EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June 30,
1998, by and among Secure Computing Corporation, a Delaware corporation (the
"Company"), and each of the entities whose names appear on the signature pages
hereof. Such entities are each referred to herein as a "Purchaser" and,
collectively, as the "Purchasers".
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"Securities Purchase Agreement"), to issue and sell to each Purchaser shares
(the "Preferred Shares") of the Company's Series C Convertible Preferred Stock,
par value $0.01 per share (the "Preferred Stock"), and a Warrant (each, a
"Warrant" and, when taken together with all of the warrants issued pursuant to
the Securities Purchase Agreement, the "Warrants") entitling the holder thereof
to purchase shares (the "Warrant Shares") of Common Stock. The Preferred Shares
are convertible pursuant to the Company's Certificate of Designation (the
"Certificate of Designation") into shares (the "Conversion Shares") of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"). In order
to induce the Purchasers to enter into the Securities Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended (the "Securities Act"), and under applicable state
securities laws. Capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Securities Purchase Agreement.
In consideration of each Purchaser entering into the Securities
Purchase Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "Blackout Period" means such day or days, not to exceed an
aggregate of thirty (30) days during any period of twelve (12) consecutive
months, with respect to which the Board of Directors of the Company determines
in good faith (A) that an amendment or supplement to the Registration Statement
(as defined below) or prospectus contained therein is necessary, in light of
subsequent events, in order to correct a material misstatement made therein or
to include information the absence of which would render the Registration
Statement or such prospectus materially misleading and (B) that the filing of
such amendment or supplement would result in the disclosure of information which
the Company has a bona fide business purpose for preserving as confidential;
provided that the Company shall be entitled to impose no more than two (2)
Blackout Periods during any period of twelve (12) consecutive months;
(b) "Closing Date" shall have the meaning specified in the
Securities Purchase Agreement;
(c) "Filing Deadline" means the forty-fifth (45th) day
following the Closing Date;
(d) "Registration Deadline" means the ninetieth (90th) day
following the Closing Date;
(e) "Holder" means any person owning or having the right to
acquire, through conversion of Preferred Shares or exercise of the Warrant,
Registrable Securities, including initially each Purchaser and thereafter any
permitted assignee thereof;
(f) "Register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act ("Rule 415") or any successor rule providing for the offering
of securities on a continuous or delayed basis ("Registration Statement"), and
the declaration or ordering of effectiveness of the Registration Statement by
the Securities and Exchange Commission (the "Commission"); and
(g) "Registrable Securities" means the Conversion Shares and
the Warrant Shares and any other shares of Common Stock issuable pursuant to the
terms of the Preferred Stock or of the Warrants, whether as a dividend, payment
of a redemption price or otherwise, and any shares of capital stock issued or
issuable from time to time (with any adjustments) in replacement of, in exchange
for or otherwise in respect of the Conversion Shares or the Warrant Shares,
including without limitation any securities received by a Holder in connection
with an Exchange Transaction (as defined in the Certificate of Designation);
provided, however, that such securities shall cease to be Registrable Securities
when they have been distributed to the public pursuant to an offering registered
under the Securities Act or pursuant to Rule 144 under the Securities Act ("Rule
144") or are freely saleable pursuant to Rule 144(k).
2. MANDATORY REGISTRATION.
(a) On or before the Filing Deadline, the Company shall
prepare and file with the Commission a Registration Statement on Form S-3 as a
"shelf" registration statement under Rule 415 covering the resale of at least
125% of the number of shares of Registrable Securities then issuable on
conversion of the Preferred Shares plus 100% of the number of shares of Common
Stock issuable upon exercise of the Warrants then outstanding (without regard to
any restrictions on such conversion or exercise that might otherwise exist). The
Company may not register for resale on the Registration Statement any securities
other than the Registrable Securities. The Registration Statement shall state,
to the extent permitted by Rule 416 under the Securities Act, that it also
covers such indeterminate number of shares of Common Stock as may be required to
effect (i) conversion of the Preferred Shares to prevent dilution resulting from
stock splits, stock dividends or similar events, or by reason of changes in the
Conversion Price in accordance with the terms of the Certificate of Designation
and (ii) exercise of the Warrants in full to prevent dilution resulting from
stock splits, stock dividends or similar events.
