Page ARTICLE 1 ADOPTION AND NATURE OF PLAN 1 1.1 Adoption of Plan 1 1.2 Nature of Plan 1 ARTICLE 2 DEFINED TERMS 1 ARTICLE 3 ELIGIBILITY TO PARTICIPATE 4 3.1 Notice of Eligibility; Participation Agreement 4 ARTICLE 4 RETENTION BENEFITS 5 4.1...
Exhibit 10.3
Sourcefire, Inc.
Executive Retention Plan
Executive Retention Plan
Effective March 31, 2008
Sourcefire, Inc. Executive Retention Plan
Table of Contents
| Page | ||||
ARTICLE 1 ADOPTION AND NATURE OF PLAN |
1 | |||
1.1 Adoption of Plan |
1 | |||
1.2 Nature of Plan |
1 | |||
ARTICLE 2 DEFINED TERMS |
1 | |||
ARTICLE 3 ELIGIBILITY TO PARTICIPATE |
4 | |||
3.1 Notice of Eligibility; Participation Agreement |
4 | |||
ARTICLE 4 RETENTION BENEFITS |
5 | |||
4.1 Eligibility for Retention Benefits |
5 | |||
4.2 Accrued and Unpaid Amounts |
5 | |||
4.3 Retention Benefits |
5 | |||
4.4 Loss of Eligibility |
6 | |||
ARTICLE 5 GOLDEN PARACHUTE PROVISIONS |
7 | |||
5.1 Best Payments Determination |
7 | |||
ARTICLE 6 PLAN ADMINISTRATION; AMENDMENT AND TERMINATION |
8 | |||
6.1 Administration of Plan |
8 | |||
6.2 Amendment and Termination |
8 | |||
6.3 ERISA Limitations |
9 | |||
6.4 Claims and Appeals Procedures |
9 | |||
ARTICLE 7 MISCELLANEOUS PROVISIONS |
11 | |||
7.1 Tax Withholding |
11 | |||
7.2 Section 409A Compliance |
11 | |||
7.3 Waiver of Other Benefits; Non-Duplication |
11 | |||
7.4 Coordination with Mandated Benefits |
12 | |||
7.5 Non-Assignability |
12 | |||
7.6 Facility of Payment |
12 | |||
7.7 Assumption by Successor |
12 | |||
7.8 Effect on Other Plans |
13 | |||
7.9 Voluntary Plan/No Alteration of Employment-At-Will Status |
13 | |||
-i-
Sourcefire, Inc. Executive Retention Plan
Table of Contents
(continued)
(continued)
| Page | ||||
7.10 Source of Payments |
13 | |||
7.11 No Rights Created or Accrued |
13 | |||
7.12 Controlling Law |
13 | |||
7.13 Additional Plan Information |
15 | |||
Exhibit A – Form of Separation and Release Agreement
Exhibit B – Form of Participation Agreement
-ii-
Executive Retention Plan
Sourcefire, Inc. Executive Retention Plan
Effective March 31, 2008
ARTICLE 1
ADOPTION AND NATURE OF PLAN
1.1 Adoption of Plan. The Sourcefire, Inc. Executive Retention Plan (the
“Plan”) is hereby established, effective as of March 31, 2008 to provide certain retention
incentives for eligible executives of Sourcefire, Inc. (the “Company”) in the event of
their termination of employment with the Company under the circumstances described in the Plan.
1.2 Nature of Plan.
(a) The Plan is an “employee welfare benefit plan” within the meaning of Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), providing separation
pay and severance benefits. This document constitutes both the plan document and the summary plan
description for the Plan. Your ERISA rights are described at the end of this document. This
document is provided to you as required by XXXXX. You should read all parts of this description
carefully so that you will not only understand the ways in which the Plan may benefit you, but also
certain exclusions to coverage and limitations on the receipt of benefits which may apply to you.
This Plan supersedes and replaces any and all prior Company-sponsored severance or retention plans,
programs, policies or practices for the individuals covered hereunder.
(b) Unless the Company acts to terminate this Plan prior to March 31, 2010, the Plan will
automatically terminate on March 31, 2010 and no further benefits will be payable under the Plan
with respect to events or circumstances arising on and after such date.
(c) It is the Company’s intention to operate the Plan in a manner consistent with the
requirements applicable to “separation pay plans” providing benefits in the case of involuntary
separation from service under Section 1.409A-1(b)(9) of the Treasury regulations such that the
severance pay and other benefits available under the Plan will be exempt from Section 409A of the
Internal Revenue Code, as amended (the “Code”) and shall be administered and operated in
conformity with this intention; provided, however, that in the event and to the extent amounts
payable under the Plan are or become subject to Section 409A of the Code, it is the Company’s
intention that such amounts be payable in a manner consistent with the requirements of such Code
section.
ARTICLE 2
DEFINED TERMS
2.1 “Base Salary” means the Participant’s annualized base salary, determined based on
the rate of pay in effect during the last regularly-scheduled payroll period immediately preceding
such Participant’s Termination Date. In the event of a Participant’s Termination for
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Executive Retention Plan
Good Reason attributable to an involuntary reduction in his or her annual base salary, such
Participant’s Base Salary for purposes of the Plan shall be the annual base salary as in effect
immediately prior to such involuntary reduction. Base Salary does not include any bonuses,
commissions, fringe benefits, overtime, car allowances, other irregular payments or any other
compensation except base salary.
2.2 “Benefit Period” means, for any Participant, six (6) months.
2.3 “Cause” means a Participant’s (i) conviction of, or plea of guilty or nolo
contendere to, (a) a felony or (b) any crime involving moral turpitude that may reasonably be
expected to have an adverse impact on the Company’s reputation or standing in the community, (ii)
fraud on or misappropriation of any funds of property of the Company, any affiliate, customer or
vendor, (iii) personal dishonesty, incompetence, willful misconduct, willful violation of any law,
rule or regulation (other than minor traffic violations or similar offenses), or breach of
fiduciary duty which involves personal profit, (iv) violation of any Company rule, regulation,
procedure or policy, (v) breach of the Employee Proprietary Information, Inventions, and
Non-Competition Agreement that you will be required to sign as a condition of employment (the
“NDA”), or any other similar agreement executed by you for the benefit of the Company, (vi) chronic
use of alcohol, drugs or other substances which affects your work performance; (vii) engaging in
behavior that would constitute grounds for liability for harassment (as proscribed by the U.S.
Equal Employment Opportunity Commission Guidelines or any other applicable state or local
regulatory body) or other egregious conduct that violates laws governing the workplace; provided,
however, that for purposes of the Plan, any purported termination of the Participant’s employment
shall be presumed to be other than for Cause, unless (A) the Participant’s supervisor first
provides written notice to the Participant of the event or action allegedly constituting Cause
(which notice shall specify in reasonable detail the particulars of such conduct), and (B) the
Participant has been provided a period of at least thirty (30) days after receipt of the Company’s
notice during which to cure, rescind or otherwise remedy the actions, events, or circumstances
described in the Company’s notice to the extent they are based on clauses (iii) through (viii)
above.
2.4 “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, as set forth in Sections 601 through 609 of ERISA and Section 4980B of the Code.
2.5 “Code” means the Internal Revenue Code of 1986, as amended.
2.6 “Company” means Sourcefire, Inc., a Delaware corporation, and its successors.
2.7 “Disabled” or “Disability” means (i) a Participant’s inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last for a continuous
period of not less than twelve (12) months, or (ii) a Participant’s receipt, by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than twelve (12) months, of income
replacement benefits for a period of not less than three (3) months under a plan or arrangement
covering employees of the Company.
