Mandiant, Inc. (Form: 8-K, Received: 10/08/2021 16:44:15)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 4, 2021

Mandiant, Inc.

(Exact name of registrant as specified in its charter)

Delaware

001-36067

20-1548921

(State or other jurisdiction
of incorporation)

(Commission
File Number)

(IRS Employer
Identification No.)

601 McCarthy Blvd.

Milpitas, CA 95035

(Address of principal executive offices, including zip code)

(408) 321-6300

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):


☐			Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)


☐			Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)


☐			Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))


☐			Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.0001 per share	MNDT	The NASDAQ Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement.

On October 8, 2021, Mandiant, Inc. (f/k/a FireEye, Inc.) (the “Company”) and Magenta Buyer LLC (as assignee of Polaris Buyer LLC), organized by a consortium led by Symphony Technology Group (“Buyer”), entered into an Amendment to Asset Purchase Agreement (the “Purchase Agreement Amendment”) governing the sale by the Company of its products business (the “Business”) to Buyer (such transaction, the “Sale”). The Purchase Agreement Amendment amends (i) the procedures for the transfer of certain assets in foreign jurisdictions in connection with the Sale, (ii) certain obligations of the parties regarding employee matters, (iii) the procedures for determining the allocation of the purchase price for tax purposes, and (iv) the treatment of certain short-term assets held in foreign jurisdictions, among other modifications and clarifications.

The above description of the Purchase Agreement Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement Amendment, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference. The covenants contained in the Purchase Agreement Amendment were made only for purposes of the Purchase Agreement Amendment, were solely for the benefit of the parties to the Purchase Agreement Amendment, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures exchanged between the parties. Investors should not rely on the covenants contained in the Purchaser Agreement Amendment or any description thereof as characterizations of the actual state of facts or condition of the Company or Buyer.

Item 2.01 Completion of Acquisition or Disposition of Assets.

On October 8, 2021, the Company completed the sale of the Business to Buyer in accordance with the Asset Purchase Agreement, dated as of May 29, 2021, by and between the Company and Buyer, as amended by the Purchase Agreement Amendment (the “Purchase Agreement”). Pursuant to the Purchase Agreement, the Company sold the Business to Buyer in exchange for (i) $1,200,000,000 in cash consideration and (ii) the assumption of certain liabilities of the Business as specified in the Purchase Agreement.

The above description of the Purchase Agreement and the Sale is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, a copy of which was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the SEC on June 2, 2021 and is incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On October 4, 2021, Alexa King notified the Company of her decision to step down as the Company’s Executive Vice President, Corporate and Legal Affairs, General Counsel, and Secretary, effective November 1, 2021. Ms. King’s decision was not the result of any disagreement with the Company but rather a desire to pursue other opportunities and interests. The Company thanks Ms. King for almost a decade of exemplary service to the Company as the first and only General Counsel in the Company’s history, managing the legal, stock, privacy and government affairs functions from before the Company’s initial public offering in 2013 through the Company’s completed divestiture of its FireEye Products business announced today.

Richard Meamber, the Company’s Senior Vice President, Legal and Deputy General Counsel, has been appointed as Interim General Counsel, effective November 1, 2021.

Effective October 6, 2021, the Company entered into a transition agreement with Ms. King (the “Transition Agreement”) that provides that Ms. King will provide transition services to the Company as a strategic advisor beginning on November 1, 2021 (the “Transition Date”) through at least March 1, 2022, with the possibility of continuing these services past such date if the parties mutually agree (the final date Ms. King provides services, the “End Date”). In consideration for such services and a general release of claims, Ms. King will receive (i) a monthly cash payment in an amount equal to her current monthly salary, for the period from the Transition Date through the End Date, (ii) continued provision of benefits through the Transition Date (if possible for an independent contractor) or a cash payment that is sufficient, after payment of taxes on such amount, to pay any applicable premiums for health care continuation coverage (through COBRA or otherwise) through the Transition Date, (iii) a cash bonus for fiscal 2021, payable before or on February 15, 2022, to be determined by the Board of Directors of the Company (the “Board”) or the Compensation Committee of the Board with the corporate portion of such bonus determined on the same basis as for the Company’s then-active Executive Vice Presidents and any individual portion determined by the Company’s Chief Executive Officer but at no less than target, and (iv) continued vesting of all outstanding equity awards through the End Date with any performance-based equity awards deemed earned at the same level as for other individuals who have awards of the same type. The receipt of any bonus under (iii) and the release of any performance-based equity compensation in February 2022 is additionally contingent on Ms. King entering into additional releases of claims, as applicable, not earlier than the day prior to the dates such benefits are provided.

A copy of the Transition Agreement is filed herewith as Exhibit 10.1. The foregoing description of the Transition Agreement is a summary only and is qualified in its entirety by the full text of the Transition Agreement, which is incorporated herein by reference.

Item 7.01 Regulation FD Disclosure.

On October 8, 2021, the Company issued a press release announcing the consummation of the Sale, a copy of which is attached as Exhibit 99.1.

The information set forth under this Item 7.01, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.

Item 9.01 Financial Statements and Exhibits.

(b) Pro Forma Financial Information

The pro forma financial information required by Item 9.01(b) of Form 8-K is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

(d) Exhibits


Exhibit No.			Description
2.1			Amendment to Asset Purchase Agreement, dated as of October 8 , 2021, by and between the Company and Magenta Buyer LLC *
10.1			Transition Agreement between the Company and Alexa King, effective as of October 6 , 2021 **
99.1			Press release dated October 8, 2021
99.2			Unaudited pro forma condensed balance sheet and combined statements of income of the Compan y
104			Cover Page Interactive Data File (embedded within the Inline XBRL document)

* The schedules and other attachments to this exhibit have been omitted. The Company agrees to furnish a copy of any omitted schedules or attachments to the SEC upon request.

** Indicates a management contract or compensatory plan or arrangement.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


	MANDIANT, INC.

Date: October 8, 2021	By:	/s/ Frank E. Verdecanna
		Frank E. Verdecanna Executive Vice President, Chief Financial Officer and Chief Accounting Officer

Exhibit 2.1

AMENDMENT TO ASSET PURCHASE AGREEMENT

This AMENDMENT TO ASSET PURCHASE AGREEMENT (the “Amendment”) is entered into as of October 8, 2021 (the “Effective Date”) by and among Magenta Buyer LLC, a Delaware limited liability company (“Buyer”), and Mandiant, Inc. (f/k/a FireEye, Inc.), a Delaware corporation (“Seller”). Each of Buyer and Seller are sometimes referred to as a “Party” and together as the “Parties.” Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Purchase Agreement (as defined below).

RECITALS

A.Polaris Buyer LLC (“Polaris Buyer”) and Seller entered into that certain Asset Purchase Agreement, dated as of May 29, 2021 (the “Purchase Agreement”), pursuant to which, among other things, Polaris Buyer agreed to purchase the Acquired Assets and Seller agreed to sell the Acquired Assets as more fully described and upon the terms and subject to the conditions set forth in the Purchase Agreement.

B.In accordance with Section 13.3 of the Purchase Agreement, Polaris Buyer assigned its rights and obligations under the Purchase Agreement to Buyer.

C.In accordance with Section 13.2 of the Purchase Agreement, the Purchase Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each of the Parties.

D.Buyer and Seller desire to enter into this Amendment to modify the Purchase Agreement, certain Exhibits or Schedules thereto, and the Seller Disclosure Schedule on the terms and subject to the conditions set forth herein.

AMENDMENT

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, and intending to be legally bound hereby, the Parties hereby agree as follows:

1.Amendment to Schedule 1.1(hhh). Schedule 1.1(hhh) of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Schedule 1.1(hhh) attached hereto.

2.Amendment to Schedule 1.1(ppp). Schedule 1.1(ppp) of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Schedule 1.1(ppp) attached hereto.

3.Amendment to Transferred Subsidiaries. Section 1.1(hhhhhh) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

(hhhhhh) “Transferred Subsidiary” means the Subsidiaries of Seller set forth on Schedule 1.1(hhhhhh). References to “Transferred Subsidiary” herein is equally applicable to both the singular and the plural forms of such term.

4.Amendment to Schedule 1.1(hhhhhh). Schedule 1.1(hhhhhh) of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Schedule 1.1(hhhhhh) attached hereto.