(b) The Company shall use its best efforts to cause the
Registration Statement to become effective as soon as practicable following the
filing thereof, but in no event later than the Registration Deadline, and shall
submit to the Commission, within one (1) business day after the
Company learns that no review of the Registration Statement will be made by the
staff of the Commission or that the staff of the Commission has no further
comments on the Registration Statement, as the case may be, a request for
acceleration of the effectiveness of the Registration Statement to a time and
date not later than forty-eight (48) hours after the submission of such request,
and maintain the effectiveness of the Registration Statement until the earlier
to occur of (i) the date on which all of the Registrable Securities have been
sold pursuant to the Registration Statement and (ii) the date on which all of
the remaining Registrable Securities (in the reasonable opinion of counsel to
the Purchaser) may be immediately sold to the public without registration and
without regard to the amount of Registrable Securities which may be sold by a
Holder thereof at a given time (the "Registration Period").
(c) If (A) the Registration Statement is not filed on or
before the Filing Deadline or declared effective by the Commission on or before
the Registration Deadline, (B) after the Registration Statement has been
declared effective by the Commission, sales of Registrable Securities cannot be
made by a Holder under the Registration Statement for any reason not within the
exclusive control of such Holder (other than (i) during a Blackout Period or
(ii) with respect to Registrable Securities that are then freely saleable
pursuant to Rule 144(k) under the Securities Act), (C) the Common Stock is not
included for quotation on the Nasdaq National Market or Nasdaq Small Cap Market
(together, the "Nasdaq Stock Market") or listed on the New York Stock Exchange
or American Stock Exchange (each, a "Registration Event"), the Company shall pay
to each Holder an amount equal to the lesser of (x) one and one half percent
(1.5%) per month and (y) the highest rate permitted by applicable law, times the
aggregate Stated Value (as defined in the Certificate of Designation) of the
Preferred Shares held by such Holder, accruing daily and compounded monthly,
from the date on which a Registration Event first occurs until the date on which
the Registration Event is no longer continuing. The amounts paid or payable by
the Company hereunder shall be in addition to any other remedies available to a
Holder at law or in equity or pursuant to the terms of any other Transaction
Document. Payments of cash pursuant hereto shall be made within five (5) days
after the end of each period that gives rise to such obligation, provided that,
if any such period extends for more than thirty (30) days, payments shall be
made at the end of each thirty-day period.
(d) In the event that (A) the Registration Statement is not
declared effective by the twentieth (20th) Business Day following the
Registration Deadline, (B) after the Registration Statement has been declared
effective by the Commission, sales of Registrable Securities cannot be made by a
Holder under the Registration Statement for any reason not within the exclusive
control of such Holder (other than (i) during a Blackout Period or (ii) with
respect to Registrable Securities as are then freely saleable pursuant to Rule
144(k) under the Securities Act), or (C) the Common Stock is not included for
quotation on the Nasdaq Stock Market or listed on the New York Stock Exchange or
the American Stock Exchange, (each event described in clause (A), (B) or (C)
being hereinafter referred to as a "Repricing Event"), in addition to the
amounts which may be payable pursuant to paragraph 2(c) above, the Fixed
Conversion Price (as defined in the Certificate of Designation) for any
conversion of Preferred Shares occurring during the twenty two (22) Trading Days
following the Cure Date (as defined below) with respect to such event shall be
deemed to be equal to the lesser of (i) the lowest Conversion Price (as defined
in the Certificate of Designation) that would have applied had such conversion
occurred during the period between the date on which a Repricing Event occurs
and the date on which such Repricing Event is no longer continuing (the
"Cure Date") and (ii) the Fixed Conversion Price that would otherwise be in
effect on the relevant Conversion Date (as defined in the Certificate of
Designation).
3. PIGGYBACK REGISTRATION.
If at any time prior to the expiration of the Registration
Period, (i) the Company proposes to register shares of Common Stock under the
Securities Act in connection with the public offering of such shares for cash
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan or employee stock award or a registration
on Form S-4 under the Securities Act or any successor or similar form
registering stock issuable upon a reclassification, a business combination
involving an exchange of securities or an exchange offer for securities of the
issuer or another entity) (a "Proposed Registration") and (ii) a registration
statement covering the sale of all of the Registrable Securities is not then
effective and available for sales thereof by the Holders, the Company shall, at
such time, promptly give each Holder written notice of such Proposed
Registration. Each Holder shall have thirty (30) days from its receipt of such
notice to deliver to the Company a written request specifying the amount of
Registrable Securities that such Holder intends to sell and such Holder's
intended method of distribution. Upon receipt of such request, the Company shall
use its best efforts to cause all Registrable Securities which the Company has
been requested to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of such Holder;
provided, however, that the Company shall have the right to postpone or withdraw
any registration effected pursuant to this Section 3 without obligation to the
Holder. If, in connection with any underwritten public offering for the account
of the Company, the managing underwriter(s) thereof shall impose a limitation on
the number of shares of Common Stock which may be included in the Registration
Statement because, in such underwriter(s)' judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distributions, then
the Company shall be obligated to include in such Registration Statement only
such limited portion of the Registrable Securities with respect to which each
Holder has requested inclusion hereunder as such underwriter(s) shall permit.
