EXHIBIT 10.1
McAFEE, INC.
STEPHEN C. RICHARDS TRANSITION
AGREEMENT
This Transition
Agreement (“Agreement”) is made by and between McAfee,
Inc. (the “Company”), and Stephen Richards
(“Executive”).
WHEREAS, Executive
is employed by the Company as its Chief Financial Officer and Chief
Operating Officer;
WHEREAS, Executive
is resigning from his positions with the Company effective
December 31, 2004, and
NOW
THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive (collectively referred to as “the
Parties”) hereby agree as follows:
1. Termination
of Employment. Executive hereby resigns his employment effective
upon December 31, 2004 (the “Termination Date”).
Except as required by COBRA and similar laws, Executive shall not
be eligible to participate in the Company’s employee and
fringe benefit plans once his employment terminates.
2. Transition
Period. Executive agrees that, during the period commencing with
the signing of this Agreement by the Parties and ending on the
Termination Date (the “Transition Period”), he will use
his best efforts to fulfill his duties and responsibilities as
Chief Financial Officer. During the Transition Period,
Executive’s duties shall include: (i) training a
replacement Company Chief Financial Officer on and after the date
such individual is hired by the Company, (ii) assisting in the
implementation of the decisions under the Company’s ongoing
operational initiatives, (iii) assisting the Company in
resolving its ongoing litigation and investigations,
(iv) providing and assisting in providing SEC public filing
certifications, and (v) such other assignments and
responsibilities as are reasonably assigned to him by the
Company’s Board of Directors or Chief Executive
Officer.
3. Consulting
Duties. Following the Termination Date, Executive agrees to provide
ongoing consulting advice as needed by the Company and as is
mutually agreed upon by Executive and the Company, in their sole
discretion. Such consulting advice shall be provided during normal
business hours. Executive’s consulting duties shall include:
(i) assisting the Company’s new Chief Financial Officer
with issues relating to certifying the Company’s filings with
the SEC that relate to matters within the reasonable knowledge of
Executive (including delivery of sub-certifications), and
(ii) if it is not yet resolved, assisting the Company in
resolving its ongoing litigation and investigations. Moreover,
Executive agrees to provide consulting advice, assistance and
information as may reasonably be deemed necessary by the Company
relating to its position in any legal or regulatory proceedings.
Executive shall be paid at the rate of $3,000.00 per day (including
any partial day’s consulting work of at least one hour) for
performing his consulting services hereunder,
plus reasonable documented
out-of-pocket expenses. Executive agrees to use his commercially
reasonable best efforts in discharging his consulting duties
hereunder. The Company agrees to indemnify and hold Executive
harmless with respect to his consulting work product hereunder,
except to the extent such work product is grossly negligent or done
in bad faith.
4. Severance/Retention
Benefits. If (i) prior to the Termination Date,
Executive’s employment with the Company is subject to a
“Constructive Termination” or is involuntarily
terminated by the Company other than for “Cause,” as
such terms are defined in Executive’s employment agreement
with the Company dated April 4, 2001 and as amended
January 20, 2004, and as such terms are modified in
Section 6 hereof (the “Employment Agreement”), or
(ii) Executive remains employed by the Company through the
Termination Date, then, in either case and subject to Executive
executing and not revoking a mutual release of claims with the
Company substantially in the form attached hereto as Exhibit A
(the “Release”) and not materially breaching the
provisions of Section 13 of the Employment Agreement or
Section 2 hereof, (A) all of Executive’s
outstanding stock options covering Company common stock and all
shares of restricted stock granted to Executive (together
“Equity Compensation”) shall immediately vest 100%,
and, if applicable, the Company’s right to repurchase any of
such shares immediately
