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EXECUTION COPY EXHIBIT 10.50
STOCK EXCHANGE AGREEMENT
AMONG
McAFEE ASSOCIATES, INC.,
FSA COMBINATION CORPORATION,
SCHUIJERS HOLDING B.V. AND
THE SHAREHOLDERS OF SCHUIJERS HOLDING B.V.
FEBRUARY 28, 1997.
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TABLE OF CONTENTS
ARTICLE I - THE EXCHANGE
1.1 Shares Being Exchanged
1.2 Closing
1.3 Exchange of Shares
1.4 Pooling of Interests
1.5 Currency
Article II - REPRESENTATIONS AND WARRANTIES OF SHBV AND SHAREHOLDERS
2.1 Organization of SHBV and McAfee Nederland B.V.
2.2 Capitalization
2.3 Authority, No Conflict, Required Filings and Consents
2.4 SHBV Financial Statements
2.5 No Undisclosed Liabilities
2.6 Accounts Receivable
2.7 Absence of Certain Changes or Events
2.8 Taxes
2.9 Intellectual Property
2.10 Agreements, Contracts and Commitments
2.11 Labour Difficulties; No Discrimination
2.12 Trade Regulation
2.13 Litigation
2.14 Employee Benefit Plans
2.15 Compliance with Laws
2.16 Governmental Authorizations and Regulations
2.17 Corporate Documents
2.18 No Misrepresentation
2.19 Restrictions on Business Activities
2.20 No Brokers.
2.21 Insurance
2.22 Interested Party Transactions
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2.23 Pooling Matters
2.24 Books and Records
2.25 Government Contracts
2.26 Severance Arrangements
2.27 Banking Relationships
2.28 Distribution Agreements
2.29 Assets of Shareholders
Article III - REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
3.1 Purchase for Own Account
3.2 Restricted Securities
3.3 Further Limitations on Disposition
3.4 Legends
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF MCAFEE AND SUB
4.1 Organization and Good Standing
4.2 Authority, No Conflict, Required Filings and Consents
4.3 Litigation
ARTICLE V - CONDUCT OF BUSINESS
5.1 Covenants of SHBV
5.2 Cooperation
5.3 Notice of Breach
ARTICLE VI - ADDITIONAL AGREEMENTS
6.1 No Solicitation
6.2 SHBV Consents
6.3 Access of Information
6.4 Legal Conditions to Exchange
6.5 Public Disclosure
6.6 Additional Agreements, Reasonable Efforts
6.7 SHBV Affiliates Agreement
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ARTICLE VII - CONDITIONS TO EXCHANGE
7.1 Conditions to Each Party's Obligation to Effect the Exchange
7.2 Additional Conditions to Obligations of McAfee and Sub
7.3 Additional Conditions to Obligations of SHBV
ARTICLE VIII - TERMINATION AND AMENDMENT
8.1 Termination
8.2 Effect of Termination
ARTICLE IX SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
ARTICLE X - INDEMNIFICATION AND ESCROW
10.1 Indemnity
10.2 Escrow Fund
10.3 Escrow Period
10.4 Protection of Escrow Fund
10.5 Claims upon Escrow Fund
10.6 Objection to Claims
10.7 Resolution of Conflicts
10.8 Third-Party Claims
10.9 Limits
10.10 Dismissal of Employees
10.11 Shareholder's Agent
ARTICLE XI - MISCELLANEOUS
11.1 Notices
11.2 Interpretation
11.3 Counterparts
11.4 Entire Agreement; No Third Party Beneficiaries
11.5 Governing Law
11.6 Assignment
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11.7 Attachments and Schedules
11.8 Severability
11.9 Fees and Expenses
11.10 Amendment
11.11 Extension, Waiver
SCHEDULES
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A. Schedule of Shareholders
B. Notarial deed of transfer of shares
C. SHBV Disclosure Schedule
LIST OF EXHIBITS
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Exhibit 7.1 (c) Escrow Agreement
Exhibit 7.2 (g) Employment Agreement
Exhibit 7.2 (h) Non-Competition Agreement(s)
Exhibit 7.2 (j) Registration Rights Agreement
Exhibit 7.2 (n) Assignment of Rights
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STOCK EXCHANGE AGREEMENT
This STOCK EXCHANGE Agreement (the "Agreement"), dated as of February
1997, is entered into by and among McAfee Associates, Inc., a Delaware
corporation ("McAfee"), FSA Combination Corporation, a Delaware
corporation and indirect subsidiary of McAfee ("Sub"), Schuijers Holding B.V.,
a Dutch private company with limited liability ("SHBV"), and the Shareholders
of SHBV ("Shareholders"), all of whom are listed on the Schedule of
Shareholders attached hereto as Schedule A.
WHEREAS, the Boards of Directors of McAfee, Sub and SHBV deem it
advisable and in the best interests of themselves and their respective
stockholders that Sub acquire all the outstanding stock of SHBV in exchange for
shares of Common Stock of McAfee (the "Exchange"); and
WHEREAS, the Exchange is intended to be treated as a "pooling of
interests" under United States generally accepted accounting principles ("US
Gaap");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and Agreements, the parties agree as set
forth below.
ARTICLE I
THE EXCHANGE
1.1 Shares Being Exchanged. Subject to the terms and conditions
of this Agreement, at the Closing (as defined below), each Shareholder agrees
to sell, assign, and transfer to Sub that number of shares of stock of SHBV
("SHBV Stock") set forth opposite such Shareholders' name on the Schedule of
Shareholders in exchange for that number of shares of Common Stock of McAfee
("McAfee Stock") as provided in Section 1.3
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hereof. The parties hereby agree that Sub may assign its obligations hereunder
to another indirect subsidiary of McAfee.
1.2 Closing. The closing of the Exchange (the "Closing")
will take place on a date to be specified by McAfee and SHBV which shall be no
later than the second business day after satisfaction of the latest to occur of
the conditions set forth in Article VII of this Agreement, but in any event no
later than March 1, 1997 (the "Closing Date"), at the offices of De Brauw
Blackstone Westbroek, Atrium - 7th Floor Strawinskylaan 3115, 1077 ZX
Amsterdam, or such other place as agreed to in writing by McAfee, the
Shareholders and SHBV.
1.3 Exchange of Shares.
(a) Subject to the provisions of an escrow as provided in
Article X hereof (the "Escrow"), each share of SHBV issued and outstanding
immediately prior to the Closing, which is 40,000 shares in the aggregate,
shall be tendered to Sub and exchanged for that number of shares of McAfee
Stock that results by dividing (i) the quotient that results from dividing US$
3,750,000 by the average closing price of McAfee's common stock as quoted on
Nasdaq National Market during the twenty (20) consecutive trading days ending
at the close of market on February 21, 1997, by (ii) the total number of shares
of SHBV Stock outstanding immediately prior to the Closing Date (each an
"Exchange Share" and collectively the "Exchange Shares").
(b) No fractional shares of McAfee Stock shall be issued
in the exchange. In the event the Exchange would result in any Shareholder
being entitled to a fraction of a share of McAfee Stock, such fractional share
shall be rounded down to the nearest whole number.
(c) At Closing, the Exchange Shares shall be transferred
by the Shareholders to Sub upon the execution of a notarial deed of transfer of
shares before a Dutch notary in accordance with Schedule B.
1.4 Pooling of Interests. The parties intend that the
Exchange he treated as a "pooling of interests" under US Gaap.
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1.5 Currency. Unless otherwise specified, all
references in this Agreement "cash," "cent," "dollars," or "$" shall mean
United States dollars.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHBV AND SHAREHOLDERS
Each of SHBV and the Shareholders hereby, jointly and severally,
represent and warrant to McAfee and Sub that the statements contained in this
Article II are true and correct, except as set forth in the Disclosure Schedule
delivered by, and accepted by, SHBV to McAfee and Sub on or before the date of
this Agreement (The "SHBV Disclosure Schedule"). Unless otherwise indicated,
the term "SHBV", as used in this Agreement, shall also include McAfee
Nederland B.V. ("McAfee Nederland") and Go Tech Europe B.V. ("Go Tech Europe").
2.1 Organization of SHBV
(a) SHBV is a corporation duly organized, validly existing and in
good standing under the laws of the Netherlands, has all requisite corporate
power to own, lease and operate its property and to carry on its business as
now being conducted, and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the failure to
be so qualified would have a material adverse effect on the business, assets
(including intangible assets), financial condition or results of operations (a
"Material Adverse Effect") of SHBV.
(b) SHBV does not directly or indirectly own any equity or similar
interest in, or any interest convertible into or exchangeable or exercisable
for an equity or similar interest in, any corporation, partnership, joint
venture or other business association or entity, except for McAfee Nederland
and Go Tech Europe, which are wholly-owned subsidiaries of SHBV.
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2.2 Capitalization.
(a) The authorized capital stock of SHBV consists of
200,000 shares of each one Dutch guilder. As of the date hereof, (i) 40,000
shares of SHBV are issued and outstanding and are held by the Shareholders, and
(ii) no shares of SHBV were held in the treasury of SHBV.
(b) All of the outstanding shares of SHBV have been duly
authorized and are validly issued, fully paid and non-assessable. The
Shareholders own all of the outstanding shares of SHBV, free and clear of any
liens, claims, encumbrances or proprietary interests of any third party. There
are no obligations, contingent or otherwise, of SHBV to repurchase, redeem or
otherwise acquire any shares of SHBV, or make any investment (in the form of a
loan, capital contribution or otherwise) in any other entity.
(c) Except as set forth in this Section 2.2, there are no
equity securities of any class of SHBV, or any security exchangeable into or
exercisable for such equity securities, issued, reserved for issuance or
outstanding. There are no options, warrants, equity securities, calls, rights,
commitments or agreements of any character to which SHBV or any shareholder is
a party or by which any of them is bound obligating SHBV to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock of SHBV or obligating SHBV to grant, extend, accelerate the vesting of or
enter into any such option, warrant, equity security, call, right, commitment
or agreement. There are no voting trusts or other agreements or understandings
to which SHBV or any shareholder is a party with respect to the voting of the
SHBV stock.
(d) All of the shares of McAfee Nederland, which is
40,000 shares of each one Dutch guilder, are owned by SHBV, free and clear of
any liens, claims, encumbrances or proprietary interest of any third party.
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(e) All of the shares of Go Tech Europe, which are 40,000
shares of each one Dutch guilder, are owned by SHBV, free and clear of any
liens, claims encumbrances or proprietary interest of any third party.
2.3 Authority; No Conflict; Required Filings and Consents.
(a) SHBV and the Shareholders have all requisite power,
corporate or otherwise, and authority to enter into this Agreement and the
other Transaction Documents to which they are a party and to carry out their
respective obligations and consummate the transactions contemplated hereunder
and thereunder. "Transaction Documents" shall mean this Agreement, the
Registration Rights Agreement, the Employment Agreement, the Escrow Agreement,
the Non-competition Agreement, the Affiliates Agreements (as defined herein)
and such other documents, agreements or instruments contemplated hereunder or
thereunder. The execution and delivery of this Agreement and the other
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action, corporate
or otherwise, on the part of SHBV and the Shareholders. This Agreement has
been duly executed and delivered by SHBV and the Shareholders and constitutes
the valid and binding obligation of SHBV and the Shareholders, enforceable
against each of them in accordance with its terms. The other Transaction
Documents, when duly executed and delivered by SHBV and the Shareholders, will
constitute valid and binding obligations of SHBV and the Shareholders,
enforceable in accordance with their respective terms.
