Exhibit 1
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 Xxxx Xxxxx, a stockholder of the Company (WP IX and Xx.
Xxxxx 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 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. 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.
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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 Xx. Xxxxx to (i) exercise, prior to the Expiration Date,
any stock options or warrants of the Company held by Xx. Xxxxx, (ii) transfer or
otherwise dispose of Shares Beneficially Owned by Xx. Xxxxx 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 Xx. Xxxxx to any member of Xx. Xxxxx'x immediate family; or to a trust
for the benefit of Xx. Xxxxx or any member of Xx. Xxxxx'x 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 Xx. Xxxxx.
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
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inconsistent with Section 4 below) under this Agreement with respect to any of
the Shares Beneficially Owned by such Stockholder.
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.
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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.
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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
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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 Xx. Xxxxx 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 Xx. Xxxxx 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
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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 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 under the
name of such Stockholder on the signature page hereto.
7.4 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 Beneficially Owned by
such Stockholder, with no limitations, qualifications or restrictions on such
rights, subject to applicable federal securities laws and the terms of this
Agreement.
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7.5 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.
8. Representations and Warranties of Parent. Parent hereby represents and
warrants to each Stockholder that:
8.1 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 Stockholders, 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.
8.2 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 prevent or delay Parent from
performing its obligations under this Agreement.
9. No Solicitation; Notification. Until the Expiration Date and subject to
Section 6 of this Agreement, neither Stockholder, in its capacity as a
stockholder of the Company, shall, and shall not authorize, knowingly encourage
or permit any person or entity on such Stockholder's behalf to, directly or
indirectly, take any action that would, or would reasonably be expected to,
result in the violation by the Company of Section 6.3 (Alternative Transaction
Proposals) of the Merger Agreement; provided that, with respect to Xx. Xxxxx,
nothing herein shall prevent Xx. Xxxxx from taking any action solely in Xx.
Xxxxx'x capacity as a director of the Company in the exercise of such director's
fiduciary duties, including with respect to an Alternative Transaction Proposal
or Superior Proposal in compliance with the terms of the Merger Agreement.
Without limiting the generality of the foregoing, each Stockholder acknowledges
and hereby agrees that any violation of the restrictions set forth in this
Section 9 by such Stockholder or any of its Representatives shall be deemed to
be a breach of this Agreement by such Stockholder. Neither Stockholder shall
enter into any letter of intent or similar document or any Contract
contemplating or otherwise relating to an Acquisition Proposal unless and until
this Agreement is terminated pursuant to its terms.
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10. Disclosure. Subject to reasonable prior notice and approval of each
Stockholder (which shall not be unreasonably withheld or delayed), the
Stockholders shall permit and hereby authorize Parent to publish and disclose in
all documents and schedules filed with the SEC, and any press release or other
disclosure document that Parent determines to be necessary or desirable in
connection with the Merger and any transactions related to thereto, each
Stockholder's identity and ownership of Shares Beneficially Owned by such
Stockholder and the nature of each Stockholder's commitments, arrangements and
understandings under this Agreement.
11. Dissenters Rights. Each Stockholder agrees not to exercise any rights
of appraisal or any dissenters' rights that such Stockholder may have (whether
under applicable law or otherwise) or could potentially have or acquire in
connection with the Merger.
12. Further Assurances. Subject to the terms and conditions of this
Agreement, until the Expiration Date, each Stockholder shall use commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary to fulfill such Stockholder's obligations
under this Agreement. Until the Expiration Date and subject to Section 6 of this
Agreement, each Stockholder, in such Stockholder's capacity as a holder of
shares of Company Series A Preferred Stock or Company Common Stock, as
applicable, shall at all times publicly support the Merger and other
transactions contemplated by the Merger Agreement; provided, however, that the
forgoing shall in no event require either Stockholder to make any public
statements regarding the Merger and other transactions contemplated by the
Merger Agreement.
