Voting Agreement
Exhibit 2
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 prevent or delay Parent from performing its obligations
under this Agreement.
8. No Solicitation; Notification. Until the Expiration Date and subject to
Section 5 of this Agreement, the Stockholder, in his, her or its capacity as a stockholder
of the Company, shall not, and shall not authorize, knowingly encourage or permit any person or
entity on the 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 if the Stockholder is a
director of the Company, nothing herein shall prevent the Stockholder from taking any action solely
in such Stockholder’s 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, the Stockholder acknowledges and hereby agrees that any violation of the
restrictions set forth in this Section 8 by the Stockholder or any of its Representatives
shall be deemed to be a breach of this Agreement by the Stockholder. The Stockholder shall not
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.
9. Disclosure. Subject to reasonable prior notice and approval of the Stockholder
(which shall not be unreasonably withheld or delayed), the Stockholder shall permit and hereby
authorizes 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, the Stockholder’s identity
and ownership of Shares and the nature of the Stockholder’s commitments, arrangements and
understandings under this Agreement.
10. Dissenters’ Rights. The Stockholder agrees not to exercise any rights of
appraisal or any dissenters’ rights that Stockholder may have (whether under applicable law or
otherwise) or could potentially have or acquire in connection with the Merger.
11. Further Assurances. Subject to the terms and conditions of this Agreement, until
the Expiration Date, the 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
Stockholder’s obligations under this Agreement. Until the Expiration Date and subject to
Section 5 of this Agreement, the Stockholder, in the Stockholder’s capacity as a holder of
shares of Company Common Stock, shall at all times publicly support the Merger and other
transactions contemplated by the Merger Agreement; provided, however, that the
foregoing shall in no event require the Stockholder to make any public statements regarding the
Merger and other transactions contemplated by the Merger Agreement.
12. Termination. This Agreement and the Proxy 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 12 or elsewhere in this Agreement shall relieve either party
hereto from any liability, or otherwise limit the liability of either party hereto, for any breach
of this Agreement.
13. Miscellaneous.
13.1 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.
13.2 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.
13.3 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 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.
13.4 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.
13.5 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.
13.6 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware.
13.7 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 13.11.
Nothing in this Agreement shall affect the right of any party to this Agreement to serve process in
any other manner permitted by law.
13.8 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 13.8.
13.9 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.
13.10 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.
13.11 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 Stockholder: | To the address for notice set forth on the signature page hereof. |
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.
13.12 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.
13.13 No Third Party Beneficiaries. This Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
13.14 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.
13.15 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.
13.16 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 the Stockholder
in this Agreement shall not be effective or binding upon the 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]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the
date first written above.
| MCAFEE, INC.: | STOCKHOLDER: | |||||||||
By:
|
By: | |||||||||
Name:
|
Name: | |||||||||
Title:
|
Title: | |||||||||
| Print Address | ||||||||||
| Facsimile No. | ||||||||||
| Shares beneficially owned: | ||||||||||
| shares of Company Common Stock | ||||||||||
| 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
Xx. Xxxx XxXxxx and Mr. 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 3.1 and the first sentence of Section 3.2 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 3.1 and the first
sentence of Section 3.2 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 and Stockholder (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 Irrevocable Proxy 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: | ||||||
| (Name of Entity, if an entity) | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
