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EXHIBIT 11
CYBERMEDIA, INC.
NOTE PURCHASE AND SECURITY AGREEMENT
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CYBERMEDIA, INC.
NOTE PURCHASE AND SECURITY AGREEMENT
This NOTE PURCHASE AND SECURITY AGREEMENT is made as of the 28th day of
July, 1998 by and among CYBERMEDIA, INC., a Delaware corporation (the
"Company"), and NETWORKS ASSOCIATES, INC., a Delaware corporation (the
"Purchaser").
The parties hereby agree as follows:
SECTION 1. AMOUNT AND TERMS OF THE LOAN
1.1 THE LOAN. Subject to the terms of this Agreement, the Purchaser
agrees to loan to the Company, the principal amount of Ten Million Dollars
($10,000,000) (the "Loan Amount") pursuant to a secured subordinated convertible
promissory note in the form attached hereto as Exhibit A (the "Note").
Capitalized terms in this Agreement not otherwise defined herein are as defined
in the Note.
SECTION 2. THE CLOSING
2.1 CLOSING DATE. The closing of the purchase and sale of the Note (the
"Closing") shall be held at 1:00 a.m. PDT on the date hereof or at such other
time as the Company and the Purchaser shall agree (the "Closing Date").
2.2 DELIVERY. At the Closing (i) the Purchaser will deliver to the
Company a wire transfer of funds in the amount of the Loan Amount; and (ii) the
Company shall deliver to the Purchaser the Note representing the Loan Amount.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
3.1 CORPORATE POWER. The Company will have at the Closing Date all
requisite corporate power to execute and deliver this Agreement and the Note and
to carry out and perform its obligations under the terms of this Agreement.
3.2 AUTHORIZATION. All corporate action on the part of the Company, its
directors and its shareholders necessary for the authorization, execution,
delivery and performance of this Agreement by the Company and the performance of
the Company's obligations hereunder, including the issuance and delivery of the
Note, has been taken or will be taken prior to the Closing. The Company agrees
to take all necessary corporate action to reserve or authorize the equity
securities issuable upon conversion of the Note. This Agreement and the Note
constitute valid and binding obligations of the Company enforceable in
accordance with their terms, subject to laws of general application relating to
bankruptcy, insolvency, the relief of debtors and, with respect to rights to
indemnity, subject to federal and state securities laws. The Common Stock or
other equity securities of the Company, when issued upon conversion of the Note
in compliance
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with the provisions of this Agreement or the Note, will be validly issued, fully
paid and nonassessable and free of any liens or encumbrances.
3.3 GOVERNMENTAL CONSENTS. All consents, approvals, orders, or
authorizations of, or registrations, qualifications, designations, declarations,
or filings with, any governmental authority, required on the part of the Company
in connection with the valid execution and delivery of this Agreement, the
offer, sale or issuance of the Note and the equity securities issuable upon
conversion of the Note or the consummation of any other transaction contemplated
hereby shall have been obtained and will be effective at the Closing except for
notices required or permitted to be filed with certain state and federal
securities commissions, which notices will be filed on a timely basis, and
filings to perfect security interests.
3.4 OFFERING. Assuming the accuracy of the representations and warranties
of the Purchaser contained in Section 4 hereof, the offer, issue, and sale of
the Note are and will be exempt from the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and are
exempt from registration and qualification under the registration, permit, or
qualification requirements of all applicable state securities laws.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.1 PURCHASE FOR OWN ACCOUNT. The Purchaser represents that it is
acquiring the Note and the equity securities issuable upon conversion of the
Note (collectively, the "Securities") solely for its own account and beneficial
interest for investment and not for sale or with a view to distribution of the
Securities or any part thereof, has no present intention of selling (in
connection with a distribution or otherwise), granting any participation in, or
otherwise distributing the same, and does not presently have reason to
anticipate a change in such intention.
4.2 INFORMATION AND SOPHISTICATION. The Purchaser acknowledges that it
has received all the information it has requested from the Company and considers
necessary or appropriate for deciding whether to acquire the Note. The Purchaser
represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the Note
and to obtain any additional information necessary to verify the accuracy of the
information given the Purchaser. The Purchaser further represents that it has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risk of this investment.
