Exhibit 10.8
MCAFEE, INC.
PERFORMANCE STOCK
UNIT ISSUANCE AGREEMENT
RECITALS
A. The
Board has adopted the Plan for the purpose of retaining the
services of selected Employees who provide services to the
Corporation (or any Parent or Subsidiary).
B. The
Participant is to render valuable services to the Corporation (or a
Parent or Subsidiary), and this Agreement is executed pursuant to,
and is intended to carry out the purposes of, the Plan in
connection with the Corporation’s issuance of shares of
Common Stock to the Participant under the Plan.
C. All
capitalized terms in this Agreement shall have the meaning assigned
to them in the attached Appendix A .
NOW, THEREFORE , it is hereby
agreed as follows:
1.
Grant of Performance Stock Units . The Corporation
hereby awards to the Participant, as of the Award Date, Performance
Stock Units under the Plan. Each Performance Stock Unit represents
the right to receive one share of Common Stock on the vesting date
of that unit. Past services are deemed to be full consideration
equal to the Performance Stock Unit par value. The number of shares
of Common Stock subject to the awarded Performance Stock Units, the
applicable vesting schedule for the Performance Stock Units and the
underlying shares, the dates on which those vested shares shall be
issued to the Participant and the remaining terms and conditions
governing the award (the “Award”) shall be as set forth
in this Agreement.
AWARD SUMMARY
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Award Date
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, 200 ___ |
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Number of Shares
Subject to Award :
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shares of Common Stock (the “Shares”) |
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Performance
Period(s) :
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Performance
Criteria :
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of the Performance Stock Units will be allocated to each of the
Performance Periods. With respect to each Performance Period, the
Participant will vest in the Performance Stock Units allocated
thereto in accordance with the Vesting Schedule subject to
achievement of certain performance criteria, determined by the
Committee. The performance criteria applicable to the Performance
Stock Units allocated to each Performance Period is as
follows: |
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Vesting
Schedule :
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The Shares shall vest as follows,
provided that the performance criteria set forth for the applicable
Performance Period have been achieved: |
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[VESTING SCHEDULE]
Such dates are herein designated the “Vesting Dates.”
In no event shall any Shares vest after the date of the
Participant’s termination of Service. |
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Issuance
Schedule
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The Shares in which the Participant
vests in accordance with the foregoing Vesting Schedule will be
issuable immediately upon vesting.
However, the actual number of vested Shares to be issued will be
subject to the automatic Share withholding provisions of
Paragraph 7 pursuant to which the applicable Withholding Taxes
are to be collected. |
2.
Limited Transferability . Prior to actual receipt of
the Shares which vest hereunder, the Participant may not sell,
pledge, assign, hypothecate, transfer or dispose of in any way
(whether by operation of law or otherwise) any interest in the
Award or the underlying Shares, except pursuant to a domestic
relations order governing the division of marital property. Upon
any attempt to sell, pledge, assign, hypothecate, transfer or
otherwise dispose of this Award, or any right or privilege
conferred hereby, or upon any attempted sale under any execution,
attachment or similar process, this Award and the rights and
privileges conferred hereby immediately will become null and void.
Any Shares which vest hereunder but which otherwise remain unissued
at the time of the Participant’s death may be transferred
pursuant to the provisions of the Participant’s will or the
laws of inheritance or to the Participant’s designated
beneficiary or beneficiaries of this Award. The Participant may
make such a beneficiary designation at any time by filing the
appropriate form with the Plan Administrator or its
designate.
3.
Cessation of Service . Except as otherwise provided
herein, should the Participant cease Service for any reason prior
to vesting in one or more Shares subject to this Award, then the
Award will be immediately cancelled with respect to those unvested
Shares, and the number of Performance Stock Units will be reduced
accordingly. The Participant shall thereupon cease to have any
right or entitlement to receive any Shares under those cancelled
units.
4.
Transfer of Control .
(a) Any
Performance Stock Units subject to this Award at the time of a
Transfer of Control may be assumed by the successor entity or
otherwise continued in full force and effect or may be replaced
with a cash incentive program of the successor entity which
preserves the Fair Market Value of any unvested shares of Common
Stock subject to the Award
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at the
time of the Transfer of Control and provides for subsequent payout
of that value in accordance with the vesting schedule applicable to
the Award.
(b) In
the event the Award is assumed or otherwise continued in effect,
the Performance Stock Units subject to the Award will be adjusted
immediately after the consummation of the Transfer of Control so as
to apply to the number and class of securities into which the
Shares subject to those units immediately prior to the Transfer of
Control would have been converted in consummation of that Transfer
of Control had those Shares actually been issued and outstanding at
that time. To the extent the actual holders of the outstanding
Common Stock receive cash consideration for their Common Stock in
consummation of the Transfer of Control, the successor corporation
may, in connection with the assumption or continuation of the
Performance Stock Units subject to the Award at that time,
substitute one or more shares of its own common stock with a fair
market value equivalent to the cash consideration paid per share of
Common Stock in the Transfer of Control transaction, provided such
common stock is readily tradable on an established U.S. securities
market.
