RETIREMENT AND RELEASE
AGREEMENT
This Retirement
and Release Agreement (the “Agreement”) is executed
this 22nd day of May, 2009 by Christopher Scott Bolin
(“Bolin”). For purposes of this Agreement,, unless
otherwise indicated, the term “the Company” or
“McAfee” shall mean McAfee Inc., a Delaware
Corporation, and its majority owned direct and indirect
subsidiaries.
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1.
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I
have decided to retire from my “at will” employment
with the Company, effective 30 June, 2009. As consideration for my
execution of this Agreement, I will serve in a non-employee
advisory role from 1 July, 2009, through 30 Sept, 2010, , to
facilitate a smooth transition from my role as the Executive Vice
President and Chief Technology Officer.
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2.
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a.
In exchange for the payment and benefit described in Section 4
hereof and offered to me by the Company, which I hereby acknowledge
is above and beyond anything which the Company is legally obligated
to provide to me, I (on behalf of myself and my successors and
assigns) hereby release the Company and the officers, directors,
employees, stockholders, affiliates, subsidiaries and legal
successors and assigns of the Company, past and present,
(“Released Parties”) from all claims, actions and
causes of action, whether now known or unknown, which I now have,
or at any other time had, or shall or may have against those
Released Parties based upon, relating to or arising out of any
matter, cause, fact, thing, act or omission whatsoever occurring at
any time up to and including the date I sign this Agreement,
including, but not limited to, any claims for breach of express or
implied contract, wages or benefits owed, covenants of fair dealing
and good faith, interference with contract, option grants, wrongful
discharge or termination, fraud, defamation, negligence, assault,
battery, invasion of privacy, false imprisonment, civil conspiracy,
duress, promissory or equitable estoppel, violation of public
policy, retaliation, personal injury, breach of fiduciary duty, bad
faith, infliction of emotional distress and employment
discrimination or harassment of any type or retaliation based on
any protected status (including, without limitation, national
origin, race, age, sex, sexual orientation, disability,
workers’ compensation status, or other protected category) or
other discrimination, retaliation or harassment under Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Civil Rights Acts of 1866 and 1871, the Family and Medical Leave
Act of 1993 (“FMLA”), the Age Discrimination In
Employment Act of 1967, the Americans With Disabilities Act,
(“ADA”), the Employee Retirement Income Security Act
(“ERISA”), the Fair Labor Standards Act of 1938
(“FLSA”), the California Fair Employment and Housing
Act, or any amendments to any of the above, or any other applicable
federal, state or local law, statutes, regulations, ordinances, or
other similar provisions and all claims for monetary recovery,
including, without limitation, attorneys’ fees,
experts’ fees, medical fees or expenses, costs and
disbursements and the like. I understand that this waiver includes
all rights under section 1542 of the Civil Code of the State of
California which provides: “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 mate4rially affected his settlement with the
debtor.” I acknowledge that I consciously intend these
consequences even as to claims for damages that may exist as of the
date this Agreement is executed that I do not know exist, and
which, if known, would materially affect my decision to execute
this Agreement, regardless of whether the lack of knowledge is the
result of ignorance, oversight, error, negligence or any other
cause. I understand that this does not prohibit me from filing a
lawsuit or from challenging the enforcement of this Agreement under
the Older Workers Benefit Protection Act, nor does it prohibit me
from filing a charge with or participating in any investigation of
the EEOC or comparable state or local agency. To the fullest extent
permitted by law, I agree that I will not file any lawsuit or other
legal proceeding to assert any such claims. I further agree that in
the event for any reason my release of claims contained herein as
to any claims I might have or may have in the future is
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deemed
unenforceable or void, I agree that I shall neither claim nor be
entitled to receive, and hereby specifically waive, any benefit or
proceeds arising out of such claim or claims.
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b. The parties
acknowledge and agree that nothing in this Section 2
constitutes a release or waiver of any rights I have to
indemnification as an employee and /or officer of the Company
pursuant to any indemnification agreement, the Company’s
Articles of Incorporation or By-Laws , coverage under any
applicable contract of insurance , or applicable law.
c. Other than
for any violation of existing obligations of confidentiality or
breaches of trust of which the Company is not aware, this Agreement
acts to release Bolin from any claims which the Company may have
against him for actions prior to the date of execution of this
Agreement.
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3.
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In
exchange for the payments described in paragraph 4, which I
acknowledge and agree constitute good and sufficient consideration
for the terms of this Agreement,, and in exchange for the
parties’ mutual agreement to resolve any disputes about the
scope of reasonable restrictions on my future activities that are
necessary to protect the Company’s confidential information
and trade secrets, I agree to the following :
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a. From the
date of my retirement (30 June, 2009) through 30 September, 2010),
I will not knowingly participate (whether as an employee,
consultant, proprietor, shareholder, owner, partner, director or
otherwise), in providing services, advice, management, or other
substantive assistance to a Competing Business worldwide, where the
Company does business and was engaged in doing business during my
employment. “Competing Business” means any person or
entity that is engaged in a line of business that would displace or
compete with the business of the Company including but not limited
to the design, development, marketing, distribution, or sale of
network management software, hardware or anti-virus network
security software anywhere in the world.. Competing Businesses
include but are not limited to: Cisco Systems (security business
unit only) , Computer Associates, Dr. Ahn’s, Fortinet,
Fsecure, Internet Security Systems, Intrusion Inc., Juniper, Panda,
RSA, Sophos, Sourcefire, Symantec, Tipping Point, Trend Micro,
Kaspersky, Microsoft, Big Fix, Utimaco, Checkpoint, GuardianEdge,
PGP, WinMagic, Baracuda, Proofpoint, Websense, Ciphertrust,
BlueCoat, EMC (Tablus), Vericept, IBM (ISS), Qualys, nCircle,
Blindview, NetlQ, and SonicWall, or any successor entity thereof.
Should an opportunity present itself for me to perform work or a
project for any competitor described herein, I agree to submit a
request in writing to the CEO of McAfee, outlining in sufficient
detail the name of the entity and subject matter of the work or
project planned, for the CEO to make a determination on whether to
give a limited waiver of the restrictions of this Section 3.a.
. It is understood and agreed that the granting or rejection of
such a request for a limited waiver shall be and is in the sole
discretion of the CEO of McAfee.
b. For a period
of two years following my termination of employment, I will not at
any time, directly or indirectly solicit, encourage, or induce any
individual to leave the employ of the Company, nor will I for any
reason interfere in any other manner with the employment
relationships existing between McAfee and its employees, nor will I
directly or indirectly solicit any customers of McAfee to cease or
reduce their business with McAfee
c. For a period
of two years following my termination of employment, I will not
hire or help any Competing Business hire, an employee who either
was employed with the Company while I worked there and who remains
with the Company., or who resigns from the Company during the six
month period following my termination..
d. In the event
I violate the restrictions in Paragraphs 3 b or c, above, and such
is the cause in whole or in part of one or more employees leaving
the Company, then I will
pay the Company
a sum equal to one third of the total annual compensation of each
such person in the preceding year; provided this remedy shall only
apply for the loss of an individual employee(s) prior to the
issuance of injunctive relief, it being understood that the loss of
an employee is irreparable in nature and the liquidated damage
payment is an incomplete remedy, and that injunctive relief to
prevent further violations is a better remedy.
e. I hereby
agree that I wil
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