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EXHIBIT 8
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this "Agreement") is made and entered into as of
July 28, 1998, by and between Networks Associates, Inc., a Delaware corporation
("Parent"), and Xxxxxx X. Xxxxxx ("Seller").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, Parent,
Cyclone Acquisition Corp. ("Purchaser"), a Delaware corporation and a
wholly-owned subsidiary of Parent, and CyberMedia, Inc., a Delaware corporation
(the "Company"), are entering into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"), pursuant to which Purchaser agrees to make a
tender offer (the "Offer") for all outstanding shares of common stock, par value
$.01 per share (the "Shares"), of the Company, at a price of $9.50 per Share
(the "Offer Price") net to the seller in cash, to be followed by a merger (the
"Merger") of Purchaser with and into the Company (capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement);
B. As of the date hereof, Seller beneficially owns directly 264,200 Shares
(the "Owned Shares"); and
C. As a condition to their willingness to enter into the Merger Agreement
and make the Offer, Parent and Purchaser have required that Seller agree, and,
in order to facilitate the Offer and the Merger, Seller is willing to agree, (i)
to tender pursuant to the Offer the Owned Shares, together with any Shares
acquired after the date hereof and prior to the termination of the Offer,
whether upon the exercise of options, conversion of convertible securities or
otherwise (collectively, the "Tender Shares"), on the terms and subject to the
conditions provided for in this Agreement and (ii) to enter into the other
agreements set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and Vote.
1.1 Tender. Seller hereby agrees to validly tender (or cause the record
owner of such shares to validly tender) the Tender Shares pursuant to and in
accordance with the terms of the Offer, as soon as practicable after
commencement of the Offer (but in no event later than five business days after
the filing of the Offer Documents with the SEC, in the case of the Owned Shares,
or the first business day following their acquisition, in the case of any other
Tender Shares), by physical delivery of the certificates therefor and to not
withdraw such Tender Shares, except following termination of this Agreement
pursuant to Section 2 hereof. Seller hereby acknowledges and agrees that
Parent's and Purchaser's obligation to accept for payment and pay for the Tender
Shares is subject to the terms and conditions of the Offer. Seller hereby agrees
to permit Parent and Purchaser to publish and disclose in the Offer Documents
and, if approval of
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the Company's stockholders is required under applicable law, the Proxy Statement
(including all related documents and schedules filed with the SEC) his identity
and ownership of the Tender Shares and the nature of his commitments,
arrangements and understandings under this Agreement.
1.2 Voting. Seller hereby agrees that, during the time this Agreement
is in effect, at any meeting of the stockholders of the Company, however called,
Seller shall (a) vote the Tender Shares in favor of the Merger; (b) vote the
Tender Shares against any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement; and (c) vote the Tender Shares against
any action or agreement (other than the Merger Agreement or the transactions
contemplated thereby) that would impede, interfere with, delay, postpone or
attempt to discourage the Merger or the Offer, including, but not limited to:
(i) any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or any of its subsidiaries;
(ii) a sale or transfer of a material amount of assets of the Company or any of
its subsidiaries or a reorganization, recapitalization or liquidation of the
Company and its subsidiaries; (iii) any change in the management or Board of
Directors of the Company, except as otherwise agreed to in writing by Parent;
(iv) any material change in the present capitalization or dividend policy of the
Company; or (v) any other material change in the Company's corporate structure
or business.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Seller hereby irrevocably grants to, and appoints Xxxxxxx X.
Xxxxxx and Xxxxxxx Xxxxxxxxx, or either of them, in their respective capacities
as officers of Parent, and any individual who shall hereafter succeed to any
such office of Parent, and each of them individually, Seller's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of Seller, to vote the Tender Shares in favor of the Merger and
otherwise as contemplated by Section 1.2.
(b) Seller represents that any proxies heretofore given in respect
of the Tender Shares are not irrevocable, and that any such proxies are hereby
revoked.
(c) Seller understands and acknowledges that Parent is entering
into the Merger Agreement in reliance, among other things, upon Seller's
execution and delivery of this Agreement. Seller hereby affirms that the
irrevocable proxy set forth in this Section 1.3 is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of Seller under this Agreement. Seller
hereby further affirms that the irrevocable proxy is coupled with an interest
and may under no circumstances be revoked. Seller hereby ratifies and confirms
all that such proxies and attorneys-in-fact may lawfully do or cause to be done
by virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of the Delaware
General Corporation Law.