(c) If
the Performance Stock Units subject to this Award at the time of
the Transfer of Control are not so assumed or otherwise continued
in effect or replaced with a cash incentive program in accordance
with the foregoing provisions of this Paragraph 4, then those
Performance Stock Units shall terminate immediately upon the
consummation of that Transfer of Control, and the Participant shall
cease to have any right or entitlement to receive any shares of
Common Stock or other securities, property or consideration with
respect to the terminated Performance Stock Units.
(d) This
Agreement shall not in any way affect the right of the Corporation
to adjust, reclassify, reorganize or otherwise change its capital
or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or
assets.
5.
Adjustment in Shares . Should any change be made to
the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or
other change affecting the outstanding Common Stock as a class
without the Corporation’s receipt of consideration,
appropriate adjustments shall be made to the total number and/or
class of securities issuable pursuant to this Award in order to
reflect such change and thereby preclude a dilution or enlargement
of benefits hereunder.
6.
Issuance of Shares of Common Stock .
(a) At
such time as is set forth in the Issuance Schedule described in
Paragraph 1 of this Award (but in no event later than the date
that is two-and-one-half months from the end of the applicable
Performance Period), the Corporation shall issue to or on behalf of
the Participant a certificate (which may be in electronic form) for
the applicable number of underlying shares of Common Stock,
subject, however, to the Share withholding provisions of Paragraph
6(b) pursuant to which the applicable Withholding Taxes are to be
collected. Prior to actual payment of any vested Shares, the
Performance Stock Units shall represent an unsecured obligation.
Notwithstanding anything in the Plan or this Agreement to the
contrary, if the
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vesting
of the balance, or some lesser portion of the balance, of the
Performance Stock Units is accelerated in connection with the
Participant’s termination of Service (provided that such
termination is a “separation from service” within the
meaning of Section 409A, as determined by the Corporation),
other than due to death, and if (x) the Participant is a
“specified employee” within the meaning of
Section 409A at the time of such termination and (y) the
payment of such accelerated Performance Stock Units will result in
the imposition of additional tax under Section 409A if paid to
the Participant on or within the six (6) month period
following the Participant’s termination of Service, then the
payment of such accelerated Performance Stock Units will not be
made until the date six (6) months and one (1) day
following the date of such termination, unless the Participant dies
during such six (6) month period, in which case, the
Performance Stock Units will be paid to the Participant’s
estate as soon as practicable following his or her death, subject
to Paragraph 6(b). It is the intent of this Agreement to comply
with the requirements of Section 409A so that none of the
Performance Stock Units provided under this Agreement or Shares
issuable thereunder will be subject to the additional tax imposed
under Section 409A, and any ambiguities herein will be
interpreted to so comply. For purposes of this Agreement,
“Section 409A” means Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
and any proposed, temporary or final Treasury Regulations and
Internal Revenue Service guidance thereunder, as each may be
amended from time to time.
(b) On
the date the vested Shares are to be issued hereunder to the
Participant, the Corporation shall automatically withhold a portion
of those vested Shares with a Fair Market Value (measured as of the
vesting date) equal to the amount of the applicable Withholding
Taxes; provided, however , that the amount of the
Shares so withheld shall not exceed the amount necessary to satisfy
the Corporation‘s required tax withholding obligations using
the minimum statutory withholding rates for federal and state tax
purposes, including payroll taxes, that are applicable to
supplemental taxable income. No fractional share of Common Stock
shall be so withheld, and the Participant shall pay that portion of
the Withholding Taxes in cash to the Corporation, either directly
or through withholding from his or her other wages.
(c) In
no event will any fractional shares be issued.
(d) The
holder of this Award shall not have any stockholder rights,
including voting or dividend rights, with respect to the Shares
subject to the Award until the Participant becomes the record
holder of those Shares following their actual issuance after the
satisfaction of the applicable Withholding Taxes.
7.
Compliance with Laws and Regulations .
(a) The
issuance of shares of Common Stock pursuant to the Award shall be
subject to compliance by the Corporation and the Participant with
all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange (or the Nasdaq Stock
Market, if applicable) on which the Common Stock may be listed for
trading at the time of such issuance.
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(b) The
inability of the Corporation to obtain approval from any regulatory
body having authority deemed by the Corporation to be necessary to
the lawful issuance of any Common Stock hereby shall relieve the
Corporation of any liability with respect to the non-issuance of
the Common Stock as to which such approval shall not have been
obtained. The Corporation, however, shall use its best efforts to
obtain all such approvals.
8.
Successors and Assigns . Except to the extent
otherwise provided in this Agreeme
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