<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________ .
COMMISSION FILE NUMBER 0-20558
------------------------
NETWORKS ASSOCIATES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 77-0316593
(STATE OF INCORPORATION) (IRS EMPLOYER
IDENTIFICATION NUMBER)
</TABLE>
3965 FREEDOM CIRCLE
SANTA CLARA, CALIFORNIA 95054
(408) 988-3832
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
Indicate by check mark whether registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. YES [X] NO [ ]
138,197,011 shares of the registrant's common stock, $0.01 par value, were
outstanding as of April 30, 1999.
THIS DOCUMENT CONTAINS 42 PAGES.
THE EXHIBIT INDEX IS ON PAGE 39.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
NETWORKS ASSOCIATES, INC.
FORM 10-Q,
MARCH 31, 1999
CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Condensed Consolidated Balance Sheets:
March 31, 1999 and December 31, 1998................... 3
Condensed Consolidated Statements of Income:
Three months ended March 31, 1999 and 1998............. 4
Condensed Consolidated Statements of Cash Flows:
Three months ended March 31, 1999 and 1998............. 5
Notes to Condensed Consolidated Financial Statements...... 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS................. 13
PART II: OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS................................... 37
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.................... 37
SIGNATURES.................................................. 38
EXHIBIT INDEX............................................... 39
</TABLE>
2
<PAGE> 3
NETWORKS ASSOCIATES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1999 1998
----------- ------------
(UNAUDITED)
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 360,842 $ 418,899
Marketable securities..................................... 84,431 98,515
Accounts receivable, net of allowances for doubtful
accounts and returns of $116,357 at March 31, 1999 and
$97,342 at December 31, 1998........................... 292,518 260,784
Prepaid expenses, income taxes and other current assets... 50,398 59,554
Deferred taxes............................................ 65,866 65,866
---------- ----------
Total current assets.............................. 854,055 903,618
Marketable securities....................................... 326,639 216,457
Fixed assets, net........................................... 54,687 54,489
Deferred taxes.............................................. 38,205 38,205
Intangibles and other assets................................ 308,323 323,952
---------- ----------
Total assets...................................... $1,581,909 $1,536,721
========== ==========
LIABILITIES
Current liabilities:
Accounts payable.......................................... $ 29,304 $ 20,881
Accrued liabilities....................................... 217,032 210,070
Deferred revenue.......................................... 140,896 132,409
Long term debt, current portion........................... 3,032 3,202
---------- ----------
Total current liabilities......................... 390,264 366,562
Deferred taxes............................................ 13,000 13,000
Deferred revenue, less current portion.................... 48,042 60,189
Long term debt and other liabilities...................... 375,685 374,132
---------- ----------
Total liabilities................................. 826,991 813,883
---------- ----------
STOCKHOLDERS' EQUITY
Preferred stock, $.01 par value:
Authorized: 5,000,000 shares; Issued and outstanding: one
share
Common stock, $.01 par value:
Authorized: 300,000,000 shares; Issued and outstanding:
138,062,061 shares at March 31, 1999 and 137,123,562
shares at December 31, 1998............................... 1,381 1,371
Additional paid-in capital.................................. 544,605 527,862
Cumulative other comprehensive income -- unrealized gain
(loss) on investments and foreign currency translation.... (12,449) (1,534)
Retained earnings........................................... 221,381 195,139
---------- ----------
Total stockholders' equity........................ 754,918 722,838
---------- ----------
Total liabilities and stockholders' equity........ $1,581,909 $1,536,721
========== ==========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
<PAGE> 4
NETWORKS ASSOCIATES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1999 1998
-------- --------
<S> <C> <C>
Net revenue................................................. $245,192 $226,093
Operating costs and expenses:
Cost of net revenue....................................... 35,243 43,266
Research and development.................................. 35,131 32,257
Marketing and sales....................................... 93,681 76,834
General and administrative................................ 21,770 18,762
Amortization of intangibles............................... 15,139 5,646
-------- --------
Total operating costs and expenses................ 200,964 176,765
-------- --------
Income from operations............................ 44,228 49,328
Interest and other income and expense, net.................. 1,574 5,696
-------- --------
Income before provision for income taxes.......... 45,802 55,024
Provision for income taxes.................................. 19,561 22,280
-------- --------
Net income........................................ $ 26,241 $ 32,744
======== ========
Other comprehensive income (loss):
Unrealized gain (loss) on investments....................... (1,187) 1,252
Foreign currency translation loss........................... (9,728) (1,142)
Deferred compensation....................................... -- (599)
-------- --------
Comprehensive income........................................ $ 15,326 $ 32,255
======== ========
Net income per share -- basic............................... $ 0.19 $ 0.25
======== ========
Shares used in per share calculation -- basic............... 138,395 130,885
======== ========
Net income per share -- diluted............................. $ 0.18 $ 0.24
======== ========
Shares used in per share calculation -- diluted............. 142,607 136,296
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
<PAGE> 5
NETWORKS ASSOCIATES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
----------------------
1999 1998
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net income.................................................. $ 26,241 $ 32,744
Adjustments to reconcile net income to net cash provided
from operating activities:
Depreciation and amortization............................. 21,265 9,360
Interest on convertible notes............................. 4,261 2,498
Unrealized gain (loss) on investments..................... (1,187) 1,252
Deferred taxes............................................ -- 1,486
Changes in assets and liabilities:
Accounts receivable.................................... (31,734) (12,902)
Prepaid expenses, taxes and other...................... 9,646 (1,551)
Accounts payable and accrued liabilities............... 12,677 (5,177)
Deferred revenue....................................... (3,660) 13,293
--------- ---------
Net cash provided by operating activities............ 37,509 41,003
--------- ---------
Cash flows from investing activities:
Purchase of investment securities, net.................... (96,098) (357,921)
Additions to fixed assets................................. (6,323) (14,464)
--------- ---------
Net cash used in investing activities................ (102,421) (372,385)
--------- ---------
Cash flows from financing activities:
Issuance of convertible debentures, net of issuance
costs.................................................. -- 337,624
Proceeds from (repayment of) notes payable................ (170) 44
Issuance of common stock under stock option and stock
purchase plans......................................... 16,295 41,192
Tax benefit from exercise of nonqualified stock options... -- 20,998
Exercise of warrants...................................... 458 --
--------- ---------
Net cash provided by financing activities.............. 16,583 399,858
--------- ---------
Effect of exchange rate fluctuations........................ (9,728) (1,142)
--------- ---------
Net increase in cash and cash equivalents................... (58,057) 67,334
Cash and cash equivalents at beginning of period............ 418,899 157,031
--------- ---------
Cash and cash equivalents at end of period.................. $ 360,842 $ 224,365
========= =========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
5
<PAGE> 6
NETWORKS ASSOCIATES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The unaudited consolidated financial statements have been prepared by the
Company without audit in accordance with instructions to Form 10-Q and Article
10 of Regulation S-X. The consolidated financial statements include the accounts
of the Company and its wholly owned subsidiaries. All significant intercompany
accounts and transactions have been eliminated. The Company has a single
reportable segment consisting of the development, sale and support of computer
security and management software. In the opinion of management, all adjustments,
consisting only of normal recurring adjustments considered necessary for a fair
presentation, have been included. The results of operations for the three month
period ended March 31, 1999 are not necessarily indicative of the results to be
expected for the full year or for any future periods. The accompanying
consolidated financial statements should be read in conjunction with the audited
consolidated financial statements contained in the Company's Annual Report on
Form 10-K filed with the Securities and Exchange Commission on April 15, 1999,
as amended by Form 10-K/A filed on April 30, 1999. The balance sheet at December
31, 1998 has been derived from the audited financial statements as of and for
the year ended December 31, 1998, but does not include all the information and
footnotes required by generally accepted accounting principles for complete
financial statements.
2. RELATED PARTY TRANSACTIONS
In December 1998, the Company agreed to acquire 3,948,199 shares of Series
A Preferred Stock of DirectWeb, Inc. for $2.5 million. DirectWeb, Inc. is a
subscription-based online service offering a complete turnkey Windows-98 based
PC, unlimited Internet access and technical support for a fixed user only fee.
The shares were acquired in January 1999. In late February 1999, the Company
acquired 4,615,385 shares of DirectWeb Series B Preferred Stock for $6.0
million. In connection with the formation of DirectWeb, the Company received a
warrant to acquire 3,175,000 shares of Direct Web common stock for total
consideration of $317.50. As of March 31, 1999, on an as converted basis and
excluding shares that may be acquired upon exercise of its warrant, the
Company's total DirectWeb investment represented approximately 12.3% of
DirectWeb's outstanding capital stock. With respect to the balance,
approximately 35.2% is owned by William L. Larson, a DirectWeb founder and the
Company's Chief Executive Officer; 35.4% is owned by Dennis Cline, a DirectWeb
founder and the Company's former Vice President of Worldwide Sales; and 17.1% is
owned by unrelated third party investors who, along with the Company, invested
in DirectWeb's Series A and Series B Preferred Stock.
3. MCAFEE.COM
McAfee.com is an Internet destination dedicated to updating, upgrading, and
managing PCs over the web. In December 1998, the Company created McAfee.com
Corporation as its subsidiary. In 1999, the Company intends to transfer the
McAfee.com domain name to this subsidiary and to enter into the agreements and
arrangements necessary to allow McAfee.com Corporation to operate the McAfee.com
web site independently, with its own workforce and research and development
staff.
In January 1999, several of the Company's officers were granted options to
purchase 2,850,000 shares of McAfee.com Common Stock. These options vest 25% on
January 15, 2000 and 1/48 per month thereafter. The determination of total
compensation to be recognized in connection with these grants requires the
remeasurement of the fair value of the options each reporting period until the
options are fully vested. Compensation expense is reflected in the Company's
results of operations as the options vest. For the three months ended March 31,
1999, the Company recorded compensation expense of approximately $457,000 with
respect to these options.
6
<PAGE> 7
NETWORK ASSOCIATES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
4. RECENT ACCOUNTING PRONOUNCEMENTS
In October 1997, the AICPA issued Statement of Position No. 97-2 ("SOP
97-2") "Software Revenue Recognition," which the Company has adopted for
transactions entered into during the year beginning January 1, 1998. SOP 97-2
provides guidance for recognizing revenue on software transactions and
supersedes previous guidance provided by SOP 91-1, "Software Revenue
Recognition." Under SOP 97-2, revenue from product licenses is recognized when a
signed agreement or other persuasive evidence of an arrangement exists, the
software or system has been shipped (or software has been electronically
delivered), the license fee is fixed and determinable, and collection of the
resulting receivable is probable. For contracts with multiple elements/
obligations, (e.g. software products, upgrades/enhancements, maintenance and
services), revenue is allocated to each element of the arrangement based on the
Company's evidence of fair value as determined by the amount charged when the
element is sold separately. Maintenance revenue for providing product updates
and customer support is deferred and recognized ratably over the service period.
Revenue on rental units under operating leases and service agreements is
recognized over the term of the rental agreement or the period during which
services are expected to be performed. Revenue generated from products sold
through traditional channels where the right of return exists is reduced by
reserves for estimated sales returns.
In March 1998, the AICPA issued Statement of Position No. 98-4 ("SOP
98-4"), "Deferral of the Effective Date of a Provision of SOP 97-2, Software
Revenue Recognition." SOP 98-4 defers, for one year, the application of certain
passages in SOP 97-2, which limit what is considered vendor-specific objective
evidence ("VSOE") necessary to recognize revenue for software licenses in
multiple-element arrangements when undelivered elements exist. The adoption of
SOP 97-2, as amended by SOP 98-4, in the first quarter of 1998 did not have a
material effect on the Company's revenue recognition practices.
In December 1998, the AICPA issued Statement of Position No. 98-9 ("SOP
98-9") "Modification of SOP 97-2, Software Revenue Recognition, With Respect to
Certain Transactions" which clarifies guidance regarding VSOE and multiple
element arrangements. SOP 98-9 amends SOP 98-4 to extend the deferral of
guidance in SOP 97-2 as it relates to these matters through fiscal years
beginning after March 15, 1999. The Company has evaluated the amendments
expected to be issued under SOP 98-9 and does not expect their adoption will
have a material effect on its revenue recognition practices.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133 (SFAS 133), "Accounting for Derivative
Instruments and Hedging Activities". SFAS 133 requires the Company to recognize
all derivatives on the balance sheet at fair value. Derivatives that are not
hedges must be adjusted to fair value through net income. If the derivative is a
hedge, depending on the nature of the hedge, changes in the fair value of the
derivative are either offset against the change in fair value of assets,
liabilities, or firm commitments through earnings or recognized in other
comprehensive income until the hedged item is recognized in earnings. The
ineffective portion of a derivative's change in fair value will be immediately
recognized in earnings. SFAS 133 is effective for years beginning after June 15,
1999, but companies can early adopt as of the beginning of any fiscal quarter
that begins after June 1998. The Company is evaluating the requirements of SFAS
133, but does not expect this pronouncement to materially impact the Company's
results of operations.
7
<PAGE> 8
NETWORK ASSOCIATES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
5. NET INCOME PER SHARE
In accordance with the disclosure requirements of SFAS 128, a
reconciliation of the numerator and denominator of basic and diluted net income
per share calculations is provided as follows (in thousands, except per share
amounts):
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------
1999 1998
------- -------
<S> <C> <C>
Numerator -- basic
Net income.................................................. $26,241 $32,744
======= =======
Numerator -- diluted
Net income.................................................. $26,241 $32,744
Interest on convertible debentures, net of tax(1)........... -- --
------- -------
Net income available to common stockholder.................. $26,241 $32,744
======= =======
Denominator -- basic
Basic weighted average common shares outstanding............ 138,395 130,885
======= =======
Denominator -- diluted
Basic weighted average common shares outstanding............ 138,395 130,885
Effect of dilutive securities:
Common stock options........................................ 4,212 5,411
------- -------
Diluted weighted average shares............................. 142,607 136,296
======= =======
Net income per share -- basic............................... $ 0.19 $ 0.25
======= =======
Net income per share -- diluted............................. $ 0.18 $ 0.24
======= =======
</TABLE>
- ---------------
(1) Convertible debt interest and related as-if converted shares are excluded
from both the 1998 and 1999 calculations as they are anti-dilutive.
6. LITIGATION
On April 7, 1999, a putative securities class action, captioned Knisley v.
Network Associates, Inc., et al., Civil Action No. C-99-1729-SI, was filed
against Network Associates and several of its officers in the United States
District Court for the Northern District of California. The complaint alleges
violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
and seeks unspecified damages on behalf of a purported class of purchasers of
common stock between January 20, 1998 and April 6, 1999. Several similar actions
have been filed by other plaintiffs, including Wetzel v. Network Associates, et
al., Case No. 99-01731 JL (N.D. Cal), Klein v. Network Associates, et al., Case
No. C-99-1789-WHO (N.D. Cal), Hallowell v. Network Associates, et al., Case No.
C-99-1778-MEJ (N.D. Cal.), and Estate of Lillian Herschkowitz v. Network
Associates, et al., Case No. C-99-1738-SI (N.D. Cal.). On April 21, 1999, a
similar action was filed in the United States District Court for the Southern
District of Florida, captioned Lidsky v. Network Associates, et al., Case No.
99-1016-CIV. Similar actions have also been filed on behalf of a purported class
of purchasers of common stock between January 20, 1998 and April 19, 1999,
including Beltran v. Network Associates, Inc. et al., Case No. C99-1943-SI (N.D.
Cal.), Goldsmith v. Network Associates, et al., Case No. C99-1990-FMS (N.D.
Cal.)., and Schubert v. Network Associates et al., Case No. C99-0594WD (W.D.
Wash.). The latter action was filed in the United States District Court for the
Western District of Washington on April 23, 1999.
On April 24, 1997, Network Associates was served by Symantec with a suit
filed in the United States District Court, Northern District of California, San
Jose Division, alleging copyright infringement and unfair
8
<PAGE> 9
NETWORK ASSOCIATES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
competition by Network Associates. Symantec alleges that Network Associates'
computer software program called "PC Medic" copied portions of Symantec's
computer software program entitled "CrashGuard." Symantec's complaint sought
injunctive relief and unspecified money damages. On July 20, 1997, Symantec
sought leave to amend its complaint to include additional allegations of
copyright infringement and trade secret misappropriation pertaining to Network
Associates' "VirusScan" product. Symantec sought injunctive relief and
unspecified money damages. On October 6, 1997, the Court issued an order
granting Symantec's motion to amend its complaint and enjoining Network
Associates from shipping any product containing either an approximately 30-line
routine found in Crash Guard or an approximately 100-line routine found in a
Symantec DLL. The Court's order expressly stated that "the court is not
enjoining the sale or distribution of [McAfee's] current product." On December
19, 1997, the Court denied Symantec's motion to enjoin sale or distribution of
Network Associates' current PC Medic product. On April 1, 1998, Symantec filed
an amended complaint including additional allegations of trade secret
misappropriation, unfair competition, interference with economic advantage and
contractual relations and violations of the Racketeer Influenced and Corrupt
Organization Act ("RICO"), in connection with the alleged use by Network
Associates employees of proprietary Symantec customer database. On June 9, 1998,
the Court dismissed Symantec's RICO claims without prejudice and dismissed
Symantec's unfair competition claims relating to alleged use of source code with
prejudice. On June 15, 1998, the Court entered a stipulated preliminary
injunction prohibiting Network Associates from making use of any Symantec
customer list data. On September 4, 1998, Symantec's time for amending its
complaint expired; Symantec did not refile its RICO claims. On October 8, 1998,
the Court granted partial summary judgment in Network's favor dismissing with
prejudice Symantec's claims for interference with economic and contractual
relations, Symantec's trade secret claims relating to alleged misappropriation
of source code and portions of Symantec's copyright claims.
On October 22, the Court consolidated this case for purposes of trial with
an action originally brought on February 4, 1998 by CyberMedia Inc. (acquired by
Network Associates in September 1998) against Symantec (described below) and the
action brought by Symantec against Network Associates on September 4, 1998
(described below). Trial is currently set for May 22, 2000.
On September 4, 1998, Symantec filed suit in United States District Court
for the Northern District of California, San Jose Division, against Network
Associates, alleging copyright infringement, unfair competition, and trade
secret misappropriation. Symantec alleges that an unidentified Network
Associates employee copied and transported to Network Associates certain
proprietary Symantec files, including files containing Norton Antivirus
software. On January 20, 1999, the Court dismissed those portions of Symantec's
claims relating to Network Associates' PC Medic and VirusScan products. Symantec
also alleges that another unidentified Network Associates employee located in
Canada copied and transported to Network Associates certain other unidentified
files containing Symantec confidential information.
On May 13, 1997, Trend Micro, Inc. ("Trend") filed suit in United States
District Court for the Northern District of California against both Network
Associates and Symantec. Trend alleges that Network Associates' "WebShield" and
"GroupShield" products infringe a Trend patent which issued on April 22, 1997.
Trend's complaint seeks injunctive relief and unspecified money damages. On June
6, 1997, Network Associates filed its answer denying any infringement. Network
Associates also filed counterclaims against Trend alleging unfair competition,
false advertising, trade libel, and interference with prospective economic
advantage. On September 19, 1997, Symantec filed a motion to sever Trend's
action against Network Associates from its action against Symantec. Network
Associates did not oppose Symantec's motion to sever, other than to recommend a
joint hearing on patent claim interpretation. On December 19, 1997, the Court
granted Symantec's motion to sever and adopted Network Associates'
recommendation regarding a joint hearing on patent claim interpretation. As a
result of the Court's decision, Trend's actions against Network Associates and
Symantec were to proceed separately. Symantec has since settled out of the
lawsuit.
9
<PAGE> 10
NETWORK ASSOCIATES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
The Court held a patent claim interpretation hearing on September 1, 1998.
The Court issued a ruling on claim interpretation on or about December 29, 1998.
In addition, Trend filed a supplemental complaint on October 5, 1998, adding the
Gauntlet product to the products accused of infringing Trend's patent. At a case
management conference held on October 2, 1998, the Court set a new trial date of
November 8, 1999. Since then, the parties have stipulated to a postponement of
various dates, including postponement of the trial date until February, 2000.
On September 15, 1997, Network Associates was named as a defendant in a
patent infringement action filed by Hilgraeve Corporation ("Hilgraeve") in the
United States District Court, Eastern District of Michigan. Hilgraeve alleges
that Network Associates' VirusScan product infringes a Hilgraeve patent which
was issued on June 7, 1994. Hilgraeve's action seeks injunctive relief and
unspecified money damages. All discovery has been completed. The Court will hear
the parties' motions for summary judgment on May 20, 1999. If the court denies
Network Associates' motion for summary judgment of non-infringement, the court
will set the matter for trial sometime later in 1999 or in 2000.
On July 30, 1998, CyberMedia, Network Associates and certain of
CyberMedia's officers and directors were named as defendants in a purported
class action entitled Schneider v. Patil, et al., No. 16565NC (Del. Ch.). The
complaint, in a subsequent amendment, alleges that the individual defendants
breached their fiduciary duties by failing to obtain an adequate price for the
company in the Network Associates/ CyberMedia merger. On December 16, 1998,
plaintiffs filed a stipulation of voluntary dismissal.
On August 10, 1998, CyberMedia and two of its officers were named as
defendants in a purported securities class action entitled Daugherty v.