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Executive Retention Plan
2.8 “Eligible Executive” means an executive employee of the Company who has received a
Notice of Eligibility pursuant to Section 3.1 of the Plan.
2.9 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
2.10 “Good Reason” means (i) a material decrease in the Participant’s Base Salary,
except where such decrease applies to all executives, (ii) a geographic relocation of the
Participant without his or her consent more than thirty (30) miles from the current location of his
or her office as of the date hereof), or (iii) a willful and continued material breach by the
Company of this Agreement or the “Assignment of Inventions, Non-Disclosure, Non-Solicitation and
Non-Competition Agreement” that has a material adverse effect on the Participant; provided,
however, that for purposes of this Agreement, any proposed Termination of Employment by the
Participant shall be presumed to be other than for Good Reason, unless the Participant first
provides written notice to the Plan Administrator within ninety (90) days following the effective
date of such event, and the Company has been provided a period of at least thirty (30) days after
receipt of the Participant’s notice during which to cure, rescind or otherwise remedy the actions,
events, or circumstances described in such notice. A Participant’s Termination of Employment shall
not be considered to be for Good Reason unless it occurs no more than one hundred and twenty (120)
days following the initial occurrence of the purported Good Reason event(s) as described above.
2.11 “Notice of Eligibility” means a written notice provided by the Plan Administrator
to an executive employee of the Company indicating his or her eligibility to join the Plan and
specifying the key terms to be used to determine the Retention Benefits to which the executive
employee may become entitled as a Participant in the Plan.
2.12 “Participant” means an Eligible Executive who has joined the Plan by executing
and timely submitting a Participation Agreement to the Plan Administrator.
2.13 “Participation Agreement” means the written agreement supplied by the Plan
Administrator to an Eligible Executive pursuant to Section 3.1 of the Plan.
2.14 “Plan” means this Sourcefire, Inc. Executive Retention Plan, as amended from time
to time.
2.15 “Qualifying Termination” means, with respect to a Participant, the occurrence of
either of the following events:
(a) The Participant’s Termination of Employment by the Company, without the Participant’s
consent, for reasons other than Cause, Disability, or death; or
(b) The Participant’s Termination of Employment for Good Reason.
2.16 “Release” means a general xxxxxx and release of claims against the Company, its
directors, officers, employees, agents, and contractors as set forth in Exhibit A or as
otherwise approved by the Plan Administrator in its sole discretion.
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Executive Retention Plan
2.17 “Retention Benefits” means the salary continuation, welfare benefits
continuation, equity acceleration, and other severance-related benefits described in Section 4.3 of
the Plan.
2.18 “Termination Date” means, with respect to Retention Benefits or similar benefits
under the Plan that are exempt from the provisions of Code Section 409A, the date on which a
Participant ceases to be categorized as an employee on the payroll system of the Company as a
result of a Qualifying Termination or otherwise. For purposes of Retention Benefits or similar
benefits under the Plan that are not exempt from the provisions of Code Section 409A, a
Participant’s Termination Date will be the date on which he or she incurs a “separation from
service” (within the meaning of Section 409A(a)(2)(A)(i) of the Code and its related regulatory and
administrative guidance), as determined by the Plan Administrator in its sole discretion. The last
day of a Participant’s active employment with the Company shall be considered his or her
“termination date” for purposes of the Company’s other employee benefit plans, unless otherwise
provided by such plans. For purposes of a Participant’s eligibility for continued health benefits
under COBRA, the COBRA eligibility period shall run from the Participant’s Termination Date, except
as otherwise provided by applicable law.
2.19 “Termination of Employment”, “Terminated”, or “Terminates” means
a Participant’s (i) separation from service with the Company, (ii) refusal or failure to return to
work within three (3) working days after the date requested by the Company which results in a
separation from service with the Company, or (iii) failure to return to work at the conclusion of a
leave of absence. Notwithstanding the foregoing, a Participant will not be deemed to have
experienced a Termination of Employment while absent on military leave, sick leave, or other bona
fide leave of absence if the period of such leave does not exceed six (6) months, or if longer, the
period during which the Participant’s right to reemployment is guaranteed by statute or contract.
If the period of leave exceeds six (6) months, and the Participant’s right to reemployment is not
guaranteed by statute or contract, he or she will be deemed to have experienced a Termination of
Employment as of the first day immediately following the end of such six-month period.
Notwithstanding the foregoing, for purposes of the Plan, no payments of amounts subject to Section
409A of the Code shall be triggered by any Termination of Employment that is not considered to
constitute a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code
and its related regulatory and administrative guidance, as determined by the Plan Administrator in
its sole discretion.
ARTICLE 3
ELIGIBILITY TO PARTICIPATE
3.1 Notice of Eligibility; Participation Agreement. The Plan Administrator may, from
time to time, determine those key executives of the Company who are generally eligible to join the
Plan (the “Eligible Executives”), and, upon making such a determination, will provide a
Notice of Eligibility to such Eligible Executives specifying the particular Retention Benefits to
which they may become entitled upon their Qualifying Termination; provided, however, that no
Eligible Executive will commence participation in the Plan prior to his or her execution and
submission of a Participation Agreement in substantially the form attached hereto as Exhibit
B (or such other form as the Plan Administrator may specify). An Eligible Executive who has
submitted an executed Participation Agreement to the Plan Administrator will be referred to as
a “Participant.”
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Executive Retention Plan
ARTICLE 4
RETENTION BENEFITS
4.1 Eligibility for Retention Benefits. A Participant who experiences a Qualifying
Termination will be eligible to receive the Retention Benefits described in Section 4.3 below,
subject to the limitations described in Section 4.4.
4.2 Accrued and Unpaid Amounts. Notwithstanding Section 4.4(a) below, upon a
Participant’s Termination of Employment for any reason, he or she will be entitled to receive
payment of any Base Salary, bonus or incentive compensation, expense reimbursements, and accrued
vacation benefits that have been earned but not paid at the time of his or her Termination of
Employment. All such amounts shall be paid to the terminated Participant within ten (10) days of
his or her Termination Date.
4.3 Retention Benefits. Subject to Section 4.4 below, a Participant who is otherwise
eligible to receive Retention Benefits under the Plan may be entitled to receive one or more of the
following Retention Benefits, as specified in the Participant’s Notice of Eligibility, following
his or her Qualifying Termination.
(a) Salary Continuation Benefits. A Participant’s salary continuation benefits will
be equal to a pro-rata portion of the Participant’s Base Salary paid over the applicable Benefit
Period. Subject to Section 7.2(b) below (relating to certain payment subject to Section 409A of
the Code) and except as otherwise provided in the Participant’s Notice of Eligibility, salary
continuation benefits will be paid for the duration of the Benefit Period in substantially-equal
semi-monthly installments in accordance with the Company’s standard payroll procedures, commencing
on the second payroll date following the date on which the Participant’s Release becomes effective
and irrevocable. Notwithstanding the foregoing, any remaining salary continuation benefits that
are outstanding at the time of a Participant’s death will be paid to his or her designated
Beneficiary in a single lump-sum payment within sixty (60) days following the delivery of
satisfactory evidence of the Participant’s death to the Plan Administrator.
(b) Continued Welfare Benefits. If a Participant and/or his or her covered dependents
timely elect(s) to receive health care continuation coverage as provided by COBRA, the Company will
pay the same percentage of the monthly cost of his or her COBRA coverage as it paid for the
Participant’s group health coverage during his or her active employment for the duration of the
Benefit Period. During any such Company-subsidized COBRA coverage period, the Participant will be
responsible for payment of the remainder of the cost of his or her COBRA coverage, as specified in
the COBRA notice to be supplied by the Company following the Participant’s Qualifying Termination.
