Exhibit 10.5
McAFEE, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN FOR OUTSIDE
DIRECTORS
(as amended October 23, 2007)
ARTICLE I
INTRODUCTION
1.1
Establishment . On January 19, 1993, McAfee,
Inc., a Delaware corporation, the predecessor to McAfee, Inc., a
Delaware corporation (together with any successor corporation
thereto, the “Company”), established the McAfee, Inc.
Stock Option Plan for Outside Directors (the “Initial
Plan”) for certain members of its Board (as defined in
Section 2.1(d)) who are not employees of the Company or any
Affiliated Corporation (as defined in Section 2.1(b)) and who
are eligible to participate in the Plan based upon the definition
of an Outside Director set forth in Section 2.1(i). The
Initial Plan was amended and restated in its entirety in
April 1995 by the Board of Directors of the Company and
ratified by the Company’s stockholders in June 1995 as
the Amended and Restated McAfee, Inc. Stock Option Plan for Outside
Directors (the “Plan”).
1.2 Purposes .
The purpose of the Plan is to provide certain directors of the
Company who are not also employees of the Company or an Affiliated
Corporation (as defined in Section 2.1(b)) added incentive to
continue in the service of the Company and a more direct interest
in the future success of the operations of the Company.
1.3 Effective
Date . The effective date of the Plan shall be
January 1, 1993 (the “Effective Date”), subject to
approval by the affirmative votes of the holders of a majority of
the shares of the Company present or represented and entitled to
vote at a meeting duly held (in person or through written consent)
in accordance with governing law within one year following the
Effective Date. If the stockholders of the Company do not approve
the Plan as specified above, Options granted under the Plan shall
be deemed to be rescinded without any further action by the Board
or the Company, and the Plan shall automatically terminate,
notwithstanding any other provision in the Plan to the
contrary.
ARTICLE II
DEFINITIONS
2.1 Definitions
. For purposes of the Plan:
(a)
“ Affiliate ” and “ Associate
” shall have the meanings specified in Rule 12b-2 or any
successor regulation under the Exchange Act.
(b)
“ Affiliated Corporation ” means any corporation
or other entity (including but not limited to a partnership) that
is affiliated with the Company through stock ownership or otherwise
and is treated as a common employer under the provisions of
Sections 414(b) and (c) of the Code.
(c)
“ Annual Meeting ” means the annual meeting of
the Company’s stockholders.
(d)
“ Board ” means the Board of Directors of the
Company. If a committee of the Board has been appointed to
administer the Plan, “Board” also means such
committee.
(e)
“ Code ” means the Internal Revenue Code of
1986, as amended from time to time.
(f)
“ Disabled ” or “ Disability
” shall have the meaning given to such terms in
Section 22(e)(3) of the Code.
(g)
“ Exchange Act ” means the Securities Exchange
Act of 1934, as amended from time to time.
(h)
“ Fair Market Value ” of a share of Stock shall
be the last reported sale price of the Stock on the NASDAQ National
Market System on the day the determination is to be made, or if no
sale took place on such day, the average of the closing bid and
asked prices of the Stock on the NASDAQ National Market System on
such day, or if the market is closed on such day, on the last day
prior to the date of determination on which the market was open for
the transaction of business, as reported by NASDAQ. If, however,
the Stock should be listed or admitted for trading on a national
securities exchange, the Fair Market Value of a share of the Stock
shall be the last reported sale price on such securities exchange
on the date the determination is to be made, or if no sale took
place on such day, the average of the closing bid and asked prices
on such day, or if the market is closed on such day, on the last
day prior to the date of determination on which the market was open
for the transaction of business, as reported in the principal
consolidated transaction reporting system for the principal
national securities exchange on which the Stock is listed or
admitted for trading. If the Stock is not listed or traded on the
NASDAQ National Market System or on any national securities
exchange, the Fair Market Value of the Stock for purposes of the
grant of Options under the Plan shall be determined by the Board in
good faith.
(i)
“ Outside Director ” is an individual who is
(i) a member of the Board and (ii) not an employee of the
Company or an Affiliated Corporation. For purposes of the Plan, an
employee is an individual whose wages are subject to the
withholding of federal income tax under Section 3401 of the
Code. Furthermore, any individual who performs services, whether as
an employee, partner, sole proprietor, director, trustee,
independent contractor, or consultant, for any entity or group of
affiliated entities which own at least ten percent (10%) of the
total combined voting power of all classes of stock of the Company
shall not be considered to be a “Outside Director” for
purposes of the Plan.
(j)
“ Holder ” means an Outside Director who has
received one or more Options under the terms of the Plan.
(k)
“ Option ” means a right granted under the Plan
to purchase Stock at a stated price for a specified period of time.
The Options granted under the Plan shall be nonstatutory stock
options, that is options that do not satisfy the requirements of
Section 422 of the Code.
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(l)
“ Option Agreement ” means a written agreement
between the Company and the Holder of an Option as described in
Section 3.2(c) hereof.
(m)
“ Option Price ” means the price at which shares
of Stock subject to an Option may be purchased, determined in
accordance with Section 3.3(b).
(n)
“ Share ” means a share of Stock.
(o)
“ Stock ” means the common stock of the
Company.