4.3 ABILITY TO BEAR ECONOMIC RISK. The Purchaser acknowledges that
investment in the Note involves a high degree of risk, and represents that it is
able, without materially impairing its financial condition, to hold the
Securities for an indefinite period of time and to suffer a complete loss of its
investment.
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4.4 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Purchaser further agrees not to make any
disposition of all or any portion of the Securities unless and until:
(a) There is then in effect a Registration Statement under the 1933
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) The Purchaser shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, the Purchaser shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration under the 1933 Act.
(c) Notwithstanding the provisions of paragraphs ((a)) and ((b))
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by the Purchaser to one or more direct or indirect affiliates of
Purchaser, if all transferees agree in writing to be subject to the terms hereof
to the same extent as if they were the Purchaser hereunder. 4.5 SUITABILITY. The
Purchaser is an "accredited investor" as such term is defined in Rule 501 under
the Securities Act.
4.5 SUITABILITY. The Purchaser is an "accredited investor" as such term
is defined in Rule 501 under the Securities Act.
SECTION 5. COVENANTS
5.1 GRANT OF SECURITY INTEREST. (a) As collateral security for the prompt
and complete payment of the Note and the Company's present or future
indebtedness, obligations and liabilities to Purchaser under the Note and this
Agreement, the Company hereby grants and pledges to Purchaser a continuing
security interest in all presently existing and hereafter acquired or arising
collateral (the "Collateral") as follows. The "Collateral" shall consist of all
right, title and interest of the Company in and to the following:
(i) All goods and equipment now owned or hereafter acquired,
including, without limitation, all machinery, fixtures, vehicles (including
motor vehicles and trailers), and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located;
(ii) All inventory, now owned or hereafter acquired, including,
without limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Company's custody or possession or in transit
and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Company's books relating to any of the foregoing;
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(iii) All contract rights and general intangibles now owned or
hereafter acquired, including, without limitation, goodwill, trademarks,
servicemarks, trade styles, trade names, leases, license agreements, franchise
agreements, blueprints, drawings, purchase orders, customer lists, route lists,
infringements, claims, computer programs, computer discs, computer tapes,
literature, reports, catalogs, design rights, income tax refunds, payments of
insurance and rights to payment of any kind, all patents, patent applications
and like protections including without limitation improvements, divisions,
continuations, renewals, reissues, extensions and continuations in part of the
same, including without limitation the patents and patent applications set forth
on Exhibit B attached hereto (collectively, the "Patents");
(iv) All now existing and hereafter arising accounts, contract
rights, royalties, license rights and all other forms of obligations owing to
Company arising out of the sale or lease of goods, the licensing of technology
or the rendering of services by Company, whether or not earned by performance,
and any and all credit insurance, guaranties, and other security therefor, as
well as all merchandise returned to or reclaimed by Company and Company's books
relating to any of the foregoing;
(v) All documents, cash, deposit accounts, securities,
securities accounts, investment property, letters of credit, certificates of
deposit, instruments and chattel paper now owned or hereafter acquired and
Company's books relating to the foregoing;
(vi) All trade secret rights, including all rights to unpatented
inventions, know how, operating manuals, license rights and agreements and
confidential information, now owned or hereafter acquired;
(vii) Any and all copyright rights, copyright applications,
copyright registrations and like protections in each work of authorship and
derivative work thereof, whether published or unpublished and whether or not the
same also constitutes a trade secret, now or hereafter existing, created,
acquired or held, including without limitation those set forth on Exhibit C
attached hereto (collectively, the "Copyrights");
(viii) Any and all claims for damages by way of past, present
and future infringement of any of the rights included above, with the right, but
not the obligation, to xxx for and collect such damages for said use or
infringement of the intellectual property rights identified above;
(ix) All licenses or other rights to use any of the trademarks,
Copyrights or Patents, and all license fees and royalties arising from such use
to the extent permitted by such license or rights;
(x) All amendments, renewals and extensions of any of the
Copyrights or Patents;
(xi) All proceeds and products of the foregoing, including
without limitation all payments under insurance or any indemnity or warranty
payable in respect of any of the foregoing; and
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(xii) Any and all claims, rights and interests in any of the
above and all substitutions for, additions and accessions to and proceeds
thereof.