CyberMedia, Inc. et al., No. BC195733 (Los Angeles Cty. Superior Ct.). The
complaint alleges that defendants violated California state securities laws and
common law by artificially deflating the price of CyberMedia stock to the
detriment of a purported class of investors who sold CyberMedia stock between
March 13, 1998 and July 28, 1998. The Complaint did not specify damages.
Defendants filed a demurrer to the complaint on September 25, 1998. On January
13, 1999, the court (Commissioner Bruce E. Mitchell) sustained Defendants'
demurrer with prejudice and allowed plaintiff to amend its complaint within 30
days only if a new named plaintiff was added. On February 12, 1999, plaintiffs
filed an amended complaint alleging the same causes of action with the same
named plaintiff. On February 26, 1999, Defendants filed an ex parte application
for an order to show cause why plaintiffs should not be held in violation of the
Court's Order. At the hearing on March 8, 1999, the Court dismissed the action
with prejudice.
On September 14, 1998, CyberMedia and certain of its former officers and
directors were named as defendants in a consolidated amended securities class
action complaint filed in the United States District Court for the Central
District of California. The consolidated amended complaint consolidated the
following previously filed cases: Ong v. CyberMedia, Inc., et al., No. 98-1811
CBM (Ex), filed on March 12, 1998, St. John v. CyberMedia, Inc., et al., No.
98-2085 MRP (SHx), filed on March 24, 1998, Zier v. CyberMedia, Inc., et al.,
No. 98-2210 CM (MCx), filed on March 26, 1998, Liu v. CyberMedia, Inc., et al.,
No. 98-2617, filed on April 8, 1998, Kerr, et al. v. CyberMedia, Inc., et al.,
No. 98-3104 RJK (ANx), filed on April 23, 1998, and Barker v. CyberMedia, Inc.,
et al., No. SA CV98-401 AHS (ANx), filed on May 6, 1998. Plaintiffs filed a
second consolidated amended complaint on March 8, 1999. It alleges that the
defendants violated federal securities laws by artificially inflating the price
of CyberMedia stock to the detriment of a purported class of investors who
purchased or otherwise acquired CyberMedia stock between March 31, 1997 and
March 12, 1998. The second consolidated amended complaint did not specify
damages. Defendants' response to the second consolidated amended complaint must
be filed by July 21, 1999.
CyberMedia and certain of its former officers and directors were named as
defendants in three securities class action lawsuits filed in the Superior Court
of Los Angeles County. Such complaints have been ordered consolidated, although
a consolidated amended complaint has not yet been filed. The consolidated
complaints
10
<PAGE> 11
NETWORK ASSOCIATES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
include: Brown v. CyberMedia, Inc., et al., No. B C187898, filed on March 19,
1998, Smith v. CyberMedia, Inc., et al. No. B C188527, filed on March 31, 1998,
and Stockwell v. CyberMedia, Inc., et al., No. B C189020, filed on April 8,
1998. The complaints allege that defendants violated California state securities
laws and common law by artificially inflating the price of CyberMedia stock to
the detriment of a purported class of investors who purchased or otherwise
acquired CyberMedia stock between March 31, 1997 and March 13, 1998. The
complaints do not specify damages. The consolidated state securities litigation
has been stayed pending resolution of the federal securities litigation pursuant
to a stipulation and order entered by the Court on January 5, 1999.
On February 4, 1998, CyberMedia filed a lawsuit against Symantec in United
States District Court for the Northern District of California. Also named as
defendants in the complaint are ZebraSoft, Inc. ("ZebraSoft") and three
individual officers and directors of ZebraSoft. The complaint alleges that the
defendants violated federal copyright laws and misappropriated CyberMedia's
trade secrets in developing and distributing a computer software program, known
as Norton Uninstall Deluxe, that is competitive with CyberMedia's UnInstaller
program. The complaint seeks money damages and injunctive relief against the
defendants.
On September 3, 1998, the United States District Court for the Northern
District of California issued a preliminary injunction preventing the defendants
from manufacturing, marketing or distributing any existing version of their
competing program, and requiring defendants to issue a "Notice of Recall" to all
distributors regarding existing versions of the program. The injunction was
effective throughout the United States. On November 30, 1998, the Court issued a
further order pursuant to an agreement of the parties, prohibiting Symantec from
manufacturing, distributing or advertising Norton Uninstall Deluxe anywhere in
the world.
The defendants have filed counterclaims against CyberMedia for slander,
libel, product disparagement and related state law claims, seeking unspecified
money damages.
7. SUBSEQUENT EVENTS
Stock Option Repricing
On April 22, 1999, the Company offered its employees, excluding executive
officers and certain others, the right to cancel certain outstanding stock
options at original exercise prices and receive new options with a new exercise
price. Options to purchase a total of 10.3 million shares were canceled and new
options were issued at an exercise price of $11.063, based on the closing price
of the Company's common stock on April 22, 1999. The number of shares under the
new options equal the number of shares under the old options. The shares subject
to each new option continue to vest at the same rate that they would have vested
under the old option. However, the new options cannot be exercised for a period
of twelve months regardless of vesting status.
In accordance with Accounting Principles Board Opinion No. 25 "Accounting
for Stock Issued to Employees," the Company will incur an initial stock based
compensation charge in connection with this repricing. This charge is calculated
based on the difference between the exercise price of the new options and their
market value on the date of acceptance by employees. Of the total initial charge
of approximately $27.6 million, $7.4 million will be expensed in the quarter
ended June 30, 1999 and $20.2 million will be expensed over the remaining
vesting period of approximately three years.
On March 31, 1999, the FASB issued an exposure draft of its Proposed
Interpretation, "Accounting for Certain Transactions involving Stock
Compensation -- an interpretation of APB Opinion No. 25" (the "Proposed
Interpretation"). Under the Proposed Interpretation, stock options repriced
after December 15, 1998 will be subject to variable plan accounting treatment.
If adopted, this proposed guidance will require the Company to remeasure
compensation cost for outstanding repriced options each reporting period based
on
11
<PAGE> 12
NETWORK ASSOCIATES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
changes in the market value of the underlying common stock after the date of
adoption. The FASB currently expects to approve the interpretation in the fourth
quarter of 1999. Depending upon movements in the market value of the Company's
common stock, this accounting treatment may result in significant additional
compensation charges in future periods.
Stock Repurchase Program
In May 1999, the Board of Directors authorized the Company to repurchase up
to $100 million of its common stock in the open market.
12
<PAGE> 13
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the condensed
consolidated financial statements and related notes included elsewhere in this
report. The results shown herein are not necessarily indicative of the results
to be expected for the full year or any future periods.
This Report on Form 10-Q contains forward-looking statements, including but
not limited to those specifically identified as such, that involve risks and
uncertainties. The statements contained in this Report on Form 10-Q that are not
purely historical are forward-looking statements within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act, including without
limitation statements regarding our expectations, beliefs, intentions or
strategies regarding the future. All forward-looking statements included in this
Report on Form 10-Q are based on information available to us on the date hereof,
and we assume no obligation to update any such forward-looking statements. Our
actual results could differ materially from those anticipated in these
forward-looking statements as a result of a number of factors, including, but
not limited to, those set forth in "Risk Factors" and elsewhere in this Report
on Form 10-Q.
OVERVIEW
We are a leading developer and provider of software products that address
two of the most important concerns of information technology or IT
professionals: network security and network management. In the network security
arena, the majority of our revenue has historically been derived from our McAfee
anti-virus product line. In the network management arena, the majority of our
revenue has historically been derived from our Sniffer network fault and
performance management product line. These two flagship product lines form the
customer base and product base from which the balance of our product line has
developed.
To continue expanding our revenue base, we have focused our efforts on
building a full line of complementary network security and network management
solutions. On the network security side, during 1998 we strengthened our
anti-virus lineup by adding complementary products in the firewall, intrusion
protection, encryption, and virtual private networking categories. On the
network management side, during 1998 we built upon our Sniffer line by adding
products in the help desk, asset management, network monitoring, and network
reporting categories. We continuously seek to expand our product line. We have
combined complementary products into "suites", offering customers the ability to
license multiple products at the same time. Our products are currently organized
into four primary product suites: McAfee Total Virus Defense and PGP Total
Network Security, which combine to form "Net Tools Secure" and Sniffer Total
Network Visibility and Magic Total Service Desk, which combine to form "Net
Tools Manager". These four product suites together form a single integrated
mega-suite called "Net Tools".
We organize our products for sale to corporate customers into four product
suites:
NET TOOLS
<TABLE>
<CAPTION>
NET TOOLS SECURE NET TOOLS MANAGER
- ------------------------------------------------------ ------------------------------------------------
SNIFFER TOTAL NETWORK
MCAFEE TOTAL VIRUS DEFENSE PGP TOTAL NETWORK SECURITY VISIBILITY MAGIC TOTAL SERVICE DESK
- -------------------------- -------------------------- --------------------- ------------------------
<S> <C> <C> <C>
- - VirusScan Security Suite - PGP Enterprise Security - Sniffer Distributed - Magic HelpDesk Suite
Suite Analysis Suite
- - NetShield Security Suite - Gauntlet Active Firewall - Sniffer Pro 98 - Self ServiceDesk Suite
Suite Portable Analysis
Suite
- - GroupShield Security - CyberCop Intrusion - Network Informant - Zero Admin Client
Suite Detection Suite Suite Suite
- Zero Admin Client 2001
Suite
</TABLE>
Many of our network security and management products are also available as
stand-alone products or as part of smaller product suites. Electronic software
distribution is one of the principal means by which we
13
<PAGE> 14
distribute our software products to our customers. We generally license our
products to corporate customers, our primary customer base, under either a
one-year or a two-year product license.
In addition to our corporate customer base, our primary customer base, we
also offer a full range of consumer-oriented security and management software
products to retail customers, both through traditional retail stores and via the
Internet.
Our retail products for sale to consumers and small business customers are
organized into three categories:
- Anti-virus
- Internet security/privacy; and
- Desktop utilities.
Our retail products are available as stand-alone products. Our VirusScan
and Nuts & Bolts products also leverage the suite sales model by being sold in
Deluxe and Platinum level suites. The Deluxe and Platinum level suites offer the
consumer name brand products bundled together. We generally utilize a perpetual
or unlimited license for products sold in the retail channel.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the percentage
of net revenue represented by certain items in our statements of income for the
three months ended March 31, 1999 and 1998.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
----------------
1999 1998
------ ------
<S> <C> <C>
Net revenue................................................. 100.0% 100.0%
Operating costs and expenses:
Cost of net revenue....................................... 14.4 19.1
Research and development.................................. 14.3 14.3
Marketing and sales....................................... 38.2 34.0
General and administrative................................ 8.9 8.3
Amortization of intangibles............................... 6.2 2.5
----- -----
Total operating costs and expenses..................... 82.0 78.2
----- -----
Income from operations............................ 18.0 21.8
Interest and other income and expense net................... 0.7 2.5
----- -----
Income before provision for income taxes.......... 18.7 24.3
Provision for income taxes.................................. 8.0 9.9
----- -----
Net income........................................ 10.7% 14.5%
===== =====
</TABLE>
Net Revenue. Net revenue includes product revenues, revenues from software
support, maintenance contracts, education and consulting services as well as
revenues from those customer support and maintenance contracts that are deferred
and recognized over the related service period. Net revenue was $245.2 million
in the three months ended March 31, 1999, an increase of 8.4% from $226.1
million in the three months ended March 31, 1998. The increase in net revenues
is due to an increase in the breadth of product offerings largely a result of
the expansion of both the Net Tools Secure and Net Tools Manager product suites,
and the acquisitions of Magic and CyberMedia. We also increased our brand
recognition, resulting in the growth of the installed customer base and the
renewal of maintenance contracts.
We have experienced significant growth in net income (before acquisition
and related costs) and net revenue. However, our rate of growth has slowed in
recent periods due to increased price competition, a maturing anti-virus market
and an increasingly higher base from which to grow. More recently, we announced
that as a result of decreased visibility into future 1999 revenue due to Year
2000 issues and increasing sales
14
<PAGE> 15
cycles for our products, we intend to limit distributor orders in the second
quarter of 1999.* Our intention to limit distributor orders in the second
quarter of 1999 in an effort to realign inventory levels in our distribution
channels to be more consistent with our revised future revenue expectations will
result in significantly lower revenue and a loss in the quarter ended June 30,
1999.* Moreover, in later periods we could experience a significant reduction in
our net revenue, net income and related growth as the purchasing patterns of our
current or potential customers, particularly those to whom we market broader
enterprise solutions, are meaningfully impacted by Year 2000 concerns.*
International revenue accounted for approximately 43% and 35% of net
revenue for the three months ended March 31, 1999 and 1998, respectively. The
increase in international net revenue as a percentage of net revenue between the
three month periods ended March 31, 1999 and 1998 was due primarily to increased
acceptance of our products in international markets and the continued investment
in international operations, including the recent acquisition of Dr Solomon's.
We expect that international revenue will continue to account for a significant
percentage of net revenue.* We also expect that a significant portion of such
international revenue will be denominated in local currencies.* To reduce the
impact of foreign currency fluctuations we engage in financial risk management
activities. However, there can be no assurance that our future results of income
will not be adversely affected by such fluctuations or by costs associated with
currency risk management strategies. Other risks inherent in international
revenue generally include the impact of longer payment cycles, greater
difficulty in accounts receivable collection, unexpected changes in regulatory
requirements, seasonality due to the slowdown in European business activity
during the third quarter, tariffs and other trade barriers, uncertainties
relative to regional economic circumstances, political instability in emerging
markets and difficulties in staffing and managing foreign operations. There can
be no assurance that these factors will not have a material adverse affect on
our future international revenue. In addition, there can be no assurance that
the macroeconomic issues currently being experienced in Asia will not spread to
Europe, the U.S. or Latin America, and/or have a material adverse impact on our
revenue or revenue growth in the future. Further, in countries with a high
incidence of software piracy, we may experience a higher rate of piracy of its
products.* There are a number of additional risks related to the export outside
of the United States of the Company's PGP and TIS security products.
Cost of Revenue. Cost of revenue is comprised of cost of product revenue
and cost of services and support revenue. Cost of product revenue consists
primarily of the cost of media, manuals and packaging for products distributed
through traditional channels, royalties and, with respect to certain Sniffer
products, computer platforms and other hardware components. Cost of services and
support revenue consists principally of salaries and benefits related to
employees providing customer support and consulting and education services. Cost
of revenue was $35.2 million in the three months ended March 31, 1999, a
decrease of 18.5% from $43.3 million in the three months ended March 31, 1998.
We are experiencing greater efficiencies in our hardware purchases as well
as an increase in larger deals. Additionally, in the second quarter of 1998 we
outsourced our hardware manufacturing to Modus Media Inc. (MMI), who is able to
provide us with considerable cost savings. We expect cost of revenue in absolute
dollar terms to decrease in the second quarter as we adjust our channel
inventory levels, but to rise later in 1999.
Research and Development. Research and development expenses consist
primarily of salary and benefits for our development and technical support
staff. Research and development expenses were $35.1 million in the three months
ended March 31, 1999, an increase of 8.9% from $32.3 million in the three months
ended March 31, 1998. These increases were primarily a result of the general
expansion of our product development and technical support staff. As a
percentage of net revenue, research and development expenses were 14.3% in the
three-month periods ended March 31, 1999 and March 31, 1998. We anticipate that
research and development expenses will continue to increase in absolute dollars,
but may fluctuate as a percentage of net revenue.*
- ---------------
* This statement is a forward looking statement reflecting current expectations.
There can be no assurance that our actual performance will meet our current
expectations. See the Risk Factors on page 22 for a discussion of certain
factors that could affect future performance.
15
<PAGE> 16
We believe that our ability to maintain our competitiveness will depend in
large part upon our ability to enhance existing products and develop new
products and develop and integrate acquired products. The market for computer
software is characterized by low barriers to entry and rapid technological
change, and is highly competitive with respect to timely product introductions.
The timing and amount of research and development expenses may vary
significantly based upon the number of new products and significant upgrades
under development during a given period.*
Marketing and Sales. Marketing and sales expenses consist primarily of
salary, commissions and benefits for marketing, sales and customer support
personnel and costs associated with advertising and promotions. Marketing and
sales expenses were $93.7 million in the three months ended March 31, 1999, an
increase of 21.9% from $76.8 million in the three months ended March 31, 1998.
As a percentage of net revenue, marketing and sales expense was 38.2% and 34.0%
in the three-month periods ended March 31, 1999 and 1998. We are continuing to
expand the breadth and depth of our product suites. This expansion is expected
to contribute to a further increase in marketing and sales expenses in absolute
dollars, which may cause expenses to fluctuate as a percentage of net revenue.*
General and Administrative. General and administrative expenses consist
principally of salary and benefit costs for administrative personnel and general
operating costs. General and administrative costs were $21.8 million in the
three months ended March 31, 1999, an increase of 16% from $18.8 million in the
three months ended March 31, 1998. As a percentage of net revenue, general and
administrative expenses were 8.9% and 8.3% in the three months periods ended
March 31, 1999 and 1998. The increase was due to our continued investments in
our finance and administrative infrastructure, which we expect to continue in
the foreseeable future. As a result, we expect general and administrative
expenses to increase in absolute dollars, but they may fluctuate as a percentage
of net revenue.*
Amortization of Intangibles. The Company expensed $15.1 million and $5.6
million of amortization related to intangibles in the three months ended March
31, 1999 and 1998, respectively. Intangibles consist of purchased goodwill and
certain technology acquired through acquisitions. The increases are due to the
acquisitions of Magic Solutions, Inc. ("Magic Solutions") and CyberMedia, as
well as the acquisitions of the Virex and NetOctopus products by Dr Solomon's.
Acquisition and Other Related Costs.
In connection with the acquisitions in 1998 accounted for as a pooling of
interests, we incurred direct transaction costs and other restructuring and
related charges in the amount of $85.8 million in the year ended December 31,
1998. In connection with the acquisitions accounted for as purchase
transactions, we incurred charges of $49.8 million in the year ended December
31, 1998, consisting principally of the write-off of acquired in-process
research & development.
The following table summarizes the activity during the three months ended
March 31, 1999, in the reserves for acquisition and other costs established in
the second and third quarters of 1998 (in thousands):
<TABLE>
<CAPTION>
DIRECT ASSET
TRANSACTION SEVERANCE LEASE WRITE
COSTS & BENEFITS COSTS DOWNS OTHER TOTAL
----------- ---------- ------ ------ ------- -------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1998... $ 9,900 $8,338 $5,508 $1,405 $ 2,144 $27,295
Paid Out or Charged against the
related assets............... (5,593) (886) (413) (52) (12) (6,956)
Adjustment to the liability.... 0 750 750 0 (2,000) (500)
------- ------ ------ ------ ------- -------
Balance, March 31, 1999........ $ 4,307 $8,202 $5,845 $1,353 $ 132 $19,839
======= ====== ====== ====== ======= =======
</TABLE>
- ---------------
* This statement is a forward looking statement reflecting current expectations.
There can be no assurance that our actual performance will meet our current
expectations. See the Risk Factors on page 22 for a discussion of certain
factors that could affect future performance.
16
<PAGE> 17
For the three months ended March 31, 1999, activity with respect to these
reserves consisted principally of the payment of accrued direct transaction
costs and severance benefits, and adjustments to remaining accruals. We expect
that expenditures related to these accruals will be substantially complete by
the end of 1999.*
With the respect to the various facilities acquired in our 1998
acquisitions that were identified for closure, as of March 31, 1999, 4
facilities worldwide have yet to be disposed of or subleased (3 leased; 1
owned). These facilities are insignificant to our operations and, other than a
portion of a leased facility, which we have decided to retain, each is intended
for disposal or sublease in 1999.
The following table summarizes the activity during the three months ended
March 31, 1999, in the reserves for acquisition and other costs established in
the year ended December 31, 1997 ($000's):
<TABLE>
<CAPTION>
DIRECT ASSET
TRANSACTION SEVERANCE LEASE WRITE
COSTS & BENEFITS COSTS DOWNS OTHER TOTAL
----------- ---------- ------ ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1998........ $ (36) $ 539 $ (422) $ 484 $ 374 $ 939
Paid Out or Charged against the
related assets.................. (111) (58) (770) 0 0 $(939)
Adjustment to liability........... 300 (200) 1,258 (484) (374) 500
----- ----- ------ ----- ----- -----
Balance, March 31, 1999........... $ 153 $ 281 $ 66 $ 0 $ 0 $ 500
===== ===== ====== ===== ===== =====
</TABLE>
For the three months ended March 31, 1999, activity with respect to these
reserves consisted principally of expenditures related to accrued lease
termination costs and adjustments to remaining accruals. We expect that all
expenditures related to these accruals will be completed by the end of the
second quarter of 1999.*
We believe that the balances remaining at March 31, 1999 are adequate to
cover any additional benefits or losses yet to be paid or realized. Any reserves
not used will be recorded as a credit to Acquisition and related costs in future
periods.
Interest and Other Income and Expense, Net. Interest and other income and
expense, net, decreased to $1.6 million in the three months ended March 31, 1999
from $5.7 million in the three months ended March 31, 1998. The decrease was
primarily due to the increase of interest expense to $4.3 million in the three
months ended March 31, 1999 from $2.5 million in the three months ended March
31, 1998, primarily as a result of our Zero Coupon Convertible Subordinated
Debentures (the "Debentures"), issued in February 1998. Our foreign currency
gain also decreased by $1.3 million from the three months ended March 31, 1998
to the three months ended March 31, 1999. The remaining decrease of $1.0 million
is due to a decrease of interest income, as a result of reduced cash balances
resulting from the acquisitions of Magic and CyberMedia.
