise defined
herein, defined terms shall have the same meanings as set forth in
the Employment Agreement.
NOW THEREFORE, in connection with
the promises made herein and in the Employment Agreement, the
Company and Employee hereby agree as follows:
1. Resignation .
Employee hereby acknowledges that he resigned and retired as the
Company’s Chairman of the Board and Chief Executive Officer
and from any and all positions he held as an employee and director
of the Company and/or any of its subsidiaries effective as of
October 10, 2006 (the "Termination Date").
2. Confidential
Information . Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of
the Company and shall continue to comply with the terms and
conditions of the Employee Inventions and Proprietary Rights
Assignment Agreement between Employee and the Company.
3. Payment of Salary
. The Company represents and Employee acknowledges and represents
that the Company has paid (or will pay pursuant to the terms of the
applicable plan or program and the Employment Agreement) all
salary, wages, bonuses, commissions, accrued vacation and expense
reimbursements and any and all other benefits due to Employee
through the Employee’s Termination Date.
4. Release of Claims
. Employee agrees that the consideration set forth in
Appendix A to this Release represents settlement in full of
all outstanding obligations owed to Employee by the Company or any
subsidiary of the Company. Employee , on behalf of himself and his
respective heirs, agents, representatives, immediate family
members, executors, and assigns, hereby fully and forever releases
the Company and its directors, employees, attorneys, investors,
shareholders,
administrators, affiliates, divisions, subsidiaries, parents,
predecessor and successor corporations, agents and assigns and
agrees not to sue or otherwise institute or cause to be instituted
any legal or administrative proceedings concerning any claim, duty,
obligation or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that
Employee may possess against the Company from any omissions, acts
or facts that have occurred up until and including the Effective
Date of this Release including, without limitation,
(a) any
and all claims relating to or arising from Employee’s
relationship with the Company or any subsidiary of the Company and
the termination of that relationship;
(b) any
and all claims relating to, or arising from, Employee’s right
to purchase, or actual purchase of shares of stock of the Company
or any subsidiary of the Company, including, without limitation,
any claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities
fraud under any state or federal law; provided ,
however , that any claims, duties, obligations, or causes of
action relating to Employee’s vested stock rights are
excluded from the release set forth in this Section 3;
(c) any
and all claims for wrongful discharge of employment; termination in
violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and
fair dealing, both express and implied; promissory estoppel;
negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander;
negligence; personal injury; invasion of privacy; false
imprisonment; and conversion;
(d) any
and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit
Protection Act; the Sarbanes-Oxley Act, the California Fair
Employment and Housing Act, and the California Labor Code, except
as prohibited by law, and all amendments to each such Act as well
as the regulations issued thereunder;
(e) any
and all claims for violation of the federal, or any state,
constitution;
(f) any
and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) any
and all claims for attorneys’ fees and costs.
Nothing in this Release is intended to relieve the Company of
its obligations under Labor Code Section 2802. Employee and
the Company agree that the release set forth in this Section shall
be and remain in effect in all respects as a complete general
release as to the matters released. This release does not extend to
any obligations incurred under this Agreement, under sections 7(g),
7(h) or 11, as applicable, of the Employment Agreement (to the
extent not otherwise superseded by this
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Agreement), and/or under the Indemnification Agreement by and
between the Company and Employee. This Release also does not extend
to any claims Employee may have with respect to the termination of
his fully vested stock options unexercised at midnight on
February 6, 2007.
5. Acknowledgment of
Waiver of Claims under ADEA . Employee acknowledges that he is
waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this
waiver and release is knowing and voluntary. Employee and the
Company agree that this waiver and release does not apply to any
rights or claims that may arise under the ADEA after the Effective
Date of this Release. Employee acknowledges that the consideration
given for this waiver and Release is in addition to anything of
value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that
(a) he should consult with an attorney prior to
executing this Release; (b) he has at least twenty-one
(21) days within which to consider this Release; (c) he
has seven (7) days following the execution of this Release by
the Parties to revoke the Release; (d) this Release shall not
be effective until the revocation period has expired; and
(e) nothing in this Release prevents or precludes Employee
from challenging or seeking a determination in good faith of the
validity of this waiver under the ADEA, nor does it impose any
condition precedent, penalties or costs for doing so, unless
specifically authorized by federal law. Any revocatio
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