Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL
RELEASE
This Separation Agreement and
General Release (this “Agreement”) is entered into by
and between Robert J. Rivet (“Executive” or
“you”) and Advanced Micro Devices, Inc., a Delaware
corporation (the “Company”), and confirms the agreement
that has been reached with you in connection with your separation
from the Company.
1. Separation.
You agree that your separation from
the Company shall be effective as of March 31, 2011 (the
“Separation Date”), and as of such date you shall cease
to be employed in any capacity by, and shall no longer hold any
office or position with, any of the Company and each and every
subsidiary, parent, joint venture or other affiliated entity of the
Company; provided , however , that (i) effective
February 8, 2011, you ceased to serve as an executive officer
of the Company, and (ii) during the period from the close of
business on February 18, 2011, through
March 31, 2011, you will not be required to report to the
Company’s offices but must be readily accessible to the
Company to perform such duties as reasonably required by the
Company, which duties may include, but are not limited to,
consultation and guidance regarding the Company’s business
affairs and matters. You agree to execute promptly upon request by
the Company any additional documents requested by the Company to
effectuate or further evidence the provisions of the immediately
preceding sentence.
2. Accrued Benefits.
You will be entitled to receive
(a) your full earned but unpaid base salary accrued through
the Separation Date, (b) cash payment for any accrued but
unused vacation days, (c) unreimbursed business expenses (in
accordance with usual Company policies and practice), to the extent
not heretofore paid, (d) vested amounts payable to you under
the Company’s 401(k) plan and the Company’s Deferred
Income Account Plan in accordance with the terms of such plans and
applicable law, and (e) any vested amounts to which you are
entitled as of the Separation Date with respect to any equity award
previously granted to you by the Company in accordance with the
terms and conditions of the applicable plan and award agreement, in
each event subject to applicable withholdings. For the avoidance of
doubt, you acknowledge and agree that the schedule attached as
Exhibit B accurately sets forth the information with respect
to all of your outstanding options to acquire shares of common
stock of the Company, including, but not limited to, the number of
exercisable shares under each such option as of the Separation Date
(as set forth in the column titled “Exercisable”) and
the date until which each such option may be exercised with respect
to such exercisable shares (as set forth in the column titled
“Exercisable Until”). In addition, if you timely elect
continued group medical and dental coverage under the
Company’s group medical and dental plans pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”), you will be eligible for such continued
coverage in accordance with the terms of such plans and
COBRA.
3. Special
Consideration. In
consideration of your execution of this Agreement and your
compliance with its terms and conditions, the Company agrees to pay
you (subject to the terms and conditions set forth in this
Agreement) a discretionary 2010 bonus (the “Special
Consideration”) under the Company’s Executive Incentive
Plan in the amount of $500,000.00, less applicable withholdings,
which amount (a) exceeds any payment and benefits to which you
are otherwise entitled, and (b) will be paid on March 24,
2011.
4. No Other Payments or
Benefits. You acknowledge
and agree that, other than the payments and benefits expressly set
forth in this Agreement, (a) you have received all
compensation to which you are entitled from the Company, and you
are not entitled to any other payments or benefits from the
Company, and (b) after the Separation Date, you shall not
receive any base salary, annual bonus, other cash compensation,
long term incentive award, options, restricted stock, restricted
stock units or other equity awards, expense reimbursement, welfare,
retirement, perquisite, fringe benefit, or other benefit plan
coverage or coverage under any other practice, policy or program as
may be in effect from time to time, applying to senior officers or
other employees of the Company. For the avoidance of doubt, you
acknowledge and agree that any and all equity or other awards that
are not vested as of the Separation Date (including, but not
limited to, the 68,750 restricted stock units previously granted to
you, as described in that certain memorandum from Harry Wolin to
you dated July 1, 2010) are terminated and forfeited in full,
and you are not entitled to receive any cash, shares of common
stock of the Company, or other compensation with respect
thereto.
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5. Release and
Waiver.
(a) You agree that, in consideration
of this Agreement, you hereby waive, release and forever discharge
any and all claims and rights of any kind, whether known or
unknown, suspected or unsuspected, and whether or not concealed or
hidden, which you ever had, now have or may have against the
Company and any of its subsidiaries, joint ventures or affiliated
companies, and their respective predecessors in interest,
successors and assigns, current and former officers, agents,
managers, partners, directors, stockholders, representatives,
attorneys, servants, third party workers, insurers, employees,
benefits committees, employee benefit programs and the trustees,
administrators, fiduciaries and insurers of such programs, and
their respective successors and assigns, heirs, executors and
personal and legal representatives, based on any act, event or
omission occurring before you execute this Agreement arising out
of, during or relating to your employment or services with the
Company and all of its subsidiaries, affiliates, and joint ventures
or the termination of such employment or services, except as
provided below. This waiver and release includes, but is not
limited to, any claims or rights which could be asserted now or in
the future, under: common law, including, but not limited to,
breach of express or implied duties, wrongful termination,
defamation, or violation of public policy; any policies, practices,
or procedures of the Company; any federal, state or local laws,
statutes, regulations, rules, ordinances, executive orders or other
legal restrictions, including, but not limited to, Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et
seq. , the Civil Rights Act of 1866 and 1871, the Americans
With Disabilities Act, 42 U.S.C. §12101 et seq. , the
Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. §1001 et seq. (excluding those rights relating
exclusively to employee pension benefits as governed by ERISA), the
Family and Medical Leave Act, 29 U.S.C. §2601 et. seq.,
the Equal Pay Act, the National Labor Relations Act, the Fair Labor
Standards Act, the Worker Adjustment and Retraining and
Notification Act, the Texas Labor Code, the Texas Payday Law, the
Texas Commission on Human Rights Act, and the California Fair
Employment and Housing Act; any contract of employment, express or
implied; and any provision of any other law, common or statutory,
of the United States, Texas, or any applicable state or local
jurisdiction.
