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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of December 1, 1997, by
and between McAfee Associates, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxxxx, Xxxxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxx, Estate
of Xxxxx Xxxxxxx and Attachmate Corp., each a shareholder of Helix Software
Company, Inc., a Georgia corporation (the "Shareholder").
RECITALS
WHEREAS, concurrent with delivery of this Agreement, the Company, DNA
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
the Company ("MERGER SUB"), and Helix Software Company, Inc. ("HELIX") are
entering into an Agreement and Plan of Reorganization (the "MERGER AGREEMENT")
which provides for the merger (the "MERGER") of Merger Sub with and into Helix.
Pursuant to the Merger, shares of common stock of Helix (the "Helix Common
Stock") will be converted into the right to receive a certain number of shares
of common stock of the Company (the "Company Common Stock") on the basis
described in the Merger Agreement;
WHEREAS, the execution and delivery of this Agreement is a condition to
the closing of the Merger Agreement;
WHEREAS, the Merger Agreement provides that, as of the Closing Date,
the shares of Company Common Stock that are issued to the Shareholder pursuant
to the Merger 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 Merger 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
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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 Shareholder in accordance
with the terms and conditions of the Merger Agreement.
(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 expeditiously as reasonably possible:
(a) Prepare and file with the SEC as soon as practicable,
but in no event later than 30 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 best efforts to cause
such registration statement to become effective as soon as practicable
thereafter, and, subject to the provisions below, use its best efforts to, keep
such registration statement effective for a period of 365 days or, if earlier,
until the Shareholder has sold all of the Registrable Securities. If at any time
after a registration statement becomes effective, the Company advises
Shareholder 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, Shareholder shall suspend
any further sale of Registrable Securities pursuant to the Registration
Statement until the Company advises Shareholder 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 Shareholder to recommence his 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
Shareholder are suspended as provided above, the 365-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.
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(c) Furnish to the Shareholder such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as he may reasonably request
in order to facilitate the disposition of Registrable Securities owned by him.
(d) Use its best 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
Shareholder; 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 Shareholder. 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 Shareholder that
Shareholder shall furnish to the Company such information regarding such
Shareholder, the Registrable Securities held by such Shareholder, 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 Shareholder,
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 Shareholder other than the fees of one
counsel to the Shareholder (not to exceed $10,000).
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
Shareholder 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 Shareholder as
incurred any legal or other
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expenses reasonably incurred by Shareholder 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 Shareholder. 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 Shareholder prior to the pertinent sale or sales by Shareholder.
(b) 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 conformity with written information
furnished by Shareholder expressly for use in connection with such registration;
and 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 Shareholder, 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 Shareholder.
(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
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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 Shareholder 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 any
Shareholder of Registrable Securities, make publicly available other information
so long as necessary to permit sales of such Shareholder's securities pursuant
to Rule 144 and 144A. The Company covenants that it will take such further
action as any Shareholder of Registrable Securities may reasonably request, all
to the extent required from time to time to enable such Shareholder 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)). Upon the written request of any Shareholder of Registrable
Securities, the Company will deliver to such Shareholder a written statement as
to whether it has complied with such requirements.
2. Miscellaneous.
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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):
(1) if to Parent or Merger Sub, to:
McAfee Associates, Inc.
0000 Xxxxxx Xxx.
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
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.
Facsimile No.: (000) 000-0000
(2) if to the Company, to:
Helix Software Company, Inc.
Attention: [______________]
Facsimile No.: [______________]
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx, Esq.
Facsimile No.: (000) 000-0000
(3) if to the Escrow Agent, to:
Greater Bay Trust Company
000 Xxxxxxx Xxxxxx
0xx Xxxxx
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Xxxx Xxxx, XX 00000
Attention: Xxxx Paivah
Telephone No.: 000-000-0000
Facsimile 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) without
the prior written consent of each party shall not be assigned by operation of
law or otherwise, except that Parent may assign its rights and obligations
hereunder to an affiliate of Parent provided that parent 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 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.
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2.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, 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.
McAFEE ASSOCIATES, INC.
By: /s/ XXXXXXX X. XXXXX
---------------------------------------------
Xxxxxxx X. Xxxxx, Chief Financial Officer, Vice
President of Finance and Administration
Address: 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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SHAREHOLDER
/s/ XXXXXXX X. XXXXX
---------------------------------------
Xxxxxxx X. Xxxxx
Address: 000 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
SHAREHOLDER
/s/ XXXXXX X. XXXXX
---------------------------------------
Xxxxxx X. Xxxxx
Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
SHAREHOLDER
/s/ XXXX X. XXXXX
---------------------------------------
Xxxx X. Xxxxx
Address: 000 Xxxxx Xxxxxx, Xxx. 0X
Xxxxxxxx, XX 00000
SHAREHOLDER
/s/ XXXXX X. XXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxx
Address: 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, XX 00000
SHAREHOLDER
/s/ XXXXXX X. XXXXXXXX
---------------------------------------
Xxxxxx X. Xxxxxxxx
Address: 0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
SHAREHOLDER
/s/ XXXXXXXX X. XXXX
---------------------------------------
Xxxxxxxx X. Xxxx
Address: 000 Xxxx 00xx Xxxxxx, Xxx. 00
Xxx Xxxx, XX 00000
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SHAREHOLDER
/s/ XXXXXXX X. XXXXX
---------------------------------------
Xxxxxxx X. Xxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxx. #X0X
Xxxxxxxx, XX 00000
SHAREHOLDER
/s/ XXXXXX XXXXX
---------------------------------------
Xxxxxx Xxxxx
Address: 0000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
SHAREHOLDER
/s/ XXXX XXXXX
---------------------------------------
Xxxx Xxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
SHAREHOLDER
ESTATE OF XXXXX XXXXXXX
By: /s/ XXXXXXX XXXXXXX
---------------------------------------
Title: Executrix
------------------------------------
Address: c/o Xxxxxxx Xxxxxxx, Executrix
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
SHAREHOLDER
ATTACHMATE CORP.
By: /s/ Signature
---------------------------------------
Title:
------------------------------------
Address: 0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
