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Exhibit 4.8
SYSCON (PROPRIETARY) LIMITED
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of 26 February 1998, by and
between Networks Associates, Inc., a Delaware corporation (the "Company"), and
Xxxxxx Xxxxx Xxxxx ("Xxxxx").
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 Xxxxx are entering into a Stock Purchase Agreement (the
"PURCHASE AGREEMENT") which provides for the Purchase (the "PURCHASE") of the
entire share capital of Syscon (Proprietary) Limited by FSA in exchange for
shares of Company Common Stock;
WHEREAS, the Purchase Agreement provides that, as of the Closing Date, the
shares of Company Common Stock that are issued to Xxxxx pursuant to the Purchase
Agreement 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:
1.1.1 The term "Act" means the Securities Act of 1933, as
amended.
1.1.2. The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
1.1.3. 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.
1.1.4. The term "Registrable Securities" means the Common
Stock of the Company ("Common Stock") issued to Xxxxx in accordance with the
terms and conditions of the Purchase Agreement.
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1.1.5. The term "SEC" shall mean the Securities and Exchange
Commission.
1.2. Obligations of the Company. The Company shall, as soon as
reasonably possible:
1.2.1. Prepare and file with the SEC as soon as commercially
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
indefinitely or, if earlier, until Xxxxx has sold all of the Registrable
Securities. If at any time after a registration statement becomes effective, the
Company advises Xxxxx 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,
Xxxxx shall suspend any further sale of Registrable Securities pursuant to the
Registration Statement until the Company advises Xxxxx 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 Xxxxx 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 Xxxxx 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.
1.2.2. 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.
1.2.3. Furnish to Xxxxx such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as Xxxxx may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by her.
1.2.4. 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 Xxxxx, provided that the
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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.
1.2.5. 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 Xxxxx. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section I with
respect to the Registrable Securities of Xxxxx that Xxxxx shall furnish to the
Company such information regarding herself, the Registrable Securities held by
her, 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 Xxxxx, 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 Xxxxx other than the fees of one counsel to
Xxxxx (not to exceed $5,000).
1.5 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
1.5.1 The Company will indemnify and hold harmless Xxxxx against
any losses, claims, damages, or liabilities (joint or several) to which Xxxxx
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 Xxxxx as incurred any legal or other expenses reasonably incurred by Xxxxx in
connection with investigating or defending any such loss, claim, damage,
liability, or action, provided, however, that the indemnify 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 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
Xxxxx. In addition, the Company shall not be liable for any untrue statement or
omission in any prospectus if a supplement or
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amendment thereto correcting such untrue statement or omission was delivered to
Xxxxx prior to the pertinent sale or sales by Xxxxx.
1.5.2 Xxxxx 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 Xxxxx selling securities in such registration statement and any
controlling person of any such Xxxxx, against any losses, claims, damages, or
liabilities (joint or several) to which any of the foregoing persons may become
subject, under the Act, or the 1934 Act or other federal or state law, insofar
as such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by Xxxxx expressly for use in
connection with such registration; and Xxxxx 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 Xxxxx, 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 Xxxxx.
1.5.3 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.
1.5.4 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
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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.
1.5.5 The obligations of the Company, and Xxxxx 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 Xxxxx, make
publicly available other information so long as necessary to permit sales of
Xxxxx'x securities pursuant to Rule 144 and 144A. The Company covenants that it
will take such further action as Xxxxx may reasonably request, all to the extent
required from time to time to enable Xxxxx 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 parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
2.1.0.1. if to the Company:
Networks Associates, Inc.
0000 Xxxxxx Xxx.
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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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
2.1.0.2 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
Facsimile No.: 000-000-0000
2.1.0.3 if to Xxxxx:
00 Xxxxxxxxx Xxxxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxx Xxxxxx
Telephone: 27 + 11 + 0000000
Facsimile: 27 + 11 + 4651067
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) 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 pro-
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vided 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 required hereby, shall be void.
2.5. Severability. In the event that any provision of this Agreement
or the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
2.6. Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity
upon such party, and the exercise by a party of any one remedy will not
preclude the exercise of any other remedy.
2.7. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
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.
NETWORK ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxxx
Title: Finance Director
XXXXXX XXXXX XXXXX
/s/ X X Xxxxx