(b) the execution and delivery of this Agreement and the
other Transaction Documents by SHBV and the Shareholders do not, and the
consummation of the transactions contemplated by this Agreement and the other
Transaction Documents will not, (i) conflict with, or result in any violation
or breach of any provision of the Articles of Association of SHBV and McAfee
Nederland, (ii) result in any violation or breach of, or constitute (with or
without notice or lapse of time, or both) a default (or give rise to a right of
termination, cancellation or
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acceleration of any obligation or loss of any benefit) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease,
contract or other agreement, instrument or obligation to which SHBV is a party
or by which any of its properties or assets may be bound, or (iii) conflict
with or violate any permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to SHBV or any
of its properties or assets, except in the case of (ii) and (iii) for any such
breaches, conflicts, violations, defaults, terminations, cancellations,
accelerations or losses of benefits which would not have a Material Adverse
Effect on SHBV. No consent of any person who is a party to a contract to which
SHBV is a party is required to be obtained on the part of SHBV to permit the
transactions contemplated herein, except where the failure to obtain such
consent would not have a Material Adverse Effect on SHBV.
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality ("Governmental
Entity") is required by or with respect to SHBV in connection with the
execution and delivery of this Agreement, the other Transactional Documents, or
the consummation of the transactions contemplated hereby, except for consents,
authorizations, filings, approvals and registrations which, if not obtained or
made, would not have a Material Adverse Effect on SHBV.
2.4 SHBV Financial Statements. SHBV has delivered to
McAfee, SHBV's consolidated balance sheet as of December 31, 1996 and
consolidated statement of operations and statement of shareholders' equity for
the twelve months ended December 31, 1996 together with the consolidated
unaudited balance sheet as of January 31, 1997 and consolidated statement of
operations for the one-month period then ended (collectively, the "SHBV
Financial Statements"). The SHBV Financial Statements, as put together by KPMG
Accountants NV in accordance with the "Samenstellingsverklaring", agree with
SHBV's books and records, have been prepared in accordance with Dutch generally
accepted accounting
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principles ("Dutch Gaap") consistently applied and fairly present in all
respects the financial position of SHBV as of their respective dates and the
results of SHBV's operations for the periods then ended, subject to normal
year-end adjustments and except that the unaudited statements may not contain
the notes required by Dutch Gaap. Except as stated in the SHBV Financial
Statements, SHBV is not a guarantor or indemnitor of any indebtedness of any
person, firm or corporation.
2.5 No Undisclosed Liabilities. SHBV does not have any
liabilities, either accrued or contingent (whether or not required to be
reflected in the SHBV Financial Statements in accordance with Dutch Gaap), and
whether due or to become due, which individually or in the aggregate, would be
reasonably likely to have a Material Adverse Effect on SHBV, other than (i)
liabilities reflected in the SHBV Financial Statements, (ii) liabilities
specifically described in this Agreement or the SHBV Disclosure Schedule, and
(iii) normal or recurring liabilities incurred since the date of the SHBV
Financial Statements in the ordinary course of business consistent with past
practices and are not material to SHBV.
2.6 Accounts Receivable. The accounts receivable shown
on the latest interim balance sheet contained in the SHBV Financial Statements
arose in the ordinary course of business and have been collected or are
collectible in the book amounts thereof, less an amount not in excess of the
allowance for doubtful accounts and returns provided for in such balance sheet.
Allowances for doubtful accounts and returns are adequate and have been
prepared in accordance with the past practices of SHBV. The accounts
receivable of SHBV arising after the date of the SHBV Financial Statements and
prior to the Closing arose in the ordinary course of business and have been
collected or are collectible in the book amounts thereof, less allowances for
doubtful accounts and warranty returns determined in accordance with the past
practices of SHBV. None of the accounts receivable are subject to any material
claim of offset or recoupment, or counterclaim and SHBV has no knowledge of any
specific facts that would be reasonably likely to give rise to any such claim.
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No material amount of receivables are contingent upon the performance by SHBV
of any obligation and no agreement for deduction or discount has been made with
respect to any accounts receivable.
2.7 Absence of Certain Changes or Events. Since January
31, 1997, SHBV has conducted its business in the ordinary course and in a
manner consistent with past practices and, since such date, SHBV has not, had
or incurred any of the following (a "Material Adverse Change"):
(a) suffered any material adverse change in its
financial condition, its results of operations or its business, or any material
adverse changes in its unaudited balance sheet at January 31, 1997 (analysed as
if prepared according to Dutch Gaap), including but not limited to cash
distributions or material decreases in the net assets of SHBV;
(b) suffered any damage, destruction, loss, or
change whether covered by insurance or not, that could reasonably be expected
to have a Material Adverse Effect on SHBV;
(c) granted or agreed to make any material
increase in the compensation payable or to become payable by SHBV to its
officers or employees:
(d) declared, set aside or paid any dividend or
made any other distribution on or in respect of the shares of the capital stock
of SHBV or declared any direct or indirect redemption, retirement, purchase or
other acquisition by SHBV of such shares;
(e) issued any shares of capital stock of SHBV or
any warrants, rights, options or entered into any commitment relating to the
shares of SHBV or altered any outstanding security;
(f) made any change in the accounting methods or
practices it follows, whether for general financial or tax purposes, or any
change in depreciation or amortization policies or rates adopted therein;
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(g) sold, leased, abandoned or otherwise disposed
of any real property or any material amounts of machinery, equipment or other
operating property other than in the ordinary course of business;
(h) sold, assigned, transferred, licensed or
otherwise disposed of any patent, trademark, trade name, brand name, copyright
(or pending application for any patent, trademark or copyright), invention,
proprietary rights, software, work of authorship, process, know-how, formula or
trade secret or interest thereunder or other material intangible asset except
in the ordinary course of its business;
(i) suffered any labour dispute or charge for
unfair labour practice;
(j) entered into any material commitment or
transaction (including without limitation any borrowing or capital expenditure)
other than in the ordinary course of business;
(k) permitted or allowed any of its property or
assets to be Subjected to any mortgage, deed of trust, pledge, lien, security
interest or other encumbrance of any kind;
(l) made any capital expenditure or commitment
for additions to property, plant or equipment individually in excess of
$10,000, or in the aggregate, in excess of $25.000;
(m) paid, loaned or advanced any amount to, or
sold, transferred or leased any properties or assets to, or entered into any
Agreement or arrangement with any of its affiliates, officers, directors or
stockholders or any Affiliate of any of the foregoing;
(n) made any amendment to or terminated any
material agreement;
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(o) agreed to take any action described in this
Section 2.7 or which would constitute a breach of any of the representations
contained in this Agreement;
(p) any amendments or changes in its charter
documents; or
(q) except as disclosed in the SHBV Disclosure
Schedule, taken any other action that would have required the consent of
McAfee pursuant to Section 5.1 (a) through (o) of this Agreement (and which
has not been obtained) had such action occurred after the date of this
Agreement and that would be reasonably likely to have a Material Adverse
Effect on SHBV.
2.8 Taxes.
(a) Definitions.
(i) The term "Taxes and Social Security Contributions" as
used in this paragraph 2.8 is defined as all taxes and contributions including
but not limited to corporate income tax ("vennootschapsbelasting") including
disinvestment payments WIR ("WIR desinvesteringsbetalingen"), wage withholding
tax ("loonbelasting") , social security contributions both national
contributions ("volksverzekeringen") and employee social security contributions
("werknemersverzekeringen"), value added tax ("omzetbelasting"), customs and
excise duties ("invoerrechten en accijnzen"), capital tax
("kapitaalsbelasting") and other legal transaction taxes ("belastingen van
rechtsverkeer"), dividend withholding tax ("dividendbelasting"), municipal
real estate taxes ("gemeentelijke onroerend goedbelasting"), other municipal
taxes and duties ("overige gemeentelijke belastingen en leges") and
environmental taxes and duties ("milieuheffingen"), including any interest
("heffings- en invorderingsrente") and penalties ("verhogingen en boetes")
relating thereto, due, payable, levied, imposed upon or claimed to be owed in
The Netherlands and in the Relevant Jurisdictions.
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(ii) The Term "Relevant Jurisdictions" as used in this
paragraph 2.8 is defined as all countries and states in which the Company
conducts its business, owns or uses properties and assets, in any case this
term includes the Netherlands.
(iii) The term "Company" as used in this paragraph 2.8 is
defined as (both collectively and separately) Schuijers Holding B.V., Go Tech
Europe B.V. and McAfee Nederland B.V., which companies form a fiscal unity
for Netherlands corporate income tax.
(b) Financial Accounts. The financial accounts of the
Company fully and correctly reflect the amounts materially payable by the
Company on account of Taxes and Social Security Contributions. In the
financial accounts full and complete reserves have been provided for any
contingent or deferred liability on account of Taxes and Social Security
Contributions ("latente belastingen").
(c) Filing Requirements. The Company has filed all Tax
and Social Security Contributions returns which should have been filed. If
extension of filing of tax returns has been obtained relating to tax periods
which have ended before the Closing date, the costs relating to the
preparation and filing of these returns will be for the account of the
Shareholders. No final reminders for the filing of returns have been received
with respect to tax periods for which no final assessment has been received
on or before the Closing Date.
(d) Taxes and Social Security Contributions Paid. The
Company has paid all Taxes and Social Security Contributions materially due
at the Closing date. If Taxes and/or Social Security Contributions are
materially due but not yet paid, a provision has been taken up in the balance
sheet as at the latest interim balance sheet contained in the SHBV Financial
Statements. For the purpose of this provision "material" shall mean that any
unpaid Taxes and Social Security Contributions shall not exceed US$10,000.
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(e) Tax Exempt Transactions. The company has never
claimed exemptions from, or reductions of Taxes or Social Security
Contributions to which it was not entitled. No tax free reorganisations
either for corporate income tax purposes or for capital tax purposes have
been granted or claimed during the current financial year and the five
preceding years.
(f) Tainted Capital. The Company has no capital that is
tainted by reason of article 44 Personal Income Tax Act or article 3 para 2
of the Dividend Withholding Tax Act ("fusie-agio").
(q) Special Tax Regime. The Company is not subject to
any special regime regarding Taxes or Social Security Contributions.
(h) Disputes, Investigations, Audits, Objections and
Appeals. No disputes exists or are to the best knowledge and belief of the
Shareholders expected with the Tax of Social Security Contribution
authorities regarding the Tax and Social Security Contributions position of
the Company or any of its properties, assets or income or regarding the Tax
and Social Security Contribution returns filed by the Company.
No audits or investigations by the Tax or Social Security Contribution
authorities are presently being made or are to the best knowledge and belief of
the Shareholders expected regarding the Tax and Social Security Contributions
position of the Company or any of its properties, assets or income or regarding
the Tax and Social Security Contribution returns filed by the Company.
To the best knowledge and belief of the Shareholders, no requests for exchange
of information are pending regarding Taxes and Social Security Contributions
relating to the Company or the Company's business relations.
No objection ("bezwaar") or appeal ("beroep" or "cassatie") is presently
pending or will to the best knowledge and belief of the Shareholders
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be filed or may have to be filed with the Tax or Social Security authorities or
the competent Court or Courts.
(i) No Prior Neglect in Payment of Taxes/No Fines. The
Company has always duly and timely paid Taxes and Social Security
Contributions.
Fines for late filing or late payment of Taxes and Social Security
Contributions have never been imposed on the Company.