All periods of Company-subsidized coverage will be taken into account for purposes of determining
the Participant’s maximum period of COBRA entitlement. Following the end of the Company-subsidized
coverage period, the Participant will be responsible for payment of his or her entire COBRA
premium, to the extent the Participant continues to be entitled to COBRA coverage at that time.
Notwithstanding the foregoing, in the
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Executive Retention Plan
event the terminated Participant becomes covered under another employer’s group health plan
(other than a plan which imposes a preexisting condition exclusion unless the preexisting condition
exclusion does not apply) or otherwise ceases to be eligible for COBRA coverage during the period
provided in this Section 4.3(b), the Company shall cease payment of its portion of the COBRA
premiums.
(c) Accelerated Vesting of Equity Awards. The Participant’s outstanding and unvested
stock options will accelerate and become vested, and the restrictions applicable to his or her
outstanding restricted stock award(s) will lapse and such award(s) will become vested, as follows:
(i) The vesting of Participant’s outstanding and unvested stock options will accelerate and
become vested by twenty-five percent (25%) of the total shares originally subject to such stock
options; and
(ii) The restrictions applicable to the Participant’s outstanding restricted stock award(s)
will lapse and become vested by twenty-five percent (25%) of the total shares originally subject to
such restricted stock award(s).
Provided, however, that in the event that as of Participant’s Date of Termination there are
not a sufficient number of unvested options (with respect to such stock options) or shares subject
to restrictions (with respect to such restricted stock award(s)) to allow for the accelerations and
lapses described above, either in full or in part, then such number of unvested stock options shall
vest (with respect to such stock options) or restrictions shall lapse and shares shall vest (with
respect to such restricted stock award(s)), as necessary to give effect to the vesting acceleration
and restriction lapses described in this subsection 4.3(c), up to the number of then unvested stock
options subject to each such stock option, or the number of then restricted shares subject to such
restricted stock award(s), as the case may be.
4.4 Loss of Eligibility. A Participant who is otherwise eligible to receive Retention
Benefits upon his or her Qualifying Termination will forfeit such eligibility and any entitlement
to some or all of the payments and benefits available under the Plan in any of the following
circumstances.
(a) Failure to Provide Effective Release. All benefits provided under the Plan are in
consideration of a Participant’s execution of a Release. If a Participant does not properly
execute such a Release within forty-five (45) days from his or her Termination Date or revokes his
or her Release after submitting it, the Participant will not be entitled to any Retention Benefits
otherwise available under the Plan.
(b) Alternative Employment. A Participant who secures alternative employment during
the Benefit Period will forfeit his or her entitlement to receive further Company-funded subsidies
for COBRA premiums but, subject to the terms of the Plan and his or her Participation Agreement,
will remain eligible to receive salary continuation benefits.
(c) Violation of Non-Disclosure, Non-Competition, or Non-Solicitation Requirements. A
Participant will forfeit any entitlement to Retention Benefits under the Plan if
Page 6 of 16
Executive Retention Plan
the Plan Administrator determines that the Participant has materially breached his or her
Assignment of Inventions, Non-Disclosure, Non-Solicitation and Non-Competition Agreement with the
Company with respect to Participant’s continuing obligations of non-disclosure, non-solicitation or
non-competition thereunder, as set forth in Sections 1, 5 and 6 thereof respectively. To the
extent permitted by law, if the Plan Administrator determines that the Participant has so
materially breached his or her Assignment of Inventions, Non-Disclosure, Non-Solicitation and
Non-Competition Agreement with the Company, the Plan Administrator and the Company will immediately
cease any unpaid Retention Benefits and it will have the right to seek repayment of any such
Retention Benefits that have already been made, without prejudice to any other remedies that may be
available to the Company.
(d) Non-Qualifying Termination. A Participant whose Termination of Employment does
not constitute a Qualifying Termination will not be entitled to any Retention Benefits otherwise
available under the Plan.
ARTICLE 5
GOLDEN PARACHUTE PROVISIONS
5.1 Best Payments Determination. In the event of an event constituting a change in
the ownership or effective control of the Company or ownership of a substantial portion of the
assets of the Company described in Section 280G(b)(2)(A)(i) of the Code, the Company, at its sole
expense, shall cause its independent auditors promptly to review all payments, accelerations,
distributions and benefits that have been made to or provided to, and are to be made, or may be
made, to or provided to, the Participants under the Plan (irrespective of whether Retention
Benefits or other payments are then payable to such Participants at that time), and any other
agreement or plan under which they may individually or collectively benefit (collectively the
“Original Payments”), to determine the applicability of Section 4999 of the Code to each of
the Participants in connection with such event (other than under this Article 5). The Company’s
independent auditors will perform this analysis in conformity with the foregoing provisions and
will provide the affected Participants with a copy of their analysis and determination.
Notwithstanding anything contained in this Plan to the contrary, to the extent that the Original
Payments would be subject to the excise tax imposed under Section 4999 of the Code (the “Excise
Tax”), the Original Payments shall be reduced (but not below zero) to the extent necessary so
that no Original Payment shall be subject to the Excise Tax, but only if, by reason of such
reduction, the net after-tax benefit received by an Participant shall exceed the net after-tax
benefit received by him or her if no such reduction was made. For purposes of the Plan, “net
after-tax benefit” shall mean (a) the Original Payments which an Participant receives or is then
entitled to receive from the Company that would constitute “parachute payments” within the meaning
of Section 280G of the Code, less (b) the amount of all federal, state and local income taxes
payable with respect to the foregoing calculated at the maximum marginal income tax rate for each
year in which the foregoing shall be paid to an Participant (based on the rate in effect for such
year as set forth in the Code as in effect at the time of the first payment of the foregoing), less
(c) the amount of the Excise Tax imposed with respect to the payments and benefits described in (a)
above. If a reduction is required by this provision, the Participant, in his or her sole and
absolute discretion, may determine which Original Payments shall be reduced to the
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Executive Retention Plan
extent necessary so that no portion thereof shall be subject to the Excise Tax, and the
Company shall pay such reduced amount to him or her. The fees and expenses of the Company’s
auditor for its services in connection with the determinations and calculations contemplated by
this provision will be borne by the Company.
ARTICLE 6
PLAN ADMINISTRATION; AMENDMENT AND TERMINATION
6.1 Administration of Plan. The Compensation Committee of the Board of Directors of
the Company will serve as the Plan Administrator. The Plan Administrator is the “named fiduciary”
of the Plan for purposes of ERISA and will be subject to the fiduciary standards of ERISA when
acting in such capacity. The Plan Administrator may delegate in writing to any other person(s) or
committee all or any portion of its authority or responsibility with respect to the Plan at any
time. The Plan Administrator shall, in its sole and absolute discretion, construe and interpret
the terms and provisions of the Plan, and any issue arising out of, relating to, or resulting from
the administration and operation of the Plan, which such construction or interpretation shall be
final and binding on all persons, entities and parties, including, without limitation, any
employees and shall be given the maximum possible deference allowed by law. When making a
determination or calculation, the Plan Administrator shall, in its sole and absolute discretion, be
entitled to rely upon information furnished by employees or other individuals or entities acting on
their behalf. To the extent that any payment under the Plan may be made within a specified number
of days on or after any date or the occurrence of any event, the date of payment shall be
determined by the Plan Administrator in its sole discretion, and not by any Participant,
Beneficiary, or other individual.