Provision for Income Taxes. Our effective tax rate was 43% for the
three-month period ended March 31, 1999, and 40% for the three-month period
ended March 31, 1998. Our effective tax rate, excluding amortization of
intangibles and interest on the Debentures, was 30% for the three-month period
ended March 31, 1999, and 35% for the three-month period ended March 31, 1998.
The reduction in the effective tax rate quarter over quarter, excluding
amortization of intangibles and interest on the Debentures, is the result of the
implementation of various domestic and international tax strategies.
Liquidity and Capital Resources
At March 31, 1999, we had $360.8 million in cash and cash equivalents and
$411.1 million in marketable securities, for a combined total of $771.9 million.
- ---------------
* This statement is a forward looking statement reflecting current expectations.
There can be no assurance that our actual performance will meet our current
expectations. See the Risk Factors on page 22 for a discussion of certain
factors that could affect future performance.
17
<PAGE> 18
Net cash provided by operating activities was $37.5 million in the three
months ended March 31, 1999 and $41.0 million in the three months ended March 31
1998. Net cash provided by operating activities in the three months ended March
31, 1999, consisted primarily of net income before depreciation and
amortization, plus an increase in accounts payable and a decrease in prepaid
expenses, income taxes and other current assets, which were partially offset by
an increase in accounts receivable. In the three months ended March 31, 1998,
net cash provided by operating activities consisted primarily of net income
before depreciation and amortization, plus increases in deferred taxes,
partially offset by increases in accounts receivable, prepaid expenses, income
taxes and other current assets, and decreases in accounts payable and accrued
liabilities and deferred revenue.
We expect our accounts receivable balance as a percentage of sales to
increase due to our increased emphasis on international sales, which typically
have longer payment terms; a higher percentage of indirect sales through
indirect channels and a shift in our product mix to more server/enterprise based
products. With an increase in business through indirect channels, our receivable
collection experience has become more dependent on the longer payment cycle for
VARs, distributors and system integrators. To address this increase in accounts
receivable and to improve cash flow, we may from time to time take actions to
encourage earlier payment of receivables and sell receivables. To the extent
that our receivable balance increases, we will be subject to greater general
credit risks with respect thereto.
Net cash used in investing activities was $102.4 million in the three
months ended March 31, 1999 consisting primarily of the purchase of marketable
securities and additions to fixed assets. Net cash used in investing activities
was $372.4 million in the three months ended March 31, 1998 primarily reflecting
the purchase of marketable securities and additions to fixed assets.
Net cash provided by financing activities was $16.6 million in the three
months ended March 31, 1999, consisting primarily of the proceeds associated
with the exercise of non qualified stock options, partially offset by the effect
of exchange rate fluctuations. Net cash provided by financing activities was
$399.9 million in the three months ended March 31 1998, consisting primarily of
net proceeds from the issuance of the Debentures and the proceeds and tax
benefits associated with the exercise of non-qualified stock options.
We believe that our available cash and anticipated cash flow from
operations will be sufficient to fund our working capital and capital
expenditure requirements for at least the next twelve months.*
EURO
On January 1, 1999, the "euro" was introduced. On that day, the exchange
ratios of the currencies of the eleven countries participating in the first
phase of the European Economic and Monetary Union were fixed. The euro became a
currency in its own right and the currencies of the participating countries,
while continuing to exist for a three-year transition period, are now fixed
denominations of the euro. The conversion to the euro will have significant
effects on the foreign exchange markets and bond markets and is requiring
significant changes in the operations and systems within the European banking
industry. Our information system is designed to accommodate multi-currency
environments. As a result we have the flexibility to transact business with
vendors and customers in either euro or traditional national currency units. For
those countries where bank accounts were not automatically translated into dual
currency bank accounts a separate we maintain separate euro accounts.
Financial Risk Management
As a result of the continued expansion of our business in Europe, we expect
to see an increase over time in exposures related to nonfunctional currency
denominated sales in several European currencies.* Currently, we hedge only
those currency exposures associated with certain assets and liabilities
denominated in
- ---------------
* This statement is a forward looking statement reflecting current expectations.
There can be no assurance that our actual performance will meet our current
expectations. See the Risk Factors on page 22 for a discussion of certain
factors that could affect future performance.
18
<PAGE> 19
nonfunctional currencies and we do not generally hedge anticipated foreign
currency cash flows. The hedging activity we have undertaken is intended to
offset the impact of currency fluctuations on certain non-functional currency
assets and liabilities. The success of this activity depends upon forecasts of
transaction activity denominated in various currencies, primarily the Canadian
dollar, Australian dollar and certain European currencies.* To the extent that
these forecasts are over or understated during periods of currency volatility,
we could experience unanticipated currency gains or losses.*
Year 2000
YEAR 2000 ISSUE DESCRIBED
Many currently installed computer systems and software products are coded
to accept, store, or report only two digit entries in date code fields.
Beginning in the Year 2000, these date code fields will need to be enabled to
distinguish 21st century dates from 20th century dates. This is the "Year 2000
issue." As a result, computer systems and/or software used by many companies,
including us, our vendors and our customers, will need to be upgraded to comply
with these Year 2000 requirements. We could be impacted by Year 2000 issues
occurring in our own infrastructure or the infrastructure of our major
distributors, suppliers, customers, vendors and financial service organizations.
These Year 2000 issues could include information errors and significant
information system failures. Any disruption in our operations as a result of
Year 2000 issues could have a material adverse effect on our business, results
of operations and financial conditions.
OUR STATE OF READINESS
Overview. To address Year 2000 readiness, we have implemented a corporate
program to coordinate efforts across all business functions and geographic
areas, including addressing risks associated with business partners and other
third-party relationships. Our internal Year 2000 readiness program is divided
into four program areas: Commercial Product Compliance; Internal Systems and
Technology Compliance; Supplier and Business Partner Compliance; and Facilities
and Safety Compliance. For each of these areas, we are using a four-step
approach that includes: Awareness (ownership and task assignment); Inventory
(listing of all items to be assessed); Assessment (prioritizing inventoried
items, assessing compliance, planning corrective actions, making initial
contingency plans); and Corrective Action (implementing corrective actions,
verifying implementation, and finalizing contingent plans). We have formed a
Year 2000 Steering Team to coordinate this corporate program. We have
substantially completed the assessment phase for all areas and target completion
of corrective actions by the end of the third quarter of 1999.* There can be no
assurance that we will be able to complete all four phases in a timely manner,
if at all, or that the process will adequately address the Year 2000 Issue.
Commercial Product Compliance. Our currently licensed products are designed
to be Year 2000 Compliant. Year 2000 Compliant means that our products will
continue to operate substantially in accordance with published documentation on
and after January 1, 2000. We use the British Standards Institute's DISC PD-2000
as our standard for assessing Year 2000 compliance. We have evaluated and tested
all our products for Year 2000 Compliance and believe that all our products
released since November 1998 or currently under development are Year 2000
compliant. For non-compliant products introduced prior to November 1998, we have
identified and provided customer's migration paths in the form of update and
upgrade options. To date, the number of these products and the related cost
associated with our product compliance program have not been significant.
Internal Systems and Technology Compliance.
Core IT Systems. We have implemented the R3 system from SAP A.G. The SAP
system is designed to automate more fully our business processes and is
certified by SAP A.G. as Year 2000 compliant. This
- ---------------
* This statement is a forward looking statement reflecting current expectations.
There can be no assurance that our actual performance will meet our current
expectations. See the Risk Factors on page 22 for a discussion of certain
factors that could affect future performance.
19
<PAGE> 20
implementation was completed in late 1997 and early 1998 and included most of
the major functional areas of our business.
Other Information Technology Systems. Our other information technology
systems include telephone switches and equipment and software; network, desktop
and server hardware and related operating systems and applications software;
electronic data interchange systems; and human resources systems. We have
substantially completed our assessment of these systems and have replaced,
upgraded, or planned to replace or upgrade, those systems that were not Year
2000 compliant. The most significant non-compliant system was in human
resources. We have undertaken to implement SAP's Human Resources module across
all regions of the company to ensure compliance. All system compliance projects
are expected to be completed by the end of the third quarter of 1999.*
Facilities and Safety Compliance. Our facilities and safety technology
systems include building systems such as heating, cooling, and air purification,
fire and sprinkler systems, security systems and elevators. Our commitment is to
minimize the business risks attributable to Year 2000 problems in these systems.
We are actively engaged in working with each facilities and safety systems
vendor to identify and resolve any Year 2000 compliance issues. We will assign
the highest resolution priority to repair or replacement of items that affect
our product development, distribution and support operations.*
Supplier and Business Partner Compliance. Our suppliers and business
partners include the sources of the equipment and supplies used by us in the
conduct of our business, as well as our landlords, financial institutions, and
other service providers. Assessment of our suppliers is underway and will
include determination of the level of risk of business interruption associated
with a failure of a vendor or supplier to properly address the Year 2000 Issue
and assignment of priority to resolution activities. We are requesting written
assurance of Year 2000 compliance from our vendors and suppliers whose Year 2000
compliance is important to our business. We are working to develop alternative
suppliers in the cases where our vendors will not provide written assurances.
The Cost to Address Our Year 2000 Issues
Historic or period costs incurred in connection with the resolution of Year
2000 Issues to date have consisted principally of internal labor costs of
compliance planning and assessment and have not been significant. During 1999,
we expect to incur an estimated $4,500,000 of compliance related expenditures,
of which approximately $2 million has been incurred as of March 31, 1999.* These
expenditures relate primarily to the replacement of certain internal systems
hardware and software, the most significant being new human resource systems. We
do not expect expenditures related to Year 2000 compliance in future years to be
significant.*
Our Contingency Plans
As part of the four-step process outlined above, specific contingency plans
will be developed in connection with the assessment and resolution of the risks
identified. We have established certain preliminary information technology
contingency plans, and we are continuing to develop contingency plans for each
specific area of risk associated with the Year 2000 Issue. We expect to finalize
our contingency plans by the end of the third quarter of 1999.*
- ---------------
* This statement is a forward looking statement reflecting current expectations.
There can be no assurance that our actual performance will meet our current
expectations. See the Risk Factors on page 22 for a discussion of certain
factors that could affect future performance.
20
<PAGE> 21
THE RISKS OF OUR YEAR 2000 ISSUES
Our expectations as to our efforts to ensure and achieve Year 2000
compliance are forward-looking statements. Actual results may vary materially as
a result of a number of risks and uncertainties, including the following:
- We may be unable to successfully and timely modify non-Year 2000
compliant products, services and systems.
- Our contingency plans may not address all Year 2000 risks that may
actually arise.
- Our contingency plans will only be effective if timely and properly
implemented.
- We do not have, and do not anticipate obtaining, any insurance policy
providing material coverage for potential injuries or damages related to
or caused by the Year 2000 Issue.
- Actual costs of our Year 2000 compliance efforts may exceed our
estimates.
We have initiated communications with third party suppliers of the major
computers, software, and other equipment used, operated, or maintained by us to
identify and, to the extent possible, to resolve issues involving the Year 2000
problem. However, we have limited or no control over the actions of these third
party suppliers. These suppliers may fail to resolve any or all Year 2000
problems with their respective systems before the occurrence of a material
disruption to our business or any of their other customer's business. Any of the
above risks could have a material adverse effect on our business, results of
operations and financial condition.
Like a number of other enterprise-wide software providers, we have recently
identified and expect a continued slowing or reduction in customer capital
spending as a result of the Year 2000 Issue. If the purchasing patterns of our
current or potential customers, particularly those to whom we market broader
enterprise solutions, are meaningfully impacted by Year 2000 concerns, we could
experience a significant reduction in our net revenue, net income and related
growth.
Lastly, it has been widely predicted that a significant amount of
litigation surrounding business interruptions will arise out of Year 2000
Issues. It is uncertain whether, or to what extent, we may be affected by such
litigation. Because our products are able to operate in the Year 2000 and
beyond, we do not anticipate exposure to material product defect or similar
litigation. Any such litigation, however, could have a material adverse effect
on our business, results of operations and financial condition. We also may not
receive any assistance, damages or other relief as a result of our initiation of
any litigation related to the Year 2000 Issue. Our inability to implement our
Year 2000 plans or to otherwise address Year 2000 Issues in a timely manner
could have a material adverse effect on our business, results of operations and
financial condition.
21
<PAGE> 22
RISK FACTORS
Investing in our common stock involves a high degree of risk. Any of the
following risks could materially adversely affect our business, operating
results and financial condition and could result in a complete loss of your
investment.
OUR QUARTERLY FINANCIAL RESULTS WILL LIKELY FLUCTUATE
Our quarterly operating results have varied greatly in the past and will
likely vary greatly in the future depending upon a number of factors. Many of
these factors are beyond our control. Our revenues, gross margins and operating
results may fluctuate significantly from quarter to quarter due to, among other
things:
- volume, size and timing of new licenses and renewals of existing
licenses;
- our distributor inventory levels and product return rates;
- our inventory levels;
- introduction of new products, product upgrades or updates by us or our
competitors;
- the mix of products we sell;
- the success of our Net Tools product suite and related pricing model;
- our continued evolution as an enterprise-wide software provider and the
related impact on the length of our sales cycle;
- the size and timing of our non-cash stock-based charges;
- changes in product prices by us or our competitors;
- trends in the computer industry;
- delays or reductions in customer software purchases related to their Year
2000 compliance issues;
- costs related to acquisitions of technology or businesses;
- our investment experience related to our strategic minority equity
investments; and
- costs related to extraordinary events including litigation and
acquisitions.
Our business is impacted by the seasonal trends and global or regional
macroeconomic trends. For example, our net revenue is typically higher in the
fourth quarter, as many customers complete annual budgetary cycles, and lower in
the summer months when many businesses experience lower sales, particularly in
the European market. Our business in Japan, Asia generally and Latin America has
been adversely impacted by the adverse economic conditions there. If these
conditions were to spread to Europe or the U.S., our business, results of
operations and financial condition would be adversely impacted.
IN THE NEAR-TERM, WE EXPECT NEGATIVE, LIMITED OR NO GROWTH IN NET INCOME AND NET
REVENUE
We have experienced significant growth in net income (before acquisition
and related costs) and net revenue. However, our rate of growth has slowed in
recent periods due to increased price competition, a maturing anti-virus market
and an increasingly higher base from which to grow. More recently, we announced
that as a result of decreased visibility into future 1999 revenue due to Year
2000 issues and increasing sales cycles for our products, we intend to limit
distributor orders in the second quarter of 1999. Among other factors, our
strategy of up-selling existing licenses to higher level product suites and the
increasing complexity of our products has resulted in longer sales cycles for
our products. In addition, like a number of other enterprise-wide software
providers, we have recently identified and expect a continued slowing or
reduction in customer capital spending related to Year 2000 compliance issues.
Our intention to limit distributor orders in the second quarter of 1999 in an
effort to realign inventory levels in our distribution channels to be more
consistent with our revised future revenue expectations will result in
significantly lower revenue and a loss in
22
<PAGE> 23
the quarter ended June 30, 1999. Moreover, in later periods we could experience
a significant reduction in our net revenue, net income and related growth as the
purchasing patterns of our current or potential customers, particularly those to
whom we market broader enterprise solutions, are meaningfully impacted by Year
2000 concerns. Our growth rate and net revenue also depend significantly on
renewals of existing orders. If our renewal or up-sale rates slow or decline,
our net revenues and operating results would be adversely affected.
THE TIMING AND AMOUNT OF OUR REVENUES ARE SUBJECT TO A NUMBER OF FACTORS THAT
MAKE IT DIFFICULT TO ESTIMATE OPERATING RESULTS PRIOR TO THE END OF A QUARTER
We do not expect to maintain a significant level of backlog. As a result,
product revenues in any quarter are dependent on contracts entered into or
orders booked and shipped in that quarter. We have generally experienced a trend
toward higher order receipt, and therefore a higher percentage of revenue
shipments, toward the end of the last month of a quarter. This trend makes
predicting revenues more difficult. The timing of closing larger orders
increases the risk of quarter-to-quarter fluctuation. As we have evolved as an
enterprise-wide software provider and continued with our efforts to license
larger product suites under the Net Tools umbrella, the size of our orders and
the length of our sales cycle have increased and may increase further. If orders
forecasted for a specific customer for a particular quarter are not realized or
revenues are not otherwise recognized in that quarter, our operating results for
that quarter could be materially adversely affected.
OUR STOCK PRICE HAS BEEN VOLATILE AND IS LIKELY TO REMAIN VOLATILE
During the first quarter of 1999, our stock price ranged from a per share
high of $61.25 to a low of $28.06. At the close of market on April 30, 1999, our
stock price was $13.25 per share. Announcements, litigation developments, and
our ability to meet the expectations of brokerage firms, industry analysts or
investors with respect to our operating and financial results, may contribute to
this volatility. We may not discover, or be able to confirm, revenue or earnings
shortfalls until the end of a quarter, which could result in an immediate drop
in our stock price. In the past, following periods of volatility in the market
price of a company's securities, securities class action litigation has often
been instituted against companies with public traded securities. In April and
May 1999, a number of putative class actions were brought against us, our
officers and directors. See "Note 6 of the Notes to Condensed Consolidated
Financial Statements." This litigation, and any other litigation if instituted,
could result in substantial costs and a diversion of management's attention and
resources.
COMPETITORS MAY INCLUDE PRODUCTS SIMILAR TO OURS IN THEIR HARDWARE OR SOFTWARE
AND RENDER OUR PRODUCTS OBSOLETE
Vendors of hardware and of operating system software or other software
(such as firewall or e-mail software) may enhance their products or bundle
separate products to include network security and management software similar to
our products. For example, Cisco incorporated a firewall in its hardware
products and Microsoft Corporation introduced limited anti-virus functionality
into versions of MS-DOS in 1993. The widespread inclusion of products that
perform the same or similar function as our products within computer hardware or
other software could render our products obsolete and unmarketable. Furthermore,
even if these incorporated products are inferior or more limited than our
products, customers may elect to accept the incorporated products rather than
purchase our products. If we are unable to develop new network security and
management products to further enhance operating systems or other software and
to successfully replace any obsolete products, our business could suffer.
WE EXPECT SIGNIFICANT NON-CASH STOCK-BASED CHARGES
In light of the recent decline in our stock price and in an effort to
retain our employee base, in April 1999, we offered to reprice options held by
all employees, other than directors and executive officers. In exchange for
their agreeing to not exercise any of the repriced options for a period of
twelve months, the exercise price of all eligible employee options with an
exercise price in excess of $11.0625 was reduced to $11.0625, the closing
24
<PAGE> 24
market price on the NASDAQ on April 22, 1999. Option holders electing to have
their options repriced were required to acknowledge their acceptance by April
28, 1999. As a result of the increase in price between the date on which the
options were repriced, April 22, 1999, and the date on which the employees
elected to reprice their option grants, April 28, 1999, we will incur a
stock-based compensation charge. The initial charge for repriced shares is
expected to be approximately $27.6 million, the difference between the new
$11.0625 per share exercise price and $13.75, the closing share price on the
NASDAQ on April 28, 1999. Of the total initial charge, approximately $7.4
million will be expensed in the quarter ended June 30, 1999 and approximately
$20.2 million will be expensed over the remaining vesting period of
approximately 3 years.
On March 31, 1999, the FASB issued an exposure draft of its Proposed
Interpretation, "Accounting for Certain Transactions involving Stock
Compensation -- an interpretation of APB Opinion No. 25" (the "Proposed
Interpretation"). Under the Proposed Interpretation, stock options repriced
after December 15, 1998 will be subject to variable plan accounting treatment.
If adopted, this proposed guidance will require the Company to remeasure
compensation cost for outstanding repriced options each reporting period based
on changes in the market value of the underlying common stock after the date of
adoption. The FASB currently expects to approve the interpretation in the fourth
quarter of 1999. Depending upon movements in the market value of the Company's
common stock, this accounting treatment may result in significant additional
compensation charges in future periods.
In the first quarter of 1999, McAfee.com, our subsidiary, granted options
to individuals, including Network Associates executive officers, who are not
employed by McAfee.com. As a result, these options will be accounted for under
the variable method of accounting, which may result in significant non-cash
stock-based charges upon grant and as these options vest. In the quarter ended
March 31, 1999, these non-cash charges totaled approximately $457,000. See
"Management's Discussion and Analysis of Operating Results and Financial
Condition."
WE FACE RISKS ASSOCIATED WITH PAST AND FUTURE TRANSACTIONS
The software industry has experienced, and is expected to continue to
experience, a significant amount of consolidation. As part of our growth
strategy, we may buy or make investments in, complementary companies, products
and technologies. Since 1994 we have completed a large number of significant
acquisitions involving both public and private companies, including:
- CyberMedia in September 1998;
- Dr Solomon's in August 1998;
- Magic Solutions and TIS in April 1998;
- Network General, PGP and Helix Software in December 1997;
- Vycor Corporation in February 1996;
- Saber Software in August 1995; and
- Pro Tools in January 1994.
We have also completed a number of smaller acquisitions and acquired a
number of our international distributors. Recently, we began making strategic
minority investments in complementary Internet related companies. In the three
months ended March 31, 1999, these minority investments totaled $26.5 million.
We are currently investigating acquisitions of additional foreign distributors
and other strategic minority investments.
Our acquisitions and strategic investments involve a number of risks and we
may not realize the expected benefits of these transactions. We may lose all or
a portion of our investment, particularly in the case of our strategic minority
investments.