(j) No Criminal Investigations/Fraud. The Company or, to
the best knowledge of the Shareholders, one or more of the Company's managing
directors ("bestuurders")' in their position as managing director, has never
been the subject of a criminal investigation relating to or involving Taxes or
Social Security Contributions.
The Company or one or more of the Company's managing directors ("bestuurders")
in their position as managing director, never has been accused or found guilty
of fraud relating to or involving Taxes or Social Security Contributions.
(k) No Collection Procedures. No collection procedures
have been initiated against the Company or any of its properties, assets or
income for account of any Taxes or Social Security Contributions. The Company
has not received any reminders ("aanmaningen") or warrants ("dwangbevelen")
relating to the payment of Taxes or Social Security Contributions.
(l) No Chain Liability/No Liability for Taxes of Third
Parties. The Company has not acted as a managing director ("bestuurder") of any
entity in the sense of the General Tax Act ("lichaam in de zin van de Algemene
Wet inzake rijksbelastingen").
The Company has not and to the best knowledge and belief of the Shareholders,
will not be considered to form a permanent establishment or be considered to be
a permanent representative of any other company,
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association or organisation. The Company has not and to the best knowledge and
belief of the Shareholders, will not be considered the leader of a permanent
establishment of any other company, association or organisation. The Company
has not and to the best knowledge and belief of the Shareholders, will not be
considered the leader of a permanent establishment of any other company,
association or organisation ("leider van een vaste inrichting").
The Company has never acted as the liquidator ("vereffenaar") of any entity in
the sense of the General Tax Act ("lichaam in de zin van de Algemene Wet inzake
rijksbelastingen").
The Company has never been involved in the transfer of the place of actual
management and control of any entity that is subject to Netherlands corporate
income tax.
The Company has never acted as an executor of a will (executeurtestamentair").
The Company has never acted as an insurer as mentioned in article 11b, section
1 of the Wage Withholding Tax Act of 1964.
The Company has never acted as an insurer as mentioned in article 45, section 5
of the Income Tax Act of 1964 on behalf of an individual.
The Shareholders confirm that, to the best of their knowledge, all payments,
being gross payments, made by SHBV to Amitges Beheer B.V. until the Closing
Date with respect to management fees and management bonuses as agreed between
the Shareholders, SHBV and Amitges Beheer B.V. are not subject to withholding
by SHBV of wagetax and/or social security contributions.
(m) Sufficient Tax Records and Accounts. The Company has
sufficient records and accounts as required by the tax laws of The Netherlands
and of the Relevant Jurisdictions. The authorities competent
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for Tax and Social Security Contributions have never rejected the records and
accounts of the Company as basis for the computation of liability to Taxes and
Social Security Contributions.
The Company's records and accounts allow the determination of non deductible or
partly deductible costs in the sense of the "Oort" legislation.
(n) Full Disclosure. The Shareholders have disclosed
fully and completely all facts, circumstances and have submitted to McAfee and
Sub all documents which to their best knowledge and belief influence or may
influence the position of the Company regarding Taxes and Social Security
Contributions, including but not limited to any agreement, ruling, or
compromise with any Tax Authority or Social Security Authority. The Company
does not have the intention to conclude up to the Closing date with any Tax
Authority or Social Security Authority any agreement, ruling or compromise.
2.9 Intellectual Property.
(a) SHBV owns, is licensed or otherwise possesses
legally enforceable rights to use, all patents, trademarks, trade names,
service marks, copyrights, and any applications for such patents, trademarks,
trade names, service marks and copyrights, processes, formulae, methods,
schematics, technology, know-how, computer software programs or applications
and tangible or intangible proprietary information or material (excluding
Commercial Software as defined below) that are necessary to (i) conduct the
business of SHBV as currently conducted and as proposed to be conducted, (ii)
or to distribute new products or versions of existing products planned for
distribution (including without limitation all distribution rights), free and
clear of all liens, claims or encumbrances (all of which are referred to as the
"SHBV Intellectual Property Rights"). The Licensed Intellectual Property, as
defined below, grants SHBV such rights as are employed in or necessary to the
business of SHBV as conducted and as proposed to be conducted and are valid and
enforceable and in
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full force and effect. The SHBV Disclosure Schedule contains an accurate and
complete list of (i) all patents and patent applications and all registered
trademarks, registered copyrights, registered trade names and service marks
used by SHBV in its business as conducted and as proposed to be conducted,
including the jurisdictions in which each such item has been issued or
registered or in which any such application for such issuance and registration
has been filed, (ii) all licenses, sublicenses and other agreements pursuant to
which any person is authorized to use any SHBV Intellectual Property Rights,
and (iii) all licenses, sublicenses and other agreements as to which SHBV is a
party and pursuant to which SHBV is authorized to use any third party
technology, trade secret, know-how, process, patents, trademarks or copyrights,
including software ("Licensed Intellectual Property").
(b) SHBV is not, nor will it be as a result of
the execution and delivery of this Agreement or the performance of its
obligations under this Agreement, in breach of any license, sublicense or
other Agreement relating to the SHBV Intellectual Property Rights or any
Licensed Intellectual Property.
(c) all patents, registered trademarks, service
marks and copyrights claimed by or issued to SHBV or which relate to SHBV
Products are valid and subsisting. SHBV (i) has not received notice that it
has been sued in any suit, action or proceeding which involves a claim of
infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other proprietary right of any third party;
(ii) has no knowledge that the manufacturing, marketing, licensing, sale or
other exploitation of SHBV Products infringes any patent, trademark, service
▇▇▇▇, copyright, trade secret or other proprietary right of any third party;
and (iii) has no knowledge of any claim challenging or questioning the
validity or effectiveness of any of its licenses or agreements relating
thereto or to any SHBV Intellectual Property Right. There is no valid basis
for any claim of the type specified in the immediately preceding sentence
which would be reasonably likely in any material way to relate to or
interfere with
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the continued enhancement and exploitation by SHBV of any of the SHBV Products.
None of the SHBV Products nor the use or exploitation of any patents,
trademarks, trade names, copyrights, software, technology, know-how or
processes by SHBV in its current business infringes on the rights of, or
constitutes misappropriation of, any proprietary information or intangible
property right of any third person or entity, including without limitation any
patent, trade secret, copyright, trademark or trade name.
(d) SHBV has not granted any third party any right to manufacture
or reproduce any product of SHBV or any adaptations, translations, or
derivative works based on any product of SHBV or any portion thereof. Except
with respect to the rights of third parties to the Licensed Intellectual
Property, no third party has any right to manufacture, reproduce, distribute,
market or exploit any works or materials of which any products of SHBV are a
"derivative work" as that term is defined in the United States Copyright Act,
Title 17. U.S.C. Section 101.
(e) no employee of SHBV is in violation of any term of any
employment contract, patent disclosure agreement or any other contract or
agreement relating to the relationship of any such employee with SHBV or, to
SHBV's knowledge, any other party because of the nature of the business
conducted by SHBV or proposed to be conducted by SHBV.
(f) each person presently or previously employed by SHBV
(including independent contractors, if any) with access to confidential
information is bound to the confidentiality and non-disclosure clause 8.4 of
the Labour Condition Regulations of SHBV dated September 1, 1996
(Arbeidsvoorwaardenreglement). Such confidentiality and non-disclosure clause
of such Labour Conditions Regulations constitute valid and binding obligations
of SHBV and such person, enforceable in accordance with their respective terms.
Neither performing or the requirements of such clause, nor the carrying on of
SHBV's business as employees by such persons, nor the conduct of SHBV's
business as currently anticipated,
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23
will conflict with or result in a breach of the terms, conditions or provisions
of or constitute a default under any contract, covenant or instrument under
which any of such persons is obligated.
(g) No product liability or warranty claims which individually or
in the aggregate which could reasonably be expected to exceed US$25,000 have
been communicated to or to SHBV's knowledge, threatened against SHBV nor, to
SHBV's knowledge, is there any specific situation, set of facts or occurrence
that provides a valid basis for such claim.
(h) "Commercial Software" means packaged commercially available
software programs generally available in a shrink-wrap format through retail
channels which have been licensed to SHBV pursuant to end-user licenses and
which are used internally in SHBV's business but are in no way a component of
or incorporated in or specifically required to develop or support any product
of SHBV.
2.10 Agreements. Contracts and Commitments. Section 2.10 of the
SHBV Disclosure Schedule sets forth a list of any of the following written or
oral contracts, understandings, agreements, proposed transactions, and other
instruments (collectively, "Major Contracts"), copies of each of which written
contracts, agreements or instruments have been delivered to McAfee's counsel:
(a) licenses of any patent, copyright, trade secret or
other proprietary right by SHBV;
(b) continuing contracts for the future purchase, sale or
manufacture of products, material, supplies, equipment or services requiring
payment to or from SHBV in an amount in excess of $25,000 per annum:
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(c) contracts providing for the development of software
for, or license of software to, SHBV, or other Intellectual Property Rights
used or incorporated in one or more of the Company's products;
(d) joint venture contracts or other agreements which
have involved or is reasonably expected to involve a sharing of profits or
losses in excess of $25,000 per annum with any other party;
(e) indentures, mortgages, promissory notes, loan
agreements, guarantees or other agreements or commitments for the borrowing of
money, for a line of credit or for a leasing transaction of a type required to
be capitalized;
(f) leases or other agreements under which SHBV is lessee
of or holds or operates any items of tangible personal property or real
property owned by any third party and under which payments to such third party
exceed $25,000 per annum;
(g) all agreements or arrangements for the sale,
distribution, or transfer of any assets, properties or rights;
(h) agreements which restrict SHBV from engaging in any
aspect of its business or competing in any line of business in any geographic
area or in any functional area or that requires SHBV to distribute or use
exclusively a third party technology or product;
(i) sales contracts, commitments or proposals (including,
without limitation, porting and development projects) of SHBV in excess of
US$25,000 or not in conformity with the standard McAfee license agreement;
(j) written dealer, distributor, sales representative,
original equipment manufacturer, value added remarketeer or other agreements
for the ongoing distribution of SHBV products;
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(k) contracts or commitments for the employment of any
officer, employee or consultant or any other type of contract or understanding
with any officer, employee or consultant which is not immediately terminable
without cost or other liability (except for limitations on such termination
rights as exist under applicable laws);
(l) any other loan or credit agreements, notes, bonds,
mortgages, indentures, leases or other material agreements which are not
otherwise disclosed elsewhere in the SHBV Disclosure Schedule, the breach or
termination of which would have a Material Adverse Effect on SHBV;
(m) any agreements relating to SHBV Intellectual Property
Rights or other material agreements relating to SHBV Products; and
(n) obligations or understandings which are material to
the financial position of SHBV with respect to the return to SHBV of inventory
or merchandise in the possession of wholesalers, distributors, retailers, or
other customers.
All contracts, agreements and instruments listed or described pursuant
to this Section 2.10 are valid, binding, in full force and effect,and
enforceable by SHBV in accordance with their respective terms except that such
enforceability may be subject to (i) bankruptcy, insolvency, reorganization or
other similar laws affecting or relating to enforcement of creditors' rights
generally and (ii) general equitable principles. To SHBV's and the
Shareholders' knowledge, no party to any Major Contract intends to cancel,
modify or amend such contract, agreement or arrangement, and neither SHBV or
any party to a Major Contract is in breach of such contract, agreement or
arrangement and no party to any major contract will terminate such contract,
Agreement or arrangement as a result of the Exchange.
