S-8

As filed with the Securities and Exchange Commission on October 23, 2020

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

under the

SECURITIES ACT OF 1933

 

 

McAfee Corp.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   84-2467341
( State or Other Jurisdiction of
Incorporation or Organization )
 

( I.R.S. Employer

Identification No.)

6220 America Center Drive

San Jose, CA 95002

(866) 622-3911

(Address of Principal Executive Offices) (Zip Code)

 

 

McAfee 2017 Management Incentive Plan

McAfee 2020 Omnibus Incentive Plan

McAfee Employee Stock Purchase Plan

(Full Title of the Plans)

 

 

Peter Leav

Chief Executive Officer

McAfee Corp.

6220 America Center Drive

San Jose, CA 95002

(866) 622-3911

(Name, Address and Telephone Number of Agent for Service)

 

 

with copies to:

 

Thomas Holden

Ropes & Gray LLP

3 Embarcadero Center

San Francisco, CA 94111-4006

(415) 315-6300

 

Sayed Darwish

Chief Legal Officer

McAfee Corp.

6220 America Center Drive

San Jose, CA 95002

(866) 622-3911

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of securities
to be registered
 

Amount

to be

registered (1)

 

Proposed

maximum

offering price

per share(2)

 

Proposed

maximu

maggregate

offering price(2)

 

Amount of

registration fee

McAfee 2017 Management Incentive Plan Class A Common Stock, $0.001 par value

  47,725,582   $20.00   $954,511,640.00   $104,137.22

McAfee 2020 Omnibus Incentive Plan Class A Common Stock, $0.001 par value

  46,949,043   $20.00   $938,980,860.00   $102,442.81

McAfee Employee Stock Purchase Plan Class A Common Stock, $0.001 par value

  9,389,809   $20.00   $187,796,180.00   $20,488.56

 

 

(1)

Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminable number of additional shares of the registrant’s Class A common stock that may become issuable pursuant to terms designed to prevent dilution resulting from share splits, share dividends or similar events.

(2)

Calculated solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended. The proposed maximum offering price per share and the proposed maximum aggregate offering price are based on the initial public offering price of the registrant’s Class A common stock ($20.00 per share).

 

 

 


PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8. Such information is not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. Such information has been or will be delivered to participants in the plan covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents filed by McAfee Corp. (the “Registrant”) with the Commission are incorporated herein by reference:

 

(1)

The Registrant’s Prospectus dated October 23, 2020 and filed with the Commission pursuant to Rule 424(b) under the Securities Act relating to the Registrant’s Registration Statement on Form S-1 as amended (Registration No. 333-249101); and

 

(2)

The description of the Registrant’s Class A common stock, $0.001 par value per share, contained in the Registrant’s Registration Statement on Form 8-A, filed with the Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on October 22, 2020, and any other amendments or reports filed for the purpose of updating such description (File No. 001-39651).

All reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Section 145(a) of the DGCL grants each corporation organized thereunder the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that such person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

Section 145(b) of the DGCL grants each corporation organized thereunder the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection


with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 102(b)(7) of the DGCL enables a corporation in its certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director to the corporation or its stockholders of monetary damages for violations of the director’s fiduciary duty, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which a director derived an improper personal benefit. Our certificate of incorporation includes a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director to the fullest extent authorized by the DGCL.

We have also entered into indemnification agreements with our directors. Such agreements generally provide for indemnification by reason of being our director, as the case may be. These agreements are in addition to the indemnification provided by our certificate of incorporation and bylaws. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, we have been informed that in the opinion of the SEC such indemnification is against public policy and is therefore unenforceable.

The underwriting agreement provides that the underwriters are obligated, under certain circumstances, to indemnify our directors, officers, and controlling persons against certain liabilities, including liabilities under the Securities Act. Please see the form of underwriting agreement previously filed as Exhibit 1.1 to the Registration Statement on Form S-1 (File No. 333-249101) filed on October 13, 2020.

Our amended and restated bylaws indemnify the directors and officers to the full extent of the DGCL and also allow the board of directors to indemnify all other employees. Such right of indemnification is not exclusive of any right to which such officer or director may be entitled as a matter of law and shall extend and apply to the estates of deceased officers and directors. Section 145(f) of the DGCL further provides that a right to indemnification or to advancement of expenses arising under a provision of the bylaws shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission which is the subject of the civil, criminal, administrative or investigative action, suit, or proceeding for which indemnification or advancement of expenses is sought.

We also maintain a directors’ and officers’ insurance policy. The policy insures directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburses us for those losses for which we have lawfully indemnified the directors and officers. The policy contains various exclusions that are normal and customary for policies of this type. Section 145(g) of the DGCL provides that a corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust, or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under that section.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

Item 8.

Exhibits.

