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EXHIBIT 4.10
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of May 15, 1998, by and
between Networks Associates, Inc., a Delaware corporation (the "COMPANY"), and
the undersigned shareholders of Secure Networks, Inc. (the "SHAREHOLDERS").
RECITALS
WHEREAS, concurrent with delivery of this Agreement, the Company, and
the Shareholders are entering into a Stock Purchase Agreement (the "PURCHASE
AGREEMENT") which provides for the purchase (the "PURCHASE") of all of the
issued and outstanding shares of Secure Networks, Inc. by the Company in
exchange for shares of Company Common Stock;
WHEREAS, as an inducement to the Shareholders to enter into the Purchase
Agreement, as of the Closing Date, the shares of Company Common Stock that are
issued to the Shareholders pursuant to the Purchase Agreement shall be granted
registration rights as set forth herein; and
WHEREAS, all terms not otherwise defined herein shall have the same
meanings ascribed to them in the Purchase Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
(c) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(d) The term "Registrable Securities" means the Common
Stock of the Company ("Common Stock") issued to the Shareholders in accordance
with the terms and conditions of the Purchase Agreement and any securities of
the Company issued as a dividend on or other distribution with respect to, or in
exchange for or replacement of, such common stock.
(e) The term "SEC" shall mean the Securities and Exchange
Commission.
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1.2 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as soon as reasonably possible:
(a) Prepare and file with the SEC as soon as reasonably
possible, but in no event later than 180 days after the Closing Date, a
registration statement on Form S-3, or other available form of registration
statement with respect to such Registrable Securities (hereinafter referred to
as the "Registration Statement") and use its reasonable best efforts to cause
such registration statement to become effective as soon as reasonably possible
thereafter, and, subject to the provisions below, use its reasonable best
efforts to, keep such registration statement effective for a period of 180 days
or, if earlier, until the Shareholders have sold all of the Registrable
Securities. If at any time after a registration statement becomes effective, the
Company advises the Shareholders' Agent (defined below) in writing that due to
the existence of material information that has not been disclosed to the public
and included in the registration statement it is necessary to amend the
registration statement, the Shareholders shall suspend any further sale of
Registrable Securities pursuant to the Registration Statement until the Company
advises the Shareholders' Agent that the registration statement has been
amended. In such event, the Company shall cause the registration statement to be
amended forthwith, provided that the Company shall not be required to amend the
registration statement during any time when the Company's officers and director
are prohibited from buying or selling the Company's Common Stock pursuant to the
Company's xxxxxxx xxxxxxx policy. Notwithstanding the foregoing sentence, the
Company shall file any amendment necessary for the Shareholders to recommence
sales under the registration statement concurrently with the commencement of any
period in which directors and officers of the Company are allowed to buy or sell
Common Stock pursuant to the Company's xxxxxxx xxxxxxx policy. In addition, the
Company may suspend use of the registration statement to the extent the Company
is advised by its legal counsel, such action is reasonably necessary to comply
with federal securities law. In the event the sales of Registrable Securities of
the Shareholders are suspended as provided above, the 180-day period during
which a registration statement must be kept effective shall be extended for the
total number of days during which sales are suspended.
(b) Subject to subsection 1.2(a), prepare and file with
the SEC such amendments and supplements to such Registration Statement and the
prospectus used in connection with such Registration Statement as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement.
(c) Furnish to Xxxxxx Xxxx (the "Shareholders' Agent")
such numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as the
Shareholders may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other (U.S.)
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Shareholders, provided that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business or
to file a general consent to
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service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act.
(e) The Company may include securities issued in
connection with any acquisition not otherwise registered on an S-4 Registration
Statement in the registration pursuant to this Agreement.
1.3 Information from Shareholders. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 1 with respect to the Registrable Securities of the Shareholders that
the Shareholders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities, as shall be required to effect the registration
of the Registrable Securities.
1.4 Expenses of Registration. All expenses of the Shareholders,
including (without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the Company
shall be borne by the Company; provided, however, that the Company shall not be
required to pay any professional fees of the Shareholders other than the fees of
one counsel to the Shareholders' Agent (not to exceed $2,000).