13. Termination. This Agreement and the Proxies shall automatically
terminate and shall have no further force or effect as of the Expiration Date.
Notwithstanding the foregoing, nothing set forth in this Section 13 or elsewhere
in this Agreement shall relieve any party hereto from any liability, or
otherwise limit the liability of any party hereto, for any breach of this
Agreement.
14. Miscellaneous.
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14.1 Waiver. At any time and from time to time prior to the Effective
Time, any party or parties hereto may, to the extent legally allowed and except
as otherwise set forth herein, (a) extend the time for the performance of any of
the obligations or other acts of the other party or parties hereto, as
applicable, (b) waive any inaccuracies in the representations and warranties
made to such party or parties hereto contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party or parties hereto contained herein. Any
agreement on the part of a party or parties hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party or parties, as applicable. Any delay in exercising any
right under this Agreement shall not constitute a waiver of such right.
14.2 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Legal Requirement, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
14.3 Binding Effect; Assignment. This Agreement and all of the terms
and 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
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any of the rights, interests or obligations of any party hereof may be assigned
to any other Person (other than to Merger Sub by Parent) without the prior
written consent of the other parties hereto.
14.4 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
14.5 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the other parties hereto shall be irreparably harmed and that
there shall be no adequate remedy at law for a violation of any of the covenants
or agreements of the other parties set forth herein. Therefore, it is agreed
that, in addition to any other remedies that may be available to a party upon
any such violation, the parties hereto shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by any
other means available to such party at law or in equity.
14.6 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
14.7 Submission to Jurisdiction. In any action or proceeding between
any of the parties arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement, each of the parties hereto: (a)
irrevocably and unconditionally consents and submits, for itself and its
property, to the exclusive jurisdiction and venue of the Court of Chancery of
the State of Delaware (or, in the case of any claim as to which the federal
courts have exclusive subject matter jurisdiction, the Federal court of the
United States of America, sitting in Delaware); (b) agrees that all claims in
respect of such action or proceeding must be commenced, and may be heard and
determined, exclusively in the Court of Chancery of the State of Delaware (or,
if applicable, such Federal court); (c) waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have
to the laying of venue of any such action or proceeding in the Court of Chancery
of the State of Delaware (and, if applicable, such Federal court); and (d)
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in the Court of Chancery
of the State of Delaware (or, if applicable, such Federal court). Each of the
parties hereto agrees that a final judgment in any such action or proceeding and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 14.11. Nothing
in this Agreement shall affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
14.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 14.8.
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14.9 Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any Legal Requirement
providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
14.10 Entire Agreement. This Agreement and the other agreements
referred to in this Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, between the
parties, or any of them, with respect to the subject matter hereof.
14.11 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the parties
at the following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a party as shall be specified by like notice):
If to Parent: McAfee, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Vice President--
Corporate Development
Facsimile No.: (000) 000-0000
with copies to:
McAfee, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
and:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
Xxxxxxxx X. Xxx
Facsimile No.: (000) 000-0000
If to a
Stockholder: To the address for notice for such Stockholder set
forth on the signature page hereof.
with a copy to (which shall not constitute
notice):
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
-9-
Any such notice or communication shall be deemed to have been delivered and
received (i) in the case of personal delivery, on the date of such delivery,
(ii) in the case of facsimile, on the date sent if confirmation of receipt is
received and such notice is also promptly mailed by registered or certified mail
(return receipt requested), (iii) in the case of a nationally-recognized
overnight courier in circumstances under which such courier guarantees next
Business Day delivery, on the next Business Day after the date when sent and
(iv) in the case of mailing, on the third (3rd) Business Day following that on
which the piece of mail containing such communication is posted.
14.12 Headings. The section headings set forth in this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement in any manner.
14.13 No Third Party Beneficiaries. This Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
14.14 Interpretation.
(a) Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation." As used in this Agreement, the term "affiliate" shall have the
meaning set forth in Rule 12b-2 promulgated under the Exchange Act.