Any exclusion of Registrable Securities shall be made pro rata among the Holders
seeking to include Registrable Securities in the Registration Statement, in
proportion to the number of Registrable Securities sought to be included by such
Holders; provided, however, that the Company shall not exclude any Registrable
Securities unless the Company has first excluded all outstanding securities, the
holders of which are not entitled to inclusion of such securities in such
Registration Statement or are not entitled to pro rata inclusion with the
Registrable Securities; and provided, further, however, that, after giving
effect to the immediately preceding proviso, any exclusion of Registrable
Securities shall be made pro rata with holders of other securities having the
right to include such securities in the Registration Statement before any Holder
includes any or all of its Registrable Securities in any registration statement
relating to an underwritten public offering with respect to which, in the good
faith opinion of the managing underwriter, the inclusion in the offering of all
shares requested to be registered by all persons holding registration rights
would materially jeopardize the successful marketing of the securities to be
sold.
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including those
pursuant to paragraphs 2(a) and 2(b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary (except during a Blackout
Period) to comply with the provisions of the Securities Act or to maintain the
effectiveness of the Registration Statement during the Registration Period, or
as may be reasonably requested by a Holder in order to incorporate information
concerning such Holder or such Holder's intended method of distribution;
(b) in the event that the number of shares available under the
Registration Statement filed by the Company hereunder is insufficient during any
period of three consecutive Trading Days to cover 112.5% of the Registrable
Securities then issued or issuable, the Company shall (except during a Black-out
Period) promptly amend the Registration Statement, or file a new Registration
Statement, or both, so as to cover 125% of such Registrable Securities, in any
event as soon as practicable, but not later than the tenth business day
following the last day of such three day period; provided, however, that in the
event that the Company obtains either (A) the approval of its stockholders
referred to in paragraph 4.6 of the Securities Purchase Agreement or (B) the
approval of its stockholders referred to in paragraph 5(a) of the Certificate of
Designation, and on any date thereafter the number of shares available under the
Registration Statement filed by the Company hereunder is insufficient during any
period of three consecutive Trading Days to cover 175% of the Registrable
Securities then issued or issuable, the Company shall promptly amend the
Registration Statement, or file a new Registration Statement, or both, so as to
cover 200% of such Registrable Securities, in any event as soon as practicable,
but not later than the tenth business day following the last day of such three
day period. Any Registration Statement filed pursuant to this Section 4 shall
state that, to the extent permitted by Rule 416 under the Securities Act, such
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable upon conversion of the Preferred
Shares or exercise of the Warrants in full. Unless and until such amendment or
new Registration Statement becomes effective, each Holder shall have the rights
described in Section 2 above;
(c) secure the designation and quotation of the Registrable
Securities on the Nasdaq Stock Market or the listing thereof on the New York
Stock Exchange or the American Stock Exchange;
(d) furnish to each Holder such number of copies of the
prospectus included in such Registration Statement, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of such Holder's Registrable Securities;
(e) use all commercially reasonable efforts to register or
qualify the Registrable Securities under the securities or "blue sky" laws of
such jurisdictions within the United States as shall be reasonably requested
from time to time by a Holder, and do any and all other acts or things which may
be necessary or advisable to enable such Holder to consummate the public sale or
other
disposition of the Registrable Securities in such jurisdictions; 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 service of
process in any such jurisdiction;
(f) in the event of an underwritten public offering of the
Registrable Securities, enter into and perform its obligations under an
underwriting agreement, in usual and customary form reasonably acceptable to the
Company, with the managing underwriter of such offering;
(g) notify each Holder immediately upon the occurrence of any
event as a result of which the prospectus included in such Registration
Statement, as then in effect, contains an untrue statement of material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and as promptly as practicable, prepare, file and furnish to each
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus as may be necessary so that such prospectus does not contain an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(h) use all commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of such
Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(i) furnish to each Holder, on the date that such Registration
Statement becomes effective, (x) a letter, dated such date, of outside counsel
representing the Company (and reasonably acceptable to such Holder) addressed to
such Holder, confirming the effectiveness of the Registration Statement and, to
the knowledge of such counsel, the absence of any stop order, and (y) in the
case of an underwriting, (A) an opinion, dated such date, of such outside
counsel, in form and substance as is customarily given to underwriters in an
underwritten public offering, and (B) a letter, dated such date, from the
Company's independent certified public accountants, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters and to each
