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EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of May 28, 1998, by and
between Networks Associates, Inc., a Delaware corporation with registered office
located at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of
America (the "COMPANY"), represented by Xx. Xxxx Xxxxxxxx, and the undersigned
shareholders of CSB Consulenza Software di Base Srl, an Italian corporation with
registered office in xxx Xxxxxxx, 00 - Xxx. X/0, Xxxxxx Dir. Summit, 20063
Cernusco S/N (Milan), Italy, Xx. Xxxxxxxx Xxxxxxxx, Xx. Xxxxxxx Xxxxxxx and Xx.
Xxxxxxxxx Xxxxx (the "SHAREHOLDERS").
RECITALS
WHEREAS, concurrent with delivery of this Agreement, NA Combination,
Inc. (a wholly owned subsidiary of the Company) and the Shareholders are
entering into a Share Purchase Agreement (the "PURCHASE AGREEMENT") which
provides for the purchase (the "PURCHASE") of all of the issued and outstanding
shares of CSB Consulenza Software di Base Srl 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 holders of 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,
enacted by the United States of America.
(b) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended, enacted by the United States of America.
(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.
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(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.
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
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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' Agent" to be designated by
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.
(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.
1.5 Indemnification. In the event any Registrable Securities are included
in the Registration Statement under this Section 1:
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(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 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
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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.
(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 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
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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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a) if to the Company:
Networks Associates, Inc.
0000 XxXxxx Xxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx, 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: Xxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
b) if to the Shareholders' Agent, to the address indicated by
shareholders
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 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.
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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:
Xxxxxxx X. Xxxxx, Chief Financial
Officer, Vice President of Finance
and Administration
Address: 0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
SHAREHOLDERS
XX. XXXXXXXX XXXXXXXX
Address:
Xxx X. Xxxxx Xxxxxxxxxxx, 00
Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxx
XX. XXXXXXX XXXXXXX
Address:
Xxx xxxx'Xxxxxx, 0/00
Xxxxxx, Xxxxx, Xxxxx
XX. XXXXXXXXX XXXXX
Address:
Xxx X. Xxxxxxxxx, 0
Xxxxxxx, Xxxxx, Xxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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