6.2 Amendment and Termination. The Plan has been adopted for a specific term and will
automatically terminate on March 31, 2010 unless sooner terminated by the Company pursuant to this
Section 6.2. The Company reserves the right, by written action of its Board of Directors (or its
delegate), to amend, modify or terminate the Plan at any time, without advance notice to any
employee; provided, however, that no such amendment, modification, or termination shall be
effective with respect to the availability, amount, or timing of payment of any Retention Benefit
to the extent it adversely affects the entitlement of any Participant (without such Participant’s
prior consent) who would otherwise be eligible to receive Retention Benefits with respect to events
or circumstances which occurred or arose prior to the date on which the Board of Directors (or its
delegate) approved such amendment, modification, or termination. Any action of the Company in
amending or terminating the Plan will be taken in a non-fiduciary capacity. In the event of an
Internal Revenue Service or Department of Labor ruling which has the effect of reclassifying the
Plan as an “employee pension benefit plan” as defined in Section 3(2)(A) of the ERISA, the Plan
will be automatically terminated effective at the date of such ruling. No communications in
connection with the Plan made by any individual shall be effective to modify or amend the Plan
unless duly executed on an appropriate form provided or approved by, and filed with, the Plan
Administrator (including, but not limited to, a Notice of Eligibility or Participation Agreement).
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Executive Retention Plan
6.3 ERISA Limitations.
(a) No payments made pursuant to the Plan are contingent, either directly or indirectly, upon
a Participant’s retirement.
(b) In no event shall the amount of a Retention Benefit or similar benefit payable under the
Plan exceed two (2) times the applicable Participant’s annual compensation paid during the year
immediately preceding his or her Termination Date.
(c) Under no circumstances will any Retention Benefits or similar benefits under the Plan be
payable to a Participant more that twenty-four (24) months following his or her Termination Date.
6.4 Claims and Appeals Procedures.
(a) Claims Procedures.
(i) Submission of Claims. Any employee or other person who believes he or she is
entitled to any payment under the Plan may submit a claim in writing to the Plan Administrator. If
the claim is denied (in full or in part), the claimant shall be provided a written or electronic
response from the Plan Administrator.
(ii) Contents of Notice of Claims Denial. In the event the Plan Administrator denies
a claim made under the Plan, the Plan Administrator’s will deliver a written response to the
claimant including the following information: (1) the specific reason(s) for the denial; (2)
reference to the specific Plan provision(s) upon which the denial was based; (3) a description of
any additional or material information that is necessary for the appeal of the denied claim to be
successful, and an explanation of why this information is necessary; (4) a description of any
voluntary appeal procedures available under the Plan and your right to receive information about
them; (5) an explanation of the review procedure summarized below, including the time limits
applicable to the review procedures and the claimant’s rights to submit written comments and have
them considered, the claimant’s right to review (upon request and at no charge) relevant documents
and other information; and (6) statement that the claimant has a right to bring a civil action
under Section 502(a) of ERISA following a denial of an appeal of the claim. If the Plan
Administrator relied on an internal rule, guideline, protocol, or other similar criterion in
denying the claim, then the Plan Administrator either will provide the claimant with a copy of the
criterion or will notify the claimant that it relied on such a criterion and inform the claimant
that he or she may request a copy of the criterion free of charge.
(iii) Timing of Delivery of Notice of Denial. The denial notice shall be furnished to
the claimant no later than ninety (90) days after receipt of the claim by the Plan Administrator,
unless the Plan Administrator determines that special circumstances require an extension of time
for processing the claim. If the Plan Administrator determines than an extension of time for
processing is required, then notice of the extension shall be furnished to the claimant prior to
the termination of the initial ninety (90) day period. In no event shall such
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Executive Retention Plan
extension exceed a period of ninety (90) days from the end of such initial period. The notice
shall inform the claimant of the following: (1) the special circumstances requiring the extension
of time; (2) the date by which the claimant can expect a decision; (3) the standards for
determining the claimant’s entitlement to benefits; (4) the unresolved issue(s) that prevent a
decision on the claim; and (5) a description of any additional information that the claimant needs
to submit.
(b) Appeal Procedures.
(i) Request for Review. If the claimant’s claim is denied, the claimant (or his or
her authorized representative) may apply in writing to the Plan Administrator for a review of the
decision denying the claim. The Plan Administrator shall afford the claimant a full and fair
review of the decision denying the claim and, if so requested, shall: (1) provide the claimant with
the opportunity to submit written comments, documents, records, and other information relating to
the claim for benefits; (2) provide that the claimant shall be provided, upon request and free of
charge, reasonable access to, and copies of all documents, records and other information (other
than documents, records and other information that is legally privileged) relevant to the
claimant’s claim for benefits; and (3) provide for a review that takes into account all comments,
documents, records and other information submitted by the claimant relating to the claim, without
regard to whether such information was submitted or considered in the initial benefit
determination.
(ii) Determination of Appeal. If the claimant’s appeal is subsequently denied by the
Plan Administrator, in whole or in part, then the claimant shall be furnished with a denial notice
that shall contain the following: (1) the specific reason(s) for the denial; (2) reference to the
specific Plan provision(s) on which the denial is based; and (3) an explanation of the Plan’s
review procedures and the time limits applicable to such procedures including a statement of the
claimant’s right to bring a civil action under ERISA Section 502(a) following the denial on review.
(iii) Timing of Decision on Review. The decision on review shall be issued within
sixty (60) days following the request for review. The period for decision may, however, be
extended up to one hundred and twenty (120) days after such receipt if the Plan Administrator
determines that special circumstances require extension. In the case of an extension, notice of
the extension shall be furnished to the claimant (or his or her authorized representative) prior to
the expiration of the initial sixty (60) day period. In no event shall such extension exceed a
period of sixty (60) days from the end of such initial period. The extension notice shall indicate
the special circumstances requiring the extension of time and the date by which the Plan
Administrator expects to render the benefits determination.
(c) Procedural Requirements. No Participant, Beneficiary, or other claimant may bring
a lawsuit to recover benefits under the Plan until he or she has exhausted the internal
administrative process described above. No legal action may be commenced at all unless commenced
no later than one (1) year following the issuance of a final decision on the claim for benefits, or
the expiration of the appeal decision period if no decision is issued. This one-year statute of
limitations on suits for all Retention Benefits available under the Plan shall apply in any forum
where such a suit is initiated.
Page 10 of 16
Executive Retention Plan
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Tax Withholding. All payments made or benefits provided under the Plan shall be
subject to withholding for any applicable taxes or other amounts which federal, state or local law
requires the Company to withhold. The Company’s determination of the type and amount of taxes to
be withheld from any payment or benefit shall be final and binding on all persons having or
claiming to have an interest in this Plan.
7.2 Section 409A Compliance.
(a) Notwithstanding any other provisions to the contrary, no payments or any benefits will be
provided under the Plan earlier than permitted by Section 409A of the Code, or later than the
latest day permitted in order to avoid taxation under such section. Further, the Plan
Administrator, in its sole discretion may amend or modify the Plan in any manner to provide for the
application and effects of Section 409A of the Code its related Treasury regulations, and any
related regulatory or administrative guidance issued by the Internal Revenue Service.