Notwithstanding the foregoing, (i) the security interest granted herein
shall be effective upon the earlier to occur of (A) the fifth business day after
the date of this Agreement, and (B) the consent of Imperial Bank to the security
interest granted herein and agreement to the subordination provisions of the
Note; and (ii) the security interest granted herein shall not extend to and the
term "Collateral" shall not include any property, rights or licenses to the
extent the granting of a security interest therein (1) would be contrary to
applicable law or (2) is prohibited by or would constitute a default under any
agreement or license under which such property, rights or licenses arise (but
only to the extent such prohibition is enforceable under applicable law).
(b) AUTHORIZATION AND REQUEST. The Company authorizes and requests
that the Register of Copyrights and the Commissioner of Patents and Trademarks
record this security agreement.
(c) COVENANTS AND WARRANTIES. The Company represents, warrants,
covenants and agrees as follows:
(i) Except as disclosed in the Agreement and Plan of Merger
between Company and Purchaser of even date herewith (the "Merger Agreement"),
Company has good and indefeasible title to the Collateral, free and clear of
Liens, except for Permitted Liens. The Company is now the sole owner of the
Patents and Copyrights, except for non-exclusive licenses granted by the Company
to its customers in the ordinary course of business;
(ii) Performance of this Agreement does not conflict with or
result in a breach of any agreement to which the Company is party or by which
the Company is bound, except to the extent that certain intellectual property
agreements prohibit the assignment of the rights thereunder to a third party
without the licensor's or other party's consent and this Agreement constitutes
an assignment;
(iii) During the term of this Agreement, the Company will not
transfer or otherwise encumber any interest in the Collateral, except for
Permitted Liens and Liens that may be granted in favor of Senior Debt and except
for non-exclusive licenses under Patents, Copyrights and other intellectual
property rights of the Company granted by the Company in the ordinary course of
business or as set forth in this Agreement;
(iv) To its knowledge, and except as disclosed in the Merger
Agreement, each of the Patents is valid and enforceable, and no part of the
Patents or Copyrights has been judged invalid or unenforceable, in whole or in
part, and no claim has been made that any part of the Collateral violates the
rights of any third party;
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(v) The Company shall deliver to Purchaser within (30) days of
the last day of each calendar quarter, a report signed by the Company, in form
reasonably acceptable to Purchaser, listing any applications or registrations
that the Company has made, filed or acquired in respect of any patents,
copyrights or trademarks and the status of any outstanding applications or
registrations;
(vi) The Company shall (A) protect, defend and maintain the
validity and enforceability of the material Patents and Copyrights (B) use its
best efforts to detect infringements of the Patents and Copyrights and promptly
advise Purchaser in writing of material infringements detected and (C) not allow
any material Patents or Copyrights to be abandoned, forfeited or dedicated to
the public without the written consent of Purchaser, which shall not be
unreasonably withheld;
(vii) The Company shall register or cause to be registered (to
the extent not already registered) with the United States Copyright Office, the
copyrights associated with the currently shipping versions of each of its
software products whose names include the words "First Aid" within thirty (30)
days of the date of this Agreement. Once each calendar quarter the Company shall
register or cause to be registered with the United States Copyright Office those
additional copyrights developed, authored or acquired by the Company from time
to time for new releases (that is, versions of such software which offer
meaningful additional features beyond mere corrections) of each then shipping
version of First Aid and Uninstaller software (or successor software products);
(viii) Subject to any filings that may be required to perfect
the security interests granted herein, and to Permitted Liens and Liens in favor
of Senior Debt, this Agreement creates, and in the case of after acquired
Collateral, this Agreement will create at the time the Company first has rights
in such after acquired Collateral, in favor of Purchaser a valid and perfected
security interest in the Collateral in the United States junior in priority only
to Permitted Liens and Liens in favor of the Senior Debt, securing the payment
and performance of the obligations evidenced by the Note;
(ix) All information heretofore, herein or hereafter supplied to
Purchaser by or on behalf of the Company with respect to the Collateral is
accurate and complete in all material respects; and
(x) Except for Permitted Liens and the granting of Liens in
favor of Senior Debt, the Company shall not create, incur, assume or suffer to
exist any Lien with respect to any of its property or assign or otherwise convey
any right to receive income therefrom, or enter into any agreement that would
impair or conflict with the Company's obligations hereunder without Purchaser's
prior written consent, which consent shall not be unreasonably withheld. The
Company shall not permit the inclusion in any contract to which it becomes a
party of any provisions that could or might in any way prevent the creation of a
security interest in the Company's rights and interests in any property included
within the definition of the Collateral acquired under such contracts, except
that certain contracts may contain anti-assignment
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provisions that could in effect prohibit the creation of a security interest in
such contracts if the Company is required, in its commercially reasonable
judgment, to accept such provisions.