Notwithstanding the foregoing,
nothing contained in this paragraph 5(a) shall
(i) subject to paragraphs 5(c) and 5(d) and the ADEA
Release (as defined in paragraph 5(d)) at Exhibit A,
impair any rights or potential claims that you may have under the
federal Age Discrimination in Employment Act of 1967 (the
“ADEA”); (ii) be construed to prohibit you from
bringing appropriate proceedings to enforce this Agreement;
(iii) affect any rights of defense or indemnification, or to
be held harmless, or any coverage under directors’ and
officers’ liability insurance or any other insurance or
rights or claims of contribution or advancement of expenses that
you have; or (iv) affect any rights as a stockholder of the
Company that you have.
(b) For the purpose of implementing
a full and complete release, you understand and agree that this
Agreement is intended to waive and release all claims, if any,
which you may have and which you may not now know or suspect to
exist in your favor against the Company and any of its
subsidiaries, joint ventures or affiliated companies, and their
respective predecessors in interest, successors and assigns,
current and former officers, agents, directors, stockholders,
representatives, attorneys, third party workers, insurers,
employees, benefits committees, employee benefit programs and the
trustees, administrators, fiduciaries and insurers of such
programs, and their respective successors and assigns, heirs,
executors and personal and legal representatives, and this
Agreement extinguishes those claims. Accordingly, you expressly
waive all rights afforded by Section 1542 of the Civil Code of
the State of California (“Section 1542”) and any
similar statute or regulation in any other applicable jurisdiction.
Section 1542 states as follows:
A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
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(c) By signing this Agreement, you
represent that you have not and will not in the future commence any
action or proceeding arising out of the matters released hereby,
and that you will not seek or be entitled to any award of legal or
equitable relief in any such action or proceeding that may be
commenced on your behalf. This Agreement shall not prevent you from
filing a charge with the Equal Employment Opportunity Commission
(or similar state or local agency) or participating in any
investigation conducted by the Equal Employment Opportunity
Commission (or similar state or local agency); provided ,
however , you acknowledge and agree that any claims for
personal relief in connection with such a charge or investigation
(such as reinstatement or monetary damages) would be and hereby are
barred. The Company has advised you to consult with an attorney of
your choosing prior to signing this Agreement. You represent that
you understand and agree that you have the right and have been
given the opportunity to review this Agreement and the ADEA Release
(as defined in paragraph 5(d)) with an attorney.
(d) In accordance with the ADEA
release contained in Exhibit A hereto (the “ADEA
Release”), you shall have twenty-one (21) days from the
date of this Agreement to consider the ADEA Release and, once you
have signed the ADEA Release, you shall have seven
(7) additional days from the date of execution to revoke your
consent to the ADEA Release. Any such revocation shall be made in
writing so as to be received by the Company prior to the eighth
(8 th
) day following your execution
of the ADEA Release. If no such revocation occurs, the ADEA Release
shall become effective on the eighth (8 th ) day following your execution of the ADEA
Release (the “Effective Date”).
6. Continuing
Obligations. You
acknowledge and affirm your continuing obligations under that
certain Agreement you signed on October 5, 2000 (the
“Confidentiality Agreement”).
7. Confidential Information;
Nondisclosure. You
acknowledge and affirm your continuing obligations not to use or
disclose any of the trade secrets or other confidential or
proprietary information of the Company and its subsidiaries,
affiliates and joint ventures (collectively, the “Company
Entities”) at any time. You further acknowledge and affirm
that while employed by the Company, you have had access to,
acquired and/or assisted in the development of confidential and
proprietary information, inventions, and trade secrets relating to
the present and anticipated business and operations of the Company
Entities, including, but not limited to, product information,
product plans, personnel data regarding employees of the Company
Entities (including, but not limited to, compensation data), legal
or business strategies, and other information of a similar nature
not available to the public. For the avoidance of doubt, any
information relating to the antitrust litigation between the
Company and Intel Corporation/Intel Kabushiki Kaisha that was
settled in November 2009 (the “Intel Litigation”) shall
be deemed to be confidential and proprietary information. You agree
to keep confidential and not to disclose or use, either directly or
indirectly, such confidential or proprietary information, without
the prior written consent of the Board of Directors of the Company,
or until the information otherwise becomes public knowledge (other
than by acts of Executive or his agents or representatives).