5.Amendment to Allocation. Section 3.5 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

3.5 Allocation. Seller will deliver to Buyer (i) an allocation of the Purchase Price to be paid to Seller pursuant to the terms of this ARTICLE III and any Assumed Liabilities first, among the jurisdictions in which the Acquired Assets are located, and then among the Acquired Assets in accordance with the methodology set forth on Schedule 3.5 and Section 1060 of the Code, and (ii) an allocation of adjusted Tax basis among the Intellectual Property Rights owned or treated as owned for Tax purposes by the Transferred Subsidiaries (which allocation shall have been prepared by KPMG), in each case within 90 days of the Closing Date, or as soon thereafter as reasonably practicable (the “Allocation Schedule”). If Buyer does not notify Seller in writing within thirty (30) days after receipt of the Allocation Schedule from Seller that Buyer disagrees with the allocation of one or more items reflected in the Allocation Schedule, the Allocation Schedule as prepared by Seller shall be final and binding on the Parties (the “Final Allocation Schedule”). If, within thirty (30) days after receipt of the Allocation Schedule from Seller, Buyer notifies Seller in writing that Buyer disagrees with the allocation of one or more items reflected in the Allocation Schedule, Buyer and Seller shall use reasonable efforts to resolve such dispute. If Buyer and Seller have not resolved the dispute within ten (10) Business Days, Buyer and Seller shall submit the matter to a nationally recognized independent accounting firm chosen jointly by Buyer and Seller (the “Accounting Firm”), which shall resolve the dispute in accordance with the principles set forth on Schedule 3.5 (in the case of the allocation of Purchase Price and Assumed Liabilities among the Acquired Assets), and the Allocation Schedule as modified in accordance with the decision of the Accounting Firm shall be the Final Allocation Schedule. The fees and expenses of the Accounting Firm shall be shared equally by Buyer and Seller. In the case of any subsequent adjustment to the purchase price (as determined for Tax purposes) requiring an amendment to the Final Allocation Schedule, Seller shall prepare an amended Final Allocation Schedule in accordance with the principles set forth on Schedule 3.5 (in the case of the allocation of Purchase Price and Assumed Liabilities among the Acquired Assets), which shall be subject to the procedures in this Section 3.5. Buyer and Seller agree to report and to cause each of their respective Subsidiaries to report the Transactions in a manner consistent with the Final Allocation Schedule for all Tax purposes, and that none of them will take any position, or cause their respective Subsidiaries to take any position, inconsistent therewith in any Tax Return, refund claim, litigation or otherwise, unless otherwise required by applicable Law or as otherwise mutually agreed to in writing by Buyer and Seller. Buyer and Seller will cooperate with each other in preparing Internal Revenue Service Form 8594 and any other Tax documentation consistent with the Final Allocation Schedule. Buyer and Seller will promptly notify the other Party in writing upon receipt of notice of any pending or threatened Tax audit or assessment challenging the Final Allocation Schedule.

6.Amendment to Schedule 3.5. Schedule 3.5 of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Schedule 3.5 attached hereto.

7.Amendment to Transferred Subsidiary Equity. Section 4.1(e) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

(e) Section 4.1(e) of the Seller Disclosure Schedule sets forth the authorized and issued equity interests of each Transferred Subsidiary (the “Transferred Subsidiary Equity”) and the record and beneficial holders thereof. Seller owns, directly or indirectly, all of the issued and outstanding Transferred Subsidiary Equity free and clear of all Liens (other than Permitted Liens and Liens arising under applicable securities Laws). All of the Transferred Subsidiary Equity have been duly authorized and validly issued in compliance with applicable Laws, are fully paid and nonassessable, and were not offered, sold or issued in violation of any preemptive rights. There are no preemptive or other outstanding rights, subscriptions, options, warrants, stock appreciation rights, phantom equity or similar rights, redemption rights, repurchase rights, convertible, exercisable or exchangeable securities or other agreements, arrangements or commitments of any character relating to the issued or unissued share capital or other ownership interest in any Transferred Subsidiary, or any other securities or obligations convertible or exchangeable into or exercisable for, giving any Person (whether with or without the occurrence of any contingency), a right to subscribe for or acquire, any securities or other equity or voting interests of any Transferred Subsidiary, and no Contracts, securities or other equity interests evidencing such rights are authorized or issued or outstanding. As of the Closing, no Transferred Subsidiary will have any direct or indirect equity interest or similar interest by stock ownership or otherwise in any Person.

8.Amendment to Section 4.1(e) of the Seller Disclosure Schedule. Section 4.1(e) of the Seller Disclosure Schedule is hereby amended and restated in its entirety as set forth on Schedule 4.1(e) attached hereto.

9.Amendment to Section 4.8(k) of the Seller Disclosure Schedule. Section 4.8(k) of the Seller Disclosure Schedule is hereby amended and restated in its entirety as set forth on Schedule 4.8(k) attached hereto.

10.Addition of Seller Reimbursable Expenses. The Purchase Agreement is hereby amended by adding a new Section 7.24 as follows:

Section 7.24 Seller Reimbursable Expenses. From and after the Closing, Buyer shall pay when due or promptly, upon written request by Seller, reimburse Seller for all reasonable documented out-of-pocket payments, costs, fees and expenses, including legal, accounting, consulting and all other fees and expenses of third parties, payable or incurred by or on behalf of, or payable by, Seller and/or its Affiliates (including the Transferred Subsidiaries) for the matters described in Schedule 7.24 attached hereto, whether payable prior to, at or after the Closing (collectively, “Seller Reimbursable Expenses”). None of the Seller Reimbursable Expenses shall be deemed to be Seller Transaction Expenses for any purpose hereunder.

11.Schedule 7.24. Schedule 7.24 of the Purchase Agreement shall be as set forth on Schedule 7.24 attached hereto.

12.Transferred Employees. For the avoidance of doubt, the Parties acknowledge and agree that any Designated Employees that are employed as of the Closing in any of the Transferred Subsidiaries transferred at the Closing are deemed to be Transferred Employees at the Closing and that that any Designated Employees that are employed as of a Local Transfer Date in any of the Transferred Subsidiaries transferred as of such Local Transfer Date will be deemed to be Transferred Employees as of such Local Transfer Date.

13.Amendment to Employee Matters. Section 8.2(b) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

(b) Upon the termination of any Transferred Employee’s service with Seller or Subsidiary of Seller, as the case may be (including through the transfer by Seller and its Subsidiaries of the equity interests in the Transferred Subsidiaries to Buyer), each unvested equity award of Seller, if any, held immediately prior thereto by such Transferred Employee (each, an “Unvested Equity Award”) shall terminate pursuant to its terms. However, Buyer shall establish a cash bonus plan that grants each Transferred Employee that has commenced service with Buyer or a Subsidiary of Buyer (including through the transfer by Seller and its Subsidiaries of the equity interests in the Transferred Subsidiaries to Buyer) and that held any Unvested Equity Award (an “Eligible Employee”) a right to receive from Buyer or its Subsidiaries, within forty-five (45) days of the vesting dates (each, a “Vesting Date”) set forth in the Equity Spreadsheet (as defined below) (or, if such day is not a Business Day, the next Business Day thereafter), an amount in cash, without interest and subject to applicable withholding taxes, equal to the cash amount set forth on the Equity Spreadsheet subject to such Eligible Employee remaining an employee of Buyer or Subsidiary of Buyer on each Vesting Date (each such amount, a “Replacement Amount”). Buyer and its Subsidiaries may, in their sole discretion, pay any Eligible Employee with respect to any Vesting Date, a cash bonus in excess of the applicable Replacement Amount. The amount of cash bonus actually paid by Buyer or any of its Subsidiaries to any Eligible Employee with respect to a Vesting Date, together with any and all related employer taxes, is referred to hereinafter as a “Replacement Payment.” Buyer will promptly provide Seller with reasonable documentation evidencing any Replacement Payments paid to Eligible Employees, together with reasonable documentation evidencing the related employer taxes, with respect to the Vesting Dates that occur on or prior to the eighteen (18) month anniversary of the Closing Date. “Equity Spreadsheet” means the equity spreadsheet, prepared by Buyer for purposes of this Section 8.2(b), delivered to Seller prior to the Closing.

During the period from the Closing Date to the eighteen (18) month anniversary of the Closing Date, so long as any Designated Employee remains a service provider of Seller or any of its Subsidiaries and provides services to Buyer or any of its Subsidiaries pursuant to the Transition Services Agreement or as contemplated by Section 7.23 of this Agreement (each such Designated Employee, a “Delayed

Employee”), each unvested equity award of Seller, if any, existing as of the Closing Date and held by such Delayed Employee shall continue to vest in accordance with its terms. With respect to any such unvested equity award that actually vests on any vesting date during such period, because the applicable Delayed Employee has remained a service provider of Seller or any of its Subsidiaries on such vesting date, the cash amount set forth on the Equity Spreadsheet that is associated with such equity award and vesting date; provided, however, that Buyer may in its sole discretion (but subject to the last paragraph of this Section 8.2(b)) direct Seller or any of its Subsidiaries to pay any Delayed Employee with respect to any Vesting Date, a cash bonus in excess of the applicable cash amount set forth on the Equity Spreadsheet, and such amount actually paid together with any and all related employer taxes associated with such equity award and vesting date, is referred to hereinafter as a “Delayed Employee Amount.” Seller will promptly provide Buyer with reasonable documentation evidencing any Delayed Employee Amounts, including reasonable documentation evidencing the related employer taxes, associated with vesting prior to the eighteen (18) month anniversary of the Closing Date, with the final documentation provided no later than thirty (30) days following the eighteen (18) month anniversary of the Closing Date.

Subject to the following paragraph, after Buyer or any of its Subsidiaries makes any Replacement Payments with respect to any Vesting Date prior to the eighteen (18) month anniversary of the Closing Date, Buyer will promptly provide Seller with a written invoice requesting reimbursement for, and Seller shall be responsible for paying Buyer for, an amount of cash equal to (i) fifty percent (50%) of the aggregate amount of all such Replacement Payments actually paid to Eligible Employees, and related employer taxes, with respect to such Vesting Date minus (ii) fifty percent (50%) of the aggregate amount of all Delayed Employee Amounts, and related employer taxes, associated with vesting on or before such Vesting Date that have not been taken into account in any prior invoice of Buyer pursuant to this paragraph (and to the extent not previously provided, Seller shall provide Buyer with reasonable documentation evidencing such Delayed Employee Amounts and the related employer taxes). Subject to the following paragraph, the net amounts payable by Seller under this paragraph shall be paid by Seller within thirty (30) days following its receipt of the invoice for such net amounts.

