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 docume
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