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EXHIBIT 10.11
INDEMNIFICATION AND VOTING AGREEMENT
This Indemnification and Voting Agreement (this "AGREEMENT") between
XxXxxx.xxx Corporation, a Delaware corporation ("XXXXXX.XXX"), and Networks
Associates, Inc., a Delaware corporation ("NAI"), is entered into on August 20,
1999, and shall be effective immediately upon the effective date of the initial
public offering of XxXxxx.xxx's common stock (the "EFFECTIVE DATE").
RECITALS
WHEREAS, NAI has contributed substantially all the assets of its former
consumer e-commerce division to XxXxxx.xxx in accordance with the Asset
Contribution and Receivables Settlement Agreement effective as of January 1,
1999 between the parties (the "ASSET CONTRIBUTION AGREEMENT").
WHEREAS, XxXxxx.xxx is considering an initial public offering of its
stock.
WHEREAS, the parties desire to set forth certain agreements regarding
indemnification and voting.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I.
INDEMNIFICATION
SECTION 1.1. INDEMNIFICATION BY NAI.
(a) NAI Indemnification. NAI agrees, for itself and as agent for each
of its subsidiaries, to indemnify, defend (or, where applicable, pay the defense
costs for) and hold harmless XxXxxx.xxx from and against any and all claims,
losses, expenses, liabilities or other damages, including reasonable attorneys'
fees and costs of investigation, to the extent of the amount of such claim,
loss, expense, liability or other damage (collectively "LOSSES") related to any
Third Party Claim (as defined in Section 1.2(a) hereof) (whether known or
unknown) relating to events or circumstances arising out of the actions or
inaction of NAI or its subsidiaries, or their respective officers, directors or
employees on or prior to the Effective Date.
(b) Matters Not Covered. Notwithstanding the foregoing, NAI shall have
no obligation to indemnify XxXxxx.xxx for (i) any obligations, payments,
royalties or fees owed by or assumed by XxXxxx.xxx to NAI pursuant to any of the
intercompany agreements entered into by the parties prior to the Effective Date;
(ii) any Losses resulting from Third Party Claims that are related to
intellectual property developed by XxXxxx.xxx from the date hereof until the
Effective Date; (iii) any obligations incurred by XxXxxx.xxx in the ordinary
course of business; (iv) any Losses resulting from Third Party Claims made
against XxXxxx.xxx alleging infringement of intellectual property rights unknown
to the parties as of the Effective Date, which should be resolved pursuant to
the separate technology cross license agreement between the parties; or (v) any
Losses resulting from Third Party Claims related to, arising out of or resulting
from any untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading by
XxXxxx.xxx, with respect to all information contained in any registration
statement or any preliminary, final or supplemental prospectus forming a part of
a registration statement filed by XxXxxx.xxx pursuant to the Securities Act of
1933, as amended.
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(c) Subsequent Losses Offset. In the event that NAI makes a payment to
XxXxxx.xxx hereunder, and XxXxxx.xxx subsequently diminishes the Losses on
account of which such payment was made, either directly or through a third-party
recovery, XxXxxx.xxx will promptly repay NAI the amount by which the payment
made by XxXxxx.xxx exceeds the actual cost of the indemnified Losses.
SECTION 1.2. PROCEDURES FOR DEFENSE, SETTLEMENT AND
INDEMNIFICATION OF THIRD PARTY CLAIMS.
(a) Notice of Claims. If XxXxxx.xxx shall receive notice or otherwise
learn of the assertion by a person (including any governmental authority) who is
not NAI or any subsidiary of NAI of any claim or of the commencement by any such
person of any action (collectively, a "THIRD PARTY CLAIM") with respect to which
NAI may be obligated to provide indemnification to XxXxxx.xxx pursuant to
Section 1.1, XxXxxx.xxx shall give such NAI written notice thereof within ten
(10) days after becoming aware of such Third Party Claim. Any such notice shall
describe the Third Party Claim in reasonable detail. Notwithstanding the
foregoing, the delay or failure of XxXxxx.xxx to give notice as provided in this
Section 1.2(a) shall not relieve NAI of its obligations under this Article I,
except to the extent that NAI is actually prejudiced by such delay or failure to
give notice.