Notwithstanding anything to the contrary contained in this Section 8.2(b), in no event shall Seller’s obligations to pay Buyer pursuant to this Section 8.2(b) exceed, in the aggregate, as of any given time, an amount equal to (i) $40,000,000 minus (ii) fifty percent (50%) of the aggregate amount of all Delayed Employee Amounts, and related employer taxes, associated with vesting that has theretofore actually occurred and/or actually been paid by Seller since the Closing date but on or prior to the applicable time minus (iii) fifty percent (50%) of the aggregate amount of all Delayed Employee Amounts set forth on the Equity Spreadsheet, and related employer taxes reasonably estimated by Seller, that would occur after the applicable date but on or prior to

the eighteen (18) month anniversary of the Closing Date if any Delayed Employees as of such time continued to provide service to Seller or any of its Subsidiaries through the eighteen (18) month anniversary of the Closing Date.

14.Closing Cash in Transferred Subsidiaries. For the avoidance of doubt, the Parties hereby acknowledge and agree that, subject to Section 20 below, all cash and cash equivalents of Transferred Subsidiaries held by them as of the Closing (“Transferred Subsidiary Closing Cash”) shall be deemed to be an Excluded Asset and not an Acquired Asset, notwithstanding the fact that all equity interests of the Transferred Subsidiaries are being transferred to Buyer and its Subsidiaries at the Closing.

15.Post-Closing Cash Transfers to Transferred Subsidiaries. In the event Seller or any of its Subsidiaries, following the Closing Date, actually transfers cash in respect of the matters described on Schedule 15 hereto to any Transferred Subsidiaries in connection with any capital contribution or funding requirements, Buyer shall, or shall cause its Subsidiaries to, within thirty (30) days thereafter, pay Seller or its Subsidiary an amount of cash equal to such post-Closing cash transfer. Such amounts shall be treated as an adjustment to the Purchase Price for Tax purposes.

16.Ireland Non-Business Related Accounts Receivable. Notwithstanding anything to the contrary contained in Article II of the Purchase Agreement, the Parties agree to treat all Accounts Receivable as of the Closing of FireEye Ireland Limited to the extent they do not relate primarily to the Business (“Ireland Non-Business AR”) as an Acquired Asset and not an Excluded Asset.

17.Held Seller Cash. All Transferred Subsidiary Closing Cash, together with all cash actually received from Ireland Non-Business AR as it is collected, that in the aggregate exceeds the agreed consideration in Schedule 17 attached hereto with respect to Product Sales Commissions (such excess cash being referred to as “Held Seller Cash”), shall be held by Buyer for settlement of future payment obligations of Seller and its Subsidiaries in accordance with the provisions of Schedule 17. Such amounts shall be treated as an adjustment to the Purchase Price for Tax purposes.

18.Accrued Unpaid Vacation. The Parties acknowledge and agree that, from and after the Closing, (i) Buyer shall be liable and responsible for making any and all payments for accrued but unpaid vacation time (including any and all related employer taxes) (“Unpaid Vacation Payments”) that become due and payable, pursuant to applicable Law, following the Closing to any Transferred Employees. Seller shall, within thirty (30) days, reimburse Buyer or any of its Subsidiaries for any Unpaid Vacation Payments paid, during the term of the Transition Services Agreement, to any Transferred Employees (other than those in India) to the extent the vacation time used was earned during the pre-Closing period. Buyer shall, within thirty (30) days, reimburse Seller or any of its Subsidiaries for any Unpaid Vacation Payments paid, during the term of the Transition Services Agreement, to any Delayed Employees to the extent the vacation time used was earned during the post-Closing period. Within thirty (30) days following the date of termination of the Transition Services Agreement, Seller shall pay Buyer an amount of cash equal to the aggregate amount of Unpaid Vacation Payments that would be payable by Buyer or any of its Subsidiaries to Transferred Employees (other than those in India) if all of them ceased employment with Buyer or a Subsidiary of Buyer on such termination date to the extent the vacation time used was earned during the pre-Closing period. Within thirty (30) days following the date of termination of the Transition Services Agreement, Buyer shall pay Seller an amount of cash equal to the aggregate amount of Unpaid Vacation Payments that would be payable by Seller or any of its Subsidiaries to Delayed Employees if all of them ceased employment with Seller or a Subsidiary of Seller on such termination date to the extent the

vacation time used was earned during the post-Closing period. For purposes of this Section 18, any vacation time that is used by an employee following the Closing will be deemed to be used first from such employee’s unused vacation time earned prior to the Closing to the maximum extent possible, and any reduction in an employee’s accrued unused vacation time balance due to any applicable “use-or-lose” policies or similar treatment will be deemed to have been satisfied to the maximum extent possible from such employee’s unused vacation time earned prior to the Closing.

19.Accrued Q3 Cash Bonuses. Notwithstanding anything to the contrary contained in Article II of the Purchase Agreement, from and after the Closing, (i) Buyer shall be liable and responsible for paying, or causing its Subsidiaries to pay, not later than November 30, 2021, accrued but unpaid cash bonuses with respect to the third fiscal quarter of 2021, pursuant to employee cash bonus plans (but not, for certainty, sales commission plans) of Seller and its Subsidiaries (including any and all related employer taxes) (“Unpaid Q3 Bonuses”) that were earned by Transferred Employees, and (ii) such Liability shall be deemed to be an Assumed Liability and not an Excluded Liability. Seller shall promptly, and in any event within thirty (30) days, reimburse Buyer or any of its Subsidiaries for any Unpaid Q3 Bonuses actually paid to Transferred Employees and all related employer taxes paid with respect to such Unpaid Q3 Bonuses.

20.India Service Gratuity and Cash. Notwithstanding anything to the contrary contained in Article II of the Purchase Agreement, from and after the Closing, (i) Buyer shall be liable and responsible for making any and all gratuity payments (“Gratuity Payments”) that become due and payable, pursuant to The Payment of Gratuity Act, 1972 in India, following the Closing to any Transferred Employees in India, (ii) such Liability shall be deemed to be an Assumed Liability and not an Excluded Liability, and (iii) cash and cash equivalents held by FireEye Technologies India Private Limited in an amount equal to the sum of (A) the aggregate amount of Gratuity Payments that would be payable by Buyer or any of its Subsidiaries to Transferred Employees in India if all of them ceased employment on the Closing Date, (B) the aggregate amount of Unpaid Vacation Payments that would be payable by Buyer or any of its Subsidiaries to Transferred Employees in India if all of them ceased employment with Buyer or a Subsidiary of Buyer on the Closing Date, and (C) the aggregate amount of Unpaid Q3 Bonuses that were earned with respect to Seller’s third fiscal quarter of 2021, pursuant to Seller’s bonus plan for employees, by Transferred Employees in India, shall be deemed to be an Acquired Asset and not an Excluded Asset (and, for greater certainty, shall not be Held Seller Cash). For illustrative purposes only, Schedule 20 attached hereto sets forth Seller’s current estimates for cash and liabilities associated with FireEye Technologies India Private Limited, based on certain assumed facts.

21.Accrued Sales Commissions Payable. Notwithstanding anything to the contrary contained in Article II of the Purchase Agreement, from and after the Closing, (i) Buyer shall be liable and responsible for making any and all payments to employees of Buyer, Seller or any of their respective Subsidiaries for Product Sales Commissions (as defined below) that become due and payable following the Closing pursuant to the applicable sales commission plan or agreement in effect as of immediately prior to the Closing (or any replacement or other plan or agreement entered into by Buyer or any of its Subsidiaries, including, for certainty, any removal or reduction of recurring revenue gates), and (ii) such Liability shall be deemed to be an Assumed Liability and not an Excluded Liability. “Product Sales Commissions” means (A) accrued but unpaid sales commissions (including accelerators) as of September 30, 2021 related to any Business Product bookings and (B) sales commissions (including accelerators) related to any Business Product bookings from October 1, 2021 through December 31, 2021, inclusive. In the event Seller or any of its Subsidiaries makes any payment of Product Sales Commissions to

any such employees following the Closing, then Buyer shall promptly reimburse Seller for such payment.

22.Appointment of Additional FireEye Ireland Limited Director. Prior to the Closing, Seller shall appoint, or cause the appointment of, the individual identified on Schedule 22 attached hereto as a Director of FireEye Ireland Limited.

23.Right of Setoff. To the extent both an authorized representative of Buyer and an authorized representative of Seller agree in writing (email being acceptable as a writing) with respect to any particular amounts payable to any Party or any of its Subsidiaries to the other Party or any of its Subsidiaries pursuant to the Purchase Agreement, as amended by this Amendment, or the Transition Services Agreement, each Party and its Subsidiaries shall have the right to offset and net any such amounts payable by them against any such amounts payable to them. For purposes of the foregoing, the authorized representatives of Buyer and Seller are identified on Schedule 23 attached hereto.

24.Transition Services Agreement. Exhibit A of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Exhibit A attached hereto.

25.IP License Agreement. Exhibit B of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Exhibit B attached hereto.

26.Reseller and Market Cooperation Agreement. Exhibit C of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Exhibit C attached hereto, and the Reseller and Market Cooperation Agreement attached hereto as Exhibit C is the final form of such agreement.

27.Strategic Collaboration Agreement. Exhibit D of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Exhibit D attached hereto.

