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EXHIBIT 5
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 Xxxxx ("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 441,375
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 Xxxxx
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 XXXXX
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxx
Date: July 27, 1998 Date: July 27, 1998
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