All sales contracts, commitments or proposals (including, without
limitation, porting and development project of SHBV under
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US$25,000 and/or in conformity with the standard McAfee licence agreement are
valid, binding, in full force and effect, and enforceable by SHBV in accordance
with their respective terms except that such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws affecting or
relating to enforcement of creditors' rights generally and (ii) general
equitable principles. To SHBV's and the Shareholders' knowledge, no party to
any Major Contract intends to cancel, modify or amend such contract, agreement
or arrangement, and neither SHBV or any party to a Major Contract is in breach
of such contract, agreement or arrangement and no party to any Major Contract
will terminate such contract, agreement or arrangement as a result of the
Exchange.
2.11 Labour Difficulties: No Discrimination.
(a) SHBV is not in material violation of any
applicable laws respecting employment and employment practices, terms and
conditions of employment, and wages and hours.
(b) There is no unfair labour practice complaint
against SHBV actually pending or to SHBV's knowledge, threatened.
(c) There is no strike, labour dispute, slowdown,
or stoppage actually pending or, to SHBV's knowledge, threatened against SHBV.
(d) There have been no union representation
claims made to SHBV with respect to the employees of SHBV, and to SHBVI's
knowledge, no union organizing activities are taking place.
(e) SHBV has not experienced any material work
stoppage or other material labour difficulty.
(f) There has been no claim against SHBV based on
actual or alleged race, age, sex, disability or other harassment or
discrimination,
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or similar tortious conduct, nor, to SHBV's knowledge, is there any valid basis
for any such claim.
2.12 Trade Regulation. SHBV has not within the past three years
terminated its relationship with or refused to ship products to any dealer,
distributor, OEM, third party marketing entity or customer which had
theretofore paid or been obligated to pay SHBV in excess of Ten Thousand
dollars ($10,000) over any consecutive twelve (12) month period. All of the
prices charged by SHBV in connection with the marketing or sale of any products
or services have been in compliance with all applicable laws and regulations.
No claims have been communicated or threatened against SHBV with respect to
wrongful termination of any dealer, manufacturer, distributor or any other
marketing entity, discriminatory pricing, price fixing, unfair competition,
false advertising, or any other material violation of any laws or regulations
relating to anti-competitive practices or unfair trade practices of any kind,
and, to SHBV's knowledge, no specific situation, set of facts, or occurrence
provides any valid basis for any such claim.
2.13 Litigation. There is no action, suit or proceeding, claim,
arbitration or investigation against SHBV pending or threatened, nor is there
any judgment, decree, injunction, rule or order of any governmental entity or
arbitrator outstanding against SHBV.
2.14 Employee Benefit Plans. SHBV is not a party to any oral or
written (i) union or collective bargaining Agreement, (ii) agreement with any
officer or other key employee of SHBV, the benefits of which are contingent, or
the terms of which are materially altered, upon the occurrence of a transaction
involving SHBV of the nature contemplated by this Agreement, (iii) agreement
with any officer of SHBV providing any term of employment or compensation
guarantee extending for a period longer than six months from the date hereof or
for the payment of compensation in excess of $50,000 per annum, or (iv)
agreement or plan, including any stock option plan, stock appreciation right
plan, restricted stock plan or stock purchase plan, any of the benefits of
which will
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be increased, or the vesting of the benefits of which will be accelerated, by
the occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Agreement. There is no unfunded prior
service cost with respect to any bonus, deferred compensation, pension,
profit-sharing, retirement, stock purchase, stock option, or other employee
benefit or fringe benefit plans, whether formal or informal, maintained by
SHBV. SHBV has no bonus, deferred compensation, pension, profit-sharing,
retirement, stock purchase, stock option, or other employee benefit or fringe
benefit plans, whether formal or informal.
2.15 Compliance with Laws. SHBV has complied with, is not in
violation of, and has not received any notices of violation with respect to,
any federal, state or local statute, law or regulation or applicable laws and
regulations of foreign governments with respect to the conduct of its business,
or the ownership or operation of its business, except for failures to comply or
violations which would not be reasonably likely to have a Material Adverse
Effect on SHBV.
2.16 Governmental Authorizations and Regulations. All licenses,
franchises, permits and other governmental authorizations held by SHBV are
valid and sufficient for the business presently carried on by SHBV.
2.17 Corporate Documents. SHBV has furnished to McAfee, or its
representatives, for its examination: (i) its minute books containing all
records of all proceedings, consents, actions, and meetings of the
stockholders, the board of directors and any committees thereof and (ii) all
permits, orders, and consents issued by any regulatory agency with respect to
SHBV, or any securities of SHBV, and all applications for such permits, orders,
and consents. The corporate minute books and other corporate records of SHBV
are complete and accurate in all material respects, and the signatures
appearing on all documents contained therein are the true signatures of the
persons purporting to have signed the same. All actions reflected in such
books and records were duly and
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validly taken in material compliance with the laws of the applicable
jurisdiction.
2.18 No Misrepresentation. No representation or warranty by SHBV
in this Agreement, any other Transaction Document, nor any certificate or
schedule furnished or to be furnished by or on behalf of SHBV pursuant to this
Agreement, when taken together with the foregoing, contains or shall contain
any untrue statement of material fact or omits or shall omit to state a
material fact required to be stated therein or necessary in order to make such
statements, in light of the circumstances under which they were made, not
misleading. SHBV has delivered true and complete copies of all documents
requested by McAfee and which are referred to in this Article II or in any
Schedule delivered by SHBV to McAfee. SHBV and the Shareholders make and have
made no representations or warranties to McAfee other than those specifically
expressed in this Article II. SHBV and the Shareholders make and have made no
representations and warranties as to the accuracy or completeness of any
information, whether in written, oral, magnetic or other form, that has been
disclosed to or made available to McAfee, other than the representations or
warranties specifically expressed in this Article II.
2.19 Restrictions on Business Activities. There is no judgment,
injunction, order or decree binding on SHBV which has or reasonably would be
expected to have the effect of prohibiting or materially impairing any current
business practice of SHBV, or any acquisition of material property by SHBV.
2.20 No Brokers. SHBV has not and will not incur any brokerage,
finder's, financial advisory, investment banking or similar fee in connection
with the transactions contemplated by this Agreement.
2.21 Insurance. SHBV maintains and has maintained fire and
casualty, general liability, business interruption, product liability and
sprinkler and water damage insurance in amounts and scope typically maintained
by similarly situated businesses. Section 2.21 of the SHBV
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Disclosure Schedule contains a list of all such insurance policies presently in
effect, and correct and complete copies of all such policies along with a
history of claims made under such policies have been provided to McAfee or
McAfee's counsel. The insurance policies listed in section 2.21 of the SHBV
Disclosure Schedule provide coverage for such risks on such conditions and in
such manner as is deemed adequate in the branch to which SHBV belongs, and the
premiums for such insurances have been paid for the period up to and including
the Closing Date.
2.22 Interested Party Transactions. No officer, director, employee
or consultant of SHBV nor any member of such person's immediate family
currently has or has had, either directly or indirectly, a material interest
in: (i) any person or entity which purchases from or sells, licenses or
furnishes to SHBV any goods, property, technology or intellectual or other
property rights or services; or (ii) any contractor Agreement to which SHBV is
a party or by which it may be bound or affected.
2.23 Pooling Matters. Neither SHBV nor any of its affiliates has,
and based upon consultation with its independent auditors, taken or agreed to
take any action that (without giving effect to this Agreement, the transactions
contemplated hereby or actions related thereto, or action taken or agreed to be
taken by McAfee or any of its affiliates) would adversely affect the ability
of McAfee to account for the business combination to be effected by the
Exchange as a "pooling of interests" under US Gaap.
2.24 Books and Records. The books, records and accounts of SHBV
(a) have been maintained at SHBV's principal place of business in accordance
with good business practices on a basis consistent with prior years, (b) are
stated in reasonable detail and accurately and fairly reflect the transactions
and dispositions of the assets of SHBV, and (c) accurately and fairly reflect
the basis for the SHBV Financial Statements. SHBV has devised and maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (a) transactions
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are executed in accordance with management's general or specific authorization,
and (b) transactions are recorded as necessary (i) to permit preparation of SHBV
Financial Statements in conformity with Dutch Gaap, US Gaap or any other
criteria applicable to such statements and (ii) to maintain accountability for
asset.
2.25 Government Contracts. All representations, certifications and
disclosures made by SHBV to any Government Contract Party (as defined below)
have been in all material respects current, complete and accurate at the times
they were made. SHBV has no knowledge of, and has no reason to know of, any
acts, omissions or noncompliance with regard to any applicable public
contracting statute, regulation or contract requirement (whether express or
incorporated by reference) relating to any of SHBV's contracts with any
Government Contract Party (as defined below) in either case that have led to or
could lead to, either before or after the Closing Date, (a) any claim or
dispute involving SHBV and/or McAfee as successor in interest to SHBV and any
Government Contract Party, or (b) any suspension, debarment or contract
termination, or proceeding related thereto. SHBV has no knowledge of, and has
no reason to know of, any act or omission that relates to the marketing,
licensing or selling to any Government Contract Party of any of SHBV technical
data and computer software and that has led to or could lead to, either before
or after the closing date, any Material Adverse Effect on any of SHBV's rights
in and to its technical data and computer software. Except for (i) Dutch or
provincial government incentives for certain nonmaterial employees, and (11)
research tax credits, all of SHBV's development of technical data and computer
software was developed exclusively at private expense. For purposes of this
Agreement, the term "Government Contract Party" means any independent or
executive agency, division, subdivision, audit group or procuring office of
Dutch federal or provincial, or United States federal government, including any
prime contractor of either such federal government and any higher level
subcontractor of a prime contractor of either such federal government, and
including any employees or agents thereof, in each case acting in such
capacity.
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2.26 Severance Arrangements. Except as required by applicable law,
SHBV has not entered into any severance or similar arrangement in respect of
any employees that provides for any obligation (absolute or contingent) of SHBV
or any other person to make any payment to any such employee following
termination of employment.
2.27 Banking Relationships. The SHBV Disclosure Schedule sets
forth a complete and accurate description of all arrangements that SHBV has
with any banks, savings and loan associations or other financial institutions
providing for checking accounts, safe deposit boxes, borrowing arrangements,
and certificates of deposit or otherwise, indicating in each case account
numbers, if applicable, and the person or persons authorized to act or sign on
behalf of SHBV in respect of any of the foregoing.
2.28 Distribution Agreements. Section 2.28 of the SHBV Disclosure
Schedule lists any and all distribution contracts, agreements or arrangements
to which SHBV is a party and those parties for which SHBV distributes products.
Such agreements are valid, binding and in full force and effect. SHBV is not
in breach of any such agreement nor is SHBV aware that any other party to such
Agreement is in breach. No such agreement shall be breached or terminated as a
result of the Exchange.
2.29 Activities of Go Tech Nederland B.V.
(a) All assets, rights, contracts (except for (i) the rental
agreement for office space at the Jacob van ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ up to and
including 90, office unit 10a, at 's-Hertogenbosch, between Amgro Vught B.V.
and Go Tech Nederland B.V. (formerly named Communications and Productions
United B.V.), dated October 1, 1993 (the "Rental Agreement I") and (ii)the
rental agreement for office space at the Burgermeester van ▇▇▇▇▇▇▇▇▇▇▇▇ ▇,
(▇▇▇▇▇ and second floor), at Vught, between 's-Hertogenbosch Meidoorn B.V. and
Go Tech Nederland B.V. (formerly named Communications and Productions United
B.V.), dated January 6, 1995, (the "Rental Agreement II")) and activities
related to the SHBV business
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within Go Tech Nederland B.V., a company owned by the Shareholders, have been
transferred to SHBV before Closing.