(b) Deferred Commencement Date for Specified Employees. Notwithstanding any provision
to the contrary in the Plan, to the extent required to avoid a prohibited distribution under
Section 409(A)(2) of the Code, no Retention Benefits or other payments or benefits to which a
Participant becomes entitled under the Plan shall be made prior to the earlier of (i) the first
business day following the expiration of the six (6)-month period measured from the date of the
Participant’s “separation from service” (as defined under Code Section 409(A) and its related
Treasury regulations) or (ii) the death of the Participant if he or she is at the time a “specified
employee” within the meaning of that term under Section 409A of the Code. Upon the expiration of
the delay period required by Section 409A of the Code, all payments and benefits deferred under
this paragraph otherwise payable in the form of a salary continuation shall commence to be paid by
the end of the first month following the expiration of the delay period. For the avoidance of
doubt, that portion of the payments provided under this Plan that do not exceed the Code Section
409A Limit (as defined below) and which qualify as “separation pay” under Treasury regulation
Section 1.409A-1(b)(9)(iii), shall be paid or commence to be paid on the date originally specified
for such payment. For purposes of this Plan, “Code Section 409A Limit” means the lesser of two (2)
times: (i) the Participant’s annual compensation paid during the Company’s taxable year preceding
the taxable year in which the Participant is terminated, as determined under Treasury regulation
Section 1.409A-1(b)(9)(iii)(A)(1) and any related Internal Revenue Service guidance; or (ii) the
maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17)
of the Code for the year in which such termination occurs. In the event of a Participant’s death,
any amounts delayed under this Section 7.2(b) shall be paid to the personal representative of the
Participant’s estate as soon as practicable but in all events within sixty (60) days after the date
of his or her death. For purposes of determining the individuals who will be “specified employees”
under the Plan, the identification date shall be December 31 of each calendar year.
7.3 Waiver of Other Benefits; Non-Duplication. By agreeing to commence participation
in the Plan, each Eligible Executive who would otherwise be entitled to receive
Page 11 of 16
Executive Retention Plan
severance, retention, or similar benefits in connection with a Termination of Employment under
another employee benefit plan, employment agreement, offer letter, or other agreement or
understanding with the Company agrees to irrevocably waive any such entitlement in full. Such
waiver shall be in writing in such form as may reasonably be specified by the Plan Administrator
(including in a Participation Agreement) and shall be filed with the Plan Administrator in
accordance with such rules and procedures as it may reasonably establish. Notwithstanding the
foregoing, if an Eligible Executive becomes entitled to receive severance benefits under the
Sourcefire, Inc. Executive Change in Control Severance Plan (the “Executive Plan”) as a
result of his or her “qualifying termination” (as defined in the Executive Plan), any such waiver
shall not preclude the Eligible Executive from receiving such severance benefits thereunder, but in
such event, the Eligible Executive shall forfeit entitlement to any Retention Benefits that might
have otherwise been payable under the Plan. In no event will any Eligible Executive be entitled to
receive benefits or payments under both the Executive Plan and this Plan as a result of his or her
Termination of Employment.
7.4 Coordination with Mandated Benefits. To the extent that any federal, state or
local law, including, without limitation, so-called plant closing laws, requires the Company to
give advance notice or make payment of any kind to a Participant because of his or her involuntary
termination due to a layoff, reduction in force, plant or facility closing, sale of business,
change of control, or any other similar event or reason, the benefits provided under this Plan
shall either be reduced or eliminated accordingly. The benefits provided under this Plan are
intended to satisfy any and all statutory obligations that may arise out of any Participant’s
involuntary termination for the foregoing reasons, and the Plan Administrator shall so construe and
implement the terms of the Plan it its sole discretion. Included in the scope of the foregoing, if
a Participant receives notice from the Company pursuant to the Workers Adjustment and Retraining
Notification (“WARN”) Act, and remains employed during the WARN notice period, then the
Retention Benefits for which the Participant is eligible under this Plan will be reduced by the
amount of the Retention Benefits he or she receives during the applicable WARN notice period.
7.5 Non-Assignability. In no event may any Participant, Eligible Executive, or other
current or former employee of the Company or any of its subsidiaries or affiliates sell, transfer,
anticipate, assign or otherwise dispose of any right or interest under the Plan. At no time will
any such right or interest be subject to the claims of creditors nor liable to attachment,
execution or other legal process.
7.6 Facility of Payment. If any person entitled to payments under this Plan is, in
the opinion of the Plan Administrator or its designee, incapacitated and unable to use such
payments in his or her own best interest, the Plan Administrator or its designee may direct that
payments (or any portion) be made to that person’s legal guardian or conservator, or that person’s
spouse, as an alternative to payment to the person unable to use the payments. The Plan
Administrator or its designee will have no obligation to supervise the use of such payments, and
court-appointed guardianship or conservatorship may be required.
7.7 Assumption by Successor. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of
Page 12 of 16
Executive Retention Plan
the business or assets of the Company expressly to assume and to agree to perform the
obligations under this Plan in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place; provided, however, that no such
assumption shall relieve the Company of its obligations hereunder. As used in this Section 7.7,
the “Company” shall include the Company and any successor to its business and/or assets which
assumes and agrees to perform the obligations arising under this Plan by operation of law or
otherwise.
7.8 Effect on Other Plans. Participation in this Plan has no effect on the rights of
any Participant under any other employee benefit plan sponsored by the Company such as any pension
or profit-sharing, medical, dental or hospitalization, life insurance, AD&D, bonus, incentive
compensation, or vacation pay plan. Employee rights under those benefit plans are governed solely
by their terms, and Participants should review those plans to ascertain their rights under them.
7.9 Voluntary Plan/No Alteration of Employment-At-Will Status. The adoption of the
Plan is purely voluntary on the part of the Company and the Plan shall not be deemed to constitute
a contract between the Company and any employee or other person not in the employ of the Company,
or to be a consideration for, or an inducement or condition of, the employment of any employee or
other person. This Plan does not alter, and should not be considered as altering, the at-will
employment relationship between the Company and its employees, under which an employee of the
Company is free to terminate his/her employment relationship with the Company at any time for any
reason, and the Company may terminate its employment relationship with an employee at any time for
any lawful reason.
7.10 Source of Payments. All Retention Benefits will be paid in cash from the general
funds of the Company; no separate fund will be established under the Plan; and the Plan will have
no assets. No right of any person to receive any payment under the Plan will be any greater than
the right of any other general unsecured creditor of the Company.
7.11 No Rights Created or Accrued. No Participant shall have any vested rights under
the Plan and nothing herein shall be construed as giving any Participant any nonforfeitable or
vested rights to any benefits hereunder. Nothing in the Plan shall be construed as giving to a
Participant a right to receive any benefit other than the benefits specifically provided under the
terms of the Plan. No benefits shall be deemed to accrue under the Plan at any time except the
time at which they become payable under the Plan, and no right to a benefit under the Plan shall be
deemed to vest prior to a Participant’s Termination Date.
7.12 Controlling Law. Except as may be otherwise provided in the contracts
incorporated by reference into the Plan, the provisions of the Plan shall be construed,
administered and enforced according to ERISA and, to the extent not preempted, by the laws of the
State of Maryland. If any provision of the Plan shall be held illegal or invalid for any reason,
such illegality or invalidity shall not affect the remaining provisions of the Plan, and the Plan
shall be construed and enforced as if such illegal and invalid provisions had never been set forth
in the Plan.
Page 13 of 16
Executive Retention Plan
Remainder of page intentionally blank
Page 14 of 16
Executive Retention Plan
7.13 Additional Plan Information.
Plan Name:
|
Sourcefire, Inc. Executive Retention Plan | |
Type of Plan:
|
Unfunded welfare benefit plan | |
Plan Sponsor:
|
Sourcefire, Inc. | |
Identification Numbers:
|
EIN: 52-228965 | |
| PLAN NUMBER: 505 | ||
Plan Year:
|
January 1 – December 31 | |
| The initial Plan Year will commence on March 31, 2008 and end on December 31, 2008. The final Plan Year will commence on January 1, 2010 and end on December 31, 2010. | ||
Plan Administrator:
|
The Compensation Committee of the Board of Directors | |
| Sourcefire, Inc. | ||
| 0000 Xxxxxxxx Xxxxx Xx. | ||
| Columbia, MD 21046-1526 | ||
Agent for Service of
|
Sourcefire, Inc. | |
Legal Process:
|
0000 Xxxxxxxx Xxxxx Xx. | |
| Columbia, MD 21046-1526 | ||
| Attn: General Counsel | ||
Funding Mechanism:
|
Unfunded plan; retention benefits are paid out of the Company’s general assets. |
Page 15 of 16
Executive Retention Plan
STATEMENT OF ERISA RIGHTS
The Employee Retirement Income Security Act of 1974 (“ERISA”) was enacted to help
assure that all employer-sponsored group benefits programs conform to standards set by Congress.