28.Restructuring Plan. Exhibit K of the Purchase Agreement is hereby amended and restated in its entirety as set forth on Exhibit K attached hereto.

29.No Other Changes. Except as explicitly amended by this Amendment, all of the terms, provisions, and conditions of, and Schedules and Seller Disclosure Schedules to, the Purchase Agreement, and all rights and obligations of the Parties thereunder, shall remain in full force and effect, and each is hereby ratified and confirmed in all respects.

30.Miscellaneous Provisions. Article XIII of the Purchase Agreement (excluding Sections 13.1, 13.13, 13.14, and 13.15 of the Purchase Agreement) is hereby incorporated (mutatis mutandis) by reference in its entirety to this Amendment.

[Signature Page Follows]

The Parties have executed this Amendment as of the date first set forth above.

SELLER:

MANDIANT, INC.

By:

/s/ Frank Verdecanna

Name:

Frank Verdecanna

Title:

EVP and Chief Financial Officer

Signature Page to Amendment to Asset Purchase Agreement

BUYER:

MAGENTA BUYER LLC

By:

/s/ Marc Bala

Name:

Marc Bala

Title:

Secretary

Signature Page to Amendment to Asset Purchase Agreement

Exhibit 10.1

TRANSITION AGREEMENT

This Transition Agreement (“Agreement”) is made by and between Alexa King (“Executive”) and Mandiant, Inc. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).

RECITALS

WHEREAS, Executive has been employed as at-will employee by the Company since April 2012 and currently serves as its Executive Vice President, Corporate and Legal Affairs, General Counsel and Secretary;

WHEREAS, Executive is party to an offer letter with the Company dated August 1, 2013 and a Proprietary Information and Inventions Agreement (the “Confidentiality Agreement”);

WHEREAS, Executive is protected by the terms of the Company’s Change of Control Severance Policy for Officers, adopted and effective July 30, 2013 (the “Severance Policy”);

WHEREAS, Executive has notified the Company of her intent to cease full-time employment with the Company and, because of her extensive knowledge of many ongoing matters related to the Company, the Company would like to ensure that it continues to have access to her services for as long as necessary to ensure continuity and preserve stockholder value;

WHEREAS, the Company has asked Executive to provide transition services to the Company as a strategic advisor beginning on November 1, 2021 (the “Transition Date”) through at least March 1, 2022, with the possibility of continuing those services past March 1, 2022 if the parties mutually determine it to be appropriate (the final date that Executive provides services, the “End Date”); and

WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that Executive may have against the Company or any of the other Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to Executive’s employment with or separation from the Company.

NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Executive hereby agree as follows:

COVENANTS

1.Services.

(a)Transition. Executive’s employment with the Company will terminate on the Transition Date and until such date she will continue to serve in her present role.

(b)Strategic Advisor Services. Beginning on the Transition Date and through the End Date, Executive will continue to provide services to the Company as a strategic advisor with her services focusing on those set forth on Exhibit A, as reasonably requested by the Company’s Chief Executive Officer (the “Services”). As of the Transition Date, Executive will be an independent contractor to the Company and will determine the time and location at which she will perform services and will have access to Company technology systems solely as necessary to ensure continuity in providing the Services. Beginning on the Transition Date, Executive will no longer be an officer of the Company and will have no power or authority to bind the Company, except as specifically authorized by the Company’s Chief Executive Officer. The Parties acknowledge and agree that there will be no break in service between Executive’s termination of employment and her providing Services to the Company as a strategic advisor.

(c)Termination of Services. Either of the Company or Executive may terminate this Agreement at any time for any reason. If the Company terminates this Agreement prior to March 1, 2022 for a reason other than something that would be considered Cause under the Severance Policy, Executive

will be entitled to all consideration outlined in Section 2 that would have otherwise been earned through March 1, 2022.

2.Consideration. In consideration for her agreement to provide the Services and to give the release set forth in Section 3, Executive will receive:

(a)A monthly payment of $33,750 for the period from the Transition Date through the End Date, with the first payment payable on November 30, 2021 and remaining payments payable each month thereafter on the last business day of the month, with the payment for any partial month of Services being prorated;

(b)Continued provision of benefits through the Transition Date if possible for an independent contractor or a cash payment that is sufficient, after payment of taxes on such amount, to pay any applicable premiums for health care continuation coverage (through COBRA or otherwise) through the Transition Date;

(c)A cash bonus for fiscal 2021, payable before or on February 15, 2022, to be determined by the Board of Directors of the Company or the Compensation Committee of the Company’s Board of Directors with the corporate portion of such bonus determined on the same basis as for the Company’s then-active Executive Vice Presidents and any individual portion determined by the Company’s Chief Executive Officer but at no less than target; and

(d)Continued vesting of all outstanding equity awards through the End Date with any performance-based equity awards deemed earned at the same level as for other individuals who have awards of the same type.

Notwithstanding the foregoing, the receipt of any bonus under Section 2(c) and the release of any performance-based equity compensation in February 2022 will be contingent on the effectiveness of an Additional Release(s), in the form attached as Exhibit B, signed by Executive not earlier than the day prior to the date such benefits are provided.

3.General Release and Waiver of Claims.

(a)The payments and promises set forth in this Agreement are in full satisfaction of all accrued salary, vacation pay, bonus and commission pay, profit-sharing, stock options, restricted stock units, termination benefits or other compensation to which Executive may be entitled by virtue of her employment with the Company or her termination of employment with the Company. In exchange for the consideration under this Agreement, and to the fullest extent permitted by law, Executive hereby releases the Company and its officers, shareholders, employees, directors, attorneys, affiliates, successors and assigns (collectively “Releasees”) from and waives any and all charges, complaints, claims, causes of action, debts, demands, sums of money, controversies, agreements, promises, damages, liabilities and obligations of any kind, whether known or not known, suspected or unsuspected, anticipated or unanticipated (hereinafter referred to as “claim” or “claims”), that arise out of or in any way related to events, acts, conduct or omissions prior to or on the date Executive signs this Agreement, including without limitation any claims incidental to or arising out of her employment with the Company.

(b)This release and waiver includes, without limitation: (i) all claims arising out of or in any way related to Executive’s employment with or provision of services to the Company or the termination of that employment or service relationship; (ii) all claims related to Executive’s compensation or benefits from the Company, including but not limited to salary, bonuses, commissions, vacation pay, severance pay, fringe benefits, stock, stock options, RSUs, or any other ownership interests in the Company; (iii) all claims for breach of contract, wrongful termination or breach of the implied covenant of good faith and fair dealing; (iv) all tort claims, including but not limited to claims for fraud, defamation, emotional distress and discharge in violation of public policy; and (v) all federal, state, and local statutory claims, including but not

limited to claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims, including but not limited those arising under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Equal Pay Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the California Fair Employment and Housing Act, the California Labor Code, the California Business and Professions Code, or other similar state statute, and/or any other federal state or local law or regulation that may be released by private agreement.

(c)Excluded Claims. Notwithstanding the foregoing, Executive is not releasing the Releasees from any of the following claims: (i) any rights or claims for indemnification Executive may have pursuant to any written indemnification agreement with the Company to which Executive is a party, the charter, bylaws, or operating agreements of the Company or any of its direct or indirect subsidiaries, or under applicable law (including California Labor Code Section 2802); (ii) any rights which cannot be waived as a matter of law, including, but not limited to, any Protected Activity (as defined below); or (iii) any claims arising from the breach of this Agreement. In addition, nothing in this Agreement prevents Executive from filing, cooperating with, or participating in any proceeding before the EEOC, the Department of Labor, the California Department of Fair Employment and Housing, or similar federal or state government agency, except that Executive hereby waives her right to any monetary benefits or recovery in connection with any such claim, charge or proceeding. Executive hereby represents that she is not aware of any claims she has or might have against the Releasees.

(d)Section 1542 Waiver. In granting the release herein, which includes claims which may be unknown to Executive at present, Executive acknowledges that she has read and understood Section 1542 of the California Civil Code: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Executive hereby expressly waives and relinquishes all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to her release of any unknown or unsuspected claims herein.

4.ADEA Waiver. Executive hereby acknowledges that she is knowingly and voluntarily waiving and releasing the Releasees from any rights she may have under the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act (“ADEA Waiver”), and that the consideration given for the foregoing waiver is in addition to anything of value to which she is already entitled. Executive further acknowledges that:

(a)Executive’s ADEA Waiver and release do not apply to any claims that may arise after her signing of this Agreement;

(b)Executive should consult with an attorney prior to executing this release;

(c)Executive has twenty-one (21) days within which to consider this release (although she may choose to voluntarily execute this release earlier) and if she has not availed herself of the full time period she has failed to do so knowingly and voluntarily;

(d)Executive has seven (7) days following the execution of this release to revoke the ADEA Waiver (in a written revocation sent to the Company’s Chief Executive Officer); and

(e)the ADEA Waiver will not be effective until the eighth day after this Agreement has been signed both by Executive and by the Company.

5.No Pending or Future Lawsuits. Executive represents that she has no lawsuits, claims, or actions pending in her name, or on behalf of any other person or entity, against the Company or any of the

other Releasees. Executive also represents that she does not intend to bring any claims on her own behalf or on behalf of any other person or entity against the Company or any of the other Releasees.

6.No Right to Reemployment. Executive understands and agrees that, as a condition of this Agreement, Executive shall not be entitled to any employment with the Company, and Executive hereby waives any right, or alleged right, of employment or re-employment with the Company.