Holder;
(j) provide each Holder and its representatives the
opportunity to conduct a reasonable inquiry of the Company's financial and other
records during normal business hours and make available its officers, directors
and employees for questions regarding information which such Holder may
reasonably request in order to fulfill any due diligence obligation on its
par,provided, however, that the Company shall not provide the Holder with
material non-public information in connection with such inquiry except to a
Holder who specifically requests such information in writing;
(k) permit counsel for each Holder (at such Holder's expense)
to review such Registration Statement and all amendments and supplements thereto
a reasonable period of time prior to the filing thereof with the Commission; and
(l) provide written notice to each Holder (i) immediately
upon the imposition of a Blackout Period and (ii)
immediately upon the cessation of any such Blackout
Period. In the event that the Company imposes a
Blackout Period hereunder, each Holder shall be
entitled, upon written notice to the Company, to use
as a Conversion Price (as defined in the Certificate
of Designation) for any conversion of Preferred
Shares occurring during the first five (5) Trading
Days after the termination of such Blackout Period
(A) where the duration of such Blackout Period, when
added to the duration of any other Blackout Period
that may have occurred in the twelve month period
immediately preceding the imposition of such Blackout
Period, is equal to or less than fifteen (15) days,
the lower of (a) the Conversion Price in effect
pursuant to the terms of the Certificate of
Designation and (b) the lowest Conversion Price that
would have applied had such conversion occurred
during such Blackout Period and (B) where the
duration of such Blackout Period, when added to the
duration of any other Blackout Period that may have
occurred in the twelve month period immediately
preceding the imposition of such Blackout Period, is
greater than fifteen (15) days, the lower of (a) the
Conversion Price in effect pursuant to the terms of
the Certificate of Designation and (b) the lowest
Closing Bid Price (as defined in the Certificate of
Designation) occurring during such Blackout Period .
The Company agrees that it will not disclose any
material, non-public information to any Holder
regarding the reasons for imposing a Blackout Period,
except to a Holder who specifically requests in
writing such information.
5. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of the Registrable Securities
pursuant to the Registration Statement, each Holder shall:
(a) furnish to the Company such information regarding itself
and the intended method of disposition of Registrable Securities as the Company
shall reasonably request in order to effect the registration thereof;
(b) upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(g), 4(h) or 4(l) (a
"Suspension Notice"), immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement until the filing of an
amendment or supplement as described in paragraph 4(g), withdrawal of the stop
order referred to in paragraph 4(h) or notice from the Company of the cessation
of a Blackout Period pursuant to paragraph 4(l); provided, however, that the
Company shall instruct the Transfer Agent to deliver unlegended shares of Common
Stock to a Holder or to the transferee of such Holder in accordance with the
Certificate of Designation or Warrant, as the case may be, in connection with
any sale of Registrable Securities with respect to which such Holder has entered
into a contract of sale prior to its receipt of a Suspension Notice from the
Company (as long as such delivery is not prohibited by the express terms of any
stop order or other order suspending the effectiveness of the Registration
Statement);
(c) in the event of an underwritten offering of the
Registrable Securities in which such Holder participates, enter into a customary
and reasonable underwriting agreement and execute such other documents as the
managing underwriter for such offering may reasonably request;
(d) to the extent required by applicable law, deliver a
prospectus to each purchaser of Registrable Securities; and
(e) notify the Company when it has sold all of the Registrable
Securities theretofore held by it.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall
indemnify and hold harmless each Holder, the officers, directors, employees,
agents and representatives of such Holder, and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
liabilities or reasonable out-of-pocket expenses (whether joint or several)
(collectively, including legal or other expenses reasonably incurred in
connection with investigating or defending same, "Losses"), insofar as any such
Losses arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Company will reimburse such Holder, and each such
officer, director, employee, agent, representative or controlling person for any
legal or other expenses as reasonably incurred by any such entity or person in
connection with investigating or defending any Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any Loss if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be obligated to
indemnify any person for any Loss to the extent that such Loss arises out of or
is based upon and in conformity with written information furnished by such
person expressly for use in such Registration Statement; and provided, further,
that the Company shall not be required to indemnify any person to the extent
that any Loss results from such person selling Registrable Securities (i) to a
person to whom there was not sent or given, at or prior to the written
confirmation of the sale of such shares, a copy of the prospectus, as most
recently amended or supplemented, if the Company has previously furnished or
made available copies thereof or (ii) during any period following written notice
by the Company to such Holder of an event described in Section 4(g) or 4(h).