The Sourcefire, Inc. Executive Retention Plan is covered by XXXXX and an employee who is a
participant in this Plan is entitled to certain rights and protections. XXXXX provides that all
Plan participants shall be entitled to examine, without charge, at the Company’s business office,
all Plan documents and copies of all documents filed by the Plan with the U.S. Department of Labor,
such as detailed annual reports and to obtain copies of all Plan documents and other Plan
information, if applicable, upon written request to the Company. The Company may make a reasonable
charge for the copies. The Company is required by law to furnish each participant with a copy of
this summary annual report, if applicable.
In addition to creating rights for Plan participants, XXXXX also sets forth certain duties for
the people who are responsible for the operation of the Plan. The people who operate the Plan are
called “fiduciaries” of the Plan. They have a duty to operate the Plan prudently and in the best
interests of you and other Plan participants and beneficiaries. No one, including your employer,
or any other person, may fire you or otherwise discriminate against you to prevent you from either
obtaining any Plan benefit or exercising your rights under ERISA. However, neither the existence
of the Plan nor this summary plan description constitutes an employment contract or affects the
right of the Company to lawfully terminate your employment. If your claim for a Plan benefit is
denied in whole or in part, you must receive a written explanation of the reasons for the denial.
You have the right to have the Plan Administrator review and reconsider your claim.
Under ERISA, there are steps you can take to enforce the above rights. For instance, if you
request materials from the Plan and do not receive them within 30 days, you may file suit in a
federal court. In such a case, the court may require the Plan Administrator to provide the
materials and pay you up to $110 per day until you receive the materials (unless the materials were
not sent because of reasons beyond the control of the Plan Administrator). If you have a claim for
benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal
court. If it should happen that Plan fiduciaries do not fulfill their responsibilities under
ERISA, or if you are discriminated against for asserting your rights, you may seek assistance from
the U.S. Department of Labor, or you may file suit in a federal court. The court will decide who
should pay court costs and legal fees. If you are successful, the court may order the person you
have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and
fees (for example, if the court finds your claim is frivolous).
If you have any questions about the Plan, you should contact the Plan Administrator. If you
have any questions about this statement or about your rights under ERISA, or if you need assistance
in obtaining documents from the Company, you should contact the nearest office of the Employee
Benefits Security Administration, U.S. Department of Labor, listed in your telephone directory or
the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S.
Department of Labor, 000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000. You may also obtain
certain publications about your rights and responsibilities under ERISA by calling the publications
hotline of the Employee Benefits Security Administration.
END OF PLAN
Page 16 of 16
Sourcefire, Inc. Executive Retention Plan
Exhibit A – Form of Separation and Release Agreement
THIS AGREEMENT AND GENERAL RELEASE (the “Release Agreement”) is made and entered into
on _____________________, 20___, by and between ____________ (the “Participant”) and SOURCEFIRE,
INC., a Delaware corporation (the “Company”).
WHEREAS, the Participant’s employment with the Company terminated effective as of
__________________, 200___ (the “Date of Termination”);
WHEREAS, the Participant is a participant in the Sourcefire, Inc. Executive Retention Plan
(the “Plan”), pursuant to which Participant is eligible to receive retention benefits,
contingent upon certain conditions that are outlined in the Plan; and
WHEREAS, one such condition under the Plan and that certain Participation Agreement dated
___, 200___ between Participant and the Company (the “Participation Agreement”) to
receiving the severance benefits is Participant’s execution, return and non-revocation of this
Release Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth in
this Release Agreement, the sufficiency of which the parties acknowledge, it is agreed as follows:
1. In consideration of the Participant’s promises in this Release Agreement, the Participant
shall receive, subject to Section 2 hereof, the retention benefits set forth in the Participation
Agreement. The Participant’s cash salary continuation benefits shall be subject to standard
payroll tax deductions and disbursed to the Participant in approximately equal installments on the
Company’s regularly-scheduled payroll dates commencing on the first regular payday after the last
to occur of: (a) the expiration of the revocation period referenced in Section 7 below without
revocation by the Participant; and (b) Participant’s return to the Company and the Company’s
verification of Participant’s return of the items listed in Section 8 below. The Participant’s
entitlement to subsidized group health coverage will commence after the last to occur of: (a) the
expiration of the revocation period referenced in Section 7 below
Exhibit A
Page 1 of 9
without revocation by the Participant; (b) Participant’s return to the Company and the
Company’s verification of Participant’s return of the items listed in Section 8 below; and (c) the
Participant’s timely submission of a “COBRA” election to the Company or its designated
representative.
2. Notwithstanding anything to the contrary in this Release Agreement, if on the date of the
Participant’s Separation from Service (as defined below), the Participant is a “specified employee”
within the meaning of Code Section 409A, any payments and benefits that otherwise would be due
under Section 1 on account of the Participant’s Separation from Service and within the first six
(6) months following the Participant’s Separation from Service, shall instead be paid in a lump sum
on the first business day of the seventh (7th) month following the Participant’s
Separation from Service (but only to the extent that such payments or benefits constitute
“deferrals of compensation,” within the meaning of United States Treasury Regulation (“Treasury
Regulation”) Section 1.409A-1(b) and after application of the exemptions provided in Treasury
Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(9)). Each payment or benefit under Section 1
shall be considered a separate payment for purposes of Treasury Regulation Sections 1.409A-1(b)(4)
and 1.409A-2(b)(2). For purposes of this Release Agreement, “Separation from Service” shall have
the meaning set forth in Treasury Regulation Section 1.409A-1(h)(1)(i).
3. The parties agree that the payments described in the Plan, Participation Agreement and this
Release Agreement are in full, final and complete settlement of all claims the Participant may have
against the Company and its past and present affiliates, officers, directors,
owners, employees, agents, successors and assigns. The parties agree that the Participant
would not otherwise be entitled to these payments but for his promises in this Release Agreement.
Exhibit A
Page 2 of 9
4. Nothing in this Release Agreement shall be construed as an admission of liability by the
Company or its past and present affiliates, officers, directors, owners, employees or agents, and
the Company specifically disclaims liability to or wrongful treatment of the Participant on the
part of itself and its past and present affiliates, officers, directors, owners, employees and
agents.
5. The Participant represents that he has not filed any complaints or charges against the
Company with the Equal Employment Opportunity Commission or with any other federal, state, local,
foreign or other agency or court, and covenants that he will not seek to recover on any claim
released in this Release Agreement.
6. In exchange for the payments and other consideration under this Release Agreement to which
Participant would not otherwise be entitled, subject to applicable law, Participant hereby releases
and forever discharges the Company and its past and present affiliates, directors, officers,
owners, employees and agents, as well as its successors and assigns (collectively, the
“Releasees”), from any and all claims, liabilities, damages, demands and causes of action
or liabilities of any nature or kind, whether now known or unknown, arising out of or in any way
connected with the Participant’s employment with the Company or its affiliates or the termination
of that employment; provided, however, that nothing in this Release Agreement shall (i) waive any
rights or claims of the Participant that arise after this Release Agreement becomes effective,
(ii) impair or preclude his right to take action to enforce the terms of this Release Agreement,
(iii) impair the Participant’s vested rights under any tax-qualified retirement plan
Exhibit A
Page 3 of 9
maintained by the Company or its affiliates, or (iv) impair the Participant’s rights to
indemnification under any indemnification agreement(s) between the Participant and the Company, any
rights to and claims for indemnification or as an insured under any directors and officers
liability insurance policy in connection with the Participant’s service as an officer, employee or
agent of the Company or any of its subsidiaries or affiliates, under their respective certificates
of incorporation and by-laws, or otherwise as provided by law. This release includes but is not
limited to claims arising under federal, state or local laws prohibiting employment discrimination,
including but not limited to Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act (the “ADEA”), as amended, the Equal Pay Act and the
Americans with Disabilities Act, claims for attorneys’ fees or costs, and any and all claims in
contract or tort or premised on any other legal theory.
