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Exhibit 4.9
NORDIC LAN TOOLS OY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of February 27, 1998, by and
between Networks Associates, Inc., a Delaware corporation (the "COMPANY"), and
the undersigned shareholders of Nordic Lan Tools Oy (the "SHAREHOLDERS").
RECITALS
WHEREAS, concurrent with delivery of this Agreement, the Company, FSA
Combination Corp., a Delaware corporation and a wholly owned subsidiary of the
Company ("FSA"), and the Shareholders are entering into a Stock Purchase
Agreement (the "PURCHASE AGREEMENT") which provides for the purchase (the
"PURCHASE") of all the issued and outstanding shares of Nordic Lan Tools Oy by
FSA in exchange for shares of Company Common Stock:
WHEREAS, the execution and delivery of this Agreement is a condition to
the Closing of the Purchase Agreement;
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.
(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 reasonable
practicable, but in no event later than 180 days after the Closing Date, a
registration statement on Form S-3 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 practicable 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 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 that the registration
statement has been amended. In such event, the Company shall cause the
registration statement to be amended as soon as reasonably practicable,
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 the Shareholders 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 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.
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(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 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 (not to exceed $5,000).
1.5. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) The Company will indemnify and hold harmless the
Shareholders against any losses, claims, damages, or liabilities (joint or
several) to which Shareholder 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 such 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 expressly for use in connection with such registration by
the Shareholders. In addition, the Company shall not be liable for any untrue
statement or omission in any prospectus if a supplement or amendment thereto
correcting such untrue statement or omission was delivered to the Shareholders
prior to the pertinent sale or sales by the Shareholders.
(b) The Shareholders will each 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
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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 the Shareholders
expressly for use in connection with such registration; and the Shareholders
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 the Shareholders, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
1.5(b) 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 (included 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 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.
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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, 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. 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 parities at the following addresses (or at such other address for a party
as shall be specified by like notice):
(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, to:
Xx Xxxxx Xxxxxxxx
Prinssintie 8 as 1
01260 Vantaa
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Xx. Xxxxx Xxxxxxxx
Xxxxxxxx 0 X
00000 Xxxxxxxx
with a copy to:
Asianajotoimisto Jyri Sarpaniemi
Xxxxxxxxx 0
00000, Xxxxxxxx
Attention: Mr. Jyri Sarpaniemi
Fascimile No.: (000)0-000 0000
(3) if to the Escrow Agent, to:
Greater Bay Trust Company
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Paivah
Telephone No.: (000) 000-0000
Fascimile 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.
2.4 Entire Agreement; Assignment. This Agreement, the schedules and
Exhibits hereto, 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) with 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
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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.
2.8 Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
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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: /s/ Xxxx Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxx
Finance Director
Address: 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx
00000-0000
SHAREHOLDERS
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx
Address: Prinssintie 8 as 1
01260 Vantaa
By: /s/ Jarmo Rouvinen
--------------------------------------
Jarmo Rouvinen
Address: Xxxxxxxx 0 X
00000 Xxxxxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