7.Mutual Non-Disparagement. Executive agrees to refrain from any disparagement, defamation, libel, or slander of any of the Releasees or their products or services, and agrees to refrain from any tortious interference with the contracts and relationships of any of the Releasees. The Company agrees that it will refrain from any disparagement, defamation, libel, or slander of Executive, and will further refrain from any tortious interference with the contracts of Executive. Executive understands and acknowledges that the Company’s obligations under this Section 7 apply only to its officers and directors and only for so long as they serve in such capacity at the Company. The Parties acknowledge that nothing in this section shall prohibit a Party from providing truthful information in response to a subpoena or other legal process.

8.Breach. In addition to the Attorneys’ Fees section below, Executive acknowledges and agrees that any material breach of this Agreement or of any provision of the Confidentiality Agreement shall entitle the Company immediately to recover and/or cease providing the consideration provided to Executive under this Agreement, except as provided by law. Except as provided by law, Executive shall also be responsible to the Company for all costs, attorneys’ fees, and any and all damages incurred by the Company in (a) enforcing Executive’s obligations under this Agreement or the Confidentiality Agreement, including the bringing of any action to recover the consideration, and (b) defending against a claim or suit brought or pursued by Executive in violation of the terms of this Agreement.

9.No Admission of Liability. Executive understands and acknowledges that this Agreement constitutes a compromise and settlement of any and all actual or potential disputed claims by Executive. No action taken by the Company hereto, either previously or in connection with this Agreement, shall be deemed or construed to be (a) an admission of the truth or falsity of any actual or potential claims or (b) an acknowledgment or admission by the Company of any fault or liability whatsoever to Executive or to any third party.

10.Arbitration. Except for any claim for injunctive relief arising out of a breach of a Party’s obligations to protect the other’s proprietary information and except as prohibited by law, the Parties agree that any and all disputes arising out of the validity, enforceability, interpretation, performance or breach of this Agreement, whether sounding in tort, contract, statutory violation or otherwise, or involving the construction or application or any of the terms, provisions, or conditions of this Agreement, Executive’s employment with the Company or the terms thereof, or any of the matters herein released, shall be subject to arbitration in Santa Clara County, California under the Federal Arbitration Act (the “FAA”) and that the FAA shall govern and apply to this arbitration agreement with full force and effect; however, without limiting any provisions of the FAA, a motion or petition or action to compel arbitration may also be brought in state court under the procedural provisions of such state’s laws relating to motions or petitions or actions to compel arbitration. Executive agrees that, to the fullest extent permitted by law, Executive may bring any such arbitration proceeding only in Executive’s individual capacity. Any arbitration will occur through JAMS pursuant to its employment arbitration rules. Any arbitration may be initiated by a written

demand to the other party. The arbitrator’s decision shall be final, binding, and conclusive. The Parties further agree that this Agreement is intended to be strictly construed to provide for arbitration as the sole and exclusive means for resolution of all disputes hereunder to the fullest extent permitted by law. The Parties expressly waive any entitlement to have such controversies decided by a court or a jury.

11.Tax Consequences.

(a)General. The Company makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Executive or made on behalf under the terms of this Agreement. Executive agrees and understands that she is responsible for payment, if any, of local, state, and/or federal taxes on the payments and any other consideration provided hereunder by the Company and any penalties or assessments thereon. Executive further agrees to indemnify and hold the Company harmless from any claims, demands, deficiencies, penalties, interest, assessments, executions, judgments, or recoveries by any government agency against the Company for any amounts claimed due on account of:

(i)Executive’s failure to pay, or Executive’s delayed payment of, federal or state taxes, and

(ii)damages sustained by the Company by reason of any such claims, including attorneys’ fees and costs.

(b)The Parties agree and acknowledge that the consideration paid under this Agreement is not related to sexual harassment or sexual abuse and is not intended to fall within the scope of 26 U.S.C. Section 162(q).

(c)Section 409A. This Agreement is intended for all payments to be exempt from Section 409A of the Internal Revenue Code of 1986, as amended and final Treasury Regulations and official guidance thereunder (“Section 409A”), and shall be interpreted to be so exempt and/or comply with Section 409A.

12.Miscellaneous.

(a)Authority. The Company represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company and all who may claim through it to the terms and conditions of this Agreement. Executive represents and warrants that she has the capacity to act on her own behalf and on behalf of all who might claim through her to bind her to the terms and conditions of this Agreement. Each Party warrants and represents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein.

(b)Confidentiality Agreement. Subject to Section 12(d) governing Protected Activity, Executive reaffirms and agrees to observe and abide by the terms of the Confidentiality Agreement, specifically including the provisions therein regarding nondisclosure of the Company’s trade secrets and confidential and proprietary information, and non-solicitation of Company employees.

(c)No Cooperation. Subject to Section 12(d) governing Protected Activity, Executive agrees that she will not knowingly encourage, counsel, or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints by any third party against any of the Releasees. Executive agrees both to immediately notify the Company upon receipt of any such subpoena or court order, and to furnish, within three (3) business days of its receipt, a copy of such subpoena or other court order. If approached by anyone for counsel or assistance in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints against any of the Releasees, Executive shall state no more than that she cannot provide counsel or assistance.

(d)Protected Activity Not Prohibited. Executive understands that nothing in this Agreement shall in any way limit or prohibit Executive from engaging in any legally protected activity, including filing a charge, complaint, or report with, or otherwise communicating, cooperating, or participating in any investigation or proceeding that may be conducted by, any federal, state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board (“Government Agencies”) (such activity, a “Protected Activity”). Executive understands that in connection with such Protected Activity, Executive is permitted to disclose documents or other information as permitted by law, without giving notice to, or receiving authorization from, the Company. Notwithstanding the foregoing, Executive agrees to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Company confidential information under the Confidentiality Agreement to any parties other than the Government Agencies. Executive further understands that “Protected Activity” does not include the disclosure of any Company attorney-client privileged communications or attorney work product. Any language in the Confidentiality Agreement regarding Executive’s right to engage in Protected Activity that conflicts with, or is contrary to, this section is superseded by this Agreement. In addition, pursuant to the Defend Trade Secrets Act of 2016, Executive is notified that an individual will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (a) is made in confidence to a federal, state, or local government official (directly or indirectly) or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if (and only if) such filing is made under seal. In addition, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the individual’s attorney and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.

(e)No Representations. Executive represents that she has had an opportunity to consult with an attorney, and has carefully read and understands the scope and effect of the provisions of this Agreement. Executive has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement.

(f)Severability. The provisions of this Agreement are severable, and if any part of it is found to be invalid or unenforceable, the other parts shall remain fully valid and enforceable. Specifically, should a court, arbitrator, or government agency conclude that a particular claim may not be released as a matter of law, it is the intention of the parties that the general release, the waiver of unknown claims, and the covenant not to sue above shall otherwise remain effective to release any and all other claims.

(g)Damages. The parties agree that damages incurred as a result of a breach of this Agreement will be difficult to measure. It is, therefore, further agreed that, in addition to any other remedies, equitable relief will be available in the case of a breach of this Agreement. It is also agreed that, in the event Executive files a claim against the Company with respect to a claim released by Executive herein (other than a proceeding before the Equal Employment Opportunity Commission), the Company may withhold, retain, or require reimbursement of all or any portion of the payments under this Agreement until such claim is withdrawn by Executive. The provisions of the preceding sentence do not apply to a legal action by Executive challenging or seeking a determination in good faith of the validity of the waiver herein under the ADEA.

(h)Attorneys’ Fees. Except with regard to a legal action challenging or seeking a determination in good faith of the validity of the waiver herein under the ADEA, in the event that either Party brings an action to enforce or effect its rights under this Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including the costs of mediation, arbitration, litigation, court fees, and reasonable attorneys’ fees incurred in connection with such an action.

(i)Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard for choice-of-law provisions, except that any dispute regarding the enforceability of the arbitration section of this Agreement shall be governed by the FAA. To the extent that any lawsuit is permitted under this Agreement, Executive hereby expressly consents to personal and exclusive jurisdiction and venue of the state and federal courts in the State of California.

13.Entire Agreement and Modification.

(a)Entire Agreement. This Agreement, including those documents incorporated by reference, represents the entire agreement and understanding between the Company and Executive concerning its subject matter and Executive’s employment with and separation from the Company, and supersede and replace any and all prior agreements and understandings concerning its subject matter of this Agreement and Executive’s relationship with the Company.

(b)No Oral Modification. This Agreement may only be amended in a writing signed by Executive and the Company’s Chief Executive Officer.

14.Effective Date. Except as set forth in Section 4(e), this Agreement will become effective on the day Executive signed this Agreement (the “Effective Date”).

15.Voluntary Execution of Agreement. Executive understands and agrees that she executed this Agreement voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of her claims against the Company and any of the other Releasees. Executive acknowledges that Executive:

(a)has read this Agreement;

(b)has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of Executive’s own choice or has elected not to retain legal counsel;

(c)understands the terms and consequences of this Agreement and of the releases it contains;

(d)has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement; and

(e)is fully aware of the legal and binding effect of this Agreement.

IN WITNESS WHEREOF, the Parties have voluntarily executed this Agreement on the respective dates set forth below.


		ALEXA KING, an individual

Dated:	10/6/2021	/s/ Alexa King


		MANDIANT, INC.