The integration of transactions involves a complex, time consuming and
expensive process. Prior to any acquisition, each company has its own business,
culture, clients, employees and systems. Following any
24
<PAGE> 25
acquisition, we must operate as a combined organization utilizing common
information communication systems, operating procedures, financial controls and
human resource practices. In order to successfully integrate acquired companies,
we must, among other things, successfully:
- attract and retain key management and other personnel; integrate, both
from an engineering and a sales and marketing perspective, the acquired
products into our suite of product offerings;
- coordinate research and development efforts;
- integrate sales forces; and
- consolidate duplicate facilities.
The difficulties of integrating an acquired company may be worsened by the
geographic distance between the companies, the complexity of the technologies
and operations being integrated, and the disparate corporate cultures being
combined. Successful acquisitions may be more difficult to accomplish in the
high technology industry than in other industries, and will require the
dedication of our management resources. Management's focus on the integration of
operations may distract attention from our day-to-day business, and may disrupt
key research and development, marketing or sales efforts. In addition, it is
common in the technology industry for aggressive competitors to attract
customers and recruit key employees away from companies during the integration
phase of an acquisition. If we cannot successfully integrate any acquisition,
our business could suffer.
In 1997 and 1998, we incurred significant nonrecurring charges associated
with our previous acquisitions. Our available cash and our securities may be
used to buy or invest in companies or products, which could result in
significant acquisition-related charges to earnings and dilution to our
stockholders. Moreover, if we buy a company, we may have to incur or assume that
company's liabilities, including liabilities that are unknown at the time of
acquisition, which may result in a material adverse effect on us.
WE WILL EXPERIENCE SIGNIFICANT AMORTIZATION CHARGES AND FACE THE RISK OF FUTURE
NON-RECURRING CHARGES IN THE EVENT OF IMPAIRMENT
In connection with our previous acquisitions accounted for under the
purchase method of accounting, in future periods we will experience significant
charges related to the amortization of purchased technology and goodwill. In
addition, if we later determine that this purchased technology and goodwill is
impaired, we will be required to take a related non-recurring charge to
earnings.
WE FACE RISKS RELATED TO OUR NET TOOLS MEGA-SUITE BUSINESS STRATEGY
Historically, a majority of our revenues resulted from the licensing of our
flagship anti-virus products and Sniffer products. Over the last year we have
been focusing our efforts on broadening our revenue base by providing network
security and management solutions to enterprise customers, targeting in
particular the Windows NT/Intel platform. To this end, we organized our products
into four product suites -- McAfee Total Virus Defense, PGP Total Active
Security, Sniffer Total Network Visibility and McAfee Total Service
Desk -- which form our integrated "Net Tools" mega-suite solution. The Net Tools
product suite model involves a modified product pricing structure. Potential
customers may not respond favorably to this modified pricing structure and the
lack of a favorable response could materially adversely affect our operating
results. In addition, as part of the Net Tools concept, we are in the process of
designing a centralized console from which the various component suites can be
operated, administered and maintained utilizing a common look and feel. We face
significant engineering challenges related to these efforts. Success of our Net
Tools suite strategy will also depend, in part, on the following factors:
- successful development and coordination of our sales force;
- successful development of a national accounts sales force; and
- the development and expansion of an effective professional services
organization.
25
<PAGE> 26
WE FACE RISKS RELATED TO OUR SNIFFER PRODUCT STRATEGY
Although we will continue to offer perpetual licenses with annual support
and maintenance contracts for our Sniffer products, we have recently developed a
subscription-licensing model for these products. We are also seeking to increase
our total Sniffer unit sales through recently developed software-only versions
of some of our Sniffer products, which we would mean that we would no longer
sell the hardware components contained in those products. However, there is a
risk that customers will continue to require that we provide the hardware
platform and components currently contained in our Sniffer products. Despite our
efforts, total unit license of Sniffer products may not increase and customers
may not accept the subscription-pricing model for Sniffer products. To the
extent that customers do license Sniffer products on a two-year subscription
basis or license significant amounts of software-only Sniffer products, our
operating results and financial condition would be likely be affected in the
following ways:
- in the case of subscription licenses, we would expect an increase in
deferred revenues related to the service portion of the two-year Sniffer
license that would be capitalized on our balance sheet;
- in the initial year of the subscription license, the corresponding
revenue would be lower than if the license were perpetual; and
- in the case of the software-only Sniffer product license, we would expect
lower total revenues and a higher overall gross margin related to that
license, as we would not be selling the corresponding hardware component
(currently the hardware component generates a lower gross margin than the
total product gross margin).
WE FACE RISKS RELATED TO OUR STRATEGY OF ACQUIRING INDEPENDENT AGENTS AND
DISTRIBUTORS
We have been acquiring existing independent agents and distributors of our
products in certain strategic markets. We may be required to provide customers
the same level of technical support that was previously provided by the acquired
agents and distributors. We may be unable to provide technical support or
operate any acquired distributor or agent as well as previous operators or at
all. The acquisition of any distributor or agent may not result in increased
foreign revenues.
OUR MARKET IS CHARACTERIZED BY RAPID TECHNOLOGICAL CHANGE; WE FACE RISKS
ASSOCIATED WITH PRODUCT DEVELOPMENT
The network security and management market is highly fragmented and
characterized by ongoing technological developments, evolving industry standards
and rapid changes in customer requirements. Our success will depend on our
ability to:
- offer a broad range of network security and management software products;
- continue to enhance existing products and expand product offerings;
- develop and introduce in a timely manner new products with technological
advances;
- respond promptly to new customer requirements;
- comply with evolving industry standards without delays in compliance;
- provide upgrades and updates to users frequently and at low cost; and
- remain compatible with popular operating systems such as Windows 95,
Windows NT and NetWare.
We may not be able to successfully develop and market, on a timely basis,
enhancements to our existing products or new products. Our product enhancements
or new products may not adequately address the changing needs of the
marketplace. New products with new technological capabilities could replace or
shorten the life cycle of our products or cause our customers to defer or cancel
purchases of our products. For example, in the first quarter of 1999, we believe
a number of customers for our security products deferred their product purchases
pending the introduction of our integrated Active Security product in April
1999.
26
<PAGE> 27
We may continue to experience delays in software development as we have at
times in the past. Complex software products like ours may contain undetected
errors or version compatibility problems, particularly when first released,
which could delay or cost us our market acceptance. For example, we experienced
compatibility issues in connection with our recent NetShield upgrade, and our
anti-virus software products have in the past falsely detected viruses that did
not actually exist. Difficulties and delays associated with new product
introductions, performance or enhancements could have a material adverse effect
on our business, financial condition and results of operation.
Our product development efforts are impacted by the adoption or evolution
of industry standards. For example, no uniform industry standard has developed
in the market for encryption security products. As industry standards are
adopted or evolve, we may have to modify existing products or develop and
support new versions of existing products. In addition, if no industry standard
develops, our products and our competitors' products could be incompatible,
which could prevent or delay overall development of the market for a particular
product. If our products fail to comply with existing or evolving industry
standards in a timely fashion, our business, results of operation and financial
condition could be materially and adversely affected.
Our long-term success depends on our ability to upgrade and update existing
product offerings, modify and enhance acquired products and introduce new
products which meet our customers' needs. Future upgrades and updates may
include additional functionality, respond to user problems or address
compatibility problems with changing operating systems and environments. We
believe that our ability to provide these upgrades and updates frequently and at
low costs is key to our success. For example, the proliferation of new and
changing viruses makes it imperative to update anti-virus products frequently to
avoid obsolescence. Failure to release upgrades and updates could have a
material adverse effect on our business, results of operations and financial
condition. We may not be successful in these efforts. In addition, future
changes in Windows 95, Windows NT, NetWare or other popular operating systems
could cause compatibility problems with our products. Further, delays in the
introduction of future versions of operating systems or lack of market
acceptance of these future versions would delay or reduce demand for our future
products which were designed to operate with these future operating systems. Our
failure to introduce in a timely manner new products that are compatible with
operating systems and environments preferred by desktop computer users would
have a material adverse effect on our business, results of operation and
financial condition.
WE DEPEND ON REVENUE FROM OUR FLAGSHIP ANTI-VIRUS AND SNIFFER PRODUCTS
We have historically derived a majority of our net revenue from our
flagship McAfee anti-virus software products and Sniffer network fault and
performance management products. These products are expected to continue to
account for a significant portion of our net revenue for the foreseeable future.
Because of this concentration of revenue, a decline in demand for or in the
prices of these products as a result of competition, technological change, a
change in our pricing model, inclusion of anti-virus or network management and
analysis software as a standard part of hardware or operating system software or
other software, or a maturation in the markets for these products, could harm
our business.
IF THE NETWORK MANAGEMENT AND NETWORK SECURITY MARKETS DO NOT EVOLVE AS WE
ANTICIPATE, OUR BUSINESS COULD SUFFER
The markets for our network management and network security products are
evolving, and their growth depends upon broader market acceptance of this
software, including help desk software. Although the number of personal
computers, or PCs, attached to large-area networks has increased dramatically,
the network management and network security markets continue to be emerging
markets. These markets may not continue to develop or may not develop rapidly
enough to benefit our business significantly. In addition, there are a number of
potential approaches to network management and network security, including the
incorporation of management and security tools into network operating systems.
Therefore, even if network management and network security tools gain broader
market acceptance, our products may not be selected by potential purchasers. To
the extent that either the network management or network security market does
continue to develop, we expect that competition will increase.
27
<PAGE> 28
WE ARE SUBJECT TO INTENSE COMPETITION IN THE NETWORK MANAGEMENT AND
SECURITY MARKETS AND WE EXPECT TO FACE INCREASED COMPETITION IN THE FUTURE
The markets for our products are intensely competitive, and we expect
competition to increase in the near-term. We believe that the principal
competitive factors affecting the markets for our products include:
- performance;
- functionality;
- quality;
- customer support;
- breadth of product line;
- frequency of upgrades and updates;
- integration of products;
- manageability of products;
- brand name recognition;
- company reputation; and
- price.
Performance and quality of our anti-virus software products are measured by
number and type of viruses detected, the speed at which the products run and
ease of use. Some of our competitors have longer operating histories, greater
name recognition, larger technical staffs, established relationships with
hardware vendors, and/or greater financial, technical and marketing resources.
These factors may provide our competitors with an advantage in penetrating the
original equipment manufacturer, or OEM, market with their network security and
management products. As is the case in many segments of the software industry,
we have been encountering, and we expect to further encounter, increasing
competition. This increased competition could reduce average selling prices and,
therefore, profit margins. Competitive pressures could result not only in price
reductions but also in a decline in sales volume, which could cause our business
to suffer. In addition, competitive pressures may make it difficult for us to
maintain or exceed our historic growth rate.
Although there is a trend toward consolidation in the network security and
management market, the market is currently highly fragmented with products
offered by many companies. Our principal competitors in the anti-virus market
include Symantec, Computer Associates/Cheyenne Software, IBM, and Trend Micro,
as well as numerous smaller companies and shareware authors that may in the
future develop into stronger competitors or be consolidated into larger
competitors. In the encryption portion of the security market, our principal
competitors are Security Dynamics, Cylink, Entrust Technologies and VeriSign.
Our principal competitors in the help desk market are Remedy and Software
Artistry, recently acquired by Tivoli Systems/ IBM. Our principal competitor in
the software-based network fault and performance management market is
Hewlett-Packard with other competitors including Azure Technologies, Concord
Communications, DeskTalk Systems, Kaspia Systems, Shomiti Systems, and Wandel &
Goltermann. We also face competition in the security market from Cisco, Security
Dynamics, Checkpoint Software, Internet Security Systems and Axent, and other
vendors in the encryption/firewall/intrusion detection market. In addition, we
face competition from large and established software companies such as
Microsoft, Intel, Novell and HP which offer network management products as
enhancements to their network operating systems.
As the network management market develops, we may face increased
competition from these large companies, as well as other companies seeking to
enter the market. The trend toward enterprise-wide network management and
security solutions may result in a consolidation of the network management and
security market around a smaller number of companies who are able to provide the
necessary software and support capabilities. In addition, to the extent that we
are successful in developing our Net Tools suite of products
28
<PAGE> 29
designed around a centralized management and administration console for the
Windows NT platform, we will likely compete with large computer systems
management companies such as Tivoli Systems and Computer Associates. We may be
unable to continue to compete effectively against existing and potential
competitors, many of whom have substantially greater financial, technical,
marketing and support resources and name recognition than we do. In addition,
software companies who currently use traditional distribution methods may in the
future decide to compete more directly with us by utilizing electronic software
distribution.
OUR CUSTOMERS MAY CANCEL OR DELAY THEIR PURCHASES OF OUR PRODUCTS, WHICH COULD
ADVERSELY AFFECT OUR BUSINESS; OUR SALES CYCLE IS LONG, WHICH COULD ADVERSELY
AFFECT OUR QUARTERLY RESULTS
Our products may be considered to be capital purchases by certain customers
or prospective customers. Capital purchases are often discretionary and,
therefore, are canceled or delayed if the customer experiences a downturn in its
business or prospects or as a result of economic conditions in general. Any
cancellation or delay could adversely affect our results of operations.
In addition, as we have continued to evolve as an enterprise-wide software
provider and continue to focus on the sale of product suites under the Net Tools
umbrella, our sales cycle has lengthened and may continue to lengthen. Sales of
large complex products, particularly product suites, frequently require a long
education process and significant technical evaluation and commitment of capital
and other resources. Moreover, these sales may be subject to the risk of delays
associated with customers' internal budget and other procedures for approving
large capital expenditures, deploying new technologies within their network and
testing and accepting new technologies that affect key operations. Because of
these longer sales cycles and the potential large size of such orders, if
anticipated orders are not realized or revenues are not otherwise recognized in
a particular quarter, our operating results for that quarter could suffer.
WE HAVE ONLY RECENTLY DEVELOPED OUR LARGE ACCOUNTS SALES FORCE; WE FACE RISKS
RELATED TO OUR SALES FORCE STRUCTURE
Our North American direct sales force is divided into three tiers. The
first tier focuses on the sale of all of our product suites under the Net Tools
umbrella to enterprise and national account customers. The second tier consists
of two separate sales groups focused on the sale of the two product supersuites
(Net Tools Secure and Net Tools Manager) to the departmental level. The third
tier consists of four separate outbound corporate telesales forces who actively
market our individual product suites to customers with less than 1,000 end
users. Historically, we have not a large enterprise or national accounts sales
force and only recently developed a direct sales group focused on these larger
accounts.
To succeed in the direct sales channel for the enterprise and national
accounts market and for the sale of the separate security product suite, we must
build a significant direct sales organization and must attract and retain
qualified personnel. These individuals will require training about, and
knowledge of, product attributes for our various product suites. We may not
succeed in building the necessary sales organization or in attracting, retaining
or training these individuals. Historically, we sold our products at the
departmental level. To succeed in the enterprise and national accounts market
requires, among other things, our establishing relationships and contacts with
senior technology officers at these accounts. Our sales force may not succeed in
these efforts.
Our sales organization structure may result in multiple customer contacts
by our different sales representatives, particularly in circumstances where the
customer has multiple facilities and offices. These multiple contacts may likely
result from a lack of coordination between our various sales organizations and a
lack of focus by the individual sales representatives on their designated
customers or products. The occurrence of these events could lead to customer
confusion, disputes in the sales force and lost revenue opportunities which
could have a material adverse effect on our business, results of operations and
financial condition. In addition, while the development of a direct sales
channel reduces our dependence on resellers and distributors, it may lead to
conflicts for the same customers and further customer confusion, pressure by
current and
29
<PAGE> 30
prospective customers for price reductions on products and, consequently, in
reductions in our gross margin and operating profit.
WE SELL OUR PRODUCTS THROUGH INTERMEDIARIES, WHO MAY NOT VIGOROUSLY MARKET OUR
PRODUCTS, HAVE RIGHTS OF RETURN OR MAY HAVE DIFFICULTY IN TIMELY PAYING FOR
PURCHASED PRODUCTS
We market a significant portion of our products to end-users through
intermediaries, including distributors, resellers and value-added resellers.
Beginning in 1998, our dependence on these indirect sales channels increased
significantly with the development of a software-only version of our Sniffer
product and the acquisition of CyberMedia in September 1998. The Sniffer product
was previously only a combined software/hardware product with a limited number
of resellers. CyberMedia sold its products only through indirect channels.
Our distributors sell other products that are complementary to, or compete
with, our products. While we encourage our distributors to focus on our products
through market and support programs, these distributors may give greater
priority to products of other suppliers, including competitors. Our agreements
with our distributors generally permit our distributors to return our product to
us in the event of end user returns to the distributor, inaccurate estimates of
end user demand by the distributor, increased purchases by distributors in
response to sales incentives or transitions to new products. We record sales to
distributors as revenue and at the same time establish a reserve for returns.
Returns could exceed reserves as a result of distributors holding excessive
amounts of our product in inventory. Our current or future reserves for returns
could be inadequate which would adversely impact our operating results.
Many of our distributors are experiencing economic difficulties worldwide,
which may adversely impact our collection of accounts receivable. For example,
CHS, our largest European distributor, has experienced a significant downturn in
its business. As a result, we have experienced a delay in collections from them
and may experience difficulties in collecting amounts owed to us. We regularly
review the collectibility and credit worthiness of our distributors to determine
an appropriate allowance for doubtful accounts reserve. Our uncollectible
accounts could exceed our current or future allowance for doubtful accounts
reserve, which would adversely impact our operating results.
WE NEED TO EXPAND AND DEVELOP AN EFFECTIVE PROFESSIONAL SERVICES ORGANIZATION;
WE RELY ON THIRD-PARTY PROFESSIONAL SERVICES
As our products and computer networks in general increase in complexity,
customers require greater professional assistance to design, install, configure
and implement our products. To date, we have relied on our limited professional
services capabilities and increasingly on outside professional service
providers, including our distributors, resellers and system integrators. These
third party service providers may provide inadequate levels of professional
services. Moreover, reliance on these third parties both places a greater burden
on them and reduces our ability to control and establish standards for providing
these support services. Our reliance on these third parties could, delay our
recognition of product revenue, harm our relationships or reputation with these
third parties or the end users of our products or result in decreased future
sales of, or prices for, our products.
To more effectively service our customer's evolving needs, we intend to
significantly expand and develop our worldwide professional service
organization. We may not succeed in these efforts. Effectively expanding and
developing our professional services organization will require that we hire and
train more service professionals who must be continually trained and educated to
ensure that they possess sufficient technical skills and product knowledge. The
market for qualified professionals is intensely competitive, making hiring and
retention difficult. We expect significant competition in this market from
existing providers of professional services and future entrants. We must also
properly price our services to attract customers, while maintaining sufficient
margins for these services. We therefore expect that we will have lower profit
margins on our service revenues. The failure to develop an effective
professional services organization could have a material adverse effect on our
business, results of operations and financial condition.
32
<PAGE> 31
WE RELY ON THE CONTINUED PROMINENCE OF MICROSOFT TECHNOLOGY
Although we intend to support other operating systems, our mission is to be
the leading supplier of network security and management products for Windows
NT/Intel based Network. Sales of our products would be materially and adversely
affected by market developments which are adverse to the Windows operating
environments, including the failure of users and application developers to
accept Windows NT. In addition, our ability to develop products using the
Windows operating environments is dependent on our ability to gain timely access
to, and to develop expertise in, current and future developments by Microsoft.
We may not be able to gain the necessary access from Microsoft.
WE MUST EFFECTIVELY MANAGE OUR GROWTH
Our business has grown rapidly, both internally and through acquisitions.
This growth has placed, and any future growth would continue to place, a
significant strain on our limited personnel, management and other resources. Our
ability to manage any future growth, particularly with the anticipated expansion
of our international business and growth in distribution business, will require
us to:
- attract, train, motivate and manage new employees successfully;
- effectively integrate new employees into our operations; and
- continue to improve our operational, financial, management and
information systems and controls.
If we continue to grow, our management systems currently in place may be
inadequate or we may not be able to effectively manage this growth.
WE RELY HEAVILY ON OUR INTELLECTUAL PROPERTY RIGHTS WHICH OFFER ONLY LIMITED
PROTECTION AGAINST POTENTIAL INFRINGERS; WE MAY FACE LITIGATION RELATED TO OUR
PROPRIETARY TECHNOLOGY AND RIGHTS
Our success depends significantly upon our proprietary software technology.
We rely on a combination of contractual rights, trademarks, trade secrets,
patents and copyrights to establish and protect proprietary rights in our
software. However, these protections may be inadequate or competitors may
independently develop technologies or products that are substantially equivalent
or superior to our products. We do not typically obtain signed license
agreements from our corporate, government and institutional customers who
license products directly from us. Rather, we include an electronic version of a
shrink-wrap license in all of our electronically distributed software and a
printed license in the box for our products distributed through traditional
distributors in order to protect our copyrights and trade secrets in those
products. Since none of these licenses are signed by the licensee, many legal
authorities believe that such licenses may not be enforceable under the laws of
many states and foreign jurisdictions. In addition, the laws of some foreign
countries either do not protect these rights at all or offer only limited
protection for these rights. The steps taken by us to protect our proprietary
software technology may be inadequate to deter misuse or theft of this
technology. For example, we are aware that a substantial number of users of our
anti-virus products have not paid any registration or license fees to us.
Changing legal interpretations of liability for unauthorized use of the our
software, or lessened sensitivity by corporate, government or institutional
users to avoiding infringement of intellectual property, could have a material
adverse effect on our business, results of operations and financial condition.