(b) The agreement dated January 1, 1995 between Go Tech Nederland
B.V. and SHBV in which it is agreed that all costs, rights and obligations in
relation to the Rental Agreement I shall be charged to SHBV, can be terminated
by SHBV with a termination notice of three months. Go Tech Nederland B.V.
shall not be entitled to any damages, cost or expenses in relation to such
termination.
(c) The agreement dated January 1,1995 between Go Tech Nederland
B.V. and SHBV in which it is agreed that all costs, rights and obligations in
relation to the Rental Agreement II shall be charged to SHBV, can be terminated
by SHBV with a termination notice of three months. Go Tech Nederland B.V.
shall not be entitled to any damages, cost or expenses in relation to such
termination.
(d) All agreements between SHBV and Go Tech Nederland B.V. in
which it is agreed that Go Tech Nederland B.V. will charge SHBV for costs made
in relation to its activities as value added reseller of McAfee Nederland B.V.
shall be terminated before Closing.
2.30 Assets. Section 2.30 of the SHBV Disclosure Schedule contains
a list of all assets owned by SHBV, which list is complete, accurate and not
misleading, and SHBV owns and possesses all of such assets, whether movable or
immovable, free and clear of any encumbrances and/or attachments.
2.31. Powers of Attorney. The power of attorney granted by SHBV to
Go Tech Nederland B.V. dated October 26, 1996, regarding the use of by Go Tech
Nederland B.V. of the giro account (no. 69.04.253) of SHBV has been withdrawn
before Closing. The power of attorney granted by McAfee Nederland to Go Tech
Nederland B.V. dated October 26, 1995, regarding the use by Go Tech Nederland
B.V. of the giro account (no. 68.30.922) of McAfee Nederland has been
withdrawn before Closing.
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2.32. Credit Agreement. The credit agreement entered into by SHBV,
McAfee Nederland and Go Tech Nederland B.V. as beneficiaries and ABN AMRO Bank
N.V. will be terminated before Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder hereby, jointly and severally, represents and warrants to
McAfee and Sub that:
3.1 Purchase for Own account. The Exchange Shares of McAfee to be
received in the Exchange will be acquired for investment for the Shareholders'
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and such Shareholder has no present intention
of selling, granting any participation in, or otherwise distributing the
Exchange Shares. By executing this Agreement, such Shareholder further
represents that the Shareholder does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of
the Exchange Shares.
3.2 Restricted Securities. Shareholder understands that the
Exchange Shares are characterized as "restricted securities" under the U.S.
federal securities laws inasmuch as they are being acquired in a transaction
not involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration under the
Securities Act of 1933, as amended (the "Act"), only in certain limited
circumstances. In addition, such Shareholder represents that it is familiar
with Rule 144 promulgated under the Securities Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.3 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, such Shareholder further
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35
agrees not to make any disposition of all or any portion of the Exchange Shares
unless and until:
(a) There is then in effect a registration statement
under the Securities Act governing such proposed disposition and such
disposition is made in accordance with such registration statement; or
(b) Such Shareholder shall have notified McAfee of the
proposed disposition and shall have furnished McAfee with a detailed statement
of the circumstances surrounding the proposed disposition, and if reasonably
requested by McAfee, such Shareholder shall have furnished McAfee with an
opinion of counsel, reasonably satisfactory to McAfee that such disposition
will not require registration of such shares under the Securities Act. It is
agreed that McAfee will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances.
3.4 Legends. It is understood that the certificates evidencing
the Exchange Shares may bear the following legend:
"These securities have not been registered under the Securities Act of
1933, as amended. They may not be sold offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or
unless sold pursuant to Rule 144 of such Act."
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF McAFEE AND SUB
McAfee and Sub represents and warrants to SHBV that the
statements contained in this Article IV are true and correct.
4.1 Organization and Good Standing. Each of McAfee and Sub
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, has all requisite corporate power
to own, lease and operate its property and to carry on its business as now being
conducted and as proposed to be conducted, and is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in which
the failure to be so qualified would have a Material Adverse Effect on McAfee or
Sub.
4.2 Authority: No Conflict: Required Filings and Consents.
(a) McAfee and Sub have or will have, prior to Closing,
all requisite corporate power and authority to enter into this Agreement and
the other Transaction Documents to which they are a party and to carry out
their obligations and consummate the transactions contemplated hereunder and
thereunder. The execution and delivery of this Agreement and the Transaction
Documents and the consummation of the transactions contemplated hereby and
thereby have or will have, prior to Closing, been duly authorized by all
necessary corporate action on the part of McAfee and, if applicable, Sub. This
Agreement has been duly executed and delivered by each of McAfee and Sub and
constitutes the valid and binding obligation of each of McAfee and Sub,
enforceable against it in accordance with its terms, except as limited by
applicable laws relating to bankruptcy laws or as may be limited by laws
relating to specific performance or other equitable remedies. The other
Transaction Documents, when duly executed and delivered by McAfee and, if
applicable, Sub, will constitute valid and binding obligations of McAfee and,
if applicable, Sub, enforceable in accordance with their respective terms,
except as
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37
limited by applicable laws relating to bankruptcy laws or as may be limited by
laws relating to specific performance or other equitable remedies.
(b) The execution and delivery of this Agreement and the
other Transaction Documents by McAfee and, if applicable, Sub, do not, and the
consummation of the transactions contemplated by this Agreement and the other
Transaction Documents will not, (i) conflict with, or result in any violation
or breach of any provision of the Certificate of Incorporation or Bylaws of
McAfee or Sub, (ii) result in any violation or breach of, or constitute (with
or without notice or lapse of time, or both) a default (or give rise to a right
of termination, cancellation or acceleration of any obligation or loss of any
benefit) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which McAfee or Sub is a party or by which either of them or any
of their properties or assets may be bound, or (iii) conflict with or violate
any permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to McAfee or Sub or any of their
properties or assets, except in the case of (ii) and (iii) for any such
breaches, conflicts, violations, defaults, terminations, cancellations,
accelerations or losses of benefits which would not be reasonably likely to
have a Material Adverse Effect on McAfee or Sub, taken as a whole. No consent
of any person who is a party to a contract that is material to McAfee's or
Sub's business, taken as a whole, is required to be obtained on the part of
McAfee or Sub to permit the transactions contemplated herein, except where the
failure to obtain such consent would not have a Material Adverse Effect on
McAfee or Sub, taken as a whole.
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required
by or with respect to McAfee or Sub in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby except for consents, authorizations,
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filings, approvals and registrations which, if not obtained or made, would be
reasonably likely to have a Material Adverse Effect on McAfee or Sub, taken as
a whole.
4.3. Litigation. There is no action, suit or proceeding, claim,
arbitration or investigation against McAfee pending, or to McAfee's knowledge,
threatened, which would be reasonably likely to have a Material Adverse Effect
on the ability of McAfee to consummate the transactions contemplated by this
Agreement or the other Transaction Documents.
ARTICLE V
CONDUCT OF BUSINESS
5.1 Covenants of SHBV. During the period from the date of this
Agreement and continuing until the earlier of the termination of the Agreement
or the Closing, SHBV agrees (except to the extent that McAfee shall otherwise
consent in writing), to carry on its business in the usual, regular and
ordinary course in substantially the same manner as previously conducted, to
pay its debts and taxes when due, Subject to good faith disputes over such
debts or taxes, to pay or perform other obligations when due, subject to good
faith disputes over such obligations, and, to the extent consistent with such
business, use all reasonable efforts consistent with past practices and
policies to preserve intact its present business organization, keep available
the services of its present officers and key employees and preserve its
relationships with customers, suppliers, distributors, licensors, licensees,
and others having business dealings with it, to the end that its goodwill and
ongoing businesses shall not be impaired in any material respect at the
Closing. SHBV shall promptly notify McAfee of any event or occurrence not in
the ordinary course of business of SHBV. Except as expressly contemplated by
this Agreement, SHBV shall not, without the prior written consent of McAfee:
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(a) Transfer or license to any person or entity or
otherwise extend, amend or modify any rights to the SHBV Intellectual Property
Rights other than in the ordinary course of business consistent with past
practices;
(b) Enter into or amend any agreement which grants
distribution rights to SHBV;
(c) Declare or pay any dividends on or make any other
distributions (whether in cash, stock or property) in respect of any of its
capital stock, or split, combine or reclassify any of its capital stock or
issue or authorize the issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock, or purchase or otherwise
acquire, directly or indirectly, any shares of its capital stock;
(d) Issue, deliver or sell or authorize or propose the
issuance, delivery or sale of, or purchase or propose the purchase of, any
shares of its capital stock or securities convertible into shares of its
capital stock, or subscriptions, rights, warrants or options to acquire, or
other agreements or commitments of any character obligating it to issue any
such shares or other convertible securities;
(e) Acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial equity interest in or
substantial portion of the assets of, or by any other manner, any business or
any corporation, partnership, association or other business organization or
division, or otherwise acquire or agree to acquire, other than in the ordinary
course of business, any assets which are material, individually or in the
aggregate, to the business of SHBV;
(f) Take any of the following actions: (i) increase or
agree to increase the compensation payable or to become payable to its officers
or employees, except for increases in salary or wages of non-officer employees
in the ordinary course of business and in accordance
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with past practices, (ii) grant any additional severance or termination pay to,
or enter into any employment or severance agreements with, officers, (iii)
grant any severance or termination pay to, or enter into any employment or
severance agreement, with any employee, (iv) enter into any collective
bargaining agreement, (v) establish, adopt, enter into or amend in any material
respect any bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation, employment,
termination, severance or other plan, trust, fund, policy or arrangement for
the benefit of any directors, officers or employees;
(g) Incur any additional indebtedness for borrowed money
or guarantee any such indebtedness or issue or sell any debt securities or
warrants or rights to acquire any debt securities of SHBV or guarantee any debt
securities of others, other than indebtedness incurred under outstanding lines
of credit consistent with past practice;
(h) Amend or propose to amend its Articles of
Association, except as contemplated by this Agreement;
(i) Incur or commit to incur any capital expenditures
(other than for non-equipment related research and development expenses) in
excess of $25,000 in the aggregate;
(j) Dispose of any material portion of its assets, except
inventory in the ordinary course of business;
(k) Enter into any lease or contract for the purchase or
sale of any assets or other material portion of its property, real or personal,
except in the ordinary course of business;
(l) Amend or terminate any material contract, agreement
or license to which it is a party;
(m) Waive or release any material right or claim;
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(n) Initiate any litigation or arbitration proceeding; or
(o) Take, or agree in writing or otherwise to take, any
of the actions described in Sections (a) through (n) above, or any action which
is reasonably likely to make any of SHBV's representations or warranties
contained in this Agreement untrue or incorrect in any respect on the date made
or as of the Closing.
5.2 Cooperation. Subject to compliance with applicable law, from
the date hereof until the Closing, each of McAfee and SHBV shall confer on a
regular and frequent basis with one or more representatives of the other party
to report operational matters of materiality and the general status of ongoing
operations and shall promptly provide the other party or its counsel with
copies of all filings made by such party with any Governmental Entity in
connection with this Agreement, the Exchange and the transactions contemplated
hereby.
