Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Form 8-K Dated August 30,1996 5 15K
2: EX-2.1 Combination Agreement Dated August 16,1996 46 203K
3: EX-4.1 Voting and Exchange Trust Agreement 41 113K
4: EX-4.2 Registration Rights Agreement 11 44K
5: EX-99.1 Press Release 3 8K
EX-4.2 — Registration Rights Agreement
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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 30th day
of August, 1996, by and between McAfee Associates, Inc., a Delaware corporation
(the "Company"), and Daniel Freedman, the sole shareholder of FSA Corporation
(the "Shareholder").
RECITALS
WHEREAS, the Company, FSA Combination Corp., FSA Corporation
("FSA"), and the Shareholder are parties to the Combination Agreement, dated
August 16, 1996 (together with all exhibits, schedules, supplements and any
amendments thereto, the "Combination Agreement") pursuant to which the Company
will acquire an acquisition interest in FSA;
WHEREAS, the execution and delivery of this Agreement is a
condition to the closing of the Combination Agreement;
WHEREAS, the Combination Agreement provides that, as of the
Effective Date, each of the shares of FSA held by the Shareholder will be
exchanged for exchangeable shares of FSA (the "Exchangeable Shares"), and that
the shares of Common Stock of the Company that are issued to the Shareholder in
exchange for such Exchangeable Shares 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 Combination 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 ("Common Stock") issued or issuable to the Shareholder upon
exchange of the Exchangeable Shares in accordance with the terms and conditions
of the Articles of
Incorporation of FSA or the Voting and Exchange Trust Agreement, 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.
(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 receive at any time after 120 days following the Closing Date
of the Combination, a written request from Shareholder 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 requests to be registered;
provided, however, that the Company shall only be required to register up to 50%
of the Registrable Securities pursuant to such request. Notwithstanding the
foregoing, the Company shall not be required to cause any such registration
statement to be declared effective prior to 180 days following the Closing Date
of the Combination. 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 300 days following the Closing Date,
a written request from Shareholder 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; provided,
however, that the Company shall not be required to cause any such registration
statement to be declared effective prior to 365 days following the Closing Date
of the Combination. The Company shall not be required to register Registrable
Securities pursuant to this subsection 1.2(b) on more than one occasion.
(c) In the event that at any time after one year from the
Closing Date the Company takes the position that the holding period of the
Exchangeable Shares may not be identified with the holding period of Registrable
Securities under Rule 144(d), the Shareholder shall be entitled to request at
any time after the completion of the registrations requested under subsections
(a) and (b) above, and the Company shall be obligated to effect as soon as
practicable after such request, two additional registrations pursuant to the
terms hereof.
(d) Notwithstanding the foregoing, if the Company shall
furnish to Shareholder 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
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defer taking action with respect to such filing for a period of not more than
120 days after receipt of the request of the Shareholder; provided, however,
that the Company may not utilize this right more than once for each registration
requested under subsections 1.2(a) and 1.2(b) above, and provided further that
any such deferral shall terminate at such time as officers of the Company may
buy or sell shares of Common Stock in accordance with the Company's insider
trading policy.
(e) 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, or issuable on exchange of
Exchangeable Shares held in escrow, pursuant to the terms of the Combination
Agreement.
1.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Shareholder) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, a registration
on any form which is not available for the resale of the Registrable Securities,
a registration statement on Form S-4 or any successor form, or a registration in
which the only Common Stock being registered is Common Stock issuable upon
conversion of debt securities which are also being registered), the Company
shall, at such time, promptly give the Shareholder written notice of such
registration. Upon the written request of the Shareholder given within twenty
(20) days after mailing of such notice by the Company in accordance with Section
2.5, the Company shall cause to be registered under the Act all of the
Registrable Securities that the Shareholder has requested to be registered;
provided, however, that the Company shall not be obligated pursuant to this
Section 1.3 to (i) include any of the Registrable Securities in any such
registration which will be declared effective prior to 180 days after the
Closing Date of the Combination or (ii) register more than 50% of the
Registrable Securities in any such registration which will be declared effective
prior to 365 days after the Closing Date of the Combination. In connection with
any registration pursuant to this Section 1.3 which involves the underwritten
offering of the Company's securities, the Company shall not be required to
include any of the Shareholder's securities under such registration statement
unless he agrees to enter into an underwriting agreement in the form agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. Shareholder acknowledges and agrees that at the
underwriters' sole discretion the Registrable Securities may be excluded
entirely from such offering. In addition, if a registration is to be effected
pursuant to a request by another holder of Common Stock of the Company, the
Shareholder's right to participate in any such registration shall be subject to
the prior consent of such holder which consent may be withheld in the holder's
sole discretion.