1.5 Indemnification. In the event any Registrable Securities are
included in the Registration Statement under this Section 1:
(a) The Company will indemnify and hold harmless the
Shareholders, each of their directors, officers, trustees or beneficiaries, if
applicable and each person, if any, who controls a non-individual shareholder
within the meaning of the Act against any losses, claims, damages, or
liabilities (joint or several) to which the Shareholders may become subject
under the Act, or the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements' therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, or any rule or regulation
promulgated under the Act, or the 1934 Act; and the Company will pay to the
Shareholders as incurred any legal or other expenses reasonably incurred by the
Shareholders in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.5(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with information furnished in writing expressly for use in connection
with such registration by the Shareholders seeking indemnification hereunder. In
addition, the Company shall not be liable for any untrue statement or
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omission in any prospectus if a supplement or amendment thereto correcting such
untrue statement or omission was delivered to the Shareholders' Agent prior to
the pertinent sale or sales by the Shareholders.
(b) Each Shareholder will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, each person, if any, who controls the Company within the
meaning of the Act, any other shareholder selling securities in such
Registration Statement and any controlling person of any such shareholder,
against any losses, claims, damages, or liabilities (joint or several) to which
any of the foregoing persons may become subject, under the Act, or the 1934 Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Shareholder expressly for use in connection with such
registration; and such Shareholder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.5(b), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.5(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of such Shareholder, which
consent shall not be unreasonably withheld; provided, that, in no event shall
any indemnity under this subsection 1.5(b) by such Shareholder exceed the gross
proceeds from the offering received by such Shareholder.
(c) Promptly after receipt by an indemnified party under
this Section 1.5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.5, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.5, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.5.
(d) If the indemnification provided for in this Section
1.5 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
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indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) The obligations of the Company, and the Shareholders
under this Section 1.5 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1, and
otherwise.
1.6 Reports Under the Securities Exchange Act. The Company agrees
to file with the SEC in a timely manner all reports and other documents and
information required of the Company under the 1934 Act, and take such other
actions as may be necessary to assure the availability of Form S-3 for use in
connection with the registration rights provided in this Agreement.
1.7 Rules 144 and 144A. The Company shall use commercially
reasonable efforts to file the reports required to be filed by it under the Act
and the 1934 Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of the
Shareholders' Agent, make publicly available other information so long as
necessary to permit sales of the Shareholders' securities pursuant to Rule 144
and 144A. The Company covenants that it will take such further action as the
Shareholders may reasonably request, all to the extent required from time to
time to enable the Shareholders to sell securities without registration under
the Act within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)).
2. Miscellaneous.
2.1 Notices. Notice to the Shareholders' Agent shall constitute
notice to all the shareholders party hereto. All notices and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or by commercial delivery service, or mailed by registered
or certified mail (return receipt requested) or sent via facsimile (with
acknowledgment of complete transmission) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
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(1) if to the Company:
Networks Associates, Inc.
0000 Xxxxxx Xxx.
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(2) if to the Shareholders' Agent, to
Xxxxxx Xxxx
x/x Xxxx Xxxxxx Xxxxxxx
Xxxxx 0000, Xxxxxx Centre
700-2nd St. S.W.
Calgary, Alberta T2P 4V6
Attention: Xxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Code Xxxxxx Xxxxxxx
Suite 1400, Scotia Centre
700-2nd St. S.W.
Calgary, Alberta T2P 4V6
Attention: Xxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
2.2 Interpretation. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
2.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
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2.4 Entire Agreement; Assignment. This Agreement and the
documents and instruments and other agreements among the parties hereto
referenced herein: (a) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; (b) are not intended to confer upon any other person
(including, without limitation, those persons listed on any exhibits hereto) any
rights or remedies hereunder; and (c) without the prior written consent of each
party shall not be assigned by operation of law or otherwise, except that the
Company may assign its rights and obligations hereunder to an affiliate of the
Company provided that the Company shall remain liable for all its obligations
hereunder notwithstanding such assignment. Any assignment of rights or
delegation of duties under this Agreement by a party without the prior written
consent of the other parties, if such consent is required hereby, shall be void.
2.5 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
2.6 Other Remedies. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by law or equity
upon such party, and the exercise by a party of any one remedy will not preclude
the exercise of any other remedy.
2.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
NETWORKS ASSOCIATES, INC.
By: [SIG]
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Xxxxxxx X. Xxxxx, Chief Financial Officer, Vice
President of Finance and Administration
Address: 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
SHAREHOLDERS
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
