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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of January 13,
1997, by and between McAfee Associates, Inc., a Delaware corporation (the
"Company"), and the shareholders named in the signature blocks hereto
(collectively, the "Shareholders" and individually, a "Shareholder") of
Kabushiki Kaisha Jade, a Japanese corporation ("Jade").
RECITALS
WHEREAS, the Company, Jade, FSA Combination Corp. ("Sub") and
the Shareholders are parties to the Stock Exchange Agreement, dated January 13,
1997 (together with all exhibits, schedules, supplements and any amendments
thereto, the "Stock Exchange Agreement"), pursuant to which the Sub shall
acquire all the outstanding shares of capital stock of Jade (the "Exchange");
WHEREAS, the execution and delivery of this Agreement is a
condition to the Closing of the Exchange;
WHEREAS, the Stock Exchange Agreement provides that, as of the
Closing Date, all the outstanding shares of capital stock of Jade held by the
Shareholders immediately prior to the Closing shall be exchanged for shares of
common stock (the "Common Stock") of the Company (the "Exchange") and that such
Shareholders 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 Stock Exchange 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 issued to the Shareholders in the Exchange, and any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to such Common Stock.
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(e) The term "Rule 144" shall mean Rule 144 promulgated
under the Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
(f) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Request for Registration.
(a) Subject to the limitations of subsection 1.2(d)
hereof, if the Company shall at any time following 14 days after the Closing of
the Exchange receive a written request from Shareholders holding a majority of
the then outstanding Registrable Securities that the Company file a registration
statement under the Act, the Company will effect, as soon as practicable after
the receipt of such request, the registration under the Act of all Registrable
Securities which the Shareholder or Shareholders request to be registered;
provided, however, that (i) the Company shall not be required to register more
than 60% of the Registrable Securities then outstanding pursuant to such
request, and (ii) the Shareholders shall not sell the Registrable Securities
until McAfee has published (within the meaning of Accounting Series Release No.
135, as amended, of the SEC) financial results covering at least one month of
combined operations of McAfee and Jade. The Company shall not be required to
register Registrable Securities pursuant to this subsection 1.2(a) on more than
one occasion.
(b) Subject to the limitations of subsection 1.2(d)
hereof, if the Company shall receive at any time after 365 days following the
Closing Date, a written request from the Shareholders holding a majority of the
then outstanding Registrable Securities that the Company file a registration
statement under the Act covering the registration of any or all of the
Registrable Securities not registered under subsection 1.2(a) above, the Company
will effect, as soon as practicable after the receipt of such request, the
registration under the Act of all such Registrable Securities. The Company
shall not be required to register Registrable Securities pursuant to this
subsection 1.2(b) on more than one occasion.
(c) Notwithstanding the foregoing, if the Company shall
furnish to the Shareholders a certificate signed by the Chief Executive Officer
of the Company stating that in the good faith judgment of the Board of Directors
of the Company, it would be detrimental to the Company and its stockholders for
such registration statement to be filed, and it is therefore essential to defer
the filing of such registration statement, the Company shall have the right to
defer taking action with respect to such filing for a period of not more than
120 days after receipt of the request of the Shareholders; provided, however,
that the Company may not utilize this right more than once for the registration
requested under subsection 1.2(a) above.
(d) Notwithstanding the foregoing, the Company shall not
be required to register any Registrable Securities that are, at the effective
date of the registration statement, held in escrow, pursuant to the terms of the
Stock Exchange Agreement and the Escrow Agreement.
1.3 Obligations of the Company. Whenever required under
this Section 1 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC as soon as practicable,
but in no event later than 60 days after a request for registration has been
made under Section 1.2, a registration statement with respect to such
Registrable Securities and use reasonable efforts to cause such registration
statement to become effective, and, subject to the provisions below, use
reasonable efforts to, keep such registration statement effective for a period
of ninety (90) days or, if earlier, until the distribution contemplated in the
registration statement has been completed. If at any time after a registration
statement becomes effective, the Company advises the Shareholders requesting
registration 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 directors 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 their 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.
(b) Subject to subsection 1.3(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 requesting registration
such numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as they
may reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Shareholders holding a majority of the Registrable Securities; 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.
