Exhibit 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of
September 21, 2008 by and between McAfee, Inc., a Delaware
corporation (“ Parent ”), a Delaware corporation
(“ Parent ”), and the undersigned stockholder
and/or option holder and/or warrant holder (the “
Stockholder ”) of Secure Computing Corporation, a
Delaware corporation (the “ Company
”).
A. Parent, the Company and
Seabiscuit Acquisition Company, a Delaware corporation and a wholly
owned subsidiary of Parent (“ Merger Sub ”),
have entered into an Agreement and Plan of Merger (the “
Merger Agreement ”) dated as of September 21,
2008, which provides for the merger (the “ Merger
”) of Merger Sub with and into the Company with the Company
surviving and pursuant to which all outstanding capital stock of
the Company will be cancelled and converted into the right to
receive the consideration set forth in the Merger
Agreement.
B. The Stockholder is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”))
of such number of shares of common stock, par value $0.01 per share
(the “ Company Common Stock ”), of the Company,
and such number of shares of Company Common Stock issuable upon the
exercise of outstanding options and warrants, as is indicated on
the signature page of this Agreement.
C. In consideration of the execution
of the Merger Agreement by Parent, the Stockholder (in his, her or
its capacity as such) has, at the request of Parent, agreed,
subject to the terms and conditions set forth in this Agreement, to
vote the Shares (as defined below) and such other shares of capital
stock of the Company over which the Stockholder has or will acquire
voting power, so as to facilitate consummation of the Merger. In
addition, the Stockholder understands and acknowledges that the
Company and Parent are entitled to rely on (i) the truth and
accuracy of the Stockholder’s representations contained
herein and (ii) the Stockholder’s performance of the
obligations set forth herein.
NOW, THEREFORE, intending to be
legally bound hereby, in consideration of the premises and the
covenants and agreements set forth in the Merger Agreement and in
this Agreement, and other good and valuable consideration the
parties hereto hereby agree as follows:
1. Certain Definitions .
Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Merger Agreement. For
all purposes of and under this Agreement, the following terms shall
have the following respective meanings:
1.1 “ Beneficially Own
” or “ Beneficial Ownership ” or “
Beneficially Owned ,” with respect to any securities,
means having “beneficial ownership” of such securities
as determined pursuant to Rule 13d-3 under the Exchange Act,
including pursuant to any Contract. A “ Beneficial
Owner ” is a Person who Beneficially Owns
securities.
1.2 “ Expiration Date
” shall mean the earliest to occur of (i) such date and
time as the Merger Agreement shall have been validly terminated
pursuant to its terms or (ii) such date and time as the Merger
shall become effective in accordance with the terms and conditions
set forth in the Merger Agreement.
1.3 “ Shares ”
shall mean: (i) all shares of Company Common Stock (including
all options, warrants and other rights to acquire shares of Company
Common Stock) Beneficially Owned by the Stockholder as of the date
of this Agreement, and (ii) all additional shares of Company
Common Stock (including all additional options, warrants and other
rights to acquire shares of Company Common Stock) of which the
Stockholder acquires Beneficial Ownership during the period
commencing with the execution and delivery of this Agreement until
the Expiration Date.
1.4 A Person shall be deemed to have
effected a “ Transfer ” of a security if such
person directly or indirectly (i) sells, pledges, encumbers,
grants an option with respect to, transfers or otherwise disposes
of such security or any interest therein (other than in connection
with the Merger pursuant to the Merger Agreement), or
(ii) enters into an agreement or commitment providing for the
sale of, pledge of, encumbrance of, grant of an option with respect
to, transfer of or disposition of such security or any interest
therein.
2. Transfer of Shares; Other
Actions .
2.1 No Transfer of Shares .
The Stockholder hereby agrees that, at all times during the period
commencing with the execution and delivery of this Agreement until
the Expiration Date, the Stockholder shall not cause or permit any
Transfer of any of the Shares to be effected, other than pursuant
to Section 10b5-1 plans in effect as of the date of this
Agreement; provided , however , that nothing
contained herein will be deemed to restrict the ability of the
Stockholder to (i) exercise, prior to the Expiration Date, any
stock options or warrants of the Company held by the Stockholder,
(ii) transfer or otherwise dispose of Shares to a charitable
organization qualified under Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, or (iii) transfer or
otherwise dispose of Shares to any member of the
Stockholder’s immediate family; or to a trust for the benefit
of the Stockholder or any member of the Stockholders’
immediate family; provided , further , that any
transfer referred to in the foregoing proviso shall be permitted
only if, as a precondition to such transfer, the transferee,
whether a charitable organization, individual or trust, agrees to
be bound by the terms of this Agreement and, if requested by
Parent, to execute a Proxy (as hereinafter defined).
