Exhibit 2.3
PARENT VOTING
AGREEMENT
This PARENT VOTING AGREEMENT
(“ Agreement ”) is made and entered into
as of August , 2005 by and between
CyberGuard Corporation, a Florida corporation (the “
Company ”), and the person whose name appears
on the signature page hereto as a shareholder of Secure Computing
Corporation, a Delaware corporation (“ Parent
”), acting in his capacity as a shareholder of Parent and not
in any other capacity (“ Shareholder
”).
A. Concurrently with the execution
of this Agreement, Parent, Bailey Acquisition Corp., a Delaware
corporation (“ Merger Sub ”), and the
Company are entering into an Agreement and Plan of Merger of even
date herewith (the “ Merger Agreement ”),
pursuant to which the parties thereto have agreed, upon the terms
and subject to the conditions set forth therein, to merge the
Company with and into Merger Sub (the “ Merger
”). Capitalized terms used and not otherwise defined herein,
and defined in the Merger Agreement, shall have the respective
meanings ascribed to them in the Merger Agreement.
B. As of the date hereof,
Shareholder Beneficially Owns the number of outstanding shares of
the Common Stock of Parent (“ Parent Common
Stock ”) set forth on the signature page
hereto.
C. As inducement and a condition to
entering into the Merger Agreement, the Company has required
Shareholder to agree, and Shareholder has agreed, to enter into
this Agreement.
The parties agree as
follows:
1. Certain Definitions . For
purposes of this Agreement:
(a) “ Beneficially Own
” or “Beneficial Ownership” with respect to any
securities means having “beneficial ownership” of such
securities as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”). Without duplicative counting
of the same securities by the same holder, securities Beneficially
Owned by a person include securities Beneficially Owned by all
other persons with whom such person would constitute a
“group” within the meaning of Section 13(d) of the
Exchange Act with respect to the securities of the same
issuer.
(b) “ Existing Shares
” means all issued and outstanding shares of Parent Common
Stock owned of record or Beneficially Owned by Shareholder (now or
hereafter acquired prior to termination of this Agreement) and over
which Shareholder has voting control as of the record date for
persons entitled (i) to receive notice of, and to vote at, a
meeting of the shareholders of Parent called for purposes of voting
on approval of issuance of the shares in the Merger and in the
Financing Transaction, or (ii) to take action by written consent of
the shareholders of Parent with respect to the Merger and Financing
Transaction.
(c) “ Voting Period ”
means the period commencing on the date of this Agreement and
continuing until the termination of this Agreement.
2. Representations and Warranties of
Shareholder . Shareholder represents and warrants to the
Company as follows:
(a) On the date hereof, Shareholder Beneficially
Owns the outstanding shares of Parent Common Stock set forth on the
signature page hereto and holds stock options to purchase the
number of shares of Parent Common Stock set forth on the signature
page hereto. On the date hereof, such shares constitute all of the
outstanding shares of Parent Common Stock Beneficially Owned by
Shareholder and all of the shares of Parent Common Stock subject to
stock options held by Shareholder. On the date hereof, there are no
outstanding options or other rights to acquire from Shareholder, or
obligations of Shareholder to sell, any shares of Parent Common
Stock. Except as permitted by this Agreement, the shares of Parent
Common Stock set forth on the signature page hereto are held by
Shareholder, or by a nominee or custodian for the benefit of
Shareholder, free and clear of all mortgages, claims, charges,
liens, security interests, pledges, options, proxies, voting trusts
or agreements (“ Encumbrances ”), except
for any such Encumbrances arising hereunder.
(b) Shareholder has the legal capacity, power
and authority to enter into and perform all of Shareholder’s
obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by Shareholder and constitutes a
valid and binding agreement of Shareholder, enforceable against
Shareholder in accordance with its terms, except to the extent that
its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors’ rights generally or by general
equitable principles.
(c) Except for any applicable filings under
federal and state securities laws, no filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is
required to be made or obtained by Shareholder for the execution of
this Agreement by Shareholder or compliance by Shareholder with the
provisions hereof. Neither the execution and delivery of this
Agreement by Shareholder nor the compliance by Shareholder with the
provisions hereof will (i) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
cancellation, acceleration, redemption or purchase) under any of
the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which Shareholder is a party or by
which Shareholder or any of Shareholder’s properties or
assets is bound, or (ii) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to
Shareholder or any of the Existing Shares.
(d) If Shareholder is married and the Existing
Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and
binding agreement of, Shareholder’s spouse, enforceable
against such person in accordance with its terms.
2
(e) Shareholder understands and acknowledges
that the Company is entering into the Merger Agreement in reliance
upon Shareholder’s concurrent execution and delivery of this
Agreement.
3. Representations And Warranties Of the
Company . The Company hereby represents and warrants
to Shareholder as follows:
(a) The Company has the corporate power and
authority to enter into and perform all of its obligations under
this Agreement. This Agreement has been duly and validly executed
and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement
of creditors’ rights generally or by general equitable
principles.
(b) Except for filings under the Exchange Act,
no filing with, and no permit, authorization, consent or approval
of, any Government Entity is necessary for the execution of this
Agreement by the Company. Neither the execution and delivery of
this Agreement by the Company nor compliance by the Company with
any of the provisions hereof shall (i) conflict with or result in
any breach of any organizational documents of the Company, (ii)
result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, acceleration,
redemption or purchase) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation of any
kind to which the Company is a party or by which the Company or any
of its properties or assets is bound, or (iii) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation
applicable to the Company or any of its properties or
assets.
4. Disclosure . Shareholder hereby
agrees to permit the Company to publish and disclose in the
Registration Statement and the Proxy Statement/Prospectus
(including all documents and schedules filed with the SEC), and in
any press rele