(d) PURCHASER'S RIGHTS. Purchaser shall have the right, but not the
obligation, to take, at the Company's sole expense, any actions that the Company
is required under this Agreement to take but which the Company fails to take,
after fifteen (15) days' notice to the Company. The Company shall reimburse and
indemnify Purchaser for all reasonable costs and reasonable expenses incurred in
the reasonable exercise of its rights under this Section 5.1((d)).
(e) FURTHER ASSURANCES; ATTORNEY IN FACT
(i) On a continuing basis, the Company will make, execute,
acknowledge and deliver, and file and record in the filing and recording places
in the United States, all such instruments, including appropriate financing and
continuation statements and collateral agreements and filings with the United
States Patent and Trademark Office and the Register of Copyrights, and take all
such action as may reasonably be deemed necessary or advisable, or as requested
by Purchaser, to perfect Purchaser's security interest in all its registered
Copyrights and Patents and otherwise to carry out the intent and purposes of
this Agreement, or for assuring and confirming to Purchaser the grant or
perfection of a security interest in all Collateral.
(ii) The Company hereby irrevocably appoints Purchaser as the
Company's attorney-in-fact, with full authority in the place and stead of the
Company and in the name of the Company, from time to time in Purchaser's
discretion, to take any action and to execute any instrument which Purchaser may
deem necessary or advisable to accomplish the purposes of this Agreement,
including (i) to modify, in its sole discretion, this Agreement without first
obtaining the Company's approval of or signature to such modification by
amending Exhibit B and Exhibit C, thereof, as appropriate, to include reference
to any right, title or interest in any Copyrights or Patents acquired by the
Company after the execution hereof or to delete any reference to any right,
title or interest in any Copyrights or Patents in which the Company no longer
has or claims any right, title or interest, (ii) to file, in its sole
discretion, one or more financing or continuation statements and amendments
thereto, relative to any of the Collateral without the signature of the Company
where permitted by law, and (iii) after the occurrence of an Event of Default,
to transfer the Collateral into the name of Purchaser or a third party to the
extent permitted under the California Uniform Commercial Code.
(f) EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default under the Agreement:
(i) An Event of Default occurs under the Note; or
(ii) The Company breaches any warranty or agreement made by the
Company in this Agreement and, as to any breach that is capable of cure, the
Company fails to cure such breach within twenty (20) days of notice from
Purchaser of the occurrence of such breach.
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(g) REMEDIES. Upon the occurrence and continuance of an Event of
Default, Purchaser shall have the right to exercise all the remedies of a
secured party under the California Uniform Commercial Code, including without
limitation the right to require the Company to assemble the Collateral and any
tangible property in which Purchaser has a security interest and to make it
available to Purchaser at a place designated by Purchaser. Purchaser shall have
a nonexclusive, royalty free license to use the Copyrights, Patents and
trademarks to the extent reasonably necessary to permit Purchaser to exercise
its rights and remedies upon the occurrence of an Event of Default. The Company
will pay any expenses (including reasonable attorneys' fees) incurred by
Purchaser in connection with the exercise of any of Purchaser's rights
hereunder, including without limitation any expense incurred in disposing of the
Collateral. All of Purchaser's rights and remedies with respect to the
Collateral shall be cumulative.
(h) INDEMNITY. The Company agrees to defend, indemnify and hold
harmless Purchaser and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the loan transaction contemplated by this Agreement,
and (b) all losses or expenses in any way suffered, incurred, or paid by
Purchaser as a result of or in any way arising out of, following or
consequential to the loan transaction between Purchaser and the Company under
this Agreement (including without limitation reasonable attorneys' fees and
reasonable expenses), except for losses arising from or out of Purchaser's gross
negligence or willful misconduct.
5.2 NOTICE OF DEFAULTS. The Company agrees and covenants to promptly
notify Purchaser upon the occurrence of any Event of Default as defined in the
Note.