5.3 Notice of Breach. Each party shall promptly give written
notice to the other party upon becoming aware of the occurrence or, to its
knowledge, impending or threatened occurrence, of any event which would cause
any of its representations or warranties to be untrue on the Closing or cause a
breach of any covenant contained or referenced in this Agreement and will use
all reasonable commercial efforts to prevent or promptly remedy the same. Any
such notification shall not be deemed an amendment of the SHBV Disclosure
Schedule.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 No Solicitation.
(a) From and after the date of this Agreement until the
Closing, SHBV shall not, directly or indirectly, through any officer,
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director, employee, representative or agent of SHBV, (i) solicit, initiate, or
encourage any inquiries or proposals that constitute, or could reasonably be
expected to lead to, a proposal or offer for a merger, consolidation, business
combination, sale of all or substantially all of the assets, sale of shares of
capital stock (including without limitation by way of a tender offer) or
similar transactions involving SHBV, other than the transactions contemplated
by this Agreement (any of the foregoing inquiries or proposals being referred
to in this Agreement as an "Acquisition Proposal"), (ii) engage in negotiations
or discussions concerning, or provide any non-public information to any person
or entity relating to, any Acquisition Proposal, or (iii) agree to, approve or
recommend any Acquisition Proposal.
(b) SHBV shall notify McAfee immediately (and no later
than 24 hours) after receipt by SHBV (or its advisors) of any Acquisition
Proposal or any request for information in connection with an Acquisition
Proposal or for access to the properties, books or records of SHBV by any
person or entity that informs SHBV that it is considering making, or has made,
an Acquisition Proposal. Such notice shall be made orally and in writing and
shall indicate in reasonable detail the identity of the offeror and the terms
and conditions of such proposal, inquiry or contact.
6.2 SHBV Consents. SHBV shall use its best efforts to obtain all
necessary consents, waivers and approvals under the SHBV Material Contracts in
connection with the Exchange.
6.3 Access to Information. Upon reasonable notice, SHBV shall
afford to the officers, employees, accountants, counsel and other
representatives of McAfee, access, during normal business hours during the
period prior to the Closing, to all its properties, books, contracts,
commitments and records and, during such period, and all other information
concerning its business, properties and personnel as McAfee may reasonably
request.
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6.4 Legal Conditions to Exchange. Each of McAfee and SHBV will
take all reasonable actions necessary to comply promptly with all legal
requirements which may be imposed on it with respect to the Exchange (which
actions shall include, without limitation, furnishing all information required
in connection with approvals of or filings with any Governmental Entity) and
will promptly cooperate with and furnish information to each other in
connection with any such requirements imposed upon either of them in connection
with the Exchange.
6.5 Public Disclosure. SHBV and McAfee shall consult with each
other before issuing any press release or otherwise making any public statement
with respect to the Exchange or this Agreement and shall not issue any such
press release or make any such public statement prior to such consultation,
except in the case of McAfee if such press release is required to comply with
McAfee's disclosure obligations under Securities and Exchange Commission and
Nasdaq National Market rules and regulations.
6.6 Additional Agreements; Reasonable Efforts. Each of the
parties agrees to use all reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including cooperating fully with
the other party, including by provision of information. In case at any time
after the Closing any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of each party to
this Agreement shall take all such necessary action.
6.7 SHBV Affiliates Agreement. To ensure that the Exchange will
be accounted for as a "pooling of interests" and to ensure compliance with Rule
145 of the rules and regulations promulgated by the SEC under the Securities
Act, the affiliates of SHBV shall concurrently sign and deliver to McAfee, the
SHBV Affiliate Agreement in the form of Exhibit 6.7 (the "SHBV Affiliates
Agreement") agreeing that such affiliates
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will make no disposition of SHBV shares or McAfee stock from the date hereof
until McAfee shall have publicly released its first report of quarterly
financial statements that include the combined financial results of SHBV and
McAfee for a period of at least 30 days, and agreeing to certain other
restrictions as set forth in such SHBV Affiliates Agreement.
ARTICLE VII
CONDITIONS TO EXCHANGE
7.1 Conditions to Each Party's Obligation to Effect the Exchange.
The respective obligations of each party to this Agreement to effect the
Exchange shall be subject to the satisfaction prior to the Closing Date of the
following conditions:
(a) Approvals. All authorizations, consents, orders or
approvals of, or declarations or filings with, or expirations of waiting
periods imposed by, any Governmental Entity the failure of which to obtain
would be reasonably likely to have a Material Adverse Effect on McAfee or SHBV
shall have been filed, occurred or been obtained.
(b) No Injunctions or Restraints; Illegality. No
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal or regulatory
restraint or prohibition preventing the consummation of the Exchange or
limiting or restricting McAfee's or SHBV's conduct or operation of the business
of McAfee or SHBV after the Exchange shall have been issued, nor shall any
proceeding brought by a domestic administrative agency or commission or other
domestic governmental Entity, seeking any of the foregoing be pending; nor
shall there be any action taken, or any statute, rule, regulation or order
enacted, entered, enforced or deemed applicable to the Exchange which makes the
consummation of the Exchange illegal.
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(c) Escrow Agreement. McAfee, the Escrow Agent and the
Shareholders' Agent shall have entered into an escrow agreement (the "Escrow
Agreement") in the form attached hereto as Exhibit 7.1(c).
7.2 Additional Conditions to Obligations of McAfee and Sub. The
obligation of McAfee and Sub to effect the Exchange is subject to the
satisfaction of each of the following conditions, any of which may be waived in
writing exclusively by McAfee in accordance with Section 11.11 hereof:
(a) Representations and Warranties. The representations
and warranties of SHBV and the Shareholders set forth in this Agreement shall
be true and correct in all material respects as of the date of this Agreement
and (except to the extent such representations and warranties speak as of an
earlier date) as of the Closing Date as though made on and as of the Closing
Date.
(b) No Material Adverse Change. There shall have been no
Material Adverse Change in SHBV since the date of this Agreement.
(c) Performance of Obligations of SHBV. SHBV shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date.
(d) Consents. SHBV shall have received all written
consents, waivers and approvals and taken such other actions necessary or
appropriate to allow the consummation of the transactions contemplated hereby
and to allow SHBV to carry on its business after the Exchange in the same
manner immediately prior to the Exchange, including any consents, waivers and
approvals under SHBV Material Contracts.
(e) Pooling Letter. McAfee shall have received from
Coopers & ▇▇▇▇▇▇▇, L.L.P. an opinion, in form and substance satisfactory to
McAfee, that the Exchange will be treated as a "pooling of interests" for
accounting purposes.
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(f) Due Diligence. McAfee and its legal counsel shall
have completed their due diligence investigation of SHBV to their sole
satisfaction and shall not have become aware, to their sole discretion, of any
facts or circumstances which could have an adverse effect on SHBV or McAfee.
(g) Employment Agreement. Ad Schuurkes ("Schuurkes") and
SHBV shall have executed and delivered the Employment Agreement in the form
attached as Exhibit 7.2(g) hereto (the "Employment Agreement"). Amitges Beheer
B.V. and SHBV acknowledge that the Employment Agreement replaces all prior
management and/or employment relationships between Amitges Beheer B.V. and
SHBV.
(h) Non-competition Agreement. Each of the Shareholders
and McAfee shall have executed and delivered the Non-competition Agreement in
the form attached hereto as Exhibit 7.2(h) hereto (the "Non-competition
Agreement").
(i) Regulatory Compliance and Approval. All permits,
consents, approvals and waivers from governmental authorities necessary to the
consummation of this Agreement and the transactions contemplated hereby and for
the operation of the business of SHBV after the consummation of the Exchange
and the ownership of the SHBV Intellectual Property Rights after the
consummation of the Exchange shall have been obtained.
(j) Registration Rights Agreement. McAfee and the
Shareholders shall have executed and delivered the Registration Rights
Agreement in the form attached hereto as Exhibit 7.2(j).
(k) Resignations of Directors. McAfee shall have
received originals of the resignations from office of each of the managing
director of SHBV and McAfee Nederland B.V.
(l) Acceptance SHBV Disclosure Schedule. McAfee shall
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have received the SHBV Disclosure Schedule, which shall be countersigned for
acceptance by McAfee and attached as Schedule C.
(m) Legal Opinion. McAfee shall have received a signed
legal opinion of the legal counsel of SHBV and the Shareholders in a form
acceptable to McAfee.
(n) Assignment of Rights. Go Tech Nederland B.V. and
SHBV shall have executed and delivered the Assignment of Rights statement in
the form attached as Exhibit 7.2 (n) hereto ("Assignment of Rights").
7.3 Additional Conditions to Obligations of the Shareholders and
SHBV. The obligation of the Shareholders and SHBV to effect the Exchange is
subject to the satisfaction of each of the following conditions, any of which
may be waived, in writing, exclusively by SHBV in accordance with Section 11.11
hereof.
(a) Representations and Warranties. The representations
and warranties of McAfee and Sub set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and (except
to the extent such representations speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date.
(b) Perform Obligations of McAfee and Sub. McAfee and Sub
shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date.
(c) Employment Agreement. The Company and Schuurkes
shall have executed and delivered the Employment Agreement.
(d) Non-competition Agreement. McAfee and each of the
Shareholders shall have executed and delivered the Non-Competition Agreement.
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(e) Affiliates Agreement. McAfee's affiliates shall have
executed and delivered affiliates Agreements to McAfee.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination. This Agreement may be terminated at any time
prior to the Closing, whether before or after approval of the matters presented
in connection with the Exchange by the Shareholders of SHBV:
(a) by mutual written consent of McAfee and SHBV; or
(b) by either McAfee or SHBV if the Exchange shall not
have been consummated by March 1, 1997 (provided that the right to terminate
this Agreement under this Section 8.1(b) shall not be available to any party
whose failure to fulfill any material obligation under this Agreement has been
the cause of or resulted in the failure of the Exchange to occur on or before
such date); or
(c) by either McAfee or SHBV, if a court of competent
jurisdiction or other Governmental Entity shall have issued a nonappealable
final order, decree or ruling or taken any other action, in each case having
the effect of permanently restraining, enjoining or otherwise prohibiting the
Exchange, except, if the party relying on such order, decree or ruling or other
action has not materially complied with its obligations under Section 6.4 of
this Agreement; or
(d) by McAfee if any of the conditions to McAfee's
obligations to effect the Exchange which are specified in Section 7.1 or
Section 7.2 have not been met or waived by McAfee at such time as such
condition is no longer reasonably capable of satisfaction (provided by McAfee
is not otherwise in material breach of its representations, warranties
covenants or Agreements under this Agreement);
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(e) by SHBV if any of the conditions to SHBV's obligation
to effect the Exchange which are specified in Section 7.1 or Section 7.3 have
not been met or waived by SHBV at such time as such condition is no longer
reasonably capable of satisfaction, including the failure to obtain any
required approval of its shareholders (provided SHBV is not otherwise in
material breach of its representations, warranties, covenants or agreements
under this Agreement); or
(f) by McAfee or SHBV, if there has been a material
breach of any representation, warranty, covenant or agreement on the part of
the other party set forth in this Agreement, which breach shall not have been
cured, in the case of a representation or warranty, prior to the Closing or, in
the case of a covenant or agreement, within 10 business days following receipt
by the breaching party of written notice of such breach from the other party.