2.2 No Transfer of Voting
Rights . The Stockholder hereby agrees that, at all times
commencing with the execution and delivery of this Agreement until
the Expiration Date, the Stockholder shall not deposit, or permit
the deposit of, any Shares in a voting trust, grant any proxy in
respect of the Shares, or enter into any voting agreement or
similar Contract to vote or give instructions with respect to the
Shares (other than this Agreement and the Proxy) in contravention
of the obligations of the Stockholder (including in any manner
inconsistent with Section 3 below) under this Agreement
with respect to any of the Shares.
2.3 Other Actions .
Commencing with the execution and delivery of this Agreement and
expiring on the Expiration Date, the Stockholder shall not,
directly or indirectly, take any action (other than any action of
the Stockholder, in such Stockholder’s capacity as a director
of the Company, in the exercise of such Stockholder’s
fiduciary duties with respect to an Alternative Transaction
Proposal or Superior Proposal in compliance with the terms of the
Merger Agreement) that would make any representation or warranty
contained herein untrue or incorrect or have the effect of
impairing the ability of the Stockholder to perform its obligations
under this Agreement.
3. Agreement to Vote Shares
.
3.1 Until the Expiration Date, at
every meeting of the Company’s stockholders called, and at
every adjournment or postponement thereof, and on every action or
approval by written consent of the Company’s stockholders
with respect to any such meeting, the Stockholder shall vote (to
the extent not voted by the person(s) appointed under the Proxy)
the Shares:
(a) in favor of the adoption of the
Merger Agreement (as it may be amended from time to time) and any
matter that would reasonably be expected to facilitate the Merger;
and
(b) against any of the following
actions (other than those actions that relate to the Merger and any
other transactions contemplated by the Merger Agreement):
(i) the approval of any proposal made in opposition to, or in
competition with, the Merger or any other transactions contemplated
by the Merger Agreement, (ii) any Alternative Transaction
Proposal, and (iii) any other action that is intended, or
would reasonably be expected to, impede, interfere with, delay,
postpone or adversely affect the Merger or any other transaction
contemplated by the Merger Agreement.
3.2 In the event that a meeting of
the holders of shares of Company Common Stock is held, the
Stockholder shall, or shall cause the holder of record on any
applicable record date to, appear at such meeting or otherwise
cause the Shares to be counted as present thereat for purposes of
establishing a quorum. Except as set forth in
Section 3.1 and the Proxy, nothing in this Agreement
shall limit the right of the Stockholder to vote in favor of,
against or abstain with respect to any matter presented to the
Company’s stockholders, including in connection with the
election of directors proposed by the Company or Parent or Merger
Sub or by a third party not in connection with an Alternative
Transaction Proposal proposed by such third party.
4. Irrevocable Proxy .
Concurrently with the execution of this Agreement, Stockholder
shall deliver to Parent a duly executed proxy in the form attached
hereto as Exhibit A with respect to the Shares (the
“ Proxy ”), which Proxy is coupled with an
interest, and, until the Expiration Date, shall be irrevocable to
the fullest extent permitted by applicable law, with respect to
each and every meeting of stockholders of the Company or action or
approval by written resolution or consent of stockholders of the
Company with respect to the matters contemplated by
Section 3.1 and the first sentence of
Section 3.2 covering the total number of Shares in
respect of which the Stockholder is entitled to vote at any such
meeting or in connection with any such written consent. Upon the
execution of this Agreement by the Stockholder, (i) the
Stockholder hereby revokes any and all prior proxies (other than
the Proxy) given by the Stockholder with respect to the subject
matter contemplated by Section 3.1 and the first
sentence of Section 3.2 , and (ii) the Stockholder
agrees to not grant any subsequent proxies with respect to such
subject matter, or enter into any agreement or understanding with
any Person to vote or give instructions with respect to the Shares
in any manner inconsistent with the terms of
Section 3.1 and the first sentence of
Section 3.2 , until immediately after the time of the
Expiration Date.
5. Directors and Officers .
Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall (or require Stockholder to attempt
to) limit or restrict Stockholder, or any designee of Stockholder,
who is a director or officer of the Company from acting in such
capacity or voting in such Person’s sole discretion on any
matter (it being understood that this Agreement shall apply to
Stockholder solely in Stockholder’s capacity as a holders of
shares of Company Common Stock and/or holder of options or warrants
to purchase shares of Company Common Stock).
6. Representations and Warranties
of the Stockholder . The Stockholder hereby represents and
warrants to Parent that:
6.1 Power; Binding Agreement
. The Stockholder has full power, capacity and authority to execute
and deliver this Agreement and the Proxy, to perform the
Stockholder’s obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by the Stockholder of this Agreement, the performance
by the Stockholder of his, her or its obligations hereunder and the
consummation by the Stockholder of the transactions contemplated
hereby have been duly and validly authorized by all necessary
action, if any, on the part of the Stockholder and no other actions
or proceedings on the part of the Stockholder are necessary to
authorize the execution and delivery by it of this Agreement or the
Proxy, the performance by the Stockholder of its obligations
hereunder or thereunder or the consummation by the Stockholder of
the transactions contemplated hereby or thereby. This Agreement and
the Proxy have been duly executed and delivered by the
Stockholder,
and, assuming this Agreement constitutes a valid
and binding obligation of Parent, constitute a valid and binding
obligation of the Stockholder, enforceable against the Stockholder
in accordance with their terms except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar Laws
now or hereafter in effect relating to creditors’ rights
generally and subject to general principles of equity.