5.3 REGISTRATION RIGHTS.
(a) Following the conversion of some or all of the Loan Amount into
Conversion Shares (each as defined in the Note) in accordance with the Note,
Purchaser may by written notice (the "Registration Notice") to the Company
request the Company to register under the Securities Act all or any part of the
Conversion Shares beneficially owned by Purchaser (the "Registrable Securities")
pursuant to a bona fide firm commitment underwritten public offering in which
Purchaser and the underwriters shall endeavor to effect a reasonably wide
distribution of such Registrable Securities and shall use their reasonable
efforts to prevent any person (including any "group" as used in Rule 13d-5 under
the Exchange Act) and its affiliates from purchasing through such offering
Conversion Shares representing more than one percent (1%) of the outstanding
shares of common stock of the Company on a fully diluted basis, provided that
firm commitment underwriting shall not be required if the number of Conversion
Shares proposed to be registered at any one time represents less than three
percent (3%) of the outstanding shares of common stock of the Company on a fully
diluted basis (in either case, a "Permitted Offering").
(b) The Registration Notice shall include a certificate executed by
Purchaser and, if applicable, its proposed managing underwriter, which
underwriter shall be an investment banking firm of nationally recognized
standing (the "Manager"), stating that (i) they have a good faith intention to
commence promptly a Permitted Offering, and (ii) the Manager in good faith
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believes that, based on the then-prevailing market conditions, it will be able
to sell the Registrable Securities to the public in a Permitted Offering within
one hundred twenty (120) days at a per share price equal to at least eighty
percent (80%) of the then Fair Market Value of such shares, as defined below.
"Fair Market Value" means the average of the daily closing prices for the ten
(10) trading days before the date of the Registration Notice (the "Registration
Notice Price"). The closing price for each day shall be the last sale price on
such date or, if no such sale takes place on such date, the average of the
closing bid and asked prices on such date, in each case as officially reported
on the principal national securities exchange or national market system on which
such shares are then listed, admitted to trading or traded.
(c) The Company (and/or any person designated by the Company) shall
thereupon have the option exercisable by written notice delivered to Purchaser
within five (5) business days after the receipt of the Registration Notice,
irrevocably to agree to purchase all or any part of the Registrable Securities
proposed to be so sold for cash at a price equal to the product of (i) the
number of Registrable Securities to be so purchased by the Company and (ii) the
Registration Notice Price.
(d) Any purchase of Registrable Securities by the Company (or its
designee) under Section 5.3((c)) shall take place at a closing to be held at the
principal executive offices of the Company or at the offices of its counsel at
any reasonable date and time designated by the Company and/or such designee in
such notice within twenty (20) business days after delivery of such notice, and
any payment for the shares to be so purchased shall be made by delivery at the
time of such closing in immediately available funds.
(e) If the Company does not elect to exercise its option pursuant to
Section 5.3((c)) with respect to all Registrable Securities, it shall use all
commercially reasonable efforts to effect, as promptly as practicable, the
registration under the Securities Act of the unpurchased Registrable Securities
proposed to be so sold and to cause such registration to be declared effective
and such effectiveness maintained until the distribution of the Registrable
Securities thereunder is completed or for a period of 120 days, whichever is
shorter; provided, however, that (i) Purchaser shall not be entitled to demand
more than an aggregate of four (4) effective registration statements hereunder
if the Company is eligible to register the Registrable Securities on Form S-3
(or an equivalent or successor form), or two (2) effective registration
statements hereunder if the Company is not so eligible, and (ii) the Company
will not be required to file any such registration statement during any period
of time (not to exceed forty (40) days after such request in the case of clause
(A) below or ninety (90) days after such request in the case of clauses (B) and
(C) below) when (A) the Company is in possession of material non-public
information which it reasonably believes would be detrimental to be disclosed at
such time and, in the judgment of counsel to the Company, such information would
be required to be disclosed if a registration statement were filed at that time;
(B) the Company is required under the Securities Act to include audited
financial statements for any period in such registration statement and such
financial statements are not yet available for inclusion in such registration
statement; or (C) the Company determines, in its reasonable judgment, that such
registration would interfere with any financing, acquisition or other
transaction involving the Company or
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any of its material subsidiaries and that such transaction is material to the
Company and its subsidiaries taken as a whole.