8.2 Effect of Termination. In the event of termination of this
Agreement as provided in section 8. 1, this Agreement shall immediately become
void and there shall be no liability or obligation on the part of McAfee, Sub,
SHBV, or their respective officers, directors or stockholders, as the case may
be, or Affiliates, and further except to the extent that such termination
results from the intentional breach by a party of any of its representations,
warranties or covenants set forth in this Agreement.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
Notwithstanding any investigation conducted before or after the
Closing Date, and notwithstanding any actual or implied knowledge or notice of
any facts or circumstances which McAfee, the Shareholders or SHBV may have as a
result of such investigation or otherwise, McAfee, the Shareholders and SHBV
will be entitled to rely upon the other party's representations, warranties and
covenants set forth in this Agreement.
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The obligations of SHBV and the Shareholders with respect to their respective
representations, warranties, Agreements and covenants will survive the Closing
and continue in full force and effect until the date 12 months following the
Closing Date (the "Representation Termination Date"); provided, however, that
the representations and warranties of SHBV and the Shareholders as to all items
expected to be encountered in the audit process shall terminate when McAfee
publishes its audited Financial Statements for the fiscal year ending December
31, 1997 (the "Financial Termination Date"). McAfee and its advisor(s) have
reviewed documents provided by the Shareholders and SHBV in relation to their
due diligence investigation as mentioned in clause 7.2(f).
ARTICLE X
INDEMNIFICATION AND ESCROW
10.1 (a) Indemnity. From and after the Closing of the Exchange,
and Subject to the provisions of Section 9, McAfee and Sub shall be indemnified
and held harmless by the Shareholders against, and reimbursed for, any actual
liability, damage, loss, obligation, demand, judgment, fine, penalty, cost or
expense (excluding any indirect or consequential damages to McAfee (such as
lost profits), other than any such damages resulting from injunctive relief
granted as to an intellectual property claim, but including reasonable
attorneys' fees (excluding costs relating to in-house attorneys) and expenses,
and the costs of investigation (excluding in-house costs of investigation)
incurred in defending against or settling such liability, damage, loss, cost or
expense or claim therefor and any amounts paid in settlement thereof) imposed
on or reasonably incurred by McAfee or Sub as a result of any misrepresentation
or breach of any representation, warranty, Agreement or covenant on the part of
SHBV and/or any of the Shareholders under this Agreement (collectively the
"Damages"). Damages in each case shall be net of the amount of any insurance
proceeds, indemnity and contribution actually recovered by McAfee or Sub.
"Damages" as used herein is not limited to matters asserted by third parties,
but includes Damages incurred or sustained by McAfee
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or Sub in the absence of claims by a third party. For purposes of this
subsection 10.1 and Section 10.2, the term "McAfee" shall include SHBV and the
business of SHBV after the Closing.
10.1 (b) Limitation of liability. In the absence of fraud by
the Shareholders or SHBV, claims of McAfee under 10.1(a) can be made only if
the aggregate amount of all recoverable claims exceed $25,000 in which event
the total amount of such claims shall be recoverable. McAfee's indemnity
rights under 10.1(a) shall be limited to the Escrow Fund, except, however, that
the Shareholders, jointly and severally, shall indemnify McAfee, Sub and SHBV
from and against any and all damages, costs, expenses, taxes, tax liabilities
or social security contributions (including related penalties and interest)
that arise from or that are in connection with the prior management
relationship between Amitges Beheer B.V. and SHBV, during a period of time
ending at the end of the sixth (6th) month after the date on which the relevant
statute of limitations (termijn voor navordering of naheffing) has lapsed.
McAfee and Sub shall ensure, provided and to the extent that this will in its
sole judgment not adversely affect SHBV, that the Shareholders and its advisors
will be given the opportunity to participate in the defense (including
objections ("bezwaar") or appeal ("beroep" or "cassatie") to be filed with the
tax or social security authorities or the competent Court of Courts) of any
claim of the tax authorities in relation to the prior management relationship
between Amitges Beheer B.V. and SHBV. All costs and expenses in relation to
such defence (including objections ("bezwaar") or appeal ("beroep" or
"cassatie") to be filed with the tax or social security authorities or the
competent Court of Courts) will be borne by the Shareholders. The Shareholders
will keep McAfee, Sub and SHBV informed about the development of the defense
and McAfee, Sub and SHBV will be given the opportunity to comment on and to
review any and all relevant documents in relation to such defense.
10.2 Escrow Fund. As security for the indemnity provided for in
Section 10.1 hereof, 10% of the Aggregate Exchange Shares to be received
pursuant to Section 1.3 hereof (the "Escrow Shares") shall be deposited
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with and held in escrow by Greater Bay Trust Company (or other institution
selected by McAfee) as escrow agent (the "Escrow Agent"), as of the Closing
Date, such deposit to constitute an escrow fund (the "Escrow Fund") to be
governed by the terms set forth in this Agreement and the provisions of the
Escrow Agreement. Upon compliance with the terms hereof and Subject to the
provisions of this Section 10, McAfee and Sub shall be entitled to obtain
indemnity from the Escrow Fund for Damages covered by the indemnity provided
for in section 10.1 of this Agreement. McAfee shall compensate the escrow
agent for its services in maintaining the escrow fund. Unless and until the
escrow shares are delivered to the Shareholders in accordance with the
provisions of this Section 10 and the Escrow Agreement all Exchange Shares held
in the Escrow Fund shall be registered in the name of the Shareholders.
10.3 Escrow Period. The escrow fund shall remain in existence
during the period of time (the "Escrow Period") between the Closing and the
Representation Termination Date provided that the Escrow Fund shall remain
Subject to any indemnity claim for which notice has been duly given prior to
the applicable Termination Date, and until such time as such indemnity claim
has been finally decided, settled or adjudicated.
10.4 Protection of Escrow Fund. The Escrow Agent shall hold and
safeguard the Escrow Fund during the Escrow Period, in accordance with the
terms of this Agreement and not as the property of McAfee or the Shareholders,
and shall hold and dispose of the Escrow Fund only in accordance with the terms
of the Escrow Agreement.
10.5 Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on
or before the Representation Termination Date of a certificate signed by any
officer of McAfee (an "Officer's Certificate"):
(a) stating that McAfee has paid or properly accrued or
knows of facts giving rise to a reasonable probability that it shall have to
pay or accrue Damages in an aggregate stated amount with respect
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to which McAfee or Sub is entitled to payment from the Escrow Fund pursuant to
this Agreement (the "Damage Amount");
(b) specifying in reasonable detail the individual items
of Damages included in the amount so stated, the date each such item was paid
or properly accrued, or the basis for such anticipated liability and the
specific nature of the misrepresentation or breach to which such item is
related; and
(c) specifying the number of Escrow Shares to be
delivered to McAfee which in the aggregate shall equal the Damage Amount based
upon the value of each Escrow Share as of the Closing Date as determined based
upon the average Closing price of the McAfee Common Stock as traded on the
Nasdaq National Market for the 10 consecutive trading days ending one trading
day prior to the Closing Date (the "Average Share Price"); as adjusted for
stock dividends, stock splits and combinations which occur after the Closing),
the Escrow Agent shall, Subject to the provisions of Section 10.6 of this
Agreement, deliver to McAfee, that number of Escrow Shares specified in the
Officer's Certificate.
10.6 Objection to Claims. At the time of delivery of any Officer's
Certificate to the Escrow Agent, a duplicate copy of the Officer's Certificate
shall be delivered to the Shareholders' Agent (as defined below) and, for a
period of thirty (30) days after such delivery, the Escrow Agent shall not
deliver any Escrow Shares pursuant to Section 10.5 hereof unless the Escrow
Agent shall have received written authorization from the Shareholders' Agent to
make such delivery. After the expiration of such thirty (30) day period, the
Escrow Agent shall make delivery of the Escrow Shares in accordance with
Section 10.5, provided that no such delivery may be made if the Shareholders'
Agent shall object in a written statement to the claim made in the Officer's
Certificate, and such statement shall have been delivered to the Escrow Agent
prior to the expiration of such thirty (30) day period.
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10.7 Resolution of Conflicts.
(a) Memorandum of Agreement. In case the Shareholders'
Agent shall properly object in writing pursuant to Section 10.6 to the
indemnity of McAfee in respect of any claim or claims made in any Officer's
Certificate, the Shareholders' Agent and McAfee shall attempt in good faith to
agree upon the rights of the respective parties with respect to each of such
claims. If the Shareholders' Agent and McAfee should so agree, a memorandum
setting forth such Agreement shall be prepared and signed by both parties and
shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to
rely on any such memorandum and distribute the Escrow Shares from the Escrow
Fund in accordance with the terms thereof.
(b) Arbitration. If no such agreement can be reached
after good faith negotiation within thirty (30) days, either McAfee or the
Shareholders' Agent may demand arbitration of the matter unless the amount of
the damage or loss at issue is pending litigation with a third party, in which
event arbitration shall not be commenced until such amount is ascertained or
both McAfee and the Shareholders' Agent agree to arbitration, and in such event
the matter shall be settled by arbitration conducted by three arbitrators.
McAfee and the Shareholders' Agent shall each select one arbitrator, and the two
arbitrators so selected shall select a third arbitrator. The decision of the
arbitrators so selected as to the validity and amount of any claim in such
Officer's Certificate shall be binding and conclusive upon the parties to this
Agreement, and, notwithstanding anything in Section 10.6, the Escrow Agent
shall be entitled to act in accordance with such decision and make or withhold
payments or distributions out of the Escrow Fund in accordance with such
decision.
(c) Judgment. Any such arbitration shall be held in
Santa Clara, California, USA under the commercial rules then in effect of the
American Arbitration Association ("AAA") . Judgment upon any award rendered by
the arbitrators may be entered in any court having jurisdiction.
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For the purposes of this Section 10.7(c), in any arbitration hereunder in which
any claim or the amount thereof stated in the Officer's Certificate is at
issue, McAfee shall be deemed to be the non-prevailing party unless the
arbitrators award McAfee more than 50% of the amount in dispute; otherwise, the
Shareholders shall be deemed to be the non-prevailing party. The
non-prevailing party to an arbitration hereunder shall pay its own expenses,
the fees of each arbitrator, the administrative fee of AAA, and the expenses
(including, without limitation, attorneys' fees and costs) incurred by the
other party to the arbitration.
10.8 Third-Party Claims. In the event McAfee becomes aware of a
third-party claim which McAfee believes may result in a demand against the
Escrow Fund, McAfee shall promptly notify the Shareholders' Agent of such
claim. McAfee shall have the right to settle any claim with the written
consent of the Shareholders' Agent, which consent shall not be unreasonably
withheld. In the event that the Shareholders' Agent have consented to any such
settlement, the Shareholders shall not have any power or authority to object to
the amount of any claim by McAfee against the Escrow Fund for indemnity with
respect to such settlement. If any proceeding is commenced, or if any claim,
demand or assessment is asserted, in respect of which a claim for
indemnification is or might be made against the Escrow Fund based on matters
other than (i) SHBV Intellectual Property Rights or (ii) claims made by
customers of McAfee, SHBV or McAfee Nederland, the Shareholders may, at their
option, contest or defend any such action, proceeding, claim, demand or
assessment, with counsel selected by the Shareholders who is reasonably
acceptable to McAfee; provided, however, that if McAfee shall reasonably object
to such control, then the Shareholders and McAfee shall cooperate in the
defense of such matter; provided further, that the Shareholders shall not admit
any liability with respect thereto or settle, compromise, pay or discharge the
same without prior written consent of McAfee, which consent shall not be
unreasonably withheld. With respect to any claim for indemnification based on
matters relating to SHBV Intellectual Property Rights or customers of SHBV,
McAfee or McAfee Nederland, McAfee shall have the option to defend any such
proceedings; provided, however, that
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McAfee shall conduct such defense in a commercially reasonable manner and
McAfee shall not admit any liability with respect thereto or settle,
compromise, pay or discharge the same without the prior written consent of the
Shareholders, which consent shall not be unreasonably withheld. The
Shareholders or McAfee, whichever is not controlling the defense of any
matter, shall be entitled, at their expense, to participate in such defense.