7. Participant acknowledges that Participant is knowingly and voluntarily waiving and
releasing any rights Participant may have under the ADEA, as amended. Participant also
acknowledges that the consideration given for the waiver and release in the preceding paragraph
hereof is in addition to anything of value to which you were already entitled. You acknowledge
that you have been advised by this writing, as required by the ADEA, that: (a) Participant’s
waiver and release does not apply to any rights or claims that may arise after the execution date
of this Release Agreement; (b) Participant has [twenty-one (21) or forty-five (45)] calendar days
to consider this Release Agreement; and (c) that Participant has seven (7) calendar days from the
date he executes this Release Agreement in which to revoke it. This Release Agreement will not be
effective or enforceable nor the amounts described in Sections ___ paid until after the seven
(7) day revocation period ends without revocation by him. [Note: the 45-day
Exhibit A
Page 4 of 9
consideration period applies when the waiver is requested as part of an exit incentive or
other employment termination program offered to a group of employees – a group is 2. Otherwise,
the consideration period is 21 days.] Revocation can be made by delivery of a written notice of
revocation to the Chief Executive Officer of the Company, at the principal offices of the Company,
by midnight on or before the seventh (7th) calendar day after the Participant signs this Release
Agreement. [You further acknowledge that you have received the Disclosure Under Title 29 U.S. Code
Section 626(f)(1)(H) which is attached hereto as Exhibit B.] [include Exhibit B if part of
a group termination]
8. The Participant acknowledges his continuing obligations under the Employee Proprietary
Information, Inventions, and Non-Competition Agreement, signed by the Participant on ___,
2007 (the “NDA”), a copy of which is attached hereto as Exhibit A. To the extent
the Participant has not already done so, the Participant will immediately return to the Company all
originals and copies of any material containing Proprietary Information (as such term is defined in
the NDA). To the extent the Participant has not already done so, the Participant will also return
to the Company any other items in his possession, custody or control that are the property of the
Company, including but not limited to the Company’s documents and files (whether prepared by the
Participant, the Company, the Company’s affiliates or a third party) in any form, including but not
limited to, electronic, digital, and paper form (and all copies thereof), beeper, personal digital
assistant, credit cards, identification card, diskettes and office keys or entry cards. The items
that fall within the scope of this Section 10 include, but are not limited to, files, notes,
drawings, records, business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property (including, but not limited to,
Exhibit A
Page 5 of 9
computers, credit cards, entry cards, identification badges and keys); and any materials of
any kind which contain or embody any proprietary or confidential information of the Company (and
all reproductions thereof).
9. The Participant acknowledges that he has been advised to consult with an attorney of his
choice with regard to this Release Agreement. The Participant hereby acknowledges that he
understands the significance of this Release Agreement, and represents that the terms of this
Release Agreement are fully understood and voluntarily accepted by him.
10. The Participant agrees to refrain from making any unfavorable comments, in writing or
orally, about the Company or its operations, policies or procedures, or about any Releasee in any
manner likely to be harmful to them or their business, business reputation or personal reputation;
provided that Participant shall respond accurately and fully to any question, inquiry or request
for information when required by legal process.
11. This Release Agreement shall be binding on the Participant and the Company and upon their
respective heirs, representatives, successors and assigns, and shall run to the benefit of the
Releasees and each of them and to their respective heirs, representatives, successors and assigns.
The Company shall cause its directors, officers, employees and agents to refrain from making
unfavorable comments, in writing or orally, about the Participant.
12. This Release Agreement and the NDA together set forth the entire agreement between the
Participant and the Company, and fully supersede any and all prior agreements or understandings
between them regarding their respective subject matter. This Release Agreement may be modified
only by written agreement signed by both parties.
Exhibit A
Page 6 of 9
13. The Participant and the Company agree that in the event any provision of this Release
Agreement is deemed to be invalid or unenforceable by any court or administrative agency of
competent jurisdiction, or in the event that any provision cannot be modified so as to be valid and
enforceable, then that provision shall be deemed severed from this Release Agreement and the
remainder of this Release Agreement shall remain in full force and effect.
14. This Release Agreement in all respects shall be interpreted and entered under the laws of
the State of Maryland. The language of all parts of this Release Agreement in all cases shall be
construed as a whole, according to its fair meaning, and not strictly for or against any of the
parties.
PLEASE READ CAREFULLY. THIS
AGREEMENT AND GENERAL RELEASE INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
AGREEMENT AND GENERAL RELEASE INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Dated:
|
PARTICIPANT | |||||
Dated:
|
SOURCEFIRE, INC. | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Exhibit A
Page 7 of 9
Sourcefire, Inc. Executive Retention Plan
EXHIBIT A TO FORM OF SEPARATION AND RELEASE AGREEMENT
EMPLOYEE PROPRIETARY INFORMATION, INVENTIONS,
AND NON-COMPETITION AGREEMENT
AND NON-COMPETITION AGREEMENT
[SEE ATTACHED]
Exhibit A
Page 8 of 9
Sourcefire, Inc. Executive Retention Plan
EXHIBIT B TO FORM OF SEPARATION AND RELEASE AGREEMENT
DISCLOSURE UNDER TITLE 29 U.S. CODE SECTION 626(f)(1)(H)
| Confidentiality Provision: | The information contained in this document is private and confidential. You may not disclose this information to anyone except your professional advisors. |
| 1. | Participants of the Sourcefire, Inc. Executive Retention Plan are eligible, subject to certain conditions, to receive a severance package. | |
| 2. | You and all others receiving this disclosure will have forty-five (45) days to review the terms and conditions of the severance package. |
| Selected for [DATE] Termination | Not Selected for [DATE] | |||||||||||
| of Employment | Termination of Employment | |||||||||||
| Age | Position | Number | Age | Position | Number | |||||||
| 1 | ||||||||||||
| 1 | ||||||||||||
| 1 | ||||||||||||
| 1 | ||||||||||||
| 1 | ||||||||||||
| 1 | ||||||||||||
| 1 | ||||||||||||
Exhibit A
Page 9 of 9
Sourcefire, Inc. Executive Retention Plan
Exhibit B – Form of Notice of Eligibility/Participation Agreement
Dear [Eligible Executive]:
This letter relates to the Sourcefire, Inc. Executive Retention Plan (the “Plan”) that we,
Sourcefire, Inc. have adopted.
Through this letter, you are being offered the opportunity to become a participant in the Plan and
thereby to be eligible to receive the voluntary severance benefits described below in the event of
your “qualifying termination.” A copy of the Plan is attached to this letter. You should read it
carefully and become comfortable with its terms and conditions, and those set forth below. In
order to commence participation in the Plan, you must execute this letter and return it to the
Company. By executing this letter, you will be establishing a “Participation Agreement” within the
meaning of the Plan, and you will thereby be acknowledging and agreeing to the following
provisions:
| • | that you have received and reviewed a copy of the Plan; | ||
| • | that terms not defined in this letter but beginning with initial capital letters shall have the meaning assigned to them in the Plan; | ||
| • | that your participation in the Plan requires that you agree irrevocably and voluntarily to the terms of the Plan and the terms set forth below; and | ||
| • | that you have had the opportunity to carefully evaluate this opportunity, and desire to participate in the Plan according to the terms and conditions set forth herein. |
Subject to the foregoing, we invite you to become a “Participant” in the Plan. Your participation
in the Plan will be effective upon your signing and returning this letter agreement to the Company
within thirty (30) days of your receipt of this letter agreement. Capitalized terms used in this
participation agreement but not otherwise defined will have the meaning set forth in the Plan.
NOW, THEREFORE, you and the Company (hereinafter referred to as “the parties”) hereby AGREE
as follows:
1. If while the Plan and this Participation Agreement are in effect, you become entitled to a
Retention Benefit in accordance with 4.2 of the Plan as a result of your Qualifying Termination,
then the following will be applicable.
(a) Salary Continuation Benefits. Your cash Retention Benefits will be paid in the
form of salary continuation, at the time and the manner provided in Section 4.3(a) of the Plan.
The Benefit Period used to determine the amount and duration of your salary continuation
Exhibit B
Page 1 of 4
benefits will be six (6) months. Your salary continuation benefits will be determined based
on your Base Salary, as provided in Section 4.3(a) of the Plan.
(b) COBRA Subsidy. You and your COBRA qualifying beneficiaries will be entitled to
COBRA continuation coverage at the active employee rates in effect on your Termination Date for the
duration of your Benefit Period. Thereafter, you will be entitled to continuation coverage at your
own expense at the COBRA premium rates then in effect and only to the extent you and/or your COBRA
qualifying beneficiaries remain eligible for COBRA coverage at that time.
(c) Acceleration of Equity Awards. Your outstanding and unvested stock options will
accelerate and become vested, and the restrictions applicable to your outstanding restricted stock
award(s) will lapse and become vested, as follows: (i) the vesting of your outstanding and
unvested stock options will accelerate and become vested by twenty-five percent (25%) of the total
shares originally subject to such stock options; and (ii) the restrictions applicable to your
outstanding restricted stock award(s) will lapse and become vested by twenty-five percent (25%) of
the total shares originally subject to such restricted stock award(s); provided, however, that in
the event that as of your Date of Termination there are not a sufficient number of unvested options
(with respect to such stock options) or shares subject to restrictions (with respect to such
restricted stock award(s)) to allow for the accelerations and lapses described above, either in
full or in part, then, then such number of unvested option shares shall vest (with respect to such
stock options) or restrictions shall lapse (with respect to such restricted stock award(s)), as
necessary to give effect to the vesting acceleration and restriction lapses described in this
subsection 1(c), up to the number of then unvested shares subject to each such stock option, or the
number of then restricted shares subject to such restricted stock award(s), as the case may be.
2. Loss of Eligibility. Even if you are otherwise eligible to receive the Retention
Benefits described in Paragraph 1 above, you will forfeit your entitlement to those benefits to the
extent described below in the following circumstances.
| • | Failure to Provide an Effective Release. As a condition of receiving any Retention Benefits pursuant to the Plan and this Participation Agreement, you must execute and not revoke a Release supplied by the Company. Payments of Retention Benefits will not commence until your Release has become effective and irrevocable. | ||
| • | Alternative Employment. If, subsequent to the commencement of Retention Benefits, you secure alternative employment, your right to Company-subsidized COBRA premiums will end but, subject to the terms of the Plan and your Notice of Eligibility, you will remain eligible to receive salary continuation benefits. | ||
| • | Violation of Certain Obligations. If, subsequent to the commencement of Retention Benefits, you violate the continuing non-disclosure, non-competition, or non-solicitation provisions applicable to you under an agreement with the Company, your right to continuing salary continuation benefits and Company- |
Exhibit B
Page 2 of 4
| subsidized COBRA premiums will end, and the Company will be entitled to recover any prior payments made to you and to exercise any other rights and remedies it may have under the terms of the applicable agreement. | |||
| • | Non-Qualifying Termination. If your employment with the Company ends in circumstances that are not a Qualifying Termination (for example, you are terminated by the Company for Cause or you voluntarily resign without Good Reason), you will not be entitled to receive any Retention Benefits under the Plan. |
3. Waiver of Other Benefits; Non-Duplication. As a condition of and in consideration
of your becoming eligible to receive the Retention Benefits provided under the terms and conditions
of the Plan and this Participation Agreement, you agree to waive any and all rights, benefits, and
privileges to severance or similar benefits that you might otherwise be entitled to receive under
any other oral or written plan, employment agreement or arrangement (including, without limitation,
your existing employment agreement or offer letter). You understand that this waiver is
irrevocable, and that this Participation Agreement and the Plan set forth the entire agreement
between us with respect to any subject matter covered herein. Notwithstanding the foregoing, if
you are a participant in the Sourcefire, Inc. Executive Change in Control Severance Plan (the
“Executive Plan”) and you become eligible to receive severance benefits thereunder as a
result of your “qualifying termination” (as defined in the Executive Plan), your waiver will not
preclude your receipt of such severance benefits, but you will forfeit any Retention Benefits you
might otherwise be entitled to receive under the Plan as a result of your Termination. In no event
will you be entitled to receive benefits under both the Plan and the Executive Plan as a result of
your Termination.
4. Tax Compliance. You understand and acknowledge that you are ultimately liable and
responsible for all taxes owed in connection with any Retention Benefits you may receive under the
Plan, regardless of any action the Company takes with respect to any tax withholding obligations
that arise in connection with these benefits. The Company makes no representation or undertaking
regarding the treatment of any tax withholding in connection with your Retention Benefits. While
the Company intends to operate the Plan in a manner that avoids the limitations imposed by Section
409A of the Internal Revenue Code, the Company makes no representation that the Plan will, in fact,
avoid these limitations or will comply with Section 409A to the extent it becomes applicable. The
Company makes no undertaking to prevent Section 409A from applying to this Plan or any Retention
Benefits made under it or to mitigate the effects of such provision on any payments made pursuant
to this Plan. You are encouraged to consult a tax adviser regarding the potential tax and other
implications of participation in the Plan in light of your own personal circumstances.
You understand and acknowledge that the Company in the exercise of its sole discretion and without
your consent, may amend or modify this letter agreement and the Plan in any manner and delay the
payment of amounts pursuant to this letter agreement and the Plan to the minimum extent necessary
to meet the requirements of Section 409A as amplified by any Treasury regulations or guidance from
the Internal Revenue Service as the Company deems appropriate or advisable.
Exhibit B
Page 3 of 4
5. Severability of Provisions. If any provision of the Plan, or of this Participation
Agreement, is determined to be unlawful, invalid or unenforceable, such provision shall be deemed
severed from the Plan or this Participation Agreement, respectively, but every other provision of
the Plan or of this Participation Agreement shall remain in full force and effect. In substitution
for any provision of the Plan or this Participation Agreement being held unlawful, invalid or
unenforceable, there shall be substituted a provision of similar import reflecting the original
intent of the parties hereto to the fullest extent permissible under law.
6. Acknowledgment. You recognize and agree that your execution of this Participation
Agreement results in your enrollment and participation in the Plan, that you agree to be bound by
the terms and conditions of the Plan and this Participation Agreement, and that you understand that
this Participation Agreement may not be amended or modified except pursuant to Section 6.2 of the
Plan.
DATED ____________.
| SOURCEFIRE, INC., a Delaware corporation | ||||
| By: | ||||
| Title: | ||||
| “Company” | ||||
| Accepted and Agreed this ____ day of _________________, 2008. | ||||
| SIGNED: | ||||
| “Participant” | ||||
Exhibit B
Page 4 of 4