6.2 No Conflicts . No filing
with, and no permit, authorization, consent, or approval of, any
Governmental Entity is necessary for the execution by the
Stockholder of this Agreement and the Proxy, the performance by the
Stockholder of his, her or its obligations hereunder and thereunder
and the consummation by the Stockholder of the transactions
contemplated hereby and thereby. None of the execution and delivery
by the Stockholder of this Agreement or the Proxy, the performance
by the Stockholder of its obligations hereunder or thereunder or
the consummation by the Stockholder of the transactions
contemplated hereby or thereby will (i) conflict with or
result in any breach of any organizational documents applicable to
the Stockholder, (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, material modification or acceleration) under any of
the terms, conditions or provisions of any Contract or obligation
of any kind to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder’s properties or assets
may be bound, or (iii) violate any Legal Requirements
applicable to the Stockholder or any of the Stockholder’s
properties or assets, except for such conflicts, breaches,
violations or defaults that would not, individually or in the
aggregate, prevent or delay consummation of the Merger and the
transactions contemplated by the Merger Agreement and this
Agreement or otherwise prevent or delay the Stockholder from
performing his, her or its obligations under this
Agreement.
6.3 Ownership of Shares . The
Stockholder (i) is the Beneficial Owner of the shares of
Company Common Stock (including options and/or warrants to purchase
shares of Company Common Stock and shares of Company Common Stock
issuable upon the exercise of such options and/or warrants) and
Company Series A Preferred Stock as indicated on the signature page
of this Agreement, all of which are free and clear of any Liens
(except any Liens arising hereunder), and (ii) as of the date
hereof, does not own, beneficially or otherwise, any shares of
Company Common Stock (including options and/or warrants to purchase
shares of Company Common Stock and shares of Company Common Stock
issuable upon the exercise of such options and/or warrants) or
shares of Company Series A Preferred Stock other than as indicated
on the signature page of this Agreement. The Shares are and will be
at all times up until the Expiration Date free and clear of any
Liens, pledges, options, rights of first refusal, co-sale rights,
agreements, limitations on the Stockholder’s voting rights
and other encumbrances of any nature that would adversely affect
the Merger or the exercise or fulfillment of the rights and
obligations of the Company under the Merger Agreement or of the
parties to this Agreement. The Stockholder’s principal
residence or place of business is set forth on the signature page
hereto.
6.4 Voting Power . The
Stockholder has sole voting power, sole power of disposition, sole
power to issue instructions with respect to the matters set forth
herein, and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights,
subject to applicable federal securities laws and the terms of this
Agreement.
6.5 No Finder’s Fees .
No broker, investment banker, financial advisor or other person is
entitled to any broker’s, finder’s, financial
adviser’s or other similar fee or commission in connection
with the transactions contemplated by the Merger Agreement or this
Agreement based upon arrangements made by or on behalf of the
Stockholder.
7. Representations and Warranties
of Parent . Parent hereby represents and warrants to
Stockholder that:
7.1 Power; Binding Agreement
. Parent has full power, capacity and authority to execute and
deliver this Agreement, to perform Parent’s obligations
hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance by Parent of this
Agreement, the performance by Parent of its obligations hereunder
and the consummation by Parent of the transactions contemplated
hereby have been duly and validly authorized by all necessary
action, if any, on the part of Parent and no other actions or
proceedings on the part of Parent are necessary to authorize the
execution and delivery by it of this Agreement, the performance by
Parent of its obligations hereunder or the consummation by Parent
of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Parent, and, assuming this Agreement
constitutes a valid and binding obligation of the Stockholder,
constitutes a valid and binding obligation of Parent, enforceable
against Parent in accordance with its terms except as the same may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar Laws now or hereafter in effect relating to
creditors’ rights generally and subject to general principles
of equity.
7.2 No Conflicts . No filing
with, and no permit, authorization, consent, or approval of, any
Governmental Entity is necessary for the execution by Parent of
this Agreement, the performance by Parent of its obligations
hereunder and the consummation by Parent of the transactions
contemplated hereby. None of the execution and delivery by Parent
of this Agreement, the performance by Parent of its obligations
hereunder or the consummation by Parent of the transactions
contemplated hereby will (i) conflict with or result in any
breach of any organizational documents applicable to Parent,
(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, material
modification or acceleration) under any of the terms, conditions or
provisions of any Contract or obligation of any kind to which
Parent is a party or by which Parent or any of Parent’s
properties or assets may be bound, or (iii) violate any Legal
Requirements applicable to Parent or any of Parent’s
properties or assets, except for such conflicts, breaches,
violations or defaults that would not, individually or in the
aggregate, prevent or delay consummation of the Merger and the
transactions contemplated by the Merger Agreement and this
Agreement or otherwise prev