Dated:	10/7/2021	/s/ Kevin R. Mandia
		Kevin R. Mandia
		Chief Executive Officer

Exhibit A

Services

•Strategically advise with regard to ongoing/potential future litigation

•Divestiture-related/TSA support

•Advising CEO and Board on various matters

•Assist in search process for successor General Counsel

•Train and transition Interim and Successor General Counsels

•Participate in Annual ERM process

Exhibit B

Additional Release

This Additional Release Agreement (“Additional Release”) is made by and between Alexa King (“Executive”) and Mandiant, Inc. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).

1.Executive and the Company previously entered into a Transition Agreement dated October 6, 2021 (the “Transition Agreement”) that contained certain releases and a requirement that an additional release be signed prior to the receipt of certain payments.

2.If Executive signs this Additional Release, it will be immediately effective and Executive will be entitled to the following consideration, which Executive would not be entitled to if this Additional Release was not effective:

(a)A cash bonus for fiscal 2021, payable before or on February 15, 2022, to be determined by the Board of Directors of the Company or the Compensation Committee of the Company’s Board of Directors with the corporate portion of such bonus determined on the same basis as for the Company’s then-active Executive Vice Presidents and any individual portion determined by the Company’s Chief Executive Officer but at no less than target; and

(b)Release of performance-based equity awards deemed earned at the same level as for other individuals who have awards of the same type.

3.In exchange for the consideration referred to in the preceding Section, Executive agrees to extend all of her releases and waivers set forth in the Transition Agreement, other than those with respect to the ADEA as set forth in Section 4 of the Transition Agreement, to any claims, as such term is used in the Transition Agreement, that may have arisen between the date the Transition Agreement was signed and the date signed below. The Parties further acknowledge that the terms of the Transition Agreement (other than those set forth in its Section 4) shall apply to this Additional Release and are incorporated herein.

4.Executive understands and agrees that she executed this Additional Release voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of her claims against the Company and any of the other Releasees. Executive acknowledges that Executive:

(a)has read this Additional Release;

(b)has been represented in the preparation, negotiation, and execution of this Additional Release by legal counsel of Executive’s own choice or has elected not to retain legal counsel;

(c)understands the terms and consequences of this Additional Release and of the releases it contains;

(d)has not relied upon any representations or statements made by the Company that are not specifically set forth in this Additional Release; and

(e)is fully aware of the legal and binding effect of this Additional Release and that it is effective when Executive signs it and that Executive has no ability to revoke the releases given.

IN WITNESS WHEREOF, the Parties have voluntarily executed this Additional Release on the respective dates set forth below.


									ALEXA KING, an individual

Dated:


									MANDIANT, INC.

Dated:
									Name:
									Title:

Exhibit 99.1

Mandiant Completes the Divestiture of its FireEye Products Business to McAfee Enterprise

Mandiant and combined McAfee Enterprise and FireEye Products company to support customers post-close with a joint reseller relationship, shared product telemetry and frontline threat intelligence

MILPITAS, Calif., Oct. 8, 2021 – Mandiant, Inc. (NASDAQ: MNDT), the leader in dynamic cyber defense and response, today announced the completion of the previously announced transaction to sell the FireEye Products business to McAfee Enterprise, which is backed by a consortium led by Symphony Technology Group (STG), in an all-cash transaction for $1.2 billion, before taxes and transaction-related expenses. Mandiant and the combined McAfee Enterprise and FireEye Products company will continue to support customers post-closing with a joint reseller relationship, shared product telemetry and frontline threat intelligence.

“The FireEye Products team and I are incredibly proud of our work while at FireEye and Mandiant and the positive outcomes we have delivered for customers across the globe,” said Bryan Palma, who has been named CEO of the combined company for McAfee Enterprise and FireEye Products. “We are excited to join forces with our new colleagues at McAfee Enterprise and collaborate with Mandiant to continue delivering effective security to customers.”

“With the divestiture of the FireEye Products business now closed, I look forward to accelerating our vision and building on Mandiant’s unique strengths to deliver a range of dynamic cyber defense solutions to customers, and our partnership with the combined McAfee Enterprise and FireEye Products company,” said Kevin Mandia, CEO at Mandiant.

Goldman Sachs & Co. LLC served as financial advisor, and Wilson Sonsini Goodrich & Rosati P.C. acted as legal advisor, to Mandiant.

UBS Investment Bank and Jefferies LLC acted as financial advisors, and Paul Hastings LLP acted as legal advisor, to STG. UBS Investment Bank and Jefferies Finance LLC provided financing for the transaction.

About Mandiant, Inc.

Since 2004, Mandiant® has been a trusted partner to security-conscious organizations. Effective security is based on the right combination of expertise, intelligence, and adaptive technology, and the Mandiant Advantage SaaS platform scales decades of frontline experience and industry-leading threat intelligence to deliver a range of dynamic cyber defense solutions. Mandiant’s approach helps organizations develop more effective and efficient cyber security programs and instills confidence in their readiness to defend against and respond to cyber threats.

© 2021 Mandiant, Inc. All rights reserved. Mandiant is a registered trademark of Mandiant, Inc. in the United States and other countries. All other brands, products, or service names are or may be trademarks or service marks of their respective owners.

Contacts:

Media

Media.Relations@Mandiant.com

Investors

Investor.Relations@Mandiant.com

Exhibit 99.2

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

On October 8, 2021 (the “Separation Date”), Mandiant, Inc. (f/k/a FireEye, Inc.) (the “Company”) completed the previously announced separation (the “Separation”) of its product business (the “Product business” or “Polaris”) and sold it to Symphony Technology Group (“Buyer”) in an all-cash transaction of $1.2 billion and assumption of certain liabilities of the Product business as specified in the Asset Purchase Agreement and the Amendment to the Asset Purchase Agreement (collectively the “Purchase Agreement”). Following the entry into a definitive agreement on May 29, 2021 to sell the Product business to the Buyer, the business was classified as discontinued operations in our condensed consolidated financial statements and excluded from continuing operations and the related assets and liabilities were classified as held for sale beginning in the second quarter of 2021.

The following unaudited pro forma condensed consolidated financial statements and accompanying notes reflect the impact of the Separation as if it occurred: on June 30, 2021 for the unaudited pro forma condensed consolidated balance sheet (“pro forma balance sheet”) as of June 30, 2021; and on January 1, 2020 for the unaudited pro forma condensed consolidated statements of operations (“pro forma statements of operations”) for the six months ended June 30, 2021 and the years ended December 31, 2020, 2019 and 2018. The unaudited pro forma condensed consolidated financial statements have been derived from the Company’s historical consolidated financial statements and give effect to the Separation, as necessary.

The unaudited pro forma condensed consolidated financial statements have been prepared in accordance with Regulation S-X Article 11, Pro Forma Financial Information. Regulation S-X Article 11, which requires that pro forma financial information include the following pro forma adjustments to the historical financial information of the registrant:

–Transaction Accounting Adjustments – Adjustments that reflect only the application of required accounting to the acquisition, disposition, or other transaction.

–Autonomous Entity Adjustments – Adjustments that are necessary to reflect the operations and financial position of the registrant as an autonomous entity when the registrant was previously part of another entity.

The transaction accounting adjustments to reflect the Separation include but are not limited to:

–the separation of the operations, assets and liabilities related to Polaris from the Company and the transfer of those assets and liabilities to the Buyer; and

–the impact of, and transactions contemplated by, the Purchase Agreement and the other separation documents such as the Reseller and Market Cooperation Agreement (the “RSA”) and the Transition Services Agreement (the “TSA”).

The transaction accounting adjustments are based on available information and assumptions that the Company's management believes are reasonable and are reflected in the pro forma statements of operations for the six months ended June 30, 2021 and the year ended December 31, 2020 and the pro forma balance sheet as of June 30, 2021. However, such adjustments are estimates and actual experience may differ from expectations. There are no autonomous entity adjustments included in the unaudited pro forma condensed consolidated financial statements.

The unaudited pro forma condensed consolidated financial statements are for illustrative purposes only, do not reflect what the Company’s financial position and results of operations would have been had the Separation occurred on the dates indicated, are not necessarily indicative of the Company’s future financial position and future results of operations, and do not reflect all actions that may be taken by the Company after the Separation. The pro forma adjustments are based upon available information and assumptions that management believes are reasonable under the circumstances.

The unaudited pro forma condensed consolidated financial statements and the accompanying notes should be read in conjunction with:

–the audited consolidated financial statements and accompanying notes included in the Company’s Form 10-K for the year ended December 31, 2020, filed with the SEC on February 26, 2021; and

–the unaudited condensed consolidated financial statements and accompanying notes included in the Company’s Form 10-Q for the three and six months ended June 30, 2021, filed with the SEC on August 9, 2021.

MANDIANT, INC.