There has been substantial litigation regarding intellectual property
rights of technology companies. In the past we have been, and we currently are,
subject to litigation related to our intellectual property, including a pending
unfair trade practice case and separate patent infringement cases involving each
of Symantec, Hilgraeve and Trend Micro. See "Note 6, Notes to the Condensed
Consolidated Financial Statements." Although we intend to defend ourselves
vigorously against claims asserted against us in the foregoing actions or
matters, developments arising out of this pending litigation or any other
litigation to which we are or may
31
<PAGE> 32
become a party could have a material adverse effect on our business, results of
operation and financial condition. Adverse determinations in litigation could:
- result in the loss of our proprietary rights;
- subject us to significant liabilities;
- require us to seek licenses from third parties; or
- prevent us from manufacturing or selling our products.
The litigation process is subject to inherent uncertainties and we may not
prevail in these matters, or we may be unable to obtain licenses with respect to
any patents or other intellectual property rights that may be held valid or
infringed upon by us or our products. Uncertainties inherent in the litigation
process involve, among other things, the complexity of the technologies
involved, potentially adverse changes in the law and discovery of facts
unfavorable to us.
In addition, as we may acquire a portion of software included in its
products from third parties, our exposure to infringement actions may increase
because we must rely upon such third parties as to the origin and ownership of
any software being acquired. Similarly, exposure to infringement claims will
increase to the extent that we employ or hire additional software engineers
previously employed by competitors, notwithstanding measures taken by these
competitors to protect their intellectual property. In the future, litigation
may be necessary to enforce and protect trade secrets and other intellectual
property rights that we own. We may also be subject to litigation to defend
against claimed infringement of the rights of others or determine the scope and
validity of the proprietary rights of others. This litigation could be costly
and cause diversion of management's attention, either of which could have a
material adverse effect on our business, results of operations and financial
condition.
OUR INTERNATIONAL OPERATIONS SUBJECT US TO FOREIGN CURRENCY FLUCTUATIONS AND
OTHER INHERENT RISKS RELATED TO DOING BUSINESS IN FOREIGN COUNTRIES
In the first quarter of 1999 and in 1998, 1997 and 1996, net revenue from
international licenses represented approximately 43%, 36%, 36% and 32%,
respectively, of our net revenue. Historically, we have relied upon independent
agents and distributors to market our products internationally. We expect that
international revenues will continue to account for a significant percentage of
net revenue. We also expect that a significant portion of this international
revenue will be denominated in local currencies. To reduce the impact of foreign
currency fluctuations, we use nonleveraged forward currency contracts. However,
our future results of operations may be adversely affected by currency
fluctuations or by costs associated with currency risk management strategies.
Other risks inherent in international revenue generally include:
- the impact of longer payment cycles;
- greater difficulty in accounts receivable collection;
- unexpected changes in regulatory requirements;
- seasonality due to the slowdown in European business activities during
the third quarter;
- tariffs and other trade barriers;
- export restrictions on our encryption and other security products;
- uncertainties relative to regional economic circumstances, including the
current economic turbulence in Asia;
- political instability in emerging markets and difficulties in staffing;
and
- managing foreign operations.
These factors may have a material adverse effect on our future
international license revenue. Further, in countries with a high incidence of
software piracy, we may experience a higher rate of piracy of our products.
32
<PAGE> 33
In addition, a portion of our international revenue is expected to continue
to be generated through independent agents. Since these agents are not our
employees and are not required to offer our products exclusively, they may
discontinue marketing our products entirely. Also, we may have limited control
over these agents, limited access to the names of the customers to whom these
agents sell its products and limited knowledge of the information provided by,
or representations made by, these agents to its customers.
COMPUTER "HACKERS" MAY DAMAGE OUR PRODUCTS
Given our high profile in the security software market, we have been a
target of computer hackers who have, among other things, created viruses to
sabotage or otherwise attack our products. While to date these efforts have been
discovered quickly and their adverse impact has been limited, similar viruses or
efforts may be created or replicated in the future. In this event, users'
computer systems could be damaged and demand for our software products may
suffer as a result. In addition, since we do not control diskette duplication by
distributors or our independent agents, diskettes containing our software may be
infected with viruses.
FALSE DETECTION OF VIRUSES AND ACTUAL OR PERCEIVED SECURITY BREACHES COULD
ADVERSELY AFFECT OUR BUSINESS
Our anti-virus software products have in the past and may at times in the
future falsely detect viruses that do not actually exist. These false alarms,
while typical in the industry, may impair the perceived reliability of our
products and may therefore adversely impact market acceptance of our products.
In addition, we have in the past been subject to litigation claiming damages
related to a false alarm, and there can be no assurance that similar claims will
not be made in the future. Similarly, an actual or perceived breach of network
or computer security at one of our customers, regardless of whether the breach
is attributable to our products, could adversely affect the market's perception
of our security products. This could adversely effect our business, results of
operations and financial condition.
OUR CRYPTOGRAPHY TECHNOLOGY IS SUBJECT TO EXPORT RESTRICTIONS AND MAY BECOME
OBSOLETE
Certain of our network security products, technology and associated
assistance are subject to export restrictions imposed by the U.S. Department of
State and the U.S. Department of Commerce. These restrictions permit the export
of encryption products so long as certain requirements are met, but prohibit the
export of these products to countries deemed hostile by the U.S. Government.
U.S. export regulations regarding the export of encryption technology require
either a transactional export license or the granting of Department of Commerce
Commodity jurisdiction. As result of this regulatory regime, foreign competitors
facing less stringent controls may be able to compete more effectively than we
can in the global market. While we have obtained approval from the Department of
Commerce to export to certain end users, the U.S. Government may not approve
pending or future export license requests. Further, the list of products and
countries for which export approval is required, and the regulatory policies
with respect thereto, may be revised from time to time. Failure to obtain the
required licenses or the costs of compliance could have a material adverse
effect on our international revenues.
In addition, some of our network security products are dependent on the use
of public key cryptography technology. This technology depends in part upon the
application of certain mathematical principles known as factoring. The security
afforded by public key cryptography technology is based on our belief that the
factoring of large prime numbers is difficult. Should an easy factoring method
be developed, the security afforded by encryption products using public key
cryptography technology would be reduced or eliminated. Furthermore, any
significant advance in techniques for attacking cryptographic systems could also
render some or all of our existing products and services obsolete or
unmarketable. Moreover, factoring problems can theoretically be solved by
computer systems significantly faster and more powerful than those presently
available. If these improved techniques for attacking cryptographic systems are
ever developed, our business would be adversely affected.
33
<PAGE> 34
PRODUCT LIABILITY CLAIMS ASSERTED AGAINST US IN THE FUTURE COULD
ADVERSELY AFFECT OUR BUSINESS
Our network security and management software products are used to protect
and manage computer systems and networks that may be critical to organizations.
As a result, our sale and support of these products involves the risk of
potential product liability and related claims. Our license agreements with our
customers typically contain provisions designed to limit our exposure to
potential product liability claims. It is possible, however, that the limitation
of liability provisions contained in these license agreements may not be
effective under the laws of certain jurisdictions, particularly in circumstances
involving unsigned licenses. A product liability claim brought against us could
have a material adverse effect on our business, results of operations and
financial condition.
OUR MANAGEMENT AND TECHNICAL PERSONNEL ARE CRITICAL TO OUR BUSINESS, THESE
INDIVIDUALS MAY NOT REMAIN WITH US IN THE FUTURE
We rely, and will continue to rely, on a number of key technical and
management employees. While employees are required to sign standard agreements
concerning confidentiality and ownership of inventions, our employees are
generally not otherwise subject to employment agreements or to noncompetition
covenants. If any of our key employees leave, our business, results of
operations and financial condition could suffer. Furthermore, we do not maintain
life insurance policies on our key employees.
Our ability to achieve our revenue and operating performance objectives
will depend in large part on our ability to attract and retain technically
qualified and highly skilled sales, consulting, technical, marketing and
management personnel. Competition for these employees is intense and is expected
to remain so for the foreseeable future. We may not be successful in retaining
our existing key personnel and in attracting and retaining the personnel we
require, and our failure to retain and hire key employees could adversely affect
our business and operating results. For example, in early April 1998, Messrs.
Leslie Denend, David Carver and John Stringer resigned from their positions as
executive officers, although Mr. Denend remains a director. Additions of new and
departures of existing employees, particularly in key positions, can be
disruptive and can result in departures of existing employees, which could
adversely affect our business.
WE FACE RISKS ASSOCIATED WITH U.S. GOVERNMENT CONTRACTING
We expect that in the near term, a meaningful portion of our revenues will
result from existing research and development contracts with agencies of the
U.S. government. We believe that the willingness of these government agencies to
enter into future contracts with us will in part be dependent upon our continued
ability to meet their expectations. However, we may be unable to procure
additional government contracts.
Minimum fee awards for companies entering into government contracts are
generally between 3% and 7% of the costs incurred by them in performing their
duties under the related contract. However, these fee awards may be as low as 1%
of the contract costs. Furthermore, these contracts are subject to cancellation
at the convenience of the governmental agencies. Although we have been awarded
contract fees of more than 1% of the contract costs in the past and there have
been no terminations of any government contracts in the past, minimum fee awards
or cancellations may occur in the future. Reductions or delays in federal funds
available for projects we are performing could also have an adverse impact on
our government business. Contracts involving the U.S. government are also
subject to the risks of disallowance of costs upon audit, changes in government
procurement policies, required competitive bidding and, with respect to
contracts involving prime contractors or government-designated subcontractors,
the inability of those parties to perform under their contracts. Any of the
foregoing events could adversely affect our results of operations or financial
conditions.
POTENTIAL YEAR 2000 PROBLEMS COULD ADVERSELY IMPACT OUR BUSINESS
Many currently installed computer systems and software products experience
difficulty in functionality with respect to distinguishing between twenty-first
century dates and twentieth century dates. As a result,
36
<PAGE> 35
many companies' software and computer systems may need to be upgraded or
replaced in order to function properly in the future.
We have tested our current products for Year 2000 compliance and believe
that they are Year 2000 compliant. However, the failure of our current or prior
products to operate properly with regard to Year 2000 requirements could cause
us to incur unanticipated expenses to remedy any problems, cause a reduction in
sales and expose us to related litigation by our customers, each of which could
harm our business. In addition, we and the third parties with whom we conduct
business may utilize equipment or software that may not be Year 2000 compliant.
Failure of our or any of these third party's equipment or software to operate
properly with regard to the Year 2000 requirements could result in, among other
things, unanticipated expenses or efforts to remedy any problems, which could
harm our or such third party's respective business. Furthermore, the purchasing
patterns of customers, or potential customers, may be affected by Year 2000
issues. Companies may expend significant resources to evaluate and correct their
own equipment or software for Year 2000 compliance while they simultaneously
evaluate the preparedness of the third parties with whom they deal. These
expenditures may result in reduced funds available to purchase products and
services such as those offered by us, which could adversely affect our business.
See Management's Discussion and Analysis of Financial Condition and Results of
Operations.
WE RELY ON A LIMITED NUMBER OF SUPPLIERS AND THIRD-PARTY MANUFACTURERS, WHO MAY
NOT CONSISTENTLY MEET OUR BUSINESS NEEDS
Some of our products contain critical components supplied by a single or a
limited number of third parties. We have been required to purchase certain
computer platforms around which we design our network fault and performance
management products to ensure an available supply of these products for our
customers. Any significant shortage of these platforms or other components or
the failure of the third party supplier to maintain or enhance these products
could lead to cancellations of customer orders or delays in placement of orders
which could materially adversely affect our results of operations. In addition,
if our purchase of these components or platforms exceeds demand, we could incur
losses or other charges in disposing of excess inventory, which could also
materially adversely affect our results of operations.
Our manufacturing operations consist primarily of assembly, testing and
quality control of materials, components, subassemblies and systems for our
Sniffer based products. We use third party manufacturers for these manufacturing
operations. Reliance on third party manufacturers involves a number of risks,
including the lack of control over the manufacturing process and the absence or
unavailability of adequate capacity. In the event that any third party
manufacturers cannot or will not continue to manufacture the Sniffer based
products in required volumes, on a cost effective basis, in a timely manner or
at all, we will have to secure additional manufacturing capacity. Even if such
additional capacity is available at commercially acceptable terms, the
qualification process could be lengthy and could create delay in product
shipments.
OUR DELAWARE LAW AND OUR ADOPTION OF A RIGHTS PLAN MAY INHIBIT POTENTIAL
ACQUISITION BIDS; THIS MAY ADVERSELY AFFECT THE MARKET PRICE FOR OUR COMMON
STOCK AND PREVENT CHANGES IN OUR MANAGEMENT
Our board of directors has the authority to issue up to 5,000,000 shares of
preferred stock and to determine the price, rights, preferences, privileges and
restrictions, including voting rights, of those shares without any further vote
of action by its stockholders. The issuance of preferred stock, while providing
desirable flexibility in connection with possible acquisitions and other
corporate purposes, could have the effect of making it more difficult for a
third party to acquire a majority of the outstanding voting stock.
In October 1998 our board of directors adopted shareholders rights plan.
Each right under this plan entitles the record holder to buy 1/1000th of a share
of our series B participating preferred stock at an exercise price of $200.00.
The rights will become exercisable following the tenth day after a person or
group announces acquisition of 15% or more of our common stock or announces
commencement of a tender or exchange offer the consummation of which would
result in ownership by the person or group of 15% or more of our common
35
<PAGE> 36
stock. We are entitled to redeem the rights at $0.01 per right at any time on or
before the tenth day following acquisition by a person or group of 15% or more
of our common stock.
Certain provisions of Delaware law and our certificate of incorporation and
bylaws, such as a classified board, could delay or make a merger, tender offer
or proxy contest involving Network Associates more difficult. While these
provisions and our rights plan are intended to enable our board of directors to
maximize stockholder value, they may have the effect of discouraging takeovers
which may not be in the best interest of certain stockholders. Our rights plan
and these provisions could have an adverse effect on the market value of our
common stock.
38
<PAGE> 37
NETWORKS ASSOCIATES, INC.
FORM 10-Q, MARCH 31, 1999
PART II: OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Information with respect to this item is incorporated by reference to Note
6 of the Notes to the Consolidated Financial Statements included herein on page
8 of this Report on Form 10-Q.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) We filed the following reports on Form 8-K:
January 14, 1999 related to the press release for the fourth quarter and the
year ended December 31, 1998, and our receipt of a comment letter from the
Securities and Exchange Commission.
(b) EXHIBITS.
The exhibits listed in the accompanying Exhibit Index are filed or
incorporated by reference as part of this Report.
37
<PAGE> 38
NETWORKS ASSOCIATES, INC.
FORM 10-Q,
MARCH 31, 1999
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, and
the results and regulations promulgated thereunder, the registrant has duly
caused this amended report to be signed on its behalf by the undersigned
thereunto duly authorized.
NETWORKS ASSOCIATES, INC.
/s/ PRABHAT K. GOYAL
--------------------------------------
Prabhat K. Goyal
Vice President Administration,
Chief Financial Officer and Secretary
Date: May 13, 1999
38
<PAGE> 39
NETWORKS ASSOCIATES, INC.
FORM 10-Q,
MARCH 31, 1999
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
- ------- ------------- ----
<C> <S> <C>
2.1 Agreement and Plan of Reorganization, dated October 13,
1997, among McAfee Associates, Inc., Mystery Acquisition
Corp. and Network General Corporation, as amended by the
First Amendment dated as of October 22, 1997.(1)............
2.2 Combination Agreement dated August 16, 1996 among the
Registrant, FSA Combination Corp., FSA Corporation and
Daniel Freedman.(2).........................................
2.3 Stock Exchange Agreement dated January 13, 1996 among the
Registrant, FSA Combination Corp., Kabushiki Kaisha Jade and
the shareholders of Jade.(3)................................
2.4 Agreement and Plan of Reorganization dated December 1, 1997
between the Registrant, Helix Software Company an DNA
Acquisition Corp.(4)........................................
2.5 Agreement and Plan of Reorganization dated December 1, 1997
between the Registrant, PGP and PG Acquisition Corp.(5).....
2.6 Agreement and Plan of Reorganization dated February 22,
1998, between the Registrant, TIS and Thor Acquisition
Corp.(6)....................................................
2.7 Agreement and Plan of Reorganization by and among the
Registrant, Magic Solutions International, Inc., Merlin
Acquisition Corp. and Igal Lichtman, Amendment Agreement by
and among the Registrant, Magic Solutions International,
Inc., Merlin Acquisition Corp., and Igal Lichtman dated
March 24, 1998. Second Amendment Agreement by and among the
Registrant, Magic Solutions International, Inc., Merlin
Acquisition Corp., and Igal Lichtman dated April 1,
1998.(7)....................................................
2.8 Stock Purchase Agreement, dated as of February 26, 1998, by
and between FSA Combination Corp., and Brenda Joyce
Cook.(8)....................................................
2.9 Share Purchase Agreement, dated as of March 30, 1998, among
FSA Combination Corp., and Irina Karlsson and Jarmo
Rouvinen.(8)................................................
2.10 Stock Purchase Agreement, dated as of May 8, 1998, among FSA
Combination Corp., and Secure Networks, Inc.(8).............
2.11 Transaction Agreement, dated June 9, 1998, by and between
the Registrant and Dr Solomon's Group Plc(21)...............
2.12 Agreement and Plan of Merger, dated July 28, 1998, by and
between the Registrant and CyberMedia, Inc.(22).............
3.1 Second Restated Certificate of Incorporation of Networks
Associates, Inc., as amended on December 1, 1997.(6)........
3.2 Restated Bylaws of Networks Associates, Inc.(6).............
3.3 Certificate of Designation of Series A Preferred Stock of
Networks Associates, Inc.(9)................................
3.4 Certificate of Designation of Series B Participating
Preferred Stock of the
Registrant(23)..............................................
4.2 Registration Rights Agreement dated August 30, 1996 between
the Registrant and Daniel Freedman.(1)......................
4.5 Registration Rights Agreement dated December 9, 1997 between
the Registrant and certain shareholders of PGP.(4)..........
4.6 Registration Rights Agreement, dated as of February 13,
1998, by and between the Registrant and Morgan Stanley & Co.
Incorporated.(10)...........................................
</TABLE>
39
<PAGE> 40
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
- ------- ------------- ----
<C> <S> <C>
4.7 Indenture dated as of February 13, 1998 between the
Registrant and State Street Bank and Trust Company of
California, N.A., as Trustee.(10)...........................
4.10 Registration Rights Agreement dated May 8, 1998, by and
between the Registrant and the stockholders of Secure
Networks, Inc.(8)...........................................
4.11 Registration Rights Agreement, dated June 29, 1998, by and
between the Registrant and certain stockholders of CSB
Consulenza Software di Base S.r.l. ("CSB").(11).............
4.12 Registration Rights Agreement, dated July 30, 1998, by and
between the Registrant and certain stockholders of Anyware
Seguridad Informatica S.A.(11)..............................
4.13 Registration Rights Agreement, dated August 31, 1998, by and
between the Registrant and certain stockholders of QA
Information Security Holding AB(24).........................
10.1 Standard Business Lease (Net) for Network General's
principal facility dated June 19, 1991, between Network
General and Menlo Oaks Partners, L.P.(12)...................
10.2 First Amendment to Lease dated June 10, 1992, between
Network General and Menlo Parks Partners, L.P.(12)..........
10.3 Standard Business Lease (Net) for Network General's
principal facility dated March 11, 1992, between Network
General and Menlo Oaks Partners L.P.(13)....................
10.4 First Amendment to Lease dated June 18, 1992, between
Network General and Menlo Oaks Partners, L.P.(12)...........
10.5 Lease dated March 31, 1992, between Network General and
Equitable Life Assurance Society of the United
States.(12).................................................
10.6 Second Amendment to Lease dated February 1, 1995, between
Network General and Menlo Oaks Partners, L.P.(13)...........
10.7 Third amendment to Lease dated February 1, 1995 between
Network General and Menlo Oaks Partners L.P.(13)............
10.8 Fourth Amendment to Lease dated May 31, 1995, between
Network General and Menlo Oaks Partners, L.P.(14)...........
10.9 Fifth Amendment to Lease dated June 13, 1995, between
Network General and Menlo Oaks Partners, L.P.(14)...........
10.10 Lease dated July 3, 1996 between Network General and
Campbell Avenue Associates.(15).............................
10.11 Sixth Amendment to Lease dated November 29, 1996, between
Network General and Menlo Oaks Partners, L.P.(15)...........
10.12 Sublease Agreement for facility at 2805 Bowers Avenue, Santa
Clara, California, dated as of February 20, 1997, by and
between McAfee Associates, Inc. and National Semiconductor
Corporation.(16)............................................
10.13 Lease Agreement dated November 17, 1997 for facility at 3965
Freedom Circle, Santa Clara, California by and between
Informix Corporation and McAfee Associates, Inc.(4).........
10.14 Consent to Assignment Agreement dated December 19, 1997 by
and among Birk S. McCandless, LLC, Guaranty Federal Bank,
F.S.B., Informix Corporation and Networks Associates,
Inc.(4).....................................................
10.15 Subordination, Nondisturbance and Attornment Agreement dated
December 18, 1997, between Guaranty Federal Bank, F.S.B.,
Networks Associates, Inc. and Birk S. McCandless, LLC.(4)...
