Exhibit 2.2
VOTING AGREEMENT (SERIES
A)
THIS VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of
September 21, 2008 by and among McAfee, Inc., a Delaware
corporation (“ Parent ”), Warburg Pincus Private
Equity IX, L.P., a Delaware limited partnership and stockholder
(“ WP IX ”) of Secure Computing Corporation, a
Delaware corporation (the “ Company ”), and Cary
Davis, a stockholder of the Company (WP IX and Mr. Davis are
each referred to herein as a “ Stockholder ” and
collectively as “ Stockholders ”).
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
, 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. Each 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 the
Series A Convertible Preferred Stock, par value $0.01 per share
(the “ Company Series A Preferred Stock ”), of
the Company, and such number of shares of common stock, par value
$0.01 per share (the “ Company Common Stock ”),
of the Company, including Company Common Stock issuable upon the
exercise and conversion of the Company Series A Preferred Stock, in
each case as is indicated under the name of such Stockholder on the
signature page of this Agreement.
C. In consideration of the execution
of the Merger Agreement by Parent, the Stockholders (in their
capacity as such) have, at the request of Parent, severally 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 Stockholders have or will
acquire voting power, so as to facilitate consummation of the
Merger. In addition, the Stockholders understand and acknowledge
that the Company and Parent are entitled to rely on (i) the
truth and accuracy of each Stockholder’s representations
contained herein and (ii) each 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 as in
effect on the date hereof. 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 (A) with respect to each Stockholder
(i) 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 or (B) with respect to WP IX
only, such date
and time of any amendment, modification, change
or waiver to the Merger Agreement executed after the date hereof
that either results in (a) a change in the Base Amount, the
Liquidation Amount or the Preferred Stock Merger Consideration or
the definitions thereof in the Merger Agreement as they exist in
the Merger Agreement as of the date hereof or WP IX receiving an
amount at the Effective Time that is less than the Liquidation
Value (as defined in the Certificate of Designations), as
determined in accordance with the terms of the Certificate of
Designations or (b) any change in the form of consideration
payable pursuant to the Merger Agreement as in effect on the date
hereof that results in the holders of Company Common Stock or the
Company Series A Preferred Stock receiving non-cash consideration,
in each case, that is not consented to in writing by WP IX in its
sole discretion prior to such amendment, modification, change or
waiver to the Merger Agreement.
1.3 “ Shares ”
shall mean, with respect to a Stockholder: (i) all shares of
Company Common Stock (including all options, warrants and other
rights to acquire shares of Company Common Stock) Beneficially
Owned by such Stockholder as of the date of this Agreement,
(ii) all shares of Company Series A Preferred Stock
Beneficially Owned by such Stockholder as of the date of this
Agreement, and (iii) all additional shares of Company Common
Stock and Company Series A Preferred Stock (including all
additional options, warrants and other rights to acquire shares of
Company Common Stock) of which a 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 .
Each Stockholder hereby agrees that, at all times during the period
commencing with the execution and delivery of this Agreement until
the Expiration Date, such Stockholder shall not cause or permit any
Transfer of any of the Shares Beneficially Owned by such
Stockholder to be effected; provided , however , that
nothing contained herein will be deemed to restrict the ability of
Mr. Davis to (i) exercise, prior to the Expiration Date,
any stock options or warrants of the Company held by
Mr. Davis, (ii) transfer or otherwise dispose of Shares
Beneficially Owned by Mr. Davis 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 Beneficially Owned by Mr. Davis to any member of
Mr. Davis’s immediate family; or to a trust for the
benefit of Mr. Davis or any member of Mr. Davis’s
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) in the form
executed by Mr. Davis.
2.2 No Transfer of Voting
Rights . Each Stockholder hereby agrees that, at all times
commencing with the execution and delivery of this Agreement until
the Expiration Date, neither Stockholder shall deposit, or permit
the deposit of, any Shares Beneficially Owned by such Stockholder
in a voting trust, grant any proxy in respect of the Shares
Beneficially Owned by such Stockholder, or enter into any voting
agreement or similar Contract to vote or give instructions with
respect to the Shares Beneficially Owned by such Stockholder (other
than this Agreement and the Proxy executed by such Stockholder) in
contravention of the obligations of such Stockholder (including in
any manner inconsistent with Section 4 below) under
this Agreement with respect to any of the Shares Beneficially Owned
by such Stockholder.
- 2 -
2.3 Other Actions .
Commencing with the execution and delivery of this Agreement and
expiring on the Expiration Date, neither Stockholder shall,
directly or indirectly, take any action (other than any action of a
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 such Stockholder to perform its obligations under this
Agreement.