(b) Claims Involving Commingled Products or Employees. If a Third Party
Claim involves a commingled product with components supplied by both NAI and
XxXxxx.xxx, or any similar claims involving both the NAI business and XxXxxx.xxx
business (collectively, "COMMINGLED CLAIMS"), NAI, after reasonable consultation
with XxXxxx.xxx, shall have the power to resolve whether and to the extent any
Commingled Claim is a Loss to be indemnified by NAI pursuant to Section 1.1
hereof.
(c) Defense of Claims. With respect to any Third Party Claims arising
prior to the Effective Date, NAI shall manage the defense of, and may seek to
settle or compromise, any such Third Party Claims.
(d) Cooperation in Defense and Settlement. With respect to any Third
Party Claim that implicates both NAI and XxXxxx.xxx in a material fashion due to
the allocation of Losses, responsibilities for management of defense, the
parties agree to cooperate fully and maintain a joint defense (in a manner that
will preserve the attorney-client privilege with respect thereto) so as to
minimize such Losses and defense costs associated therewith. The party that is
not responsible for managing the defense of such Third Party Claims shall, upon
reasonable request, be consulted with respect to significant matters relating
thereto and may, if necessary or helpful, associate counsel to assist in the
defense of such claims.
(e) Dispute Resolution. If XxXxxx.xxx has any dispute, disagreement or
claim arising out of or relating to this Agreement or to a breach hereof,
including NAI's interpretation, performance or termination, XxXxxx.xxx shall
promptly deliver a written notice to NAI of such dispute, disagreement or claim.
Within ten (10) business days following XxXxxx.xxx's delivery of written notice
of dispute, disagreement or claim, NAI shall either pay to XxXxxx.xxx the amount
in dispute, or object in writing to XxXxxx.xxx. If such objection is made by
NAI, the parties shall enter into good faith negotiations to resolve the
dispute, disagreement or claim in a timely manner.
SECTION 1.3. ADDITIONAL MATTERS.
(a) Substitution. In the event of an action in which NAI or a
subsidiary of NAI (other than XxXxxx.xxx) is not a named defendant, if NAI or
XxXxxx.xxx shall so request, the parties shall endeavor to substitute NAI (or a
designated subsidiary) for XxXxxx.xxx. If such substitution or addition cannot
be achieved for any reason or is not requested, the rights and obligations of
the parties regarding indemnification and the management of the defense of
claims as set forth in this Article I shall not be altered.
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(b) Subrogation. In the event of payment by or on behalf of NAI to or
on behalf of XxXxxx.xxx in connection with any Third Party Claim, NAI shall be
subrogated to and shall stand in the place of XxXxxx.xxx, in whole or in part
based upon whether NAI has paid all or only part of XxXxxx.xxx's Loss, as to any
events or circumstances in respect of which XxXxxx.xxx may have any right,
defense or claim relating to such Third Party Claim against any claimant or
plaintiff asserting such Third Party Claim or against any other person.
XxXxxx.xxx shall cooperate with NAI in a reasonable manner, and at the cost and
expense of NAI, in prosecuting any subrogated right, defense or claim.
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ARTICLE II.
VOTING FOR DIRECTORS
SECTION 2.1. VOTING AGREEMENT. For so long as NAI, or any of its
subsidiaries (other than XxXxxx.xxx) continues to hold at least twenty percent
(20%) of the outstanding voting power of XxXxxx.xxx, NAI agrees to vote its
share of XxXxxx.xxx's capital stock in favor of the election of two (2)
independent directors as the term "independent director" is defined in Rule 4200
of the Nasdaq Stock Market Marketplace Rules.
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. ENTIRE AGREEMENT. This Agreement 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.
SECTION 3.2. 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.
SECTION 3.3. 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.
SECTION 3.4 OTHER AGREEMENTS EVIDENCING INDEMNIFICATION
OBLIGATIONS. NAI hereby agrees to execute, for the benefit of XxXxxx.xxx, such
documents as may be reasonably requested by XxXxxx.xxx, evidencing NAI's
agreement that the indemnification obligations of NAI set forth in this
Agreement inure to the benefit of and are enforceable by XxXxxx.xxx.
SECTION 3.5. BINDING EFFECT; Assignment. The rights and obligation
in this Agreement may not be assigned by any party hereto without the express
prior written consent of the other party hereto.
SECTION 3.6. SEVERABILITY. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto 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
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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.
SECTION 3.7. 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.
SECTION 3.8. 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.
SECTION 3.9. 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.
SECTION 3.10. 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 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
