McAfee Inc 8-K 2009
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report: January 26, 2009
(Date of earliest event reported)
(Exact Name of Registrant as specified in Charter)
3965 Freedom Circle
Santa Clara, California 95054
(Address of Principal Executive Offices, including zip code)
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On December 18, 2008, McAfee, Inc. (McAfee) filed a Form 8-K disclosing the entering of change of control and retention agreements with certain named executive officers. Upon review, it was discovered that, due to a drafting error, one of the terms of the Change of Control and Retention Agreement with David DeWalt, McAfees Chief Executive Officer, was incorrect and conveyed unintended benefits. Specifically, in a Termination Other than During a Change of Control Period the agreement stated that, in addition to acceleration of vesting of the outstanding restricted stock units from Mr. DeWalts February 11, 2008 grant with respect to 125,000 shares of stock which are due to fully vest within twelve (12) months following termination, Mr. DeWalt also would be entitled to full vesting of all his then outstanding equity awards that are not subject to vesting based on performance. In fact, the compensation committee had approved that Mr. DeWalt would only be entitled to the additional vesting as to the February 11, 2008 grant under such a termination scenario.
On January 26, 2009, the Company and Mr. DeWalt entered into a corrected Change of Control and Retention Agreement, a copy of which is included as an Exhibit to this Form 8-K. Except as described in the preceding paragraph, all of the other terms of the agreement remain as disclosed on December 18, 2008 and are summarized below.
The agreement provides for certain severance benefits in the event McAfee terminates Mr. DeWalts employment for other than cause or in the event that Mr. DeWalt resigns for good reason. The agreement provides for varying severance benefits based upon whether the termination occurs within eighteen (18) months following a change of control of McAfee (the Change of Control Period). The severance payments provided to Mr. DeWalt by the agreement will supersede any severance payments afforded Mr. DeWalt in any employment agreement he had with McAfee. Without regard to severance payments, Mr. DeWalts employment will not be changed by the agreement. Pursuant to the agreement and subject to signing a standard release of claims, upon Mr. DeWalts termination for other than cause or upon his resignation for good reason, he will be entitled to the following benefits:
Termination Other than During a Change of Control Period
Termination During a Change of Control Period
Additionally, in the event Mr. DeWalt is terminated for other than cause or resigns for good reason before a change of control but on or after a potential change of control, Mr. DeWalt will be entitled generally to the superior severance benefits provided by a termination during a Change of Control Period. A potential change of control would generally occur upon the execution of an agreement, Board approval, or public announcement for McAfee to enter into a transaction that would be a change of control if such transaction is subsequently consummated. This benefit is only available if the change of control occurs.
Item 9.01. Financial Statements and Exhibits.
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.