Unaudited Pro Forma Condensed Consolidated Balance Sheet

(in thousands)


			As of June 30, 2021
			Historical			Assets/ Liabilities Held for Sale (Note 1(a))			Pro Forma Adjustments	Note 1			Pro Forma
ASSETS
Current assets:
Cash and cash equivalents	$	387,310		$		-	$		1,200,000 (25,000)	(j) (g)	$	1,562,310
Short-term investments			866,301			-			-				866,301
Accounts receivable, net			77,257			-			(10,000)	(g)			67,257
Prepaid expenses and other current assets			40,634			-			-				40,634
Current assets held for sale			500,688			(500,688)			(35,000) 35,000	(g) (g)			-
Total current assets			1,872,190			(500,688)			1,165,000				2,536,502
Property and equipment, net			65,886			-			-				65,886
Operating lease right-of-use assets, net			36,096			-			-				36,096
Goodwill			1,050,924			-			-				1,050,924
Intangible assets, net			98,447			-			-				98,447
Deposits and other long-term assets			18,390			-			-				18,390
TOTAL ASSETS	$	3,141,933		$	(500,688)		$	1,165,000			$	3,806,245
LIABILITIES, CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable	$	9,375		$		-	$		-		$	9,375
Operating lease liabilities, current			12,157			-			-				12,157
Accrued and other current liabilities			19,564			-			13,007 23,124 (15,256) 26,339 14,600	(c) (e) (g) (h) (i)			81,378
Accrued compensation			65,226			-			7,366 (19,744)	(f) (g)			52,848
Convertible senior notes, current, net			440,497			-			-				440,497
Deferred revenue, current			235,960			-			-				235,960
Current liabilities held for sale			637,669			(637,669)			(35,000) 35,000	(g) (g)			-
Total current liabilities			1,420,448			(637,669)			49,436				832,215
Convertible senior notes, non-current, net			543,306			-			-				543,306
Deferred revenue, non-current			61,366			-			-				61,366
Operating lease liabilities, non-current			56,624			-			-				56,624
Other long-term liabilities			4,586			-			26,014 9,999 3,500	(c) (h) (i)			44,099
Total liabilities			2,086,330			(637,669)			88,949				1,537,610
Series A Convertible Preferred Stock, par value of $0.0001 per share; 400 shares authorized, issued and outstanding as of June 30, 2021			410,124			-			-				410,124
Stockholders' equity:
Common stock, par value of $0.0001 per share; 1,000,000 shares authorized, and 239,177 outstanding as of June 30, 2021			24			-			-				24
Additional paid-in capital			3,653,574			-			3,365	(f)			3,656,939
Treasury stock, at cost 1,778 shares as of June 30, 2021			(80,000)			-			-				(80,000)
Accumulated other comprehensive income			1,419			-			-				1,419
Accumulated deficit			(2,929,538)			136,981			1,072,686	(k)			(1,719,871)
Total stockholders' equity			645,479			136,981			1,076,051				1,858,511
TOTAL LIABILITIES, CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY	$	3,141,933		$	(500,688)		$	1,165,000			$	3,806,245

Refer to accompanying Notes to the Unaudited Pro Forma Condensed Consolidated Financial Statements

MANDIANT, INC.

Unaudited Pro Forma Condensed Consolidated Statement of Operations

(in thousands, except per share amounts)


			For the Six Months Ended June 30, 2021
			Historical			Discontinued Operations (Note 1(a))			Pro Forma Adjustments	Note 1			Pro Forma
Revenue:
Platform, cloud subscription and managed services	$	107,935		$		-	$		-		$	107,935
Professional services			120,663			-			-				120,663
Total revenue			228,598			-			-				228,598
Cost of revenue:
Platform, cloud subscription and managed services			54,856			-			-				54,856
Professional services			67,754			-			-				67,754
Total cost of revenue			122,610			-			-				122,610
Total gross profit			105,988			-			-				105,988
Operating expenses:
Research and development			82,835			-			-				82,835
Sales and marketing			124,231			-			-				124,231
General and administrative			54,371			-			498	(c)			54,869
Restructuring charges			1,927			-			-				1,927
Total operating expenses			263,364			-			498				263,862
Operating loss			(157,376)			-			(498)				(157,874)
Interest income			3,009			-			-				3,009
Interest expense			(29,386)			-			-				(29,386)
Other expense, net			100			-			-				100
Loss from continuing operations before income taxes	$	(183,653)		$		-	$		(498)		$	(184,151)
Provision for income taxes			1,943			-			-				1,943
Net loss from continuing operations			(185,596)			-			(498)				(186,094)
Net income from discontinued operations, net of income taxes			70,254			(70,254)			-				-
Net loss	$	(115,342)		$	(70,254)		$	(498)			$	(186,094)
Dividend on series A convertible preferred stock			(9,075)			-			-				(9,075)
Accretion of series A convertible preferred stock			(82)			-			-				(82)
Net loss attributable to common stockholders	$	(124,499)		$	(70,254)		$	(498)			$	(195,251)
Net loss attributable to common stock per share - basic and diluted:
Net loss from continuing operations	$	(0.83)									$	(0.83)
Net income from discontinued operations			0.30										0.00
Net loss	$	(0.53)									$	(0.83)
Weighted average number of shares - basic and diluted			236,016										236,016

Refer to accompanying Notes to the Unaudited Pro Forma Condensed Consolidated Financial Statements

MANDIANT, INC.

Unaudited Pro Forma Condensed Consolidated Statement of Operations

(in thousands, except per share amounts)


			For the Year Ended December 31, 2020
			Historical		Discontinued Operations (Note 1(a))		Pro Forma Adjustments	Note 1			Pro Forma
Revenue:
Platform, cloud subscription and managed services	$		-	$	-	$	198,694	(b)	$	198,694
Product, subscription and support			724,945		(526,251)		(198,694)	(b)			-
Professional services			215,639		(14,625)		-				201,014
Total revenue			940,584		(540,876)		-				399,708
Cost of revenue:
Platform, cloud subscription and managed services			-		-		107,872	(b)			107,872
Product, subscription and support			217,255		(107,472)		(109,783)	(b)			-
Professional services			116,772		(11,607)		12,480	(b)			117,645
Total cost of revenue			334,027		(119,079)		10,569				225,517
Total gross profit			606,557		(421,797)		(10,569)				174,191
Operating expenses:
Research and development			252,771		(119,467)		(11,259) (1,601)	(b) (d)			120,444
Sales and marketing			380,998		(152,437)		(4,205) (839)	(b) (d)			223,517
General and administrative			101,452		-		4,895 1,373 (49,979) 23,124 4,996	(b) (c) (d) (e) (f)			85,861
Restructuring charges			26,507		(5,423)		-				21,084
Total operating expenses			761,728		(277,327)		(33,495)				450,906
Operating income (loss)			(155,171)		(144,470)		22,926				(276,715)
Interest income			11,325		-		-				11,325
Interest expense			(60,066)		-		-				(60,066)
Other income (expense), net			(497)		-		52,419 (52,419)	(d) (d)			(497)
Income (loss) before income taxes	$	(204,409)		$	(144,470)	$	22,926		$	(325,953)
Provision for income taxes			2,894		(2,434)		-				460
Net income (loss)	$	(207,303)		$	(142,036)	$	22,926		$	(326,413)
Dividend on series A convertible preferred stock			(1,050)		-		-				(1,050)
Accretion of series A convertible preferred stock			(4,653)		-		-				(4,653)
Net loss attributable to common stockholders, basic and diluted	$		(213,006)	$	(142,036)	$	22,926		$	(332,116)
Net loss per share attributable to common stockholders, basic and diluted:	$	(0.95)							$	(1.49)
Weighted average shares used in computing net loss per share, basic and diluted			223,308								223,308

Refer to accompanying Notes to the Unaudited Pro Forma Condensed Consolidated Financial Statements

MANDIANT, INC.

Unaudited Pro Forma Condensed Consolidated Statement of Operations

(in thousands, except per share amounts)


			For the Year Ended December 31, 2019
			Historical			Discontinued Operations (Note 1(a))		Pro Forma Adjustments	Note 1			Pro Forma
Revenue:
Platform, cloud subscription and managed services	$		-	$		-	$	163,582	(b)	$	163,582
Product, subscription and support			708,836			(545,254)		(163,582)	(b)			-
Professional services			180,316			(12,529)		-				167,787
Total revenue			889,152			(557,783)		-				331,369
Cost of revenue:
Platform, cloud subscription and managed services			-			-		101,793	(b)			101,793
Product, subscription and support			210,432			(104,917)		(105,515)	(b)			-
Professional services			98,460			(11,251)		11,302	(b)			98,511
Total cost of revenue			308,892			(116,168)		7,580				200,304
Total gross profit			580,260			(441,615)		(7,580)				131,065
Operating expenses:
Research and development			271,326			(154,277)		(13,986)	(b)			103,063
Sales and marketing			396,822			(158,598)		(1,147)	(b)			237,077
General and administrative			111,881			-		7,553	(b)			119,434
Restructuring charges			10,265			-		-				10,265
Total operating expenses			790,294			(312,875)		(7,580)				469,839
Operating loss			(210,034)			(128,740)		-				(338,774)
Interest income			22,017			-		-				22,017
Interest expense			(61,927)			-		-				(61,927)
Other expense, net			(1,775)			-		-				(1,775)
Loss before income taxes	$	(251,719)		$		(128,740)	$	-		$	(380,459)
Provision for income taxes			5,690			(23,229)		-				(17,539)
Net loss	$	(257,409)		$	(105,511)		$	-		$	(362,920)
Net loss attributable to common stock per share - basic and diluted:
Net loss per share attributable to common stockholders, basic and diluted	$	(1.24)								$	(1.75)
Weighted average shares used in computing net loss per share, basic and diluted			207,234									207,234

Refer to accompanying Notes to the Unaudited Pro Forma Condensed Consolidated Financial Statements

MANDIANT, INC.