Nothing in this Agreement shall supersede or relieve you of any
confidentiality and/or nondisclosure obligations under any prior
confidentiality or other agreement with the Company, at common law,
or pursuant to the attorney-client privilege, all of which shall be
cumulative.
8. Company Property.
On or prior to the Separation Date,
you shall return to the Company all Company property in your
possession or use, including, without limitation, all automobiles,
fax machines, printers, cell phones, credit cards, building-access
cards and keys, other electronic equipment, and any records,
documents, software, e-mails or other data from your personal
computers or laptops which are not themselves Company property,
however stored, relating to the Company’s confidential
information.
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9. Nondisparagement.
You agree that you will not, with
intent to damage, disparage or encourage or induce others to
disparage any of the Company, its subsidiaries, affiliates and
joint ventures, together with all of their respective past and
present directors and officers and each of their predecessors in
interest, successors and assigns (collectively, the “Company
Entities and Persons”). Nothing in this Agreement is intended
to or shall prevent you from providing or limiting testimony in
response to a valid subpoena, court order, regulatory request or
other judicial, administrative or legal process or otherwise as
required by law. You agree that you will notify the Company in
writing as promptly as practicable after receiving any request for
testimony or information in response to a subpoena, court order,
regulatory request or other judicial, administrative or legal
process or otherwise as required by law, regarding the anticipated
testimony or information to be provided and at least ten
(10) days prior to providing such testimony or information
(or, if such notice is not possible under the circumstances, with
as much prior notice as is possible).
10. Cooperation.
Prior to and after the Separation
Date, you agree that you will reasonably cooperate with the
Company, its subsidiaries, joint ventures and affiliates, at any
level, and any of their officers, directors, stockholders, or
employees: (a) concerning requests for information about the
business of the Company or its subsidiaries, joint ventures or
affiliates or your involvement and participation therein,
(b) in connection with any investigation or review by the
Company or any federal, state or local regulatory, quasi-regulatory
or self-governing authority (including, without limitation, the
Securities and Exchange Commission) as any such investigation or
review relates to events or occurrences that transpired while you
were employed by the Company, and (c) with respect to
transition and succession matters. Your cooperation shall include,
but not be limited to (taking into account your personal and
professional obligations, including those to any new employer or
entity to which you provide services), being available to meet and
speak with officers or employees of the Company and/or the
Company’s counsel at reasonable times and locations,
executing accurate and truthful documents and taking such other
actions as may reasonably be requested by the Company and/or the
Company’s counsel to effectuate the foregoing. You shall be
entitled to reimbursement, upon receipt by the Company of suitable
documentation, for reasonable and necessary travel and other
expenses which you may incur at the specific request of the Company
and as approved by the Company in advance and in accordance with
its policies and procedures established from time to
time.
11. Noncompetition
Covenant. Executive
agrees that for a period of twelve (12) months after the
Separation Date, without the prior written consent of the Board of
Directors of the Company, Executive will not carry on any business
or activity (whether directly or indirectly, as a partner,
stockholder, principal, agent, director, affiliate, employee or
consultant) that is competitive with the business conducted by any
of the Company Entities (as conducted now or during the term of
Executive’s employment with any of the Company Entities), or
engage in any other activities that conflict with Executive’s
obligations to the Company.
12. Nonsolicitation
Covenant. Executive
agrees that for a period of twelve (12) months after the
Separation Date, without the prior written consent of the Board of
Directors of the Company, Executive will not do any of the
following:
(a) Solicit Business.
Solicit or influence or attempt to
influence any client, customer or other person, either directly or
indirectly, to direct his, her or its purchase of any of the
Company Entities’ products and/or services to any person,
firm, corporation, institution or other entity in competition with
the business of any of the Company Entities; and
(b) Solicit Personnel.
Solicit or influence or attempt to
influence any person employed by any of the Company Entities or any
consultant then retained by any of the Company Entities to
terminate or otherwise cease his employment or consulting
relationship with any of the Company Entities or become an employee
of or consultant to any competitor of any of the Company
Entities.
13. No Admission.
This Agreement is not intended, and
shall not be construed, as an admission that either you or any of
the Company Entities and Persons have violated any federal, state
or local law (statutory or decisional), ordinance or regulation,
breached any contract or committed any wrong whatsoever.
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14. Failure of
Consideration. You
acknowledge and agree that your obligations under paragraphs 6, 7,
9, 10, 11, and 12 are material inducements for, and a substantial
portion of, the consideration for the Company agreeing to pay and
provide you with the Special Consideration described in paragraph
3. You further acknowledge and agree that the Company would be
ir