3. Agreement to Request
Redemption of Company Series A Preferred Stock .
3.1 Upon receipt of notice from the
Company of an anticipated change in control, delivered in
accordance with the provisions of Section 5 of the Certificate
of Designations, Preferences and Rights of Series A Convertible
Preferred Stock of the Company (the “ Certificate of
Designations ”), WP IX shall deliver to the Company
notice of a Redemption Request (as such term is defined in the
Certificate of Designations) in accordance with the terms of
Section 5 and Section 6 of the Certificate of
Designation; provided , however , that this Agreement
shall not prevent WP IX from otherwise delivering a Redemption
Request (as such term is defined in the Certificate of
Designations) and/or receiving the Liquidation Value (as defined in
the Certificate of Designations) in accordance with and as
permitted by the Certificate of Designations.
3.2 Subject to the proviso in
Section 3.1 and immediately below, WP IX hereby agrees that
payment of the Preferred Stock Merger Consideration in accordance
with the terms of the Merger Agreement shall be deemed to satisfy
the Company’s obligations under the Certificate of
Designations to redeem the Company Series A Preferred Stock in
accordance with the terms of Section 5 and Section 6 of
the Certificate of Designations. Upon the Effective Time, WP IX
hereby irrevocably waives all other rights under Section 5 of
the Certificate of Designation to convert the Company Series A
Preferred Stock to Company Common Stock or to continue to hold the
Company Series A Preferred Stock after the Effective Time;
provided , however , that the foregoing shall not be
deemed to be a waiver of WP IX’s right to receive the
Preferred Stock Merger Consideration in accordance with the Merger
Agreement, and, except as set forth immediately above with respect
to conversion of the Company Series A Preferred Stock to Company
Common Stock following the Effective Time, nothing in this
Agreement shall be deemed to waive any rights WP IX has pursuant to
the Certificate of Designations, including WP IX’s right to
receive the Liquidation Value (as defined in the Certificate of
Designations) in accordance with the terms of the Certificate of
Designations.
4. Agreement to Vote Shares
.
4.1 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, each Stockholder shall vote (to
the extent not voted by the person(s) appointed under the Proxy)
the Shares Beneficially Owned by such Stockholder:
(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
- 3 -
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.
4.2 In the event that a meeting of
the holders of shares of Company Common Stock is held, each
Stockholder shall, or shall cause the holder of record on any
applicable record date to, appear at such meeting or otherwise
cause the Shares Beneficially Owned by such Stockholder to be
counted as present thereat for purposes of establishing a quorum.
Except as set forth in Section 4.1 and the Proxy executed by
such Stockholder, nothing in this Agreement shall limit the right
of each 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.
5. Irrevocable Proxy .
Concurrently with the execution of this Agreement, WP IX and
Mr. Davis shall deliver to Parent a duly executed proxy in the
forms attached hereto as Exhibit A and as
Exhibit B , respectively, with respect to the Shares
Beneficially Owned by such Stockholder (each a “ Proxy
” and collectively the “ Proxies ”), which
Proxies are 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 4.1 and the
first sentence of Section 4.2 covering the total number
of Shares Beneficially Owned by such Stockholder in respect of
which such 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 Stockholders, (i) each Stockholder
hereby revokes any and all prior proxies (other than the Proxy
executed by such Stockholder) given by such Stockholder with
respect to the subject matter contemplated by
Section 4.1 and the first sentence of
Section 4.2 , and (ii) each 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
Beneficially Owned by such Stockholder in any manner inconsistent
with the terms of Section 4.1 and the first sentence of
Section 4.2 , until immediately after the time of the
Expiration Date.
6. Directors and Officers .
Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall (or require a Stockholder to
attempt to) limit or restrict Mr. Davis or any designee of a
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 each Stockholder solely in such Stockholder’s capacity as
a holder of shares of Company Common Stock, Company Series A
Preferred Stock and/or holder of options or warrants to purchase
shares of Company Common Stock).
7. Representations and Warranties
of the Stockholders . Each Stockholder hereby, severally and
not jointly, represents and warrants to Parent that:
7.1 Power; Binding Agreement
. The Stockholder has full power, capacity and authority to execute
and deliver this Agreement and the Proxy to which such Stockholder
is a party, 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 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
- 4 -
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 to which such
Stockholder is a party 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.
7.2 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 to which such
Stockholder is a party, the performance by the Stockholder of 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 to which such Stockholder is party, 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, if
any, 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 its obligations under this
Agreement.
7.3 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 under the name of
such Stockholder 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 under the name of
such Stockholder on the signature page of this Agreement. The
Shares Beneficially Owned by such Stockholder are and will be at
al