(b) The article and section headings contained in this Agreement
are solely for the purpose of reference, are not part of the agreement of the
parties hereto and shall not in any way affect the meaning or interpretation of
this Agreement.
14.15 Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring the expenses.
14.16 Several Obligations. Any representation, warranty, covenant or
agreement made by a Stockholder herein shall be deemed to be several and not
joint. Without limiting the generality of the foregoing, under no circumstances
shall any Stockholder have any liability or obligation with respect to any
misrepresentation or breach of any covenant, duty or obligation of any other
Stockholder.
14.17 Option and Warrant Exercises. Nothing in this Agreement shall
require a Stockholder to exercise any option or warrant to purchase shares of
Company Common Stock or prevent a Stockholder from exercising any option or
warrant to purchase shares of Company Common Stock.
14.18 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart. The obligations of each Stockholder
in this Agreement shall not be effective or binding upon such Stockholder until
immediately after such time as the Merger Agreement is executed and delivered by
the Company, Parent and Merger Sub.
[Remainder of Page Intentionally Left Blank]
-10-
[Signature Page to Voting Agreement]
(Signature page to Voting Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first written above.
McAfee, Inc.: Warburg Pincus Private Equity IX, L.P.
By: Warburg Pincus IX LLC, its General Partner
By: /s/ Xxxx Xxxxxxx By: Warburg Pincus Partners LLC, its Managing Member
------------------------------- By: Warburg Pincus & Co., its Managing Member
Name:Xxxx Xxxxxxx
------------------------------
Title: EVP and General Counsel
----------------------------
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Title: Partner
Address: 000 Xxxxxxxxx Xxxxxx, XX, XX 00000
Facsimile No.:(000) 000-0000
Shares beneficially owned:
6,270,728 shares of Company Common Stock(2)
700,000 shares of Company Series A Preferred Stock
1,064,259.93 shares of Company Common Stock issuable
upon the exercise of outstanding options, warrants or
other rights
----------------------
(2) Amount represents the number of shares of Company Common Stock issuable
upon conversion of the Company Series A Preferred Stock beneficially owned by
the Stockholder as of the date hereof and excludes a Warrant to acquire
1,064,259.93 shares of Company Common Stock which is referenced below.
McAfee, Inc.:
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxx
------------------------------- -------------------------------
Name: Xxxx Xxxxxxx
------------------------------ Name: Xxxx Xxxxx
-------------------------------
Title: EVP and General Counsel
---------------------------- Address: c/o Warburg Pincus LLC
000 Xxxxxxxxx Xxxxxx, XX, XX 00000
Facsimile No.: (000) 000-0000
Shares beneficially owned:
15,000 shares of Company Common Stock
0 shares of Company Series A Preferred Stock
5,000 shares of Company Common Stock issuable
upon the exercise of outstanding options, warrants or
other rights
EXHIBIT A
---------
IRREVOCABLE PROXY
The undersigned stockholder ("Stockholder") of Secure Computing
Corporation, a Delaware corporation (the "Company"), hereby irrevocably (to the
fullest extent permitted by law) appoints Xxxx XxXxxx and Xxxx Xxxxxxx of
McAfee, Inc., a Delaware Corporation ("Parent"), and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the Shares in accordance with the terms of this Irrevocable
Proxy until the Expiration Date. Upon Stockholder's execution of this
Irrevocable Proxy, (i) the Stockholder hereby revokes any and all prior proxies
(other than this Irrevocable Proxy) given by the Stockholder with respect to the
subject matter contemplated by Section 4.1 and the first sentence of Section 4.2
of the Voting Agreement, 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 4.1
and the first sentence of Section 4.2 of the Voting Agreement, until immediately
after the time of the Expiration Date.
