Exhibit 10.43
RELEASE AND WAIVER OF
CLAIMS
This Release and Waiver of Claims is
made as of April 3, 2007, by and between Dennis McKenna
(“you” or “your”) and Silicon Graphics Inc.
(the “Company,” “we” or
“our”).
As a condition of and in
consideration for, the issuance of shares and/or dividend
equivalents by the Company to you under the Notice of Restricted
Stock United Award and the Restricted Stock Unit Award Agreement
dated March 30, 2007 (the “Grant Agreements”), by
and between you and the Company, you and the Company agree as
follows:
1. Waiver and
Release.
(a) You hereby release the Company
from any and all known and unknown claims that you may have
relating to the Company’s Chapter 11 Bankruptcy proceedings;
your prior Employment Agreement dated January 27, 2006, and as
amended April 17, 2006; your Restricted Stock Agreement dated
February 1, 2006, and as amended April 17, 2006; your
NonStatutory Stock Option Grant Agreement dated February 1,
2006, and any verbal or written agreement(s) promising you any form
of equity or equity-like compensation or equity interest in the
Company, including, but not limited to, stock options, stock
appreciation rights, restricted stock, restricted stock units,
phantom stock and dividend equivalent rights, except as provided in
the Grant Agreements. 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.
California law will govern this
Agreement. Accordingly, 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) You hereby represent and warrant
that you have no pre-existing rights or entitlements to receive the
benefits set forth in the Grant Agreements and that such benefits
constitute new and valuable cons