 

Exhibit
Number

  

Description

  4.1    Form of Amended and Restated Certificate of Incorporation of McAfee Corp. (previously filed as Exhibit 3.1 to the Registration Statement on Form S-1 (File No. 333-249101) filed on October 8, 2020 and incorporated herein by reference)
  4.2    Form of Amended and Restated Bylaws of McAfee Corp. (previously filed as Exhibit 3.2 to the Registration Statement on Form S-1 (File No. 333-249101) filed on October 8, 2020 and incorporated herein by reference)
  4.3    Form of Class A Common Stock Certificate (previously filed as Exhibit 4.1 to the Registration Statement on Form S-1 (File No. 333-249101) filed on October 13, 2020 and incorporated herein by reference)
  4.4    Form of McAfee 2017 Management Incentive Plan (previously filed as Exhibit 10.29 to the Registration Statement on Form S-1 (File No. 333-249101) filed on October 8, 2020 and incorporated herein by reference)
  4.5    Form of McAfee 2020 Omnibus Incentive Plan (previously filed as Exhibit 10.30 to the Registration Statement on Form S-1 (File No. 333-249101) filed on October 8, 2020 and incorporated herein by reference)


  4.6    Form of McAfee Employee Stock Purchase Plan (previously filed as Exhibit 10.33 to the Registration Statement on Form S-1 (File No. 333-249101) filed on October 8, 2020 and incorporated herein by reference)
  5.1    Opinion of Ropes & Gray LLP
23.1    Consent of Independent Registered Public Accounting Firm, Ernst & Young LLP
23.2    Consent of Independent Registered Public Accounting Firm, PricewaterhouseCoopers LLP
(Foundation Technology Worldwide LLC)
23.3    Consent of Independent Registered Public Accounting Firm, PricewaterhouseCoopers LLP (McAfee Corp.)
23.4    Consent of Ropes & Gray LLP (included in Exhibit 5.1)
24.1    Power of Attorney (included on the signature page of the Registration Statement)

 

Item 9.

Undertakings.

(a) The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on October 23, 2020.

 

McAFEE CORP.
By:  

/s/ Peter Leav

Name:   Peter Leav
Title:   President and Chief Executive Officer

*                *                  *

SIGNATURES & POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Peter Leav, Venkat Bhamidipati, and Sayed Darwish, and each of them singly, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of McAfee Corp., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Peter Leav

Peter Leav

  

President, Chief Executive Officer, and Director

(Principal Executive Officer)

  October 23, 2020

/s/ Venkat Bhamidipati

Venkat Bhamidipati

  

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

  October 23, 2020

/s/ Christine Kornegay

Christine Kornegay

  

Vice President and Chief Accounting Officer

(Principal Accounting Officer)

  October 23, 2020

/s/ Sohaib Abbasi

Sohaib Abbasi

   Director   October 23, 2020

/s/ Mary Cranston

Mary Cranston

   Director   October 23, 2020

/s/ Tim Millikin

Tim Millikin

   Director   October 23, 2020

/s/ Jon Winkelried

Jon Winkelried

   Director   October 23, 2020

/s/ Kathy Willard

Kathy Willard

   Director   October 23, 2020

/s/ Jeff Woolard

Jeff Woolard

   Director   October 23, 2020
EX-5.1

Exhibit 5.1

 

LOGO

 

 

ROPES & GRAY LLP

PRUDENTIAL TOWER

800 BOYLSTON STREET

BOSTON, MA 02199-3600

WWW.ROPESGRAY.COM

October 23, 2020

McAfee Corp.

6220 America Center Drive

San Jose, CA 95002

 

Re:

Registration Statement on Form S-8

Ladies and Gentlemen:

This opinion is furnished to you in connection with the registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the registration of an aggregate of (i) 47,725,582 shares Class A common stock, $0.001 par value (“Class A Common Stock”), (ii) 46,949,043 shares Class A Common Stock, $0.001 par value, and (iii) 9,389,809 shares Class A Common Stock, $0.01 par value, issuable under the McAfee 2017 Management Incentive Plan, the McAfee 2020 Omnibus Incentive Plan, and the McAfee Employee Stock Purchase Plan, respectively (collectively, the “Plans”).

We are familiar with the actions taken by the Company in connection with the adoption of the Plans. For purposes of our opinion, we have examined and relied upon such documents, records, certificates and other instruments as we have deemed necessary.

The opinions expressed below are limited to the Delaware General Corporation Law.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold in accordance with the Plans, the Shares will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray LLP
EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the McAfee Corp. McAfee 2017 Management Incentive Plan, McAfee 2020 Omnibus Incentive Plan and McAfee Employee Stock Purchase Plan of our report dated July 14, 2017, with respect to the combined financial statements of McAfee (the “Predecessor Company” ) included in Amendment No. 3 to the Registration Statement (Form S-1 No. 333-249101) and related Prospectus of McAfee Corp. filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Jose, California

October 21, 2020

EX-23.2

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of McAfee Corp. of our report dated March 5, 2020, except for the effects of disclosing earnings per unit information discussed in Note 18 to the consolidated financial statements, as to which the date is August 17, 2020, and except for the effects of the unit split discussed in Note 20 to the consolidated financial statements, as to which the date is October 13, 2020, relating to the financial statements of Foundation Technology Worldwide LLC, which appears in Amendment No. 3 to the Registration Statement on Form S-1 (No. 333-249101) of McAfee Corp.

 

/s/ PricewaterhouseCoopers LLP
San Jose, California
October 21, 2020
EX-23.3

Exhibit 23.3

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of McAfee Corp. of our report dated October 13, 2020 relating to the financial statement of McAfee Corp., which appears in Amendment No. 3 to the Registration Statement on Form S-1 (No. 333-249101) of McAfee Corp.

 

/s/ PricewaterhouseCoopers LLP
San Jose, California
October 21, 2020