10.16 Lease dated November 22, 1996 by and between Birk S.
McCandless, LLC and Informix Corporation for facility at
3965 Freedom Circle, Santa Clara, California.(4)............
</TABLE>
40
<PAGE> 41
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
- ------- ------------- ----
<C> <S> <C>
10.17 Quota Purchase Agreement, dated as of April 14, 1997 by and
among McAfee Associates, Inc. and McAfee Do Brasil Ltda.,
Compusul-Consultoria E Comercio De Informatica Ltda., and
the stockholders of Compusul-Consultoria E Comercio De
Informatica Ltda.(17).......................................
10.18* 1997 Stock Incentive Plan.(17)..............................
10.19* Stock Option Plan for Outside Directors.(18)................
10.21* Change in control agreement between the Company and Peter
Watkins dated May 11, 1999..................................
10.22* Change in control agreement between the Company and William
S. Larson dated May 11, 1999................................
10.23* Change in control agreement between the Company and Prabhat
K. Goyal dated May 11, 1999.................................
10.24* Change in control agreement between the Company and Zachary
Nelson, dated May 11, 1999..................................
27.1 Financial Data Sheet. ......................................
</TABLE>
- ---------------
(1) Incorporated by reference from the Registrant's Registration Statement on
Form S-4 filed with the Commission on October 31, 1997.
(2) Incorporated by reference from the Registrant's Current Report on Form 8-K
filed with the Commission on September 24, 1996.
(3) Incorporated by reference from the Registrants Current Report on Form 8-K
filed with the Commission on March 14, 1997.
(4) Incorporated by reference from the Registrant's Registration Statement on
Form S-3, filed with the Commission on February 12, 1998.
(5) Incorporated by reference from the Registrant's Report on Form 8-K filed
with the Commission on December 11, 1997.
(6) Incorporated by reference from the Registrant's Registration Statement on
Form S-4 filed with the Commission on March 25, 1998.
(7) Incorporated by reference from the Registrant's Report on Form 8-K filed
with the Commission on April 2, 1998.
(8) Incorporated by reference from the Registrant's Registration Statement on
Form S-3 filed with the Commission on May 26, 1998.
(9) Incorporated by reference from the Registrant's Report on Form 10-Q for the
quarter ended September 30, 1996, filed with the Commission on November 4,
1997.
(10) Incorporated by reference from the Registrant's Registration Statement on
Form S-3 filed with the Commission on May 6, 1998.
(11) Incorporated by reference from the Registrant's Registration Statement on
Form S-3 filed with the Commission on August 5, 1998.
(12) Incorporated by reference from the Network General Corporation's Report on
Form 10-K for the year ended March 31, 1992. Network General's filings with
the Commission were made under File Number 0-17431.
(13) Incorporated by reference from the Network General Corporation's Report on
Form 10-Q for the quarter ended December 31, 1994. Network General's
filings with the Commission were made under File Number 0-17431.
41
<PAGE> 42
(14) Incorporated by reference from the Network General Corporation's Report on
Form 10-Q for the quarter ended June 30, 1995. Network General's filings
with the Commission were made under File Number 0-17431.
(15) Incorporated by reference from the Network General Corporation's Report on
Form 10-Q for the quarter ended June 30, 1996. Network General's filings
with the Commission were made under File Number 0-17431.
(16) Incorporated by reference from the Registrant's Report on Form 10-Q for the
quarter ended June 30, 1997, filed with the Commission on August 14, 1997.
(17) Incorporated by reference from the Registrant's Registration Statement on
Form S-4 filed with the Commission on July 31, 1995.
(18) Incorporated by reference from the Registrant's Report on Form S-8 filed
with the Commission on December 2, 1997.
(19) Incorporated by reference from the Registrant's Report on Form 10-Q for the
quarter ended June 30, 1996, filed with the Commission on August 13, 1996.
(20) Incorporated by reference from the Registrant's Report on Form 10-Q for the
quarter ended March 31, 1998, filed with the Commission on May 15, 1998.
(21) Incorporated by reference from the Registrant's Report on Form 8-K filed
with the Commission on June 16, 1998.
(22) Incorporated by reference from CyberMedia Inc.'s Schedule 13D filed by the
Registrant with the Commission on August 7, 1998. CyberMedia Inc.'s filings
with the Commission were made under File Number 0-21289.
(23) Incorporated by reference from the Registrant's Report on Form 8-A filed
with the Commission on October 22, 1998.
(24) Incorporated by reference from the Registrant's report on From 10-Q for the
quarter ended September 30, 1998, filed with the Commission on November 13,
1998.
* Management contracts or compensatory plans or arrangements covering executive
officers or directors of Networks Associates, Inc.
42
<PAGE> 1
EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of May 11, 1999 (the "Effective Date"), by and between Networks Associates,
Inc., a Delaware corporation (the "Company") and Peter Watkins ("Executive").
RECITALS
WHEREAS, McAfee Associates, Inc. and Executive previously entered into a
Change of Control Agreement (the "Previous Change of Control Agreement"); and
WHEREAS, McAfee Associates, Inc. merged to form the Company; and
WHEREAS, the parties desire to amend the Previous Change of Control
Agreement in its entirety; and
WHEREAS, the Company recognizes that the possibility of a change of
control or other event may occur which may change the nature and structure of
the Company and that uncertainty regarding the consequences of such events may
adversely affect the Company's ability to retain its key employees. The Company
also recognizes that the Executive possesses an intimate and essential knowledge
of the Company upon which the Company may need to draw for objective advice and
continued services in connection with any acquisition of the Company or other
change of control that is potentially advantageous to the Company's
stockholders. The Company believes that the existence of this Agreement will
serve as an incentive to Executive to remain in the employ of the Company and
will enhance its ability to call on and rely upon the Executive in connection
with a change of control. On February 22, 1998, the Board of Directors of the
Company met and approved the implementation of the Change of Control Agreement
for its key employees; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement in order to provide additional compensation and benefits to the
Executive and to encourage Executive to continue to devote his full attention
and dedication to the Company and to continue his employment with the Company.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the parties agree as follows:
1. Definitions. As used in this Agreement, unless the context requires a
different meaning, the following terms shall have the meanings set forth herein:
(a) "Cause" means:
(i) theft, a material act of dishonesty, fraud, the
intentional falsification of any employment or Company records or the commission
of any criminal act which impairs Executive's ability to perform his duties
under this Agreement;
<PAGE> 2
(ii) improper disclosure of the Company's confidential,
business or proprietary information by Executive in violation of the Employee
Inventions and Proprietary Rights Assignment Agreement;
(iii) any action by the Executive which the Company's
Board of Directors (the "Board") reasonably believes has had or will have a
material detrimental effect on the Company's reputation or business;
(b) "Change of Control" means:
(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than a trustee or other fiduciary holding securities of the
Company under an employee benefit plan of the Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of (A) the outstanding shares of common stock of the Company or (B) the
combined voting power of the Company's then-outstanding securities;
(ii) the Company is party to a merger or consolidation
which results in the holders of voting securities of the Company outstanding
immediately prior thereto failing to continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%)of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(iii) the sale or disposition of all or substantially all
of the Company's assets (or any transaction having similar effect is
consummated); or
(iv) the dissolution or liquidation of the Company.
Notwithstanding any other provision herein to the contrary, for purposes of this
Agreement no Change of Control shall be deemed to have occurred as a result of
any ownership change which may occur as a result of an underwritten public
offering or private placement of the Company's stock.
(c) "Good Reason" means the occurrence of any of the following
conditions, without Executive's written consent, which condition(s) remain(s) in
effect twenty (20) days after written notice to the Board from Executive of such
condition(s):
(i) a five percent (5%) decrease in Executive's base
salary and/or a ten percent (10%) decrease in Executive's bonus compensation or
employee benefits following a Change of Control;
(ii) a demotion, a material reduction in Executive's
position, responsibilities or duties, or a material, adverse change in
Executive's substantive functional responsibilities or duties, as measured
against Executive's position, responsibilities or duties immediately prior to
such change causing it to be of materially less stature or responsibility;
<PAGE> 3
(iii) in the event of the relocation of Executive's work
place for the Company to a location more than fifty (50) miles from the
Executive's principal place of employment immediately prior to the Change of
Control;
(iv) any material breach of this Agreement by the Company;
or
(v) any failure or refusal of a successor company to
assume the Company's obligations under this Agreement as required by Section 14.
(d) "Permanent Disability" means that:
(i) the Executive has been incapacitated by bodily injury
or disease so as to be prevented thereby from engaging in the performance of the
Executive's duties;
(ii) such total incapacity shall have continued for a
period of six consecutive months; and
(iii) such incapacity will, in the opinion of a qualified
physician, be permanent and continuous during the remainder of the Executive's
life with or without reasonable accommodation.
(e) "Termination Upon a Change of Control" means:
(i) any termination of the employment of the Executive by
the Company without Cause within twenty-four (24) months after the date of the
closing of the Change of Control; or
(ii) any resignation by the Executive for Good Reason
within twelve (12) months after the occurrence of any Change of Control.
"Termination Upon Change of Control" shall not include any termination
of the employment of the Executive (a) by the Company for Cause; (b) by the
Company as a result of the Permanent Disability of the Executive; (c) as a
result of the death of the Executive; or (d) as a result of the voluntary
termination of employment by the Executive for reasons other than Good Reason
within twenty-four (24) months after the occurrence of any Change of Control.
(f) "Total Annual Earnings" means the sum of the Executive's
annual salary and targeted annual bonus.
2. Position and Duties. Executive shall continue to be an at-will
Executive of the Company employed in his current position at his then current
salary rate. Executive shall also be entitled to continue to participate in and
to receive benefits on the same basis as other executive or senior staff members
under any of the Company's employee benefit plans as in effect from time to
time. In addition, Executive shall be entitled to the benefits afforded to other
employees similarly situated under the Company's vacation, holiday and business
expense reimbursement policies. Executive agrees to devote his full business
time, energy and skill to his duties at the Company. These duties shall include,
but not be limited to, any duties consistent with his position which may be
assigned to Executive from time to time.
<PAGE> 4
3. Benefits Upon Executive's Voluntary Termination, Permanent Disability
or Death. In the event that Executive voluntarily terminates his employment
relationship with the Company at any time and such termination is not for nor
deemed for Good Reason, or in the event that Executive's employment terminates
as a result of death or Permanent Disability, Executive shall be entitled to no
compensation or benefits from the Company other than those earned under Section
2 above through the date of his termination of employment.
4. Benefits Upon Change of Control. In the event that if an acquiring or
successor company does not assume all stock options granted by the Company to
the Executive prior to the Change of Control, then the vesting of such stock
options shall immediately accelerate and such options shall become fully vested
and immediately exercisable in full.
5. Termination Upon Change of Control. In the event of the Executive's
Termination Upon Change of Control, Executive shall be entitled to the following
separation benefits:
(i) all salary, accrued but unused vacation earned through
the date of Executive's termination and Executive's target bonus for the year in
which termination occurs, pro rated through the date of Executive's termination;
(ii) twelve (12) months of Executive's Total Annual
Earnings as in effect as of the date of such termination, less applicable
withholding, paid in accordance with the Company's then normal payroll
procedures;
(iii) all stock options granted by the Company to the
Executive prior to the Change of Control shall become fully vested and
immediately exercisable in full to the extent such stock options remain
outstanding and unexercised at the time of such Termination Upon Change of
Control;
(iv) within reasonable time following submission of proper
expense reports by the Executive, the Company shall reimburse the Executive for
all expenses reasonably and necessarily incurred by the Executive in connection
with the business of the Company prior to his termination of employment;
(v) continued provision of the Company's standard employee
group health insurance coverages for twelve (12) months following termination.
If such coverage included the Executive's dependents immediately prior to the
date of termination, such dependents shall also be covered at Company expense.
For purposes of title X of the Consolidated Budget Reconciliation Act of 1985,
the date of the "qualifying event" for Executive and his dependents shall be the
date upon which the Company-paid coverage terminates. Notwithstanding the above,
in the event Executive becomes covered under another employer's group health
plan during the period provided for herein, the Company shall cease provision of
continued group health insurance for Executive; and
(vi) Executive shall receive the benefits, if any, under
the Company's 401(k) Plan and other Company benefit plans to which he may be
entitled pursuant to the terms of such plans.
<PAGE> 5
6. Conflict of Interest.
(a) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity which offers products or services that are
competitive with any products or services offered by the Company or with any
products or services that Executive is aware the Company intends to offer,
Executive shall be deemed to have voluntarily terminated employment with the
Company not for Good Reason, such termination effective immediately upon such
acceptance of employment or provision of services. Upon such voluntary
termination, Executive shall not be entitled to any further payments or benefits
as provided under Section 5.
(b) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity while Executive continues to receive any
separation benefits pursuant to Section 5, Executive shall immediately notify
the Company of such acceptance and provide to the Company information with
respect to such person or entity as the Company may reasonably request in order
to determine if that person's or entity's products or services are competitive
with the Company's.
(c) Executive agrees that for a period of two (2) year following
termination of his employment with the Company, he will not, directly or
indirectly, solicit the services of or in any manner persuade employees or
customers of the Company to discontinue that person's or entity's relationship
with or to the Company as an employee or customer, as the case may be.
7. Payment of Taxes. All payments made to Executive under this Agreement
shall be subject to all applicable federal state local and foreign (if
applicable) income, employment and payroll taxes.
8. Exclusive Remedy. Under any claim for breach of this Agreement or
wrongful termination, the payments and benefits provided for in Section 5 shall
constitute the Executive's sole and exclusive remedy for any alleged injury or
other damages arising out of the cessation of the employment relationship
between the Executive and the Company in the event of Executive's termination.
Except as expressly set forth herein, the Executive shall be entitled to no
other compensation, benefits, or other payments from the Company as a result of
any termination of employment with respect to which the payments and/or benefits
described in Section 5 have been provided to the Executive.
9. Proprietary and Confidential Information. The Executive agrees to
continue to abide by the terms and conditions of the Company's confidentiality
and/or proprietary rights agreement between the Executive and the Company.
10. Arbitration. Pursuant to the Federal Arbitration Act, any claim,
dispute or controversy arising out of this Agreement, the interpretation,
validity or enforceability of this Agreement or the alleged breach thereof shall
be submitted by the parties to binding arbitration in Santa Clara County,
California or elsewhere by mutual agreement. The selection of the arbitrator and
procedure shall be governed by the Employment Arbitration Rules of the American
Arbitration Association. The arbitrator shall be someone with an employment law
<PAGE> 6
background and from the AAA Commercial Arbitration Panel, or if both parties
agree, the Judicial Arbiters Group. Notwithstanding the above, this arbitration
provision shall not preclude the Company from seeking injunctive relief from any
court having jurisdiction with respect to any disputes or claims relating to or
arising out of the misuse or misappropriation of the Company's trade secrets or
confidential and proprietary information or the breach of any provisions by
Executive of the Company's confidentiality and/or proprietary rights agreement
between the Executive and Company. All costs and expenses of arbitration or
litigation, including but not limited to attorneys fees and other costs
reasonably incurred by the Executive, shall be paid by the Company. Judgment may
be entered on the award of the arbitration in any court having jurisdiction.
11. Limitation of Payments and Benefits. If, due to the benefits
provided under this Agreement, Executive is subject to any excise tax due to
characterization of any amounts payable hereunder as excess parachute payments
pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), the Company agrees to reimburse the Executive for the amount of such
excise tax; provided, however, that, no reimbursement shall be made for any
excise tax payable with respect to the reimbursement made pursuant to this
Section 11. The excise tax reimbursement made pursuant to this Section 11 shall
be subject to all applicable withholding. The foregoing shall be conditioned
upon the Executive cooperating with the Company in such manner as may be
reasonably requested (other than reducing amounts payable hereunder) so as to
minimize the amount of such excise tax.
Unless the Company and Executive otherwise agree in writing, any determination
required under this Section 11 shall be made in writing by independent public
accountants agreed to by the Company and the Executive (the "Accountants"),
whose determination shall be conclusive and binding upon Executive and the
Company for all purposes. For purposes of making the calculations required by
this Section 11, the Accountants may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and Executive shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section 11. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 11.
12. Interpretation. Executive and the Company agree that this Agreement
shall be interpreted in accordance with and governed by the laws of the State of
California, without regard to such state's conflict of laws rules.
13. Conflict in Benefits. This Agreement shall supersede all prior
arrangements, whether written or oral, and understandings regarding the subject
matter of this Agreement and shall be the exclusive agreement for the
determination of any payments and accelerated option vesting due upon
Executive's termination of employment or a Change of Control; provided, however,
that this Agreement is not intended to and shall not affect, limit or terminate
(i) any plans, programs, or arrangements of the Company that are regularly made
available to similarly-situated employees of the Company, (ii) any agreement or
arrangement with the Executive that has been reduced to writing and which does
not relate to the subject matter hereof, (iii) any
<PAGE> 7
indemnification rights described below, or (iv) any agreements or arrangements
hereafter entered into by the parties in writing, except as otherwise expressly
provided herein.
14. Release of Claims. No severance benefits shall be paid to Executive
under this Agreement unless and until the Executive shall, in consideration of
the payment of such severance benefit, execute a release of claims in a form
satisfactory to the Company; provided, however, that such release shall not
apply to any right of Executive to be indemnified by the Company.
15. Successors and Assigns.
(a) Successors of the Company. The Company will require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, expressly, absolutely and unconditionally to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession or assignment
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession transaction shall be a breach of this
Agreement and shall entitle the Executive to terminate his employment with the
Company within three months thereafter and to receive the benefits provided
under Section 5 of this Agreement in the event of Termination Upon Change of
Control. As used in this Agreement, "Company" shall mean the Company as defined
above and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 14 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
(b) Heirs of Executive. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees.
16. Notices. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
if to the Company: Networks Associates, Inc.
3965 Freedom Circle
Santa Clara, CA 95054
Attn: Vice President and General Counsel
and if to the Executive at the address specified at the end of this Agreement.
Notice may also be given at such other address as either party may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
<PAGE> 8
17. No Representations. Executive acknowledges that he/she is not
relying and has not relied on any promise, representation or statement made by
or on behalf of the Company which is not set forth in this Agreement.
18. Validity. If any one or more of the provisions (or any part thereof)
of this Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
(or any part thereof) shall not in any way be affected or impaired thereby.
19. Modification. This Agreement may only be modified or amended by a
supplemental written agreement signed by Executive and the Company.
<PAGE> 9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
NETWORKS ASSOCIATES, INC.
Date: May 11, 1999 By: /s/ WILLIAM L. LARSON
------------------- --------------------------------
Title: CHAIRMAN AND CEO -- NAI
-----------------------------
PETER WATKINS
Date: May 11, 1999 /s/ PETER WATKINS
------------------- -----------------------------------
Executive's Signature
Address for Notice:
3965 FREEDOM CIRCLE
- ------------------------
SANTA CLARA
- ------------------------
CA 95054
- ------------------------
<PAGE> 1
EXHIBIT 10.22
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of May 11, 1999 (the "Effective Date"), by and between Networks Associates,
Inc., a Delaware corporation (the "Company") and William Larson ("Executive").
RECITALS
WHEREAS, on or about April 14, 1995, McAfee Associates, Inc. and
Executive entered into a Employment Agreement (the "Previous Employment
Agreement"); and
WHEREAS, the McAfee Associates, Inc. merged to form the Company; and
WHEREAS, the parties desire to amend the Previous Employment Agreement
in its entirety; and
WHEREAS, the Company recognizes that the possibility of a change of
control or other event may occur which may change the nature and structure of
the Company and that uncertainty regarding the consequences of such events may
adversely affect the Company's ability to retain its key employees. The Company
also recognizes that the Executive possesses an intimate and essential knowledge
of the Company upon which the Company may need to draw for objective advice and
continued services in connection with any acquisition of the Company or other
change of control that is potentially advantageous to the Company's
stockholders. The Company believes that the existence of this Agreement will
serve as an incentive to Executive to remain in the employ of the Company and
will enhance its ability to call on and rely upon the Executive in connection
with a change of control. On February 22, 1998, the Board of Directors of the
Company met and approved the implementation of the Change of Control Agreement
for its key employees; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement in order to provide additional compensation and benefits to the
Executive and to encourage Executive to continue to devote his full attention
and dedication to the Company and to continue his employment with the Company.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the parties agree as follows:
1. Definitions. As used in this Agreement, unless the context requires a
different meaning, the following terms shall have the meanings set forth herein:
(a) "Cause" means:
(i) theft, a material act of dishonesty, fraud, the
intentional falsification of any employment or Company records or the commission
of any criminal act which impairs Executive's ability to perform his duties
under this Agreement;
<PAGE> 2
(ii) improper disclosure of the Company's confidential,
business or proprietary information by Executive in violation of the Employee
Inventions and Proprietary Rights Assignment Agreement;
(iii) any action by the Executive which the Company's
Board of Directors (the "Board") reasonably believes has had or will have a
material detrimental effect on the Company's reputation or business;
(iv) any failure or inability by Executive to perform any
reasonable assigned duties after written notice from the Company of, and a
reasonable opportunity to cure, such failure or inability;
(v) any material breach of this Agreement, which breach is
not cured with ten (10) days following written notice of such breach; or
(vi) Executive's conviction for any criminal act which
impairs your ability to perform the Executive's duties under this Agreement.
(b) "Change of Control" means:
(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than a trustee or other fiduciary holding securities of the
Company under an employee benefit plan of the Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of (A) the outstanding shares of common stock of the Company or (B) the
combined voting power of the Company's then-outstanding securities;
(ii) the Company is party to a merger or consolidation
which results in the holders of voting securities of the Company outstanding
immediately prior thereto failing to continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%)of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(iii) the sale or disposition of all or substantially all
of the Company's assets (or any transaction having similar effect is
consummated); or
(iv) the dissolution or liquidation of the Company.
