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Exhibit 10.14
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "AGREEMENT") between XxXxxx.xxx
Corporation, a Delaware corporation ("XXXXXX.XXX"), and Networks Associates,
Inc., a Delaware corporation ("NAI"), is entered into as of October 31, 1999,
and shall be effective upon the closing of XxXxxx.xxx's initial public offering
of its Class A common stock (the "EFFECTIVE DATE").
Section 1. Requirements in the Event of an NAI Change of Control.
(a) If (x) without the prior approval of the NAI Continuing Directors any
Person becomes an NAI Acquiring Person or (y) the NAI Continuing Directors shall
cease to constitute a majority of NAI's serving directors, then for so long but
only for so long as such Person shall continue to be an Acquiring Person or such
directors shall cease to constitute a majority of the NAI serving directors:
(i) the shares of Network Associates Class B XxXxxx.xxx capital stock
shall be entitled to only one vote per share instead of three votes per share;
and
(ii) NAI shall be obligated to vote its XxXxxx.xxx shares to cause,
and to take such actions reasonably within its control to cause, and shall seek
to cause the XxXxxx.xxx directors appointed by it to cause, the XxXxxx.xxx Board
to consist of at least a majority of independent directors.
Section 2. Definitions. For purposes of this Agreement, the following terms
have the meanings indicated:
(a) "AFFILIATE" and "ASSOCIATE" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act, as in effect on the date of this Agreement.
(b) A Person shall be deemed the "BENEFICIAL OWNER" of and shall be deemed
to "BENEFICIALLY OWN" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for purposes of Section
13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or
successor law or regulation);
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion rights, exchange
rights, rights (other than the Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed to be the Beneficial Owner
of, or to beneficially own, (1) securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange, or (2) securities which a Person or any of such Person's
Affiliates or Associates may be deemed to have the right to acquire pursuant to
any merger or other acquisition agreement between NAI and such Person (or one or
more of its Affiliates or Associates) if such agreement has been approved by the
NAI Continuing Directors prior to there being an Acquiring Person; or (B) the
right to vote pursuant to any agreement, arrangement or understanding; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security under this Section 2(b)(ii)(B) if the agreement,
arrangement or understanding to vote such security (1) arises solely from a
revocable proxy or consent given
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to such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations of the
Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with which such Person or
any of such Person's Affiliates or Associates has any agreement, arrangement or
understanding, whether or not in writing (other than customary agreements with
and between underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding, voting
(except to the extent contemplated by the proviso in Section 2(b)(ii)(B)) or
disposing of any securities of NAI; provided, however, that in no case shall an
officer or director of NAI be deemed (x) the Beneficial Owner of any securities
beneficially owned by another officer or director of NAI solely by reason of
actions undertaken by such persons in their capacity as officers or directors of
NAI or (y) the Beneficial Owner of securities held of record by the trustee of
any employee benefit plan of NAI or any subsidiary of NAI for the benefit of any
employee of NAI or any Subsidiary of NAI, other than the officer or director, by
reason of any influence that such officer or director may have over the voting
of the securities held in the plan.
(c) "CONTINUING NAI DIRECTORS" shall mean the NAI Directors on the
effective date of this Agreement and any subsequent director of NAI approved or
not objected to by a majority of the then-Continuing NAI Directors.
(d) "INDEPENDENT DIRECTOR" has the meaning set forth in Rule 4200 of the
Nasdaq Stock Market Marketplace Rules, with it being understood that such term
shall in any event include any serving director or executive officer of NAI.