(b) To the extent permitted by law, each Holder, acting
severally and not jointly, shall indemnify and hold harmless the Company, the
officers, directors, employees, agents and representatives of the Company, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the 1934 Act, against any Losses to the extent (and only to
the
extent) that any such Losses arise out of or are based upon and in conformity
with written information furnished by such Holder expressly for use in such
Registration Statement; and such Holder will reimburse any legal or other
expenses as reasonably incurred by the Company and any such officer, director,
employee, agent, representative, or controlling person, in connection with
investigating or defending any such Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of such Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 6(b) exceed the net purchase price of securities sold by
such Holder under the Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 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 6, 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 assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate under
applicable standards of professional conduct due to actual or potential
conflicting 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, to the extent prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 6 with respect to such action, 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 6 or
with respect to any other action.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree, severally
and not jointly, to contribute to the aggregate Losses to which the Company or
such Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net purchase
price of securities sold by it under the Registration Statement. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or by such Holder. The
Company and each Holder agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of such Holder shall have the same rights to contribution as such
Holder, and each person who controls the Company within the meaning of either
the Securities Act or the
Exchange Act and each officer, director, employee, agent or representative of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under this
Section 6 shall survive the conversion or redemption, if any, of the Preferred
Shares, the exercise of the Warrant, and the completion of any offering of
Registrable Securities pursuant to a Registration Statement under this
Agreement, or otherwise.
7. REPORTS.
With a view to making available to each Holder the benefits of
Rule 144 and any other similar rule or regulation of the Commission that may at
any time permit such Holder to sell securities of the Company to the public
without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
1934 Act; and
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of Rule
144, the Securities Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing such Holder of any rule or regulation of the Commission which
permits the selling of any such securities without registration.
8. MISCELLANEOUS.
(a) Expenses of Registration. All expenses, other than
underwriting discounts and commissions and fees and expenses of counsel to each
Holder, incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, the fees and disbursements of
counsel for the Company, and the fees and disbursements incurred in connection
with the opinion and letter described in paragraph 4(i) hereof, shall be borne
by the Company.
(b) Amendment; Waiver. Any provision of this Agreement may be
amended only pursuant to a written instrument executed by the Company and
Holders of at least two thirds (2/3) of the outstanding Registrable Securities
or, if no Registrable Securities are outstanding, of at least two thirds (2/3)
of the outstanding Preferred Shares. Any waiver of the provisions of this
Agreement may be made only pursuant to a written instrument executed by the
party against whom enforcement is sought. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder, each future
Holder, and the Company. The failure of any party to
exercise any right or remedy under this Agreement or otherwise, or the delay by
any party in exercising such right or remedy, shall not operate as a waiver
thereof.
(c) Notices. Any notice, demand or request required or
permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing and shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission (with an original to follow)
on or before 5:00 p.m., eastern time, on a business day or, if such day is not a
business day, on the next succeeding business day, (ii) on the next business day
after timely delivery to a nationally-recognized overnight courier and (iii) on
the third business day after deposit in the U.S. mail (certified or registered
mail, return receipt requested, postage prepaid), addressed to the parties as
follows:
If to the Company:
Secure Computing Corporation
Xxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to any Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Termination. This Agreement shall terminate on the earlier
to occur of (a) the end of the Registration Period and (b) the date on which all
of the Registrable Securities have been publicly distributed; but any such
termination shall be without prejudice to (i) the parties' rights and
obligations arising from breaches of this Agreement occurring prior to such
termination and (ii) the indemnification and contribution obligations under this
Agreement.
(e) Assignment. The rights of a Holder hereunder shall be
assigned automatically to any transferee of the Preferred Shares, the Warrant or
Registrable Securities from such Holder as long as: (i) the Company is, prior to
such transfer, furnished with written notice of the name and address of such
transferee, (ii) the transferee agrees in writing with the Company to be bound
by all of the provisions hereof and (iii) such transfer is made in accordance
with the applicable requirements of the Securities Purchase Agreement or the
Warrant, as the case may be.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflict of laws provisions thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
SECURE COMPUTING CORPORATION
By:
-----------------------------
Name:
Title:
PURCHASER NAME:
---------------------------
By:
-----------------------------
Name:
Title:
