AGREEMENT AND PLAN OF REORGANIZATION BY AND AMONG FIREEYE, INC. MERCURY MERGER CORPORATION MERCURY MERGER LLC MANDIANT CORPORATION AND SHAREHOLDER REPRESENTATIVE SERVICES LLC AS STOCKHOLDER REPRESENTATIVE DECEMBER 30, 2013Agreement and Plan of Reorganization • January 2nd, 2014 • FireEye, Inc. • Computer peripheral equipment, nec • Delaware
THIS AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) is made and entered into as of December 30, 2013 by and among FireEye, Inc., a Delaware corporation (“Parent”), Mercury Merger Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub I”), Mercury Merger LLC, a Delaware limited liability company and wholly-owned subsidiary of Parent (“Merger Sub II” and, together with Merger Sub I, the “Merger Subs”), Mandiant Corporation, a Delaware corporation (the “Company”), and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as stockholder representative (the “Stockholder Representative”). All capitalized terms that are used but not defined herein shall have the respective meanings ascribed thereto in Annex A.
KEY EMPLOYEE NON-COMPETITION AGREEMENTKey Employee Non-Competition Agreement • January 2nd, 2014 • FireEye, Inc. • Computer peripheral equipment, nec • Pennsylvania
This Key Employee Non-Competition Agreement (this “Agreement”) is being executed and delivered as of December 30, 2013 by Kevin Mandia (“Employee”) in favor and for the benefit of FireEye, Inc., a Delaware corporation (“Parent”). Capitalized terms used herein but not otherwise defined shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined below).
December 24, 2013 Kevin Mandia c/o Mandiant Corporation Dear Kevin,Participation Agreement • January 2nd, 2014 • FireEye, Inc. • Computer peripheral equipment, nec • California
FireEye Inc., a Delaware corporation (the “Company” or “FireEye”), is anticipating entering into an Agreement and Plan of Reorganization (the “Merger Agreement”) with certain parties pursuant to which Mandiant Corporation (“Mandiant”) will become acquired by the Company. This offer letter will govern your employment with the Company effective as of, and contingent upon, the Closing (as defined in the Merger Agreement). Your employment with the Company will commence as of the date of the Closing (the “Start Date”). As of the Start Date, the terms and conditions of this offer letter will supersede in their entirety any commitments or promises that may have been made to you by Mandiant, the Company or any other person and any employment agreement, offer letter, or similar agreement regarding your employment with Mandiant or the Company (including, for the avoidance of doubt, any severance obligations). If the Closing does not occur, this offer letter will not take effect. This will confir
CONSIDERATION HOLDBACK AGREEMENTConsideration Holdback Agreement • January 2nd, 2014 • FireEye, Inc. • Computer peripheral equipment, nec • California
This CONSIDERATION HOLDBACK AGREEMENT (the “Agreement”) is made and entered into effective as of December 30, 2013, by and between FireEye, Inc., a Delaware corporation (“Parent”), and Kevin Mandia, a resident of the state of Pennsylvania (“Holdback Key Employee”). All capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Merger Agreement (as defined below).
