Exhibit 2.3
McAFEE ASSOCIATES, INC. VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of
October __, 1997, between Network General Corporation, a Delaware corporation
(the "COMPANY"), and the undersigned stockholder ("STOCKHOLDER") of McAfee
Associates, Inc., a Delaware corporation ("PARENT").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the Company
and Mystery Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), are entering into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT") which provides for the merger (the
"MERGER") of Merger Sub with and into the Company. Pursuant to the Merger,
shares of capital stock of the Company will be converted into Common Stock of
Parent on the basis described in the Merger Agreement.
B. The Stockholder is the record holder of such number of outstanding
shares of Common Stock of Parent as is indicated on the final page of this
Agreement. In addition, the Stockholder holds options to purchase such number
of shares of Common Stock of Parent as is indicated on the final page of this
Agreement.
C. As a material inducement to enter into the Merger Agreement, the
Company desires the Stockholder to agree, and the Stockholder is willing to
agree, to vote the Shares (as defined below) and other such shares of capital
stock of the Company over which Stockholder has voting power so as to facilitate
consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO VOTE SHARES; ADDITIONAL PURCHASES.
1.1 AGREEMENT TO VOTE SHARES. At every meeting of the stockholders
of Parent called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of Parent with respect to any of the following, Stockholder shall cause the
Shares and any New Shares (as defined below) to be voted in favor of approval of
the issuance of shares of Parent's Common Stock (the "PARENT COMMON STOCK"), to
the stockholders of the Company pursuant to the Merger Agreement.
1.2 DEFINITION. For purposes of this Agreement, "SHARES" shall
mean all issued and outstanding shares of Common Stock of Parent owned of
record or beneficially (over which
beneficially-owned shares the Stockholder exercises voting power) by the
Stockholder as of the record date for persons entitled (a) to receive notice
of, and to vote at the meeting of the stockholders of Parent called for the
purpose of voting on the matter referred to in Section 1.1, or (b) to take
action by written consent of the stockholders of Parent with respect to the
matter referred to in Section 1.1
1.3 ADDITIONAL PURCHASES. Stockholder agrees that any shares of
capital stock of Parent that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership (over which
beneficially-owned shares the Stockholder exercises voting power) after the
execution of this Agreement and prior to the date of termination of this
Agreement ("NEW SHARES") shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
2. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to the Company a proxy in the form attached hereto
as Exhibit A (the "PROXY"), which shall be irrevocable, with respect to the
Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. Stockholder (i) is
the owner of the shares of Common Stock of Parent, and the options to purchase
shares of Common Stock of Parent, indicated on the final page of this Agreement,
which at the date hereof are free and clear of any liens, claims, options,
charges or other encumbrances; (ii) does not beneficially own any securities of
Parent other than the shares of Common Stock of Parent, and options to purchase
shares of Common Stock of Parent, indicated on the final page of this Agreement;
and (iii) has full power and authority to make, enter into and carry out the
terms of this Agreement.
4. ADDITIONAL DOCUMENTS. Stockholder and the Company hereby covenant and
agree to execute and deliver any additional documents necessary or desirable, in
the reasonable opinion of the Company or Stockholder, as the case may be, to
carry out the intent of this Agreement.
5. CONSENT AND WAIVER. Stockholder (not in his capacity as a director or
officer of the Company) hereby gives any consents or waivers that are reasonably
required for the issuance of the Parent Common Stock under the terms of any
agreements to which Stockholder is a party or pursuant to any rights Stockholder
may have.
6. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the earlier to occur of (i) such date and time as the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement or (ii) such date and time as the Merger Agreement shall have
been terminated pursuant to Article VII thereof.
7. MISCELLANEOUS.
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7.1 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
7.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
7.3 AMENDMENTS AND MODIFICATION. 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.
7.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that the Company will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to the Company upon any such violation,
the Company shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to the
Company at law or in equity.
7.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to the Company: McAfee Associates, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Chief Financial Officer
With a copy to: Xxxx Xxxx Xxxx & Freidenrich, P.C.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxxxx, Esq.
If to the Stockholder: To the address for notice set forth on the
last page hereof.
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxx, Esq.
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Xxxxx Xxxxxx, Esq.
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
7.6 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware (without regard to the principles of conflict of laws thereof).
7.7 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
7.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
7.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
* * * *
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
COMPANY
By:
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Name:
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Title:
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STOCKHOLDER:
By:
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Name:
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Title:
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Stockholder's Address for Notice:
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Outstanding Shares of Common Stock of Parent
----------
Outstanding Shares of Common Stock of Parent
----------
subject to outstanding stock options
***PARENT VOTING AGREEMENT***
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of McAfee Associates, Inc., a Delaware
corporation ("PARENT"), hereby irrevocably appoints the directors on the Board
of Directors of Network General Corporation, a Delaware corporation (the
"COMPANY"), and each of them, as the sole and exclusive attorneys and proxies of
the undersigned, with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to the voting of the Shares (as
defined in the Voting Agreement of even date between the Company and the
Stockholder (the "VOTING AGREEMENT")) on the matter described below (and on no
other matter), until such time as that certain Agreement and Plan of Merger,
dated as of October 13, 1997 (the "MERGER AGREEMENT"), among Parent, Mystery
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("MERGER SUB"), and the Company, shall be terminated in accordance with
its terms or the Merger (as defined in the Merger Agreement) becomes effective.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked and
no subsequent proxies will be given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement and
is granted in consideration of the Company entering into the Merger Agreement.
The attorneys and proxies named above will be empowered at any time prior to the
earlier of termination of the Merger Agreement and the date on which the Merger
becomes effective to exercise all voting rights (including, without limitation,
the power to execute and deliver written consents with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of Parent's
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, to vote the Shares in favor of approval of the issuance of shares of
Parent Common Stock to the stockholders of the Company pursuant to the Merger
Agreement.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to the earlier of termination of the
Merger Agreement and the date on which the Merger becomes effective, at every
annual, special or adjourned meeting of the Stockholders of Parent and in every
written consent in lieu of such meeting, in favor of approval of the issuance of
shares of Parent Common Stock to the stockholders of the Company pursuant to the
Merger Agreement. The undersigned Stockholder may vote the Shares on all other
matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: ________________, 1997
Signature of Stockholder:
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Print Name of Stockholder:
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***PARENT PROXY***
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