1.4 No Inconsistent Arrangements. Seller hereby covenants and agrees
that, except as contemplated by this Agreement and the Merger Agreement, it
shall not:
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(a) transfer (which term shall include, without limitation, any
sale, gift, pledge or other disposition), or consent to any transfer of, any or
all of the Tender Shares or any interest therein; provided, however, that Seller
may transfer (i) the Tender Shares by will or intestacy, and (ii) up to 10% of
the Tender Shares as a bona fide gift or gifts, provided that prior to any such
permitted transfer, each transferee shall agree in writing (in a form
satisfactory to Parent) that such transferee will receive and hold such Tender
Shares subject to the provisions of this Agreement;
(b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Tender Shares or
any interest therein;
(c) grant any proxy, power-of-attorney or other authorization in
or with respect to any or all of the Tender Shares;
(d) deposit the Tender Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Tender Shares; or
(e) take any other action that would make any representation or
warranty of Seller hereunder untrue or incorrect.
1.5 Waiver of Appraisal Rights. Seller hereby waives any rights of
appraisal or rights to dissent from the Merger that he may have under applicable
law.
2. Expiration. This Agreement and Seller's obligation to tender provided
herein shall terminate on the earlier of the payment for the Tender Shares
pursuant to the Offer and the termination of the Merger Agreement in accordance
with its terms.
3. Representation and Warranties. Seller hereby represents and warrants to
Parent as follows:
3.1 Title. Seller has good and valid title to the Owned Shares and,
upon the acquisition thereof, will have good and valid title to any other Tender
Shares, in each case, free and clear of any lien, pledge, charge, encumbrance or
claim of whatever nature and, upon the purchase of the Tender Shares by
Purchaser, Seller will deliver good and valid title to the Tender Shares, free
and clear of any lien, charge, encumbrance or claim of whatever nature.
3.2 Ownership of Shares. On the date hereof, the Owned Shares are owned
of record or beneficially by Seller and, on the date hereof, the Owned Shares
constitute all of the Shares owned of record or beneficially by Seller. Seller
has sole voting power and sole power of disposition with respect to all of the
Owned Shares, with no restrictions, subject to applicable federal securities
laws, on Seller's rights of disposition pertaining thereto.
3.3 Power; Binding Agreement. Seller has the legal capacity, power and
authority to enter into and perform all of his obligations under this Agreement.
The execution, delivery and performance of this Agreement by Seller will not
violate any other agreement to which Seller is a party including, without
limitation, any voting agreement, stockholders agreement or voting
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trust. This Agreement has been duly and validly executed and delivered by Seller
and constitutes a valid and binding agreement of Seller, enforceable against
Seller in accordance with its terms.
3.4 No Conflicts. Other than in connection with or in compliance with
the provisions of the Exchange Act and the HSR Act, no authorization, consent or
approval of, or filing with, any court or any public body or authority is
necessary for the consummation by Seller of the transactions contemplated by
this Agreement. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not constitute a
material breach, violation or default (or any event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
of, or accelerate the performance required by, or result in a right of
termination or acceleration under, or result in the creation of any lien,
encumbrance, pledge, charge or claim upon any of the properties or assets of
Seller under, any material note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which Seller is a party or by
which his properties or assets are bound.
4. Additional Shares. Seller hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any Shares acquired by Seller
after the date hereof.
5. Further Assurances. From time to time, at Parent's request and without
further consideration, Seller shall execute and deliver such additional
documents and take all such further action as may be reasonably necessary or
desirable to consummate and make effective the transactions contemplated by
Section 1 of this Agreement.
6. Miscellaneous.
6.1 Non-Survival. The representations and warranties made herein shall
terminate upon Seller's sale of the Tender Shares to Purchaser in the Offer,
other than Seller's representation and warranty in Section 3.1, which shall
survive the sale of the Tender Shares and the termination of this Agreement
following such sale.
6.2 Entire Agreement; Assignment. This Agreement (a) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and (b)
shall not be assigned by operation of law or otherwise, provided that Parent may
assign its rights and obligations hereunder to any direct or indirect
wholly-owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
6.3 Amendments. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
6.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand delivery
or telecopy or by any courier service, such as Federal Express, providing proof
of delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
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If to Seller: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
If to Parent: Networks Associates, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Rock, Esq.
Fax: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
6.6 Specific Performance. Seller recognizes and acknowledges that a
breach by him of any covenants or agreements contained in this Agreement will
cause Parent to sustain damages for which it would not have an adequate remedy
at law for money damages, and therefore Seller agrees that in the event of any
such breach Parent shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
6.7 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original, but both of which shall
constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or
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interpretation of this Agreement.
6.9 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
IN WITNESS WHEREOF, Parent and Seller have caused this Agreement to be
duly executed as of the day and year first above written.
PARENT: SELLER:
NETWORKS ASSOCIATES, INC. Xxxxxx X. Xxxxxx
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Vice President, Legal Affairs Name: Xxxxxx X. Xxxxxx
and Corporate Development
Date: July 27, 1998 Date: July 27, 1998
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