(f) The Company shall use all commercially reasonable efforts to
cause any Registrable Securities registered pursuant to this Section 5.3 to be
qualified for sale under the securities or Blue Sky laws of such jurisdictions
as Purchaser may reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; provided, however, that the
Company shall not be required to qualify to do business in, or consent to
general service of process in, any jurisdiction by reason of this provision.
(g) The registration rights set forth in this Section 5.3 are subject
to the condition that Purchaser shall provide the Company with such information
with respect to its Registrable Securities, the plans for the distribution
thereof, and such other information with respect to Purchaser as, in the
reasonable judgment of counsel for the Company, is necessary to enable the
Company to include in such registration statement all material facts required to
be disclosed with respect to a registration thereunder.
(h) A registration effected under this Section 5.3 shall be effected
at the Company's expense, except for underwriting discounts and commissions and
the fees and the expenses of counsel to Purchaser, and the Company shall provide
to the underwriters such documentation (including certificates, opinions of
counsel and "comfort" letters from auditors) as is customary in connection with
underwritten public offerings as such underwriters may reasonably require.
(i) In connection with any registration effected under this Section
5.3, the parties agree (A) to indemnify each other and the underwriters, if any,
in the customary manner, (B) if applicable, to enter into an underwriting
agreement in form and substance customary for transactions of such type with the
Manager and the other underwriters participating in such offering, and (C) to
take all further actions which shall be reasonably necessary to effect such
registration and sale (including if the Manager deems it necessary,
participating in road-show presentations).
(j) The Company shall be entitled to include (at its expense)
additional shares of its common stock in a registration effected pursuant to
this Section 5.3 only if and to the extent the offering is firmly underwritten
and the Manager determines that such inclusion will not adversely affect the
prospects for success of such offering.
SECTION 6. MISCELLANEOUS
6.1 ENFORCEMENT COSTS. Company shall pay all costs and expenses,
including, without limitation, reasonable attorneys' fees and expenses Purchaser
expends or incurs in connection with the enforcement of this Agreement, the
collection of any sums due under the Note, any actions for declaratory relief in
any way related to this Agreement, or the protection or preservation of any
rights of the holder hereunder.
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6.2 BINDING AGREEMENT. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any third party any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents, made and to be performed entirely within the State of
California.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.6 NOTICES. Any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon deposit with the United States Post Office, postage prepaid, addressed
to the Company at 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx
00000, or to a Purchaser at its address shown on the signature page below, or at
such other address as such party may designate by ten (10) days advance WRITTEN
NOTICE TO THE OTHER PARTY.
6.7 COURSE OF DEALING. No course of dealing, nor any failure to exercise,
nor any delay in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.
6.8 ATTORNEYS' FEES. If any action relating to this Agreement is brought
by either party hereto against the other party, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements.
6.9 AMENDMENTS. Except as otherwise expressly permitted herein, this
Agreement may be amended only by a written instrument signed by both parties
hereto.
6.10 CALIFORNIA LAW AND JURISDICTION; JURY WAIVER. This Agreement shall be
governed by the laws of the State of California, without regard for choice of
law provisions. The Company and Purchaser consent to the exclusive jurisdiction
of any state or federal court located in Santa Xxxxx County, California. THE
COMPANY AND PURCHASER EACH WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE NOTE, THIS AGREEMENT,
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
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IN WITNESS WHEREOF, the parties have executed this NOTE PURCHASE AND
SECURITY AGREEMENT as of the date first written above.
COMPANY:
CYBERMEDIA, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Title: Chief Executive Officer and
Chairman of the Board
PURCHASER:
NETWORKS ASSOCIATES, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Title: Vice President, Legal Affairs and
Corporate Development
Networks Associates, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
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EXHIBIT A
Secured Subordinated Convertible Promissory Note
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EXHIBIT B
Patents
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
1. Automatic Updating of Diverse Software Products 08/660,488 June 7, 1996
on Multiple Client Computer Systems
2. Method and Software Products for Continued 06/686,250 July 24, 1996
Application Execution after Generation of Fatal
Exceptions
2
16
EXHIBIT C
Copyrights
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
1. CyberMedia UnInstaller Version 3.5
2. CyberMedia UnInstaller Version 4.0
3. CyberMedia UnInstaller Version 4.5
3