Unaudited Pro Forma Condensed Consolidated Statement of Operations

(in thousands, except per share amounts)


			For the Year Ended December 31, 2018
			Historical		Discontinued Operations (Note 1(a))			Pro Forma Adjustments	Note 1		Pro Forma
Revenue:
Platform, cloud subscription and managed services	$		-	$	-	$	132,357		(b)	$		132,357
Product, subscription and support			687,382		(555,025)			(132,357)	(b)		-
Professional services			143,568		(10,713)			-			132,855
Total revenue			830,950		(565,738)			-			265,212
Cost of revenue:
Platform, cloud subscription and managed services			-		-			91,941	(b)		91,941
Product, subscription and support			188,301		(95,281)			(93,020)	(b)		-
Professional services			84,174		(10,652)			9,202	(b)		82,724
Total cost of revenue			272,475		(105,933)			8,123			174,665
Total gross profit			558,475		(459,805)			(8,123)			90,547
Operating expenses:
Research and development			254,142		(160,762)			(17,657)	(b)		75,723
Sales and marketing			380,962		(155,715)			258	(b)		225,505
General and administrative			105,773		-			9,276	(b)		115,049
Restructuring charges			-		-			-			-
Total operating expenses			740,877		(316,477)			(8,123)			416,277
Operating loss			(182,402)		(143,328)			-			(325,730)
Interest income			16,033		-			-			16,033
Interest expense			(56,426)		-			-			(56,426)
Other expense, net			(14,804)		-			-			(14,804)
Loss before income taxes	$	(237,599)		$	(143,328)	$		-		$	(380,927)
Provision for income taxes			5,524		(26,441)			-			(20,917)
Net loss	$	(243,123)		$	(116,887)	$		-		$	(360,010)
Net loss attributable to common stock per share - basic and diluted:
Net loss per share attributable to common stockholders, basic and diluted	$	(1.27)								$	(1.89)
Weighted average shares used in computing net loss per share, basic and diluted			190,803								190,803

Refer to accompanying Notes to the Unaudited Pro Forma Condensed Consolidated Financial Statements

Notes to the Unaudited Pro Forma Condensed Consolidated Financial Statements

Note 1 Pro forma adjustments

The adjustments included in the unaudited pro forma condensed consolidated financial statements are described below:

(a)Reflects the disposition of the operations, assets, liabilities, and accumulated deficit of the Polaris business in accordance with ASC 205, Presentation of Financial Statements (“ASC 205”).

(b)Reflects reclassifications to conform with current period presentation and alignment to a revised cost allocation structure related to information technology and facility costs.

(c)Reflects the expenses to be incurred by the Company for the service offerings to be provided to the Buyer and product offerings to be obtained from the Buyer, respectively, under the RSA, pursuant to which each party will grant the other a non-exclusive appointment and license as both a seller and a reseller to promote, sell and distribute the product and service offerings directly or indirectly through the Buyer’s authorized resale and distribution channel on a standalone basis or as part of a bundled service at agreed-upon rates for thirty-six months following the Separation. The RSA is intended to enable the parties and their respective subsidiaries to continue using certain product and service offerings in the operation of their businesses. The agreed-upon fees for the product and service offerings are generally intended to (i) allow the providing party to recover all costs and expenses of providing such product and service offerings plus a mark-up over those costs and expenses or (ii) compensate the providing party for providing such product and service offerings through an agreed-upon fixed fee arrangement.

We determined that the terms of the RSA are off-market. Accordingly, the unaudited pro forma balance sheet as of June 30, 2021 has been adjusted to record a liability of $13.0 million and $26.0 million to accrued and other current liabilities and other long-term liabilities, respectively, which represented the fair value of the off-market component of the RSA. The total off-market component of $39.0 million was reduced from the purchase consideration. The interest component related to the amortization of the liability has been recorded as an adjustment to general and administrative expense in the pro forma statements of operations of $0.5 million in the six months ended June 30, 2021 and $1.4 million in the year ended December 31, 2020.

(d)Reflects the income to be earned and expenses to be incurred by the Company under the TSA, pursuant to which the Company will provide certain services to the Buyer. The services provided under the TSA will run through the periods of time set forth in the schedules to the TSA, up to 12 months following the Separation. The services to be provided under the TSA relate primarily to business administrative including accounting and treasury, human resources, payroll, general information technology and data hosting and migration services. The agreed-upon charges for such services are generally intended to allow the service provider to recover all costs and expenses of providing such services. The Company and the Buyer may extend the terms of services which they receive pursuant to the TSA by six months per service. The TSA is expected to result in incremental other income of approximately $52.4 million per year which reimburses the Company for the general and administrative expenses, sales and marketing expenses and research and development expenses incurred for approximately $50.0 million, $0.8 million and $1.6 million, respectively, per year. As this adjustment relates to a new contractual arrangement and the effects are limited in the pro forma statement of operations to the most recent full year, the general and administrative expenses, sales and marketing expenses and research and development expenses have been reclassed to other expenses and have been presented on a net basis with the expected income.

(e)We anticipate incurring additional costs of approximately $23.1 million subsequent to June 30, 2021 to complete the Separation. These costs primarily relate to commission, legal fees, third-party consulting, accounting fees and other costs directly related to the Separation. The unaudited pro forma balance sheet as of June 30, 2021 has been adjusted to record estimated separation costs of $23.1 million in accrued expenses and other current liabilities, with a corresponding increase to accumulated deficit. The amount has been recorded as an adjustment to general and administrative expense in the pro forma statement of operations for the year ended December 31, 2020. The remaining transaction costs of $10.0 million are included in the historical consolidated statement of operations of the Company for the six months ended June 30, 2021.

(f)Reflects the accrual of additional compensation expense incurred subsequent to June 30, 2021 in conjunction with the announcement of the Separation. The expense has been recorded as an adjustment to the pro forma statement of operations and relates to retention bonuses. These costs will not affect the Company’s statement of operations beyond 12 months after the acquisition date. The pro forma statement of operations has been adjusted to record estimated compensation expense of $5.0 million for the year ended December 31, 2020 in general and administrative expenses. In addition, the Company anticipates incurring compensation expense related to the acceleration of share-based payment awards and retention bonuses of $9.3 million which will be presented as discontinued operations in future filings. The remaining compensation expenses of $2.5 million are included in the historical consolidated statement of operations of the Company for the six months ended June 30, 2021.

The pro forma balance sheet as of June 30, 2021 has been adjusted to record estimated compensation related obligations of $7.4 million and $3.3 million in accrued compensation and additional paid-in capital, respectively, with a $10.7 million offset to accumulated deficit.

(g)As a result of the Amendment to the Asset Purchase Agreement, the Company agreed to sell additional assets and transfer additional liabilities compared to those identified as of June 30, 2021. The adjustment has been recorded as an increase in assets held for sale of approximately $35.0 million and through a reclassification of $25.0 million and $10.0 million from cash and cash equivalents and accounts receivable, respectively. The adjustment has been recorded as an increase in liabilities held for sale of approximately $35.0 million and through a reclassification of $19.7 million and $15.3 million from accrued compensation and accrued and other current liabilities, respectively. After the adjustment, the assets held for sale and liabilities held for sale totaled $535.7 million and $672.7 million, respectively.

(h)Represents expected reimbursement by the Company in relation to transfer to the Buyer of unvested equity awards liability pertaining to transferred employees which will now be paid by the Buyer to such employees in cash over an eighteen-month period. The maximum amount of reimbursement shall not exceed $40.0 million and has been adjusted for expected forfeitures. The Company has recognized a corresponding liability of $26.3 million and $10.0 million in accrued and other current liabilities and other long-term liabilities, respectively.

(i)Estimated income taxes have been calculated using the statutory tax rates in the relevant jurisdictions and considers the utilization of existing tax attributes (e.g. net operating loss and credit carryforwards). The unaudited pro forma balance sheet as of June 30, 2021 has been adjusted to record the liability of $14.6 million and $3.5 million in accrued and other long-term liabilities, respectively.

(j)A pro forma GAAP gain on disposal is calculated as outlined in the table below. The pro forma gain on disposal is based on the assets and liabilities held for sale from Polaris’ historical balance sheet information as of June 30, 2021. The actual gain on disposal will be based on Polaris’ historical balance sheet information as of the Separation Date and may differ significantly. The pro forma gain on disposal has not been reflected in the pro forma statements of operations as this amount pertains to discontinued operations and does not reflect the impact on income from continuing operations.

(in thousands)


Cash proceeds		$	1,200,000
Adjustments (1)				(75,359)
Net consideration				1,124,641
Assets and liabilities disposed of:
Assets (Note (g))	$ 535,688
Liabilities (Note (g))	(672,669)
Less: net liabilities disposed of				(136,981)
Pro forma pre-tax gain on disposal		$	1,261,622
Estimated income taxes (Note (i))				(18,100)
Pro forma gain on disposal		$		1,243,522

1.Estimated adjustments to the consideration due to the following (in thousands):


Expected reimbursement to the Buyer for unpaid incentive liability assumed (Note (h))	$	(36,338)
Fair value adjustment of RSA agreement (Note (c))			(39,021)
Total Adjustments to Gross Cash Consideration	$	(75,359)

(k)The pro forma GAAP adjustment to accumulated deficit is calculated as outlined in the table below.

(in thousands)


Pro forma gain on disposal (Note (j))	$	1,243,522
Compensation (Note (f))			(10,731)
Transaction costs (Note (e))			(23,124)
Less: net liabilities disposed of (Note (j))			(136,981)
Pro forma GAAP adjustment to accumulated deficit	$	1,072,686