Notwithstanding any other provision herein to the contrary, for purposes of this
Agreement no Change of Control shall be deemed to have occurred as a result of
any ownership change which may occur as a result of an underwritten public
offering or private placement of the Company's stock.
(c) "Good Reason" means the occurrence of any of the following
conditions, without Executive's written consent, which condition(s) remain(s) in
effect twenty (20) days after written notice to the Board from Executive of such
condition(s):
<PAGE> 3
(i) a five percent (5%) decrease in Executive's base
salary and/or a ten percent (10%) decrease in Executive's bonus compensation or
employee benefits following a Change of Control;
(ii) a demotion, a material reduction in Executive's
position, responsibilities or duties, or a material, adverse change in
Executive's substantive functional responsibilities or duties, as measured
against Executive's position, responsibilities or duties immediately prior to
such change causing it to be of materially less stature or responsibility;
(iii) in the event of the relocation of Executive's work
place for the Company to a location more than fifty (50) miles from the
Executive's principal place of employment immediately prior to the Change of
Control;
(iv) any material breach of this Agreement by the Company;
or
(v) any failure or refusal of a successor company to
assume the Company's obligations under this Agreement as required by Section 14.
(d) "Permanent Disability" means that:
(i) the Executive has been incapacitated by bodily injury
or disease so as to be prevented thereby from engaging in the performance of the
Executive's duties;
(ii) such total incapacity shall have continued for a
period of six consecutive months; and
(iii) such incapacity will, in the opinion of a qualified
physician, be permanent and continuous during the remainder of the Executive's
life with or without reasonable accommodation.
(e) "Termination Upon a Change of Control" means:
(i) any termination of the employment of the Executive by
the Company without Cause within twenty-four (24) months after the date of the
closing of the Change of Control; or
(ii) any resignation by the Executive for Good Reason
within twelve (12) months after the occurrence of any Change of Control.
"Termination Upon Change of Control" shall not include any termination
of the employment of the Executive (a) by the Company for Cause; (b) by the
Company as a result of the Permanent Disability of the Executive; (c) as a
result of the death of the Executive; or (d) as a result of the voluntary
termination of employment by the Executive for reasons other than Good Reason
within twenty-four (24) months after the occurrence of any Change of Control.
(f) "Total Annual Earnings" means the sum of the Executive's
annual salary and targeted annual bonus.
<PAGE> 4
2. Position and Duties. Executive shall continue to be an at-will
Executive of the Company employed in his current position at his then current
salary rate. Executive shall also be entitled to continue to participate in and
to receive benefits on the same basis as other executive or senior staff members
under any of the Company's employee benefit plans as in effect from time to
time. In addition, Executive shall be entitled to the benefits afforded to other
employees similarly situated under the Company's vacation, holiday and business
expense reimbursement policies. Executive agrees to devote his full business
time, energy and skill to his duties at the Company. These duties shall include,
but not be limited to, any duties consistent with his position which may be
assigned to Executive from time to time.
3. Benefits Upon Executive's Voluntary Termination, Permanent Disability
or Death. In the event that Executive voluntarily terminates his employment
relationship with the Company at any time and such termination is not for nor
deemed for Good Reason, or in the event that Executive's employment terminates
as a result of death or Permanent Disability, Executive shall be entitled to no
compensation or benefits from the Company other than those earned under Section
2 above through the date of his termination of employment.
4. Benefits Upon Termination for Cause. If your employment is terminated
by the Company for cause, Executive shall be entitled to no compensation or
benefits from the Company other than those earned under Section 2 above through
the date of such termination.
5. Benefits for Other than Cause and Not Associated with a Change of
Control. If your employment is terminated by the Company for any reason other
than cause and not associated with a Change of Control, the Employee shall
receive as severance payments the then-current salary (base and bonus), less
applicable withholding taxes, for eighteen (18) months. Notwithstanding the
above, in the event the Employee accepts employment with any person or entity
during the period of the salary payments described herein, the Employee shall be
entitled to no other payments.
6. Benefits Upon Change of Control. In the event that if an acquiring or
successor company does not assume all stock options granted by the Company to
the Executive prior to the Change of Control, then the vesting of such stock
options shall immediately accelerate and such options shall become fully vested
and immediately exercisable in full.
7. Termination Upon Change of Control. In the event of the Executive's
Termination Upon Change of Control, Executive shall be entitled to the following
separation benefits:
(i) all salary, accrued but unused vacation earned through
the date of Executive's termination and Executive's target bonus for the year in
which termination occurs, pro rated through the date of Executive's termination;
(ii) eighteen (18) months of Executive's Total Annual
Earnings as in effect as of the date of such termination, less applicable
withholding, paid in accordance with the Company's then normal payroll
procedures;
<PAGE> 5
(iii) all stock options granted by the Company to the
Executive prior to the Change of Control shall become fully vested and
immediately exercisable in full to the extent such stock options remain
outstanding and unexercised at the time of such Termination Upon Change of
Control;
(iv) within reasonable time following submission of proper
expense reports by the Executive, the Company shall reimburse the Executive for
all expenses reasonably and necessarily incurred by the Executive in connection
with the business of the Company prior to his termination of employment;
(v) continued provision of the Company's standard employee
group health insurance coverages for eighteen (18) months following termination.
If such coverage included the Executive's dependents immediately prior to the
date of termination, such dependents shall also be covered at Company expense.
For purposes of title X of the Consolidated Budget Reconciliation Act of 1985,
the date of the "qualifying event" for Executive and his dependents shall be the
date upon which the Company-paid coverage terminates. Notwithstanding the above,
in the event Executive becomes covered under another employer's group health
plan during the period provided for herein, the Company shall cease provision of
continued group health insurance for Executive; and
(vi) Executive shall receive the benefits, if any, under
the Company's 401(k) Plan and other Company benefit plans to which he may be
entitled pursuant to the terms of such plans.
8. Conflict of Interest.
(a) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity which offers products or services that are
competitive with any products or services offered by the Company or with any
products or services that Executive is aware the Company intends to offer,
Executive shall be deemed to have voluntarily terminated employment with the
Company not for Good Reason, such termination effective immediately upon such
acceptance of employment or provision of services. Upon such voluntary
termination, Executive shall not be entitled to any further payments or benefits
as provided under Section 7.
(b) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity while Executive continues to receive any
separation benefits pursuant to Section 7, Executive shall immediately notify
the Company of such acceptance and provide to the Company information with
respect to such person or entity as the Company may reasonably request in order
to determine if that person's or entity's products or services are competitive
with the Company's.
(c) Executive agrees that for a period of two (2) year following
termination of his employment with the Company, he will not, directly or
indirectly, solicit the services of or in any manner persuade employees or
customers of the Company to discontinue that person's or entity's relationship
with or to the Company as an employee or customer, as the case may be.
<PAGE> 6
9. Payment of Taxes. All payments made to Executive under this Agreement
shall be subject to all applicable federal state local and foreign (if
applicable) income, employment and payroll taxes.
10. Exclusive Remedy. Under any claim for breach of this Agreement or
wrongful termination, the payments and benefits provided for in Section 7 shall
constitute the Executive's sole and exclusive remedy for any alleged injury or
other damages arising out of the cessation of the employment relationship
between the Executive and the Company in the event of Executive's termination.
Except as expressly set forth herein, the Executive shall be entitled to no
other compensation, benefits, or other payments from the Company as a result of
any termination of employment with respect to which the payments and/or benefits
described in Section 7 have been provided to the Executive.
11. Proprietary and Confidential Information. The Executive agrees to
continue to abide by the terms and conditions of the Company's confidentiality
and/or proprietary rights agreement between the Executive and the Company.
12. Arbitration. Pursuant to the Federal Arbitration Act, any claim,
dispute or controversy arising out of this Agreement, the interpretation,
validity or enforceability of this Agreement or the alleged breach thereof shall
be submitted by the parties to binding arbitration in Santa Clara County,
California or elsewhere by mutual agreement. The selection of the arbitrator and
procedure shall be governed by the Employment Arbitration Rules of the American
Arbitration Association. The arbitrator shall be someone with an employment law
background and from the AAA Commercial Arbitration Panel, or if both parties
agree, the Judicial Arbiters Group. Notwithstanding the above, this arbitration
provision shall not preclude the Company from seeking injunctive relief from any
court having jurisdiction with respect to any disputes or claims relating to or
arising out of the misuse or misappropriation of the Company's trade secrets or
confidential and proprietary information or the breach of any provisions by
Executive of the Company's confidentiality and/or proprietary rights agreement
between the Executive and Company. All costs and expenses of arbitration or
litigation, including but not limited to attorneys fees and other costs
reasonably incurred by the Executive, shall be paid by the Company. Judgment may
be entered on the award of the arbitration in any court having jurisdiction.
13. Limitation of Payments and Benefits. If, due to the benefits
provided under this Agreement, Executive is subject to any excise tax due to
characterization of any amounts payable hereunder as excess parachute payments
pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), the Company agrees to reimburse the Executive for the amount of such
excise tax; provided, however, that, no reimbursement shall be made for any
excise tax payable with respect to the reimbursement made pursuant to this
Section 13. The excise tax reimbursement made pursuant to this Section 13 shall
be subject to all applicable withholding. The foregoing shall be conditioned
upon the Executive cooperating with the Company in such manner as may be
reasonably requested (other than reducing amounts payable hereunder) so as to
minimize the amount of such excise tax.
Unless the Company and Executive otherwise agree in writing, any determination
required under this Section 13 shall be made in writing by independent public
accountants agreed to by the
<PAGE> 7
Company and the Executive (the "Accountants"), whose determination shall be
conclusive and binding upon Executive and the Company for all purposes. For
purposes of making the calculations required by this Section 13, the Accountants
may rely on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Company and Executive shall furnish to
the Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this Section 13. The Company
shall bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 13.
14. Interpretation. Executive and the Company agree that this Agreement
shall be interpreted in accordance with and governed by the laws of the State of
California, without regard to such state's conflict of laws rules.
15. Conflict in Benefits. This Agreement shall supersede all prior
arrangements (including the Previous Employment Agreement), whether written or
oral, and understandings regarding the subject matter of this Agreement and
shall be the exclusive agreement for the determination of any payments and
accelerated option vesting due upon Executive's termination of employment or a
Change of Control; provided, however, that this Agreement is not intended to and
shall not affect, limit or terminate (i) any plans, programs, or arrangements of
the Company that are regularly made available to similarly-situated employees of
the Company, (ii) any agreement or arrangement with the Executive that has been
reduced to writing and which does not relate to the subject matter hereof, (iii)
any indemnification rights described below, or (iv) any agreements or
arrangements hereafter entered into by the parties in writing, except as
otherwise expressly provided herein.
16. Release of Claims. No severance benefits shall be paid to Executive
under this Agreement unless and until the Executive shall, in consideration of
the payment of such severance benefit, execute a release of claims in a form
satisfactory to the Company; provided, however, that such release shall not
apply to any right of Executive to be indemnified by the Company.
17. Successors and Assigns.
(a) Successors of the Company. The Company will require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, expressly, absolutely and unconditionally to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession or assignment
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession transaction shall be a breach of this
Agreement and shall entitle the Executive to terminate his employment with the
Company within three months thereafter and to receive the benefits provided
under Section 7 of this Agreement in the event of Termination Upon Change of
Control. As used in this Agreement, "Company" shall mean the Company as defined
above and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 17 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
<PAGE> 8
(b) Heirs of Executive. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees.
18. Notices. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
if to the Company: Networks Associates, Inc.
3965 Freedom Circle
Santa Clara, CA 95054
Attn: Vice President and General Counsel
and if to the Executive at the address specified at the end of this Agreement.
Notice may also be given at such other address as either party may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
19. No Representations. Executive acknowledges that he/she is not
relying and has not relied on any promise, representation or statement made by
or on behalf of the Company which is not set forth in this Agreement.
20. Validity. If any one or more of the provisions (or any part thereof)
of this Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
(or any part thereof) shall not in any way be affected or impaired thereby.
21. Modification. This Agreement may only be modified or amended by a
supplemental written agreement signed by Executive and the Company.
<PAGE> 9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
NETWORKS ASSOCIATES, INC.
Date: May 11, 1999 By: /s/ EDWIN HARPER
------------------- --------------------------------
Title: DIRECTOR NAI --
COMPENSATION COMMITTEE
-----------------------------
Date: May 11, 1999 By: /s/ VIRGINIA GEMMELL
------------------- --------------------------------
Title: DIRECTOR NAI --
COMPENSATION COMMITTEE
-----------------------------
WILLIAM L. LARSON
Date: May 11, 1999 /s/ WILLIAM L. LARSON
------------------- -----------------------------------
Executive's Signature
Address for Notice:
3965 FREEDOM CIRCLE
- ------------------------
SANTA CLARA
- ------------------------
CA 95054
- ------------------------
<PAGE> 1
EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of May 11, 1999 (the "Effective Date"), by and between Networks Associates,
Inc., a Delaware corporation (the "Company") and Prabhat Goyal ("Executive").
RECITALS
WHEREAS, on or about April 18, 1996, McAfee Associates, Inc. and
Executive entered into a Change of Control Agreement (the "Previous Change of
Control Agreement"); and
WHEREAS, McAfee Associates, Inc. merged to form the Company; and
WHEREAS, the parties desire to amend the Previous Change of Control
Agreement in its entirety; and
WHEREAS, the Company recognizes that the possibility of a change of
control or other event may occur which may change the nature and structure of
the Company and that uncertainty regarding the consequences of such events may
adversely affect the Company's ability to retain its key employees. The Company
also recognizes that the Executive possesses an intimate and essential knowledge
of the Company upon which the Company may need to draw for objective advice and
continued services in connection with any acquisition of the Company or other
change of control that is potentially advantageous to the Company's
stockholders. The Company believes that the existence of this Agreement will
serve as an incentive to Executive to remain in the employ of the Company and
will enhance its ability to call on and rely upon the Executive in connection
with a change of control. On February 22, 1998, the Board of Directors of the
Company met and approved the implementation of the Change of Control Agreement
for its key employees; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement in order to provide additional compensation and benefits to the
Executive and to encourage Executive to continue to devote his full attention
and dedication to the Company and to continue his employment with the Company.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the parties agree as follows:
1. Definitions. As used in this Agreement, unless the context requires a
different meaning, the following terms shall have the meanings set forth herein:
(a) "Cause" means:
(i) theft, a material act of dishonesty, fraud, the
intentional falsification of any employment or Company records or the commission
of any criminal act which impairs Executive's ability to perform his duties
under this Agreement;
<PAGE> 2
(ii) improper disclosure of the Company's confidential,
business or proprietary information by Executive in violation of the Employee
Inventions and Proprietary Rights Assignment Agreement signed on or about April
18, 1996;
(iii) any action by the Executive which the Company's
Board of Directors (the "Board") reasonably believes has had or will have a
material detrimental effect on the Company's reputation or business;
(b) "Change of Control" means:
(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than a trustee or other fiduciary holding securities of the
Company under an employee benefit plan of the Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of (A) the outstanding shares of common stock of the Company or (B) the
combined voting power of the Company's then-outstanding securities;
(ii) the Company is party to a merger or consolidation
which results in the holders of voting securities of the Company outstanding
immediately prior thereto failing to continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%)of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(iii) the sale or disposition of all or substantially all
of the Company's assets (or any transaction having similar effect is
consummated); or
(iv) the dissolution or liquidation of the Company.
Notwithstanding any other provision herein to the contrary, for purposes of this
Agreement no Change of Control shall be deemed to have occurred as a result of
any ownership change which may occur as a result of an underwritten public
offering or private placement of the Company's stock.
(c) "Good Reason" means the occurrence of any of the following
conditions, without Executive's written consent, which condition(s) remain(s) in
effect twenty (20) days after written notice to the Board from Executive of such
condition(s):
(i) a five percent (5%) decrease in Executive's base
salary and/or a ten percent (10%) decrease in Executive's bonus compensation or
employee benefits following a Change of Control;
(ii) a demotion, a material reduction in Executive's
position, responsibilities or duties, or a material, adverse change in
Executive's substantive functional responsibilities or duties, as measured
against Executive's position, responsibilities or duties immediately prior to
such change causing it to be of materially less stature or responsibility;
<PAGE> 3
(iii) in the event of the relocation of Executive's work
place for the Company to a location more than fifty (50) miles from the
Executive's principal place of employment immediately prior to the Change of
Control;
(iv) any material breach of this Agreement by the Company;
or
(v) any failure or refusal of a successor company to
assume the Company's obligations under this Agreement as required by Section 14.
(d) "Permanent Disability" means that:
(i) the Executive has been incapacitated by bodily injury
or disease so as to be prevented thereby from engaging in the performance of the
Executive's duties;
(ii) such total incapacity shall have continued for a
period of six consecutive months; and
(iii) such incapacity will, in the opinion of a qualified
physician, be permanent and continuous during the remainder of the Executive's
life with or without reasonable accommodation.
(e) "Termination Upon a Change of Control" means:
(i) any termination of the employment of the Executive by
the Company without Cause within twenty-four (24) months after the date of the
closing of the Change of Control; or
(ii) any resignation by the Executive for Good Reason
within twelve (12) months after the occurrence of any Change of Control.
"Termination Upon Change of Control" shall not include any termination
of the employment of the Executive (a) by the Company for Cause; (b) by the
Company as a result of the Permanent Disability of the Executive; (c) as a
result of the death of the Executive; or (d) as a result of the voluntary
termination of employment by the Executive for reasons other than Good Reason
within twenty-four (24) months after the occurrence of any Change of Control.
(f) "Total Annual Earnings" means the sum of the Executive's
annual salary and targeted annual bonus.
2. Position and Duties. Executive shall continue to be an at-will
Executive of the Company employed in his current position at his then current
salary rate. Executive shall also be entitled to continue to participate in and
to receive benefits on the same basis as other executive or senior staff members
under any of the Company's employee benefit plans as in effect from time to
time. In addition, Executive shall be entitled to the benefits afforded to other
employees similarly situated under the Company's vacation, holiday and business
expense reimbursement policies. Executive agrees to devote his full business
time, energy and skill to his duties at the Company. These duties shall include,
but not be limited to, any duties consistent with his position which may be
assigned to Executive from time to time.
<PAGE> 4
3. Benefits Upon Executive's Voluntary Termination, Permanent Disability
or Death. In the event that Executive voluntarily terminates his employment
relationship with the Company at any time and such termination is not for nor
deemed for Good Reason, or in the event that Executive's employment terminates
as a result of death or Permanent Disability, Executive shall be entitled to no
compensation or benefits from the Company other than those earned under Section
2 above through the date of his termination of employment.
4. Benefits Upon Change of Control. In the event that if an acquiring or
successor company does not assume all stock options granted by the Company to
the Executive prior to the Change of Control, then the vesting of such stock
options shall immediately accelerate and such options shall become fully vested
and immediately exercisable in full.
5. Termination Upon Change of Control. In the event of the Executive's
Termination Upon Change of Control, Executive shall be entitled to the following
separation benefits:
(i) all salary, accrued but unused vacation earned through
the date of Executive's termination and Executive's target bonus for the year in
which termination occurs, pro rated through the date of Executive's termination;
(ii) twelve (12) months of Executive's Total Annual
Earnings as in effect as of the date of such termination, less applicable
withholding, paid in accordance with the Company's then normal payroll
procedures;
(iii) all stock options granted by the Company to the
Executive prior to the Change of Control shall become fully vested and
immediately exercisable in full to the extent such stock options remain
outstanding and unexercised at the time of such Termination Upon Change of
Control;
(iv) within reasonable time following submission of proper
expense reports by the Executive, the Company shall reimburse the Executive for
all expenses reasonably and necessarily incurred by the Executive in connection
with the business of the Company prior to his termination of employment;
(v) continued provision of the Company's standard employee
group health insurance coverages for twelve (12) months following termination.
If such coverage included the Executive's dependents immediately prior to the
date of termination, such dependents shall also be covered at Company expense.
For purposes of title X of the Consolidated Budget Reconciliation Act of 1985,
the date of the "qualifying event" for Executive and his dependents shall be the
date upon which the Company-paid coverage terminates. Notwithstanding the above,
in the event Executive becomes covered under another employer's group health
plan during the period provided for herein, the Company shall cease provision of
continued group health insurance for Executive; and
(vi) Executive shall receive the benefits, if any, under
the Company's 401(k) Plan and other Company benefit plans to which he may be
entitled pursuant to the terms of such plans.
<PAGE> 5
6. Conflict of Interest.
(a) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity which offers products or services that are
competitive with any products or services offered by the Company or with any
products or services that Executive is aware the Company intends to offer,
Executive shall be deemed to have voluntarily terminated employment with the
Company not for Good Reason, such termination effective immediately upon such
acceptance of employment or provision of services. Upon such voluntary
termination, Executive shall not be entitled to any further payments or benefits
as provided under Section 5.
(b) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity while Executive continues to receive any
separation benefits pursuant to Section 5, Executive shall immediately notify
the Company of such acceptance and provide to the Company information with
respect to such person or entity as the Company may reasonably request in order
to determine if that person's or entity's products or services are competitive
with the Company's.