This Irrevocable Proxy is irrevocable to the fullest extent permitted by
law, is coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Parent, Stockholder and the other
party thereto (the "Voting Agreement"), and is granted in consideration of
Parent entering into that certain Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"), among Parent, Seabiscuit Acquisition Company,
a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and
the Company. The Merger Agreement provides for, among other things, the merger
of Merger Sub with and into the Company, pursuant to which all outstanding
shares of capital stock of the Company will be converted into the right to
receive the consideration set forth in the Merger Agreement. Unless otherwise
defined herein, all capitalized terms shall have the meanings ascribed to them
in the Voting Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by Stockholder, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of Stockholder with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting: (i) 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 (ii) against any of the following actions (other than
those actions that relate to the Merger and any other transactions contemplated
by the Merger Agreement): (a) the approval of any proposal made in opposition
to, or in competition with, the Merger or any other transactions contemplated by
the Merger Agreement, (b) any Alternative Transaction Proposal, and (c) 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. Except as set forth
immediately above, 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.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided herein.
Any obligation of Stockholder hereunder shall be binding upon the
successors and assigns of Stockholder.
This Irrevocable Proxy shall automatically terminate, and be of no further
force and effect, upon the Expiration Date.
Dated: September 21, 2008
STOCKHOLDER:
WARBURG PINCUS PRIVATE EQUITY IX, L.P.
By: Warburg Pincus IX LLC, its General Partner
By: Warburg Pincus Partners LLC, its Managing Member
By: Warburg Pincus & Co., its Managing Member
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
----------------------------------------
Title: Partner
EXHIBIT B
---------
IRREVOCABLE PROXY
The undersigned stockholder ("Stockholder") of Secure Computing
Corporation, a Delaware corporation (the "Company"), hereby irrevocably (to the
fullest extent permitted by law) appoints Xxxx XxXxxx and Xxxx Xxxxxxx of
McAfee, Inc., a Delaware Corporation ("Parent"), and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the Shares in accordance with the terms of this Irrevocable
Proxy until the Expiration Date. Upon Stockholder's execution of this
Irrevocable Proxy, (i) the Stockholder hereby revokes any and all prior proxies
(other than this Irrevocable Proxy) given by the Stockholder with respect to the
subject matter contemplated by Section 4.1 and the first sentence of Section 4.2
of the Voting Agreement, 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 4.1
and the first sentence of Section 4.2 of the Voting Agreement, until immediately
after the time of the Expiration Date.
This Irrevocable Proxy is irrevocable to the fullest extent permitted by
law, is coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Parent, Stockholder and the other
party thereto (the "Voting Agreement"), and is granted in consideration of
Parent entering into that certain Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"), among Parent, Seabiscuit Acquisition Company,
a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and
the Company. The Merger Agreement provides for, among other things, the merger
of Merger Sub with and into the Company, pursuant to which all outstanding
shares of capital stock of the Company will be converted into the right to
receive the consideration set forth in the Merger Agreement. Unless otherwise
defined herein, all capitalized terms shall have the meanings ascribed to them
in the Voting Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by Stockholder, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of Stockholder with respect to
the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting: (i) 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 (ii) against any of the following actions (other than
those actions that relate to the Merger and any other transactions contemplated
by the Merger Agreement): (a) the approval of any proposal made in opposition
to, or in competition with, the Merger or any other transactions contemplated by
the Merger Agreement, (b) any Alternative Transaction Proposal, and (c) 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. Except as set forth
immediately above, 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.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided herein.
Any obligation of Stockholder hereunder shall be binding upon the
successors and assigns of Stockholder.
This Irrevocable Proxy shall automatically terminate, and be of no further
force and effect, upon the Expiration Date.
Dated: September 21, 2008
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Address: c/o Warburg Pincus LLC
000 Xxxxxxxxx Xxxxxx, XX, XX 00000
Facsimile No.: (000) 000-0000
(Signature Page to Irrevocable Proxy)