(e) An "NAI ACQUIRING PERSON" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 15% or more of NAI's outstanding common stock, but shall not include NAI, any
Subsidiary of NAI or any employee benefit plan of NAI or of any Subsidiary of
NAI, or any entity holding NAI common stock for or pursuant to the terms of any
such plan. Notwithstanding the foregoing, no Person shall be deemed to be an
Acquiring Person as the result of an acquisition of NAI common stock by NAI
which, by reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 15% or more of the NAI
common stock then outstanding; provided, however, that if a Person shall become
the Beneficial Owner of 15% or more of the NAI common stock then outstanding by
reason of share purchases by NAI and shall, after such share purchases by NAI,
become the Beneficial Owner of any additional NAI common stock (other than
pursuant to a dividend or distribution paid or made by NAI on the outstanding
NAI common stock in NAI common stock or pursuant to a split or subdivision of
the outstanding NAI common stock), then such Person shall be deemed to be an
Acquiring Person unless upon becoming the Beneficial Owner of such additional
NAI common stock such Person does not beneficially own 15% or more of the NAI
common stock then outstanding. Notwithstanding the foregoing, (i) if the NAI
Board of Directors determines in good faith that a Person who would otherwise be
an "Acquiring Person," as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently (including, without limitation,
because (A) such Person was unaware that it beneficially owned a percentage of
the NAI common stock that would otherwise cause such Person to be an "Acquiring
Person," as defined pursuant to the foregoing provisions of this paragraph (a),
or (B) such Person was aware of the extent of the NAI common stock it
beneficially owned but had no actual knowledge of the consequences of such
beneficial ownership under this Agreement) and without any intention of changing
or influencing control of NAI, and if such Person divested or divests as
promptly as practicable a sufficient number of NAI common stock so that such
Person would no longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall not be deemed
to be or to have become an "Acquiring Person" for any purposes of this
Agreement; and (ii) if, as of the date hereof, any
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Person is the Beneficial Owner of 15% or more of the NAI common stock
outstanding, such Person shall not be or become an "Acquiring Person," as
defined pursuant to the foregoing provisions of this Section 2(e), unless and
until such time as such Person shall become the Beneficial Owner of additional
NAI common stock (other than pursuant to a dividend or distribution paid or made
by NAI on the outstanding NAI common stock in NAI common stock or pursuant to a
split or subdivision of the outstanding common stock), unless, upon becoming the
Beneficial Owner of such additional common stock, such Person is not then the
Beneficial Owner of 15% or more of the NAI common stock then outstanding.
(f) A "PERSON" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such entity.
(g) "SUBSIDIARY" of any Person shall mean any corporation or other entity
of which an amount of voting securities sufficient to elect a majority of the
directors or Persons having similar authority of such corporation or other
entity is beneficially owned, directly or indirectly, by such Person, or any
corporation or other entity otherwise controlled by such Person.
Section 3. Miscellaneous.
(a) Entire Agreement. This Agreement, together with XxXxxx.xxx's
Certificate of Incorporation and the Voting and Indemnification Agreement
between XxXxxx.xxx and NAI, constitutes the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all prior written
and oral and all contemporaneous oral agreements and understandings with respect
to the subject matter hereof.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware as to all matters regardless
of the laws that might otherwise govern under principles of conflicts of laws
applicable thereto.
(c) Notices. Any notice, demand, offer, request or other communication
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be in writing and shall be deemed effectively given the earlier
of (i) when received, (ii) when delivered personally, (iii) one (1) business day
after being delivered by facsimile (with receipt of appropriate confirmation),
(iv) one (1) business day after being deposited with an overnight courier
service or (v) four (4) days after being deposited in the U.S. mail, First Class
with postage prepaid, and addressed to the attention of the party's General
Counsel at the address of its principal executive office or such other address
as a party may request by notifying the other in writing.
(d) Binding Effect; Assignment. All covenants and provisions of this
Agreement shall bind respective successors and assigns under this Agreement.
(e) Severability. If any term or other provision of this Agreement is
determined by a nonappealable decision by a court, administrative agency or
arbitrator to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
fullest extent possible.
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(f) Failure or Indulgence Not Waiver. No failure or delay on the part of
either party hereto in the exercise of any right hereunder shall impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right.
(g) Amendment. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
this Agreement which, in the case of XxXxxx.xxx, shall have been approved by a
majority of the XxXxxx.xxx independent directors.
(h) Authority. Each of the parties hereto represents to the other that (a)
it has the corporate or other requisite power and authority to execute, deliver
and perform this Agreement, (b) the execution, delivery and performance of this
Agreement by it have been duly authorized by all necessary corporate or other
action, (c) it has duly and validly executed and delivered this Agreement, and
(d) this Agreement is a legal, valid and binding obligation, enforceable against
it in accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles.
(i) Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement to
a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated.
IN WITNESS WHEREOF, each of the parties has caused this Stockholders
Rights Agreement to be executed on its behalf by its officers thereunto duly
authorized on the date first above written.
NETWORKS ASSOCIATES, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice-President, Chief Financial
Officer
XxXXXX.XXX CORPORATION
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
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