ARTICLE III
OPTIONS
3.1
Participation . Each Outside Director who is elected
or re-elected at an Annual Meeting or at any other time (such as an
individual who becomes an Outside Director by filling a vacancy on
the Board or a newly created directorship) shall receive an Option
as of the date of such election. Each Outside Director who is
elected or re-elected for a term longer than one year, including
Outside Directors elected or re-elected prior to the Effective
Date, shall receive Options as of the date of his or her election
and as of each anniversary date during his or her term. Options
shall be granted in accordance with Section 3.2 on the terms
and conditions herein described.
3.2 Grant
.
(a)
Annual Grants . Each Outside Director of the Company shall
automatically receive, on the date of that Outside Director’s
initial election to the Board, an Option to purchase 30,000 Shares
(the “Initial Grant”). Each Outside Director of the
Company who has already received an Initial Grant shall
automatically receive, on each anniversary date of the Initial
Grant, an Option to purchase 15,000 Shares.
(b)
Date of Grant . The date on which an Outside Director
receives an Option hereunder is referred to as the date of grant of
such Option.
(c)
Option Agreement . Each Option granted under the Plan shall
be evidenced by an Option Agreement which shall incorporate and
conform to the terms and conditions set forth in Section 3.3
of the Plan.
3.3 Terms and
Conditions . Options issued pursuant to the Plan shall have
the following terms and conditions:
(a)
Number and Timing . Each Outside Director shall receive
under the Plan Options to purchase the number of Shares determined
as specified in Section 3.2, subject to adjustment as provided
in Section 4.2. Such grants shall be made at the times
specified in Section 3.2.
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(b)
Price . The price at which each Share covered by the Option
may be purchased by each Outside Director shall be the Fair Market
Value of a share of the Stock on the date of grant, subject to
adjustment as provided in Section 4.2.
(c)
Duration of Options . Each Option shall expire ten years
from the date the Option is granted (the “Option
Period”), unless terminated sooner pursuant to
Section 3.3(d) below or fully exercised prior to the end of
such period.
(d)
Termination of Service, Death, Etc . An Option shall
terminate in the following circumstances if the Holder ceases to be
a director of the Company:
(i)
Removal for Cause . If the Holder is removed as a director
of the Company during the Option Period for cause, the Option shall
be void thereafter for all purposes, including as to Shares for
which the Option was otherwise exercisable according to
Section 3.3(g) prior to the Holder’s removal as a
director of the Company.
(ii)
Disability . If the Holder ceases to be a director of the
Company on account of Disability, the Option may be exercised by
the Holder (or, in case of death thereafter, by the persons
specified in Section 3.3(d)(iii)) within one year following
the date on which the Holder ceased to be a director (if otherwise
within the Option Period), but not thereafter. In any such case,
the Option may be exercised only as to Shares for which the Option
had become exercisable on or before the date the Holder ceased to
be a director on account of Disability.
(iii)
Death . If the Holder dies during the Option Period while
still serving as a director or within the three-month period
referred to in Section 3.3(d)(iv) below, the Option may be
exercised by those entitled to do so under the Holder’s will
or by the laws of descent and distribution within one year
following the Holder’s death (if otherwise within the Option
Period), but not thereafter. In any such case, the Option may be
exercised only as to the Shares for which the Option had become
exercisable on or before the date of the Holder’s
death.
(iv)
Other Termination . If the Holder ceases to be a director
within the Option Period for any reason other than removal for
cause, Disability or death, the Option may be exercised by the
Holder within three months following the date of such termination
(if otherwise within the Option Period), but not thereafter. In any
such case, the Option may be exercised only as to the Shares for
which the Option had become exercisable on or before the date the
Holder ceased to be a director.
(v)
Extension if Holder Subject to Section 16(b) .
Notwithstanding the foregoing, if a sale within the applicable time
periods set forth in Sections 3.3(d)(i), (ii), (iii), or
(iv) of Shares acquired upon the exercise of the Option would
subject the Holder to suit under Section 16(b) of the Exchange
Act, the Option shall remain exercisable until the earliest to
occur of (i) the tenth (10 th ) day following
the date on which a sale of such Shares by the Holder would no
longer be subject to such suit, (ii) the one hundred and
ninetieth (190 th ) day after the
Holder’s termination of service as a director, or
(iii) the expiration of the Option Period.
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(vi)
Extension if Exercise Prevented by Law . Notwithstanding the
foregoing, if the exercise of the Option within the applicable time
periods set forth in Section 3.3(d)(i), (ii), (iii) or
(iv) is prevented by the provisions of
Section 3.3(e)(iv), the Option shall remain exercisable until
three (3) months after the date the Holder is notified by the
Company that the Option is exercisable, but in any event no later
than the expiration of the Option Period.
(e)
Transferability, Exercisability .
(i) Each
Option granted under the Plan shall not be transferable by a Holder
other than by will or the laws of descent and distribution.
(ii) Each
Option granted under the Plan shall be exercisable during the
Holder’s lifetime only by the Holder or, in the event of
disability or incapacity, by the Holder’s guardian or legal
representative.
(iii) Notwithstanding
any other provision of the Plan, no Option may be unconditionally
granted unless and
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