1.4 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 30 days after a request for registration has been made
under Section 1.2, a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective, and, subject to the provisions below, use its best efforts to,
keep such registration statement effective for a period of thirty (30) 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 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 directors
are prohibited from buying or selling the Company's Common Stock pursuant to the
Company's insider trading 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 insider trading policy. In the event the
sales of Registrable Securities of the Shareholder are suspended as provided
above, the 30-day period during which a registration statement must be kept
effective shall be extended for the period during which sales are suspended plus
an additional number of trading days equal to the positive number obtained by
subtracting (i) the number of days that the registration statement remained
effective prior to such suspension from (ii) 30.
(b) Subject to subsection 1.4(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 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 will not include any securities in a
registration pursuant to this Agreement other than the Registrable Securities.
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(f) The Company shall notify the Shareholder if the SEC
advises the Company that the exchange of the Exchangeable Shares for Registrable
Securities is required as a condition to the filing of any registration
statement under Section 1.2. If such exchange is required, the Company's
obligation to register the Registrable Securities under Section 1.2 shall be
conditioned upon the exchange occurring prior to the filing of the Registration
Statement. If a registration statement must be withdrawn because the SEC takes
the position that the exchange must be made before filing, the expenses of such
prior filing shall be borne by the Company pursuant to Section 1.6 and such
prior filing shall not be deemed to satisfy the Company's obligation to effect a
registration under Section 1.2.
(g) The Company shall keep the Shareholder advised of the
status of any registration statement filed under Section 1.2 and coordinate the
effective date of such registration statement with the Shareholder.
1.5 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 himself, the
Registrable Securities held by him, and the intended method of disposition of
such securities as shall be required to effect the registration of the
Registrable Securities.
1.6 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) 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 Shareholder (in which case
Shareholder shall bear such expenses unless Shareholder agrees that the
registration shall be deemed to satisfy the Company's obligations to complete
one registration pursuant to Section 1.2 hereof).
1.7 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 against any
losses, claims, damages, or liabilities (joint or several) to which he may
become subject under the Act, or the 1934 Act, 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
5
1934 Act; and the Company will pay to Shareholder any legal or other expenses
reasonably incurred by him in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.7 (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 1.7(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
1.7(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 1.7(b) exceed the
gross proceeds from the offering received by Shareholder.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 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 1.7, 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
6
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 1.7, 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 1.7.
(d) If the indemnification provided for in this Section 1.7 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 1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.8 No Assignment of Registration Rights; Inclusion of
Transferee Shares. The registration rights provided hereunder are not
assignable, except to a transferee upon the death of Shareholder, a personal
legal representative in the event of incapacity of the Shareholder or otherwise
by operation of law. Notwithstanding the foregoing, Shareholder may, at his
option, elect to include in any registration requested under Section 1.2 any
Common Stock issued or issuable upon the exchange of Exchangeable Shares held by
a transferee of his Exchangeable Shares or Common Stock (a "Transferee"),
provided that he gives notice to the Company of his election to include the
shares at the time of his request under Section 1.2 and, provided further, that
the Transferee agrees in writing to be bound by the obligations hereunder to the
extent of such Transferee's participation in a registration hereunder. If
Registrable Securities are registered for a Transferee, all references to
Shareholder in this Agreement shall be deemed to refer to the Transferee to the
extent of the Transferee's participation in the registration.
1.9 Suspension of Registration Rights. The registration rights
provided in this Section 1 shall be suspended if all shares of Registrable
Securities held by the Shareholder may be sold pursuant to Rule 144 in any three
(3) month period, and Shareholder shall have received an opinion of the
Company's legal counsel, subject only to customary qualifications, to such
effect.
1.10 Reports Under the Securities Exchange Act.
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With a view to making available registration on SEC Form S-3
and the benefits of Rule 144, the Company agrees to:
(a) Make and keep current public information available with
the meaning of Rule 144(c).
(b) 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.
So long as Shareholder owns Registrable Securities, to furnish to Shareholder
forthwith upon request a written statement as to the Company's compliance with
the reporting requirements of Rule 144 and the Securities Exchange Act of 1934,
a copy of the Company's most recent annual and quarterly reports, and such other
reports, documents and other information in the possession of or reasonably
obtainable by the Company as the Shareholder may reasonably request in availing
himself of Rule 144.
(c) So long as Shareholder owns Registrable Securities, to
furnish to Shareholder forthwith upon request a written statement as to the
Company's compliance with the reporting requirements of Rule 144 and the
Securities Exchange Act of 1934, a copy of the Company's most recent annual and
quarterly reports, and such other reports, documents and other information in
the possession of or reasonably obtainable by the Company as the Shareholder may
reasonably request in availing himself of Rule 144.
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 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.
8
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
Shareholder.
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.
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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:.......................................
R. Terry Duryea, Vice President
Professional Services and Corporate
Development
Address:
2710 Walsh Avenue
Santa Clara, California 95051-0963
DANIEL FREEDMAN
..........................................
Address:
1232 17A Street NW
Calgary, Alberta
Canada T2N 2E7
[Signature page to Registration Rights Agreement]
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 9/24/96 |
| For Period End: | | 8/30/96 | | | | | | | S-8 |
| | 8/16/96 | | 2 |
| List all Filings |
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