(c) Executive agrees that for a period of two (2) year following
termination of his employment with the Company, he will not, directly or
indirectly, solicit the services of or in any manner persuade employees or
customers of the Company to discontinue that person's or entity's relationship
with or to the Company as an employee or customer, as the case may be.
7. Payment of Taxes. All payments made to Executive under this Agreement
shall be subject to all applicable federal state local and foreign (if
applicable) income, employment and payroll taxes.
8. Exclusive Remedy. Under any claim for breach of this Agreement or
wrongful termination, the payments and benefits provided for in Section 5 shall
constitute the Executive's sole and exclusive remedy for any alleged injury or
other damages arising out of the cessation of the employment relationship
between the Executive and the Company in the event of Executive's termination.
Except as expressly set forth herein, the Executive shall be entitled to no
other compensation, benefits, or other payments from the Company as a result of
any termination of employment with respect to which the payments and/or benefits
described in Section 5 have been provided to the Executive.
9. Proprietary and Confidential Information. The Executive agrees to
continue to abide by the terms and conditions of the Company's confidentiality
and/or proprietary rights agreement between the Executive and the Company.
10. Arbitration. Pursuant to the Federal Arbitration Act, any claim,
dispute or controversy arising out of this Agreement, the interpretation,
validity or enforceability of this Agreement or the alleged breach thereof shall
be submitted by the parties to binding arbitration in Santa Clara County,
California or elsewhere by mutual agreement. The selection of the arbitrator and
procedure shall be governed by the Employment Arbitration Rules of the American
Arbitration Association. The arbitrator shall be someone with an employment law
<PAGE> 6
background and from the AAA Commercial Arbitration Panel, or if both parties
agree, the Judicial Arbiters Group. Notwithstanding the above, this arbitration
provision shall not preclude the Company from seeking injunctive relief from any
court having jurisdiction with respect to any disputes or claims relating to or
arising out of the misuse or misappropriation of the Company's trade secrets or
confidential and proprietary information or the breach of any provisions by
Executive of the Company's confidentiality and/or proprietary rights agreement
between the Executive and Company. All costs and expenses of arbitration or
litigation, including but not limited to attorneys fees and other costs
reasonably incurred by the Executive, shall be paid by the Company. Judgment may
be entered on the award of the arbitration in any court having jurisdiction.
11. Limitation of Payments and Benefits. If, due to the benefits
provided under this Agreement, Executive is subject to any excise tax due to
characterization of any amounts payable hereunder as excess parachute payments
pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), the Company agrees to reimburse the Executive for the amount of such
excise tax; provided, however, that, no reimbursement shall be made for any
excise tax payable with respect to the reimbursement made pursuant to this
Section 11. The excise tax reimbursement made pursuant to this Section 11 shall
be subject to all applicable withholding. The foregoing shall be conditioned
upon the Executive cooperating with the Company in such manner as may be
reasonably requested (other than reducing amounts payable hereunder) so as to
minimize the amount of such excise tax.
Unless the Company and Executive otherwise agree in writing, any determination
required under this Section 11 shall be made in writing by independent public
accountants agreed to by the Company and the Executive (the "Accountants"),
whose determination shall be conclusive and binding upon Executive and the
Company for all purposes. For purposes of making the calculations required by
this Section 11, the Accountants may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and Executive shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section 11. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 11.
12. Interpretation. Executive and the Company agree that this Agreement
shall be interpreted in accordance with and governed by the laws of the State of
California, without regard to such state's conflict of laws rules.
13. Conflict in Benefits. This Agreement shall supersede all prior
arrangements, whether written or oral, and understandings regarding the subject
matter of this Agreement and shall be the exclusive agreement for the
determination of any payments and accelerated option vesting due upon
Executive's termination of employment or a Change of Control; provided, however,
that this Agreement is not intended to and shall not affect, limit or terminate
(i) any plans, programs, or arrangements of the Company that are regularly made
available to similarly-situated employees of the Company, (ii) any agreement or
arrangement with the Executive that has been reduced to writing and which does
not relate to the subject matter hereof, (iii) any
<PAGE> 7
indemnification rights described below, or (iv) any agreements or arrangements
hereafter entered into by the parties in writing, except as otherwise expressly
provided herein.
14. Release of Claims. No severance benefits shall be paid to Executive
under this Agreement unless and until the Executive shall, in consideration of
the payment of such severance benefit, execute a release of claims in a form
satisfactory to the Company; provided, however, that such release shall not
apply to any right of Executive to be indemnified by the Company.
15. Successors and Assigns.
(a) Successors of the Company. The Company will require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, expressly, absolutely and unconditionally to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession or assignment
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession transaction shall be a breach of this
Agreement and shall entitle the Executive to terminate his employment with the
Company within three months thereafter and to receive the benefits provided
under Section 5 of this Agreement in the event of Termination Upon Change of
Control. As used in this Agreement, "Company" shall mean the Company as defined
above and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 14 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
(b) Heirs of Executive. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees.
16. Notices. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
if to the Company: Networks Associates, Inc.
3965 Freedom Circle
Santa Clara, CA 95054
Attn: Vice President and General Counsel
and if to the Executive at the address specified at the end of this Agreement.
Notice may also be given at such other address as either party may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
<PAGE> 8
17. No Representations. Executive acknowledges that he/she is not
relying and has not relied on any promise, representation or statement made by
or on behalf of the Company which is not set forth in this Agreement.
18. Validity. If any one or more of the provisions (or any part thereof)
of this Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
(or any part thereof) shall not in any way be affected or impaired thereby.
19. Modification. This Agreement may only be modified or amended by a
supplemental written agreement signed by Executive and the Company.
<PAGE> 9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
NETWORKS ASSOCIATES, INC.
Date: May 11, 1999 By: /s/ WILLIAM L. LARSON
------------------- --------------------------------
Title: CHAIRMAN AND CEO -- NAI
-----------------------------
PRABHAT GOYAL
Date: May 11, 1999 /s/ PRABHAT GOYAL
------------------- -----------------------------------
Executive's Signature
Address for Notice:
3965 FREEDOM CIRCLE
- ------------------------
SANTA CLARA
- ------------------------
CA 95054
- ------------------------
<PAGE> 1
EXHIBIT 10.24
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of May 11, 1999 (the "Effective Date"), by and between Networks Associates,
Inc., a Delaware corporation (the "Company") and Zachary Nelson ("Executive").
RECITALS
WHEREAS, on or about March 20, 1997, McAfee Associates, Inc. and
Executive entered into a Change of Control Agreement (the "Previous Change of
Control Agreement"); and
WHEREAS, the McAfee Associates, Inc. merged to form the Company; and
WHEREAS, the parties desire to amend the Previous Change of Control
Agreement in its entirety; and
WHEREAS, the Company recognizes that the possibility of a change of
control or other event may occur which may change the nature and structure of
the Company and that uncertainty regarding the consequences of such events may
adversely affect the Company's ability to retain its key employees. The Company
also recognizes that the Executive possesses an intimate and essential knowledge
of the Company upon which the Company may need to draw for objective advice and
continued services in connection with any acquisition of the Company or other
change of control that is potentially advantageous to the Company's
stockholders. The Company believes that the existence of this Agreement will
serve as an incentive to Executive to remain in the employ of the Company and
will enhance its ability to call on and rely upon the Executive in connection
with a change of control. On February 22, 1998, the Board of Directors of the
Company met and approved the implementation of the Change of Control Agreement
for its key employees; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement in order to provide additional compensation and benefits to the
Executive and to encourage Executive to continue to devote his full attention
and dedication to the Company and to continue his employment with the Company.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the parties agree as follows:
1. Definitions. As used in this Agreement, unless the context requires a
different meaning, the following terms shall have the meanings set forth herein:
(a) "Cause" means:
(i) theft, a material act of dishonesty, fraud, the
intentional falsification of any employment or Company records or the commission
of any criminal act which impairs Executive's ability to perform his duties
under this Agreement;
<PAGE> 2
(ii) improper disclosure of the Company's confidential,
business or proprietary information by Executive in violation of the Employee
Inventions and Proprietary Rights Assignment Agreement signed on March 24, 1997;
(iii) any action by the Executive which the Company's
Board of Directors (the "Board") reasonably believes has had or will have a
material detrimental effect on the Company's reputation or business;
(b) "Change of Control" means:
(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than a trustee or other fiduciary holding securities of the
Company under an employee benefit plan of the Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of (A) the outstanding shares of common stock of the Company or (B) the
combined voting power of the Company's then-outstanding securities;
(ii) the Company is party to a merger or consolidation
which results in the holders of voting securities of the Company outstanding
immediately prior thereto failing to continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%)of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(iii) the sale or disposition of all or substantially all
of the Company's assets (or any transaction having similar effect is
consummated); or
(iv) the dissolution or liquidation of the Company.
Notwithstanding any other provision herein to the contrary, for purposes of this
Agreement no Change of Control shall be deemed to have occurred as a result of
any ownership change which may occur as a result of an underwritten public
offering or private placement of the Company's stock.
(c) "Good Reason" means the occurrence of any of the following
conditions, without Executive's written consent, which condition(s) remain(s) in
effect twenty (20) days after written notice to the Board from Executive of such
condition(s):
(i) a five percent (5%) decrease in Executive's base
salary and/or a ten percent (10%) decrease in Executive's bonus compensation or
employee benefits following a Change of Control;
(ii) a demotion, a material reduction in Executive's
position, responsibilities or duties, or a material, adverse change in
Executive's substantive functional responsibilities or duties, as measured
against Executive's position, responsibilities or duties immediately prior to
such change causing it to be of materially less stature or responsibility;
<PAGE> 3
(iii) in the event of the relocation of Executive's work
place for the Company to a location more than fifty (50) miles from the
Executive's principal place of employment immediately prior to the Change of
Control;
(iv) any material breach of this Agreement by the Company;
or
(v) any failure or refusal of a successor company to
assume the Company's obligations under this Agreement as required by Section 14.
(d) "Permanent Disability" means that:
(i) the Executive has been incapacitated by bodily injury
or disease so as to be prevented thereby from engaging in the performance of the
Executive's duties;
(ii) such total incapacity shall have continued for a
period of six consecutive months; and
(iii) such incapacity will, in the opinion of a qualified
physician, be permanent and continuous during the remainder of the Executive's
life with or without reasonable accommodation.
(e) "Termination Upon a Change of Control" means:
(i) any termination of the employment of the Executive by
the Company without Cause within twenty-four (24) months after the date of the
closing of the Change of Control; or
(ii) any resignation by the Executive for Good Reason
within twelve (12) months after the occurrence of any Change of Control.
"Termination Upon Change of Control" shall not include any termination
of the employment of the Executive (a) by the Company for Cause; (b) by the
Company as a result of the Permanent Disability of the Executive; (c) as a
result of the death of the Executive; or (d) as a result of the voluntary
termination of employment by the Executive for reasons other than Good Reason
within twenty-four (24) months after the occurrence of any Change of Control.
(f) "Total Annual Earnings" means the sum of the Executive's
annual salary and targeted annual bonus.
2. Position and Duties. Executive shall continue to be an at-will
Executive of the Company employed in his current position at his then current
salary rate. Executive shall also be entitled to continue to participate in and
to receive benefits on the same basis as other executive or senior staff members
under any of the Company's employee benefit plans as in effect from time to
time. In addition, Executive shall be entitled to the benefits afforded to other
employees similarly situated under the Company's vacation, holiday and business
expense reimbursement policies. Executive agrees to devote his full business
time, energy and skill to his duties at the Company. These duties shall include,
but not be limited to, any duties consistent with his position which may be
assigned to Executive from time to time.
<PAGE> 4
3. Benefits Upon Executive's Voluntary Termination, Permanent Disability
or Death. In the event that Executive voluntarily terminates his employment
relationship with the Company at any time and such termination is not for nor
deemed for Good Reason, or in the event that Executive's employment terminates
as a result of death or Permanent Disability, Executive shall be entitled to no
compensation or benefits from the Company other than those earned under Section
2 above through the date of his termination of employment.
4. Benefits Upon Change of Control. In the event that if an acquiring or
successor company does not assume all stock options granted by the Company to
the Executive prior to the Change of Control, then the vesting of such stock
options shall immediately accelerate and such options shall become fully vested
and immediately exercisable in full.
5. Termination Upon Change of Control. In the event of the Executive's
Termination Upon Change of Control, Executive shall be entitled to the following
separation benefits:
(i) all salary, accrued but unused vacation earned through
the date of Executive's termination and Executive's target bonus for the year in
which termination occurs, pro rated through the date of Executive's termination;
(ii) twelve (12) months of Executive's Total Annual
Earnings as in effect as of the date of such termination, less applicable
withholding, paid in accordance with the Company's then normal payroll
procedures;
(iii) all stock options granted by the Company to the
Executive prior to the Change of Control shall become fully vested and
immediately exercisable in full to the extent such stock options remain
outstanding and unexercised at the time of such Termination Upon Change of
Control;
(iv) within reasonable time following submission of proper
expense reports by the Executive, the Company shall reimburse the Executive for
all expenses reasonably and necessarily incurred by the Executive in connection
with the business of the Company prior to his termination of employment;
(v) continued provision of the Company's standard employee
group health insurance coverages for twelve (12) months following termination.
If such coverage included the Executive's dependents immediately prior to the
date of termination, such dependents shall also be covered at Company expense.
For purposes of title X of the Consolidated Budget Reconciliation Act of 1985,
the date of the "qualifying event" for Executive and his dependents shall be the
date upon which the Company-paid coverage terminates. Notwithstanding the above,
in the event Executive becomes covered under another employer's group health
plan during the period provided for herein, the Company shall cease provision of
continued group health insurance for Executive; and
(vi) Executive shall receive the benefits, if any, under
the Company's 401(k) Plan and other Company benefit plans to which he may be
entitled pursuant to the terms of such plans.
<PAGE> 5
6. Conflict of Interest.
(a) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity which offers products or services that are
competitive with any products or services offered by the Company or with any
products or services that Executive is aware the Company intends to offer,
Executive shall be deemed to have voluntarily terminated employment with the
Company not for Good Reason, such termination effective immediately upon such
acceptance of employment or provision of services. Upon such voluntary
termination, Executive shall not be entitled to any further payments or benefits
as provided under Section 5.
(b) In the event that Executive accepts employment with, or
provides any services to (whether as a partner, consultant, joint venturer or
otherwise), any person or entity while Executive continues to receive any
separation benefits pursuant to Section 5, Executive shall immediately notify
the Company of such acceptance and provide to the Company information with
respect to such person or entity as the Company may reasonably request in order
to determine if that person's or entity's products or services are competitive
with the Company's.
(c) Executive agrees that for a period of two (2) year following
termination of his employment with the Company, he will not, directly or
indirectly, solicit the services of or in any manner persuade employees or
customers of the Company to discontinue that person's or entity's relationship
with or to the Company as an employee or customer, as the case may be.
7. Payment of Taxes. All payments made to Executive under this Agreement
shall be subject to all applicable federal state local and foreign (if
applicable) income, employment and payroll taxes.
8. Exclusive Remedy. Under any claim for breach of this Agreement or
wrongful termination, the payments and benefits provided for in Section 5 shall
constitute the Executive's sole and exclusive remedy for any alleged injury or
other damages arising out of the cessation of the employment relationship
between the Executive and the Company in the event of Executive's termination.
Except as expressly set forth herein, the Executive shall be entitled to no
other compensation, benefits, or other payments from the Company as a result of
any termination of employment with respect to which the payments and/or benefits
described in Section 5 have been provided to the Executive.
9. Proprietary and Confidential Information. The Executive agrees to
continue to abide by the terms and conditions of the Company's confidentiality
and/or proprietary rights agreement between the Executive and the Company.
10. Arbitration. Pursuant to the Federal Arbitration Act, any claim,
dispute or controversy arising out of this Agreement, the interpretation,
validity or enforceability of this Agreement or the alleged breach thereof shall
be submitted by the parties to binding arbitration in Santa Clara County,
California or elsewhere by mutual agreement. The selection of the arbitrator and
procedure shall be governed by the Employment Arbitration Rules of the American
Arbitration Association. The arbitrator shall be someone with an employment law
<PAGE> 6
background and from the AAA Commercial Arbitration Panel, or if both parties
agree, the Judicial Arbiters Group. Notwithstanding the above, this arbitration
provision shall not preclude the Company from seeking injunctive relief from any
court having jurisdiction with respect to any disputes or claims relating to or
arising out of the misuse or misappropriation of the Company's trade secrets or
confidential and proprietary information or the breach of any provisions by
Executive of the Company's confidentiality and/or proprietary rights agreement
between the Executive and Company. All costs and expenses of arbitration or
litigation, including but not limited to attorneys fees and other costs
reasonably incurred by the Executive, shall be paid by the Company. Judgment may
be entered on the award of the arbitration in any court having jurisdiction.
11. Limitation of Payments and Benefits. If, due to the benefits
provided under this Agreement, Executive is subject to any excise tax due to
characterization of any amounts payable hereunder as excess parachute payments
pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), the Company agrees to reimburse the Executive for the amount of such
excise tax; provided, however, that, no reimbursement shall be made for any
excise tax payable with respect to the reimbursement made pursuant to this
Section 11. The excise tax reimbursement made pursuant to this Section 11 shall
be subject to all applicable withholding. The foregoing shall be conditioned
upon the Executive cooperating with the Company in such manner as may be
reasonably requested (other than reducing amounts payable hereunder) so as to
minimize the amount of such excise tax.
Unless the Company and Executive otherwise agree in writing, any determination
required under this Section 11 shall be made in writing by independent public
accountants agreed to by the Company and the Executive (the "Accountants"),
whose determination shall be conclusive and binding upon Executive and the
Company for all purposes. For purposes of making the calculations required by
this Section 11, the Accountants may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and Executive shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section 11. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 11.
12. Interpretation. Executive and the Company agree that this Agreement
shall be interpreted in accordance with and governed by the laws of the State of
California, without regard to such state's conflict of laws rules.
13. Conflict in Benefits. This Agreement shall supersede all prior
arrangements, whether written or oral, and understandings regarding the subject
matter of this Agreement and shall be the exclusive agreement for the
determination of any payments and accelerated option vesting due upon
Executive's termination of employment or a Change of Control; provided, however,
that this Agreement is not intended to and shall not affect, limit or terminate
(i) any plans, programs, or arrangements of the Company that are regularly made
available to similarly-situated employees of the Company, (ii) any agreement or
arrangement with the Executive that has been reduced to writing and which does
not relate to the subject matter hereof, (iii) any
<PAGE> 7
indemnification rights described below, or (iv) any agreements or arrangements
hereafter entered into by the parties in writing, except as otherwise expressly
provided herein.
14. Release of Claims. No severance benefits shall be paid to Executive
under this Agreement unless and until the Executive shall, in consideration of
the payment of such severance benefit, execute a release of claims in a form
satisfactory to the Company; provided, however, that such release shall not
apply to any right of Executive to be indemnified by the Company.
15. Successors and Assigns.
(a) Successors of the Company. The Company will require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, expressly, absolutely and unconditionally to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession or assignment
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession transaction shall be a breach of this
Agreement and shall entitle the Executive to terminate his employment with the
Company within three months thereafter and to receive the benefits provided
under Section 5 of this Agreement in the event of Termination Upon Change of
Control. As used in this Agreement, "Company" shall mean the Company as defined
above and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 14 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
(b) Heirs of Executive. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees.
16. Notices. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
if to the Company: Networks Associates, Inc.
3965 Freedom Circle
Santa Clara, CA 95054
Attn: Vice President and General Counsel
and if to the Executive at the address specified at the end of this Agreement.
Notice may also be given at such other address as either party may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
<PAGE> 8
17. No Representations. Executive acknowledges that he/she is not
relying and has not relied on any promise, representation or statement made by
or on behalf of the Company which is not set forth in this Agreement.
18. Validity. If any one or more of the provisions (or any part thereof)
of this Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
(or any part thereof) shall not in any way be affected or impaired thereby.
19. Modification. This Agreement may only be modified or amended by a
supplemental written agreement signed by Executive and the Company.
<PAGE> 9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year written below.
NETWORKS ASSOCIATES, INC.
Date: May 11, 1999 By: /s/ WILLIAM L. LARSON
------------------- --------------------------------
Title: CHAIRMAN AND CEO -- NAI
-----------------------------
ZACHARY NELSON
Date: May 11, 1999 /s/ ZACHARY NELSON
------------------- -----------------------------------
Executive's Signature
Address for Notice:
3965 FREEDOM CIRCLE
- ------------------------
SANTA CLARA
- ------------------------
CA 95054
- ------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
<CASH> 360,842
<SECURITIES> 84,431
<RECEIVABLES> 408,871
<ALLOWANCES> (116,353)
<INVENTORY> 0
<CURRENT-ASSETS> 854,055
<PP&E> 133,391
<DEPRECIATION> (78,704)
<TOTAL-ASSETS> 1,581,909
<CURRENT-LIABILITIES> 390,264
<BONDS> 0
0
0
<COMMON> 1,381
<OTHER-SE> 753,537
<TOTAL-LIABILITY-AND-EQUITY> 1,581,909
<SALES> 0
<TOTAL-REVENUES> 245,192
<CGS> 35,243
<TOTAL-COSTS> 165,721
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 45,802
<INCOME-TAX> 19,561
<INCOME-CONTINUING> 26,241
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 26,241
<EPS-PRIMARY> 0.19<F1>
<EPS-DILUTED> 0.18
<FN>
<F1>For Purposes of this Exhibit, Primary means Basic.
</FN>
</TABLE>