1.4 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 a Shareholder that such
Shareholder shall furnish to the Company such information regarding himself or
herself, the Registrable Securities held by him or her, and the intended method
of disposition of such securities as shall be required to effect the
registration of the Registrable Securities. Company agrees that promptly
following a reasonable request from Shareholder therefor, Company shall furnish
Shareholder a summary of the information which Company requires in order to
complete any such procedures.
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1.5 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 and provided, further, that the Company shall not be required to
pay for any expenses of any registration proceeding begun pursuant to Section
1.2 if the registration request is subsequently withdrawn at the request of the
Shareholders holding a majority of the Registrable Securities (in which case the
Shareholders shall bear such expenses on a pro-rata basis based upon the number
of Registrable Securities held unless the Shareholders holding a majority of the
Registrable Securities agree that the registration shall be deemed to satisfy
the Company's obligations to complete one registration pursuant to Section 1.2
hereof).
1.6 Resales through McAfee Brokers. The Shareholders
hereby agree that all resales by them of the Registrable Securities shall be
made on the Nasdaq National Market, or with the consent of the Shareholders, in
a private transaction, through Alex. Xxxxx & Sons Incorporated, Bear, Xxxxxxx &
Co., Inc., or Xxxxxxxxx, Xxxxxxxx & Company LLC.
1.7 No Assignment of Registration Rights. The registration
rights provided hereunder are not assignable.
1.8 Termination of Registration Rights. The registration
rights provided in this Section 1 shall be terminated if all shares of
Registrable Securities held by such Shareholder may be sold pursuant to Rule 144
in any three (3) month period.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
2.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon facsimile (with confirmed receipt), or personal
delivery to the party to be notified at the
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address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
2.6 Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
2.7 Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Shareholders holding a majority of the Registrable Securities.
2.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
2.9 Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject hereof.
2.10 Arbitration. Notwithstanding anything herein to the
contrary, in the event that there shall be a dispute among the parties arising
out of or relating to this Agreement, or the breach thereof, the parties agree
that such dispute shall be resolved by final and binding arbitration before
three arbitrators (one arbitrator to be selected by each of McAfee and the
Shareholders and the third arbitrator to be selected by the two arbitrators so
selected) in Tokyo, Japan in accordance with the rules of the International
Chamber of Commerce then in effect. The arbitration shall be conducted in the
English language. There shall be limited discovery prior to the arbitration
hearing, subject to the discretion of the arbitrators, as follows: (i) exchange
of witness lists and copies of documentary evidence and documents related to or
arising out of the issues to be arbitrated, (ii) depositions of all party
witnesses, (iii) other depositions as may be allowed by the arbitrators upon a
showing of good cause. Any award issued as a result of such arbitration shall be
final and binding between the parties thereto, and shall be enforceable by any
court having jurisdiction over the party against whom enforcement is sought. The
fees and expenses of such arbitration (including reasonable attorneys' fees) or
any action to enforce an arbitration award shall be paid by the party that does
not prevail in such arbitration.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
McAFEE ASSOCIATES, INC.
By: /s/ R. XXXXX XXXXXX
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R. Xxxxx Xxxxxx, Vice President
Professional Services and
Corporate Development
Address:
0000 Xxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
SHAREHOLDERS:
Witness:
/s/ XXXXXX XXXXXXXXX /s/ XXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx
Title:
Address:
00-00 Xxxxxxx 0-xxxxx
Xxxxxxxx-xxx, Xxxxxxxx-xxx
Xxxxxxx:
/s/ XXXXXX XXXXXXXXX /s/ XXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx
Title:
Address:
00-00 Xxxxxxx 0-xxxxx
Xxxxxxxx-xxx, Xxxxxxxx-xxx
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Witness:
/s/ XXXXXX XXXXXXXXX /s/ XXXXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxx
Title:
Address:
00-00 Xxxxxxx 0-xxxxx
Xxxxxxxx-xxx, Xxxxxxxx-xxx
Xxxxxxx:
/s/ XXXXXX XXXXXXXXX /s/ XXXXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxx
Title:
Address:
00-00 Xxxxxxx 0-xxxxx
Xxxxxxxx-xxx, Xxxxxxxx-xxx
Xxxxxxx:
/s/ XXXXXX XXXXXXXXX /s/ KANAKKO MURAKAMI
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Name: Xxxxxx Xxxxxxxxx Kanakko Murakami
Title:
Address:
00-00 Xxxxxxx 0-xxxxx
Xxxxxxxx-xxx, Xxxxxxxx-xxx