10.9 Limits. Notwithstanding any other provision in this Agreement
or any rule of law or equity:
(a) McAfee shall not be entitled to maintain a claim
against the Shareholders in respect of any Damages incurred by McAfee as a
result of McAfee's own gross negligence or willful misconduct, or that of its
employees, agents or contractors other than the Shareholders, or as a result of
any occurrence, matter or thing the occurrence, existence or non-disclosure of
which constitutes a material breach or failure of any representation, warranty,
covenant or other obligation of McAfee hereunder;
(b) McAfee shall not be entitled to recover any indirect,
consequential or special damages from the Shareholders: and
(c) McAfee shall be obligated to use reasonable efforts
to mitigate any Damages sustained by it in connection with any matter for which
the Shareholders may have liability to McAfee.
10.10 Dismissal of employees. McAfee, SHBV and the Shareholders
acknowledge that the employment relationship with certain employees of SHBV
identified by parties within 30 days after Closing, will have to be terminated
as soon as possible, but no later than 30 days after Closing. All costs and
expenses incurred in connection with such termination(s), including redundancy
or settlement payments, will be borne by SHBV up to a maximum amount equal to
the aggregate amount of salary that each of such employees receives during a
period equal to
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the one month notarial period plus one and one-half months for each full year
of service that such employee has been employed by the Company. To the extent
the costs and expenses incurred in connection with the termination(s) exceed
the amount as mentioned in the preceding sentence, such costs and expenses can
be claimed upon the Escrow Fund by McAfee.
10.11 Shareholders' Agent. ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Shareholders' Agent")
shall be appointed by and constitute the agent and attorney-in-fact of each
Shareholder, for and on behalf of such Holders; to execute the Escrow
Agreement; to give and receive notices and communications; to authorize
delivery to McAfee of funds from the escrow in satisfaction of claims by
McAfee; to object to such deliveries; to agree, to negotiate, enter into
settlements and compromises of, and demand arbitration and comply with orders
of courts and awards of arbitrators with respect to such claims; and to take
all actions necessary or appropriate in the judgment of the Shareholders' Agent
for the accomplishment of the foregoing. If the Shareholders' Agent ceases to
act as a Shareholder' Agent for any reason, such Shareholders' Agent shall
notify McAfee and the Escrow Agent of such Shareholders' Agent intent to resign
as Shareholders' Agent and the Shareholders may by written notice to McAfee and
Escrow Agent appoint a successor Shareholders' Agent. The Shareholders' Agent
shall not be liable for any action taken or not taken as a Shareholders' Agent
in the absence of such Shareholders' Agent's gross negligence or willful
misconduct. A decision, act, consent or instruction of Shareholders' Agents
shall constitute a decision of all the Shareholders, and shall be final,
binding and conclusive upon each of the Shareholders, and the escrow agent,
McAfee may rely upon any decision, act, consent or instruction of Shareholders'
Agents as being the decision, act, consent or instruction of each and all of
the Shareholders.
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ARTICLE XI
MISCELLANEOUS
11.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(which is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to McAfee, to
McAfee Associates, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President and chief executive officer
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and
De Brauw Blackstone Westbroek
Tripolis 300
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
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59
Attention: R.I.V. Scherpenhuijsen Rom
(b) if to SHBV, to
SHBV
Van Lanschotlaan 2
5262 AG Vught
Attention: Chief Executive Officer
(c) if to the Shareholders,to
P.A.G. ▇▇▇▇▇▇
Konijnenlaan 4
2243 ▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
Bogaerts en Groenen, Advocaten
Postbus 127
5280 AC Boxtel
Attention: ▇. ▇▇▇▇▇▇▇▇
All notices shall be effective on receipt.
11.2 Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. 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. Whenever the words "include,
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation". The phrases "the date of this
Agreement", "the date hereof", and terms of similar import, unless the context
otherwise requires, shall be deemed to refer to the date first set forth in
this Agreement.
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60
11.3 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same Agreement and
shall become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
11.4 Entire Agreement: No Third Party Beneficiaries. This
Agreement, the other Transaction Agreements and the Confidentiality Agreement
(including the documents and the instruments referred to herein) (a) constitute
the entire Agreement and supersede all prior Agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) are not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder other than the rights of the
Shareholders to receive the consideration specified in Article I of this
Agreement.
11.5 (a) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of California without regard
to any applicable conflicts of law.
11.5 (b) Arbitration. All disputes, controversies or claims arising
out of or in connection with this Agreement and the Schedules and Exhibits
attached thereto, or for breach, including and any question regarding the
existence, validity or termination, thereof, shall exclusively be settled in
accordance with the commercial rules then in effect of the American Arbitration
Association ("AAA"). The arbitral tribunal shall be composed of three
arbitrators. The place of arbitration shall be Santa Clara, California, USA.
The arbitral procedure shall be conducted in the English language.
11.6 Assignment. Unless otherwise provided herein, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Subject to
the preceding sentence, this Agreement will be binding
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61
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns.
11.7 Attachments and Schedules. All attachments and schedules
attached hereto, together with the SHBV Disclosure Schedule, are incorporated
herein by reference.
11.8 Severability. In the event that any provision contained
herein shall be held to be invalid, illegal or unenforceable for any reason,
such invalidity, illegality or unenforceability shall not affect
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any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
11. Fees and Expenses. All costs and expenses, including
professional fees, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense. The Shareholders shall be responsible for any expenses incurred by
the Shareholders and SHBV.
11.10 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
11.11 Extension; Waiver. At any time prior to the Closing, the
parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any of the Agreements or conditions contained herein. Any
Agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in a written instrument signed on behalf of such
party.
IN WITNESS WHEREOF, McAfee, SHBV and the Shareholders have caused this
Stock Exchange Agreement to be signed by their respective officers thereto duly
authorized as of the date first written above.
Schuijers Holding B.V.
[SIGNATURE]
-----------------------------
By: Amitges Beheer B.V.
--------------------------
Title: managing director
-----------------------
By: A.C.A. Schuurkes
--------------------------
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McAfee Associates Inc.
[signature]
-----------------------------
By: R. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Vice President
-----------------------
FSA Combination Corporation
[signature]
-----------------------------
By: R. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Vice President
-----------------------
Shareholders
Amitges Beheer B.V.
[SIGNATURE]
-----------------------------
By: A.C.A. Shuurkes
---------------------------
Title: managing director
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64
[SIGNATURE]
-----------------------------
Drs P.A.G. ▇▇▇▇▇▇
[SIGNATURE]
-----------------------------
N.A.M. Huijbregts
This Agreement is co-signed by Go Tech Nederland B.V. in proof of its
acknowledgement of this Agreement and of its acceptance of its obligations
under this Agreement.
Go Tech Nederland B.V.
[SIGNATURE]
-----------------------------
By: A.C.A. SCHUURKES
Title: managing director
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65
The undersigned:
** [illegible], born in ** [illegible] on ** [illegible] residing in
5251 EJ Vlijmen, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, married with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ("Huijbregts").
WHEREAS:
Huijbreqts intends to enter into various agreements, inter alia a Stock
Exchange Agreement and additional agreements as referred to in the Stock
Exchange Agreement, regarding the transfer of 13,200 shares held by Huijbregts
in the share capital of the private company with limited liability: Schuijers
Holding B.V., with corporate seat in 's-Hertogenbosch, the Netherlands and
address at: 5262 AG Vught, Van Lanschotlaan 2, to FSA Combination Corporation,
a Delaware corporation in exchange for shares in the capital of McAfee
Associates, Inc., a Delaware Corporation.
declares:
the undersigned approves the entering into and performance by
Huijbregts of the Stock Exchange Agreement and additional agreements
pursuant to section 1:88 Civil Code.
Signed in ** 's Hertogenbosch on ** 27 February 1997.
[SIGNATURE] [SIGNATURE]
-------------------------------
H.A.M. Huijbreqts
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The undersigned:
** ▇▇▇▇ Beti ▇▇▇▇▇▇, born in ** Guaicara on ** 20-04-1949
residing in 2243 ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇, married with Adrianus ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ("▇▇▇▇▇▇").
WHEREAS:
▇▇▇▇▇▇ intends to enter into various agreements, inter alia a Stock Exchange
Agreement and additional agreements as referred to in the Stock Exchange
Agreement, regarding the transfer of 13,200 shares held by ▇▇▇▇▇▇ in the share
capital of the private company with limited liability: Schuijers Holding BV.,
with corporate seat in 's-Hertogenbosch, the Netherlands and address at: 5262
AG Vught, Van Lanschotlaan 2, to FSA Combination Corporation, a Delaware
corporation in exchange for shares in the capital of McAfee Associates, Inc., a
Delaware Corporation.
declares:
the undersigned approves the entering into and performance by ▇▇▇▇▇▇
of the Stock Exchange Agreement and additional agreements pursuant to
section 1:88 Civil Code.
Signed in ** Wassenauer on ** 25 February 1997.
/s/ ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
--------------------------------------
Name:
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the ____ day of
February __, 1997, by and between McAfee Associates Inc., a Delaware
corporation (the "Company"), and the shareholders listed on Schedule A hereto
(collectively, the "Shareholders" and individually, a "Shareholder") of
Schuijers Holding B.V., a Dutch private company with limited liability ("SHBV").
RECITALS
WHEREAS, the Company, FSA Combination Corp. ("Sub"), SHBV and the
Shareholders are parties to the Stock Exchange Agreement, dated February __,
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 SHBV (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 SHBV 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;
68
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.
(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.
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69
1.2 Request for Registration.
(a) Subject to the limitations of subsection 1.2(c)
hereof, if the Company shall receive at any time
after at least six months following the Closing, 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.
The Company shall not be required to register
Registrable Securities pursuant to this subsection
1.2(a) on more than one occasion.
(b) 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.
(c) Notwithstanding the foregoing, the Company (i) 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
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Exchange Agreement and the Escrow Agreement and (ii)
at its election, (except those held in Escrow) can
register the Registrable Securities pursuant to the
terms of this Agreement, in which event, the
registration rights of the Shareholders under Section
1.2(a) shall be terminated.
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:
(a) Prepare and file with the SEC as soon as practicable,
but in no event later than 90 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 sixty (60) 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,
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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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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
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72
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.
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).
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73
1.6 Resales through McAfee Brokers.
The Shareholders hereby agree that all resales by them of the
Registrable Securities shall be made through Alex. ▇▇▇▇▇ &
Sons Incorporated, Bear, ▇▇▇▇▇▇▇ & Co., Inc., or ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & 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.
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74
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.
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
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75
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: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Professional Services and Corporate
Development
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
AMITGES BEHEER B.V.
By: /s/ A.CH.A SCHUURKES
-------------------------------------
A.Ch.A Schuurkes, Managing Director
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
DRS. P.A.G. ▇▇▇▇▇▇
By: /s/ DRS P.A.G. ▇▇▇▇▇▇
-------------------------------------
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
N.A.M. HUIJBREGT
By: /s/ N.A.M. HUIJBREGTS
-------------------------------------
N.A.M. Huijbregts
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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