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This effectively lowered the strike price on Roberts’ options by about per share.

Davis changed the date of the grant from February 14 to April 14, when the stock price closed at .75.

Rather, Roberts claims to have explained in each conversation that he believed Davis had authority to change the strike price, and that such a change was appropriate because the original grant date was incorrect. Through lawyers at Howrey & Simon, whom a special committee of the Board retained to conduct an independent investigation of the backdating scandal, and later through deposition testimony, these individuals told the SEC and the U. Department of Justice (“DOJ”) that Roberts had described “agonizing” over the issue and admitted that what he had done was wrong.

Roberts says he did not acknowledge any problems with his Promotion Grant, and he perceived none.

But, in conversations with Mc Afee’s outside counsel from Wilson Sonsini, its CEO, and two members of its Board of Directors during a shareholders’ meeting in New York the week after the CFRA report came out, Roberts voluntarily disclosed the revision that he and Davis had made to the Promotion Grant.

The CFRA report did not mention Roberts or any other Mc Afee employees by name; nor did it mention the Promotion Grant or any other grant that went to Roberts.

Davis had a criminal history that made Roberts’ story, even his version of it, look bad. On May 16, 2006, the Center for Financial Research and Analysis (“CFRA”) published a report identifying seventeen companies that, judging by data showing that they had granted large numbers of options “at exercise prices and dates that matched exactly or were close to a 40-day low in the[ir] . Within days of the report’s publication, Mc Afee began an internal review of its stock option practices, and the Securities and Exchange Commission (“SEC”) opened an investigation the following week. Roberts’ involvement in backdating the Promotion Grant came under scrutiny in 2006, during a nationwide probe into options backdating that implicated Mc Afee. stock price,” had likely engaged in widespread backdating. The report identified five suspicious Mc Afee option grants. He contends that he raised the issue of the Promotion Grant only “in the spirit of thoroughness,” and to mollify Mc Afee’s CEO, George Samenuk, who had been involved in a large options grant that Roberts had flagged as problematic and whom Roberts worried might view the investigation as a personal attack. What, exactly, Roberts said in these conversations is unclear.

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The next day, the stock dipped to $25.43, and, according to the indictment and SEC complaint, Roberts unilaterally [**8] decided to re-price the options to that lower price.

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