EXHIBIT 2.2
VOTING AGREEMENT
This VOTING AGREEMENT ("AGREEMENT") is made and entered into as of July
28, 2003 by and between Secure Computing Corporation, a Delaware corporation
("BUYER"), and the person whose name appears on the signature page hereto as a
shareholder of N2H2, Inc., a Washington corporation ("SELLER"), acting in his
capacity as a shareholder of Seller and not in any other capacity
("Shareholder").
A. Concurrently with the execution of this Agreement, Seller, Nitro
Acquisition Corp., a Washington corporation ("MERGER SUB"), and Buyer are
entering into an Agreement and Plan of Merger of even date herewith (the "MERGER
AGREEMENT"), pursuant to which the parties thereto have agreed, upon the terms
and subject to the conditions set forth therein, to merge Merger Sub with and
into Seller (the "MERGER"). Capitalized terms used and not otherwise defined
herein, and defined in the Merger Agreement, shall have the respective meanings
ascribed to them in the Merger Agreement.
B. As of the date hereof, Shareholder Beneficially Owns the number of
outstanding shares of the Common Stock of Seller ("SELLER COMMON STOCK") set
forth on the signature page hereto.
C. As inducement and a condition to entering into the Merger Agreement,
Buyer has required Shareholder to agree, and Shareholder has agreed, to enter
into this Agreement.
The parties agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) "BENEFICIALLY OWN" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"). Without duplicative counting of the same securities by the
same holder, securities Beneficially Owned by a person include securities
Beneficially Owned by all other persons with whom such person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act with respect to
the securities of the same issuer.
(b) "EXISTING SHARES" means all issued and outstanding shares of
Seller Common Stock owned of record or Beneficially Owned by Shareholder and
over which Shareholder has voting control as of the record date for persons
entitled (i) to receive notice of, and to vote at, a meeting of the shareholders
of Seller called for purposes of voting on the Merger Agreement and the Merger,
or (ii) to take action by written consent of the shareholders of Seller with
respect to the Merger Agreement and the Merger.
(c) "VOTING PERIOD" means the period commencing on the date of this
Agreement and continuing until the termination of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder represents
and warrants to Buyer as follows:
(a) On the date hereof, Shareholder Beneficially Owns the
outstanding shares of Seller Common Stock set forth on the signature page hereto
and holds stock options and warrants to purchase the number of shares of Seller
Common Stock set forth on the signature page hereto. On the date hereof, such
shares constitute all of the outstanding shares of Seller Common Stock
Beneficially Owned by Shareholder and all of the shares of Seller Common Stock
subject to stock options or warrants held by Shareholder. On the date hereof,
there are no outstanding options or other rights to acquire from Shareholder, or
obligations of Shareholder to sell, any shares of Seller Common Stock. Except as
permitted by this Agreement, the shares of Seller Common Stock set forth on the
signature page hereto are held by Shareholder, or by a nominee or custodian for
the benefit of Shareholder, free and clear of all mortgages, claims, charges,
liens, security interests, pledges, options, proxies, voting trusts or
agreements ("ENCUMBRANCES"), except for any such Encumbrances arising hereunder.
(b) Shareholder has the legal capacity, power and authority to enter
into and perform all of Shareholder's obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by Shareholder and
constitutes a valid and binding agreement of Shareholder, enforceable against
Shareholder in accordance with its terms, except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
(c) Except for any applicable filings under federal and state
securities laws, no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is required to be made or obtained by
Shareholder for the execution of this Agreement by Shareholder or compliance by
Shareholder with the provisions hereof. Neither the execution and delivery of
this Agreement by Shareholder nor the compliance by Shareholder with the
provisions hereof will (i) 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, acceleration, redemption or
purchase) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which Shareholder is a party or by which Shareholder
or any of Shareholder's properties or assets is bound, or (ii) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Shareholder or any of the Existing Shares.
(d) Shareholder understands and acknowledges that Buyer is entering
into, and causing Merger Sub to enter into, the Merger Agreement in reliance
upon Shareholder's concurrent execution and delivery of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants to Shareholder as follows:
(a) Buyer has the corporate power and authority to enter into and
perform all of its obligations under this Agreement. This Agreement has been
duly and validly executed and
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delivered by Buyer and constitutes a valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms, except to the extent
that its enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
(b) Except for filings under the Exchange Act, no filing with, and
no permit, authorization, consent or approval of, any Government Entity is
necessary for the execution of this Agreement by Buyer. Neither the execution
and delivery of this Agreement by Buyer nor compliance by Buyer with any of the
provisions hereof shall (i) conflict with or result in any breach of any
organizational documents of Buyer, (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, acceleration,
redemption or purchase) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation of any kind to which Buyer is a party or by which
Buyer or any of its properties or assets is bound, or (iii) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation applicable to
Buyer or any of its properties or assets.
4. DISCLOSURE. Shareholder hereby agrees to permit Buyer to publish and
disclose in the Registration Statement and the Proxy Statement/Prospectus
(including all documents and schedules filed with the SEC), and in any press
release or other disclosure document which Buyer reasonably determines to be
necessary or desirable to comply with applicable law or the rules and
regulations of The Nasdaq Stock Market in connection with the Merger and any
transactions related thereto, Shareholder's identity and ownership of Seller
Common Stock and the nature of Shareholder's commitments, arrangements and
understandings under this Agreement, provided that any public announcement or
disclosure is made in accordance with the terms of the Merger Agreement.
5. VOTING AGREEMENT. Shareholder hereby irrevocably and unconditionally
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of the Effective Time or termination of this Agreement,
Shareholder will appear (in person or by proxy) at any meeting (whether annual
or special and whether or not an adjourned or postponed meeting) of the holders
of Seller Common Stock, however called, or otherwise cause the Existing Shares
then Beneficially Owned by Shareholder to be counted as present thereat for
purposes of establishing a quorum, and (b) Shareholder will vote or provide a
written consent with respect to the Existing Shares (or will cause the Existing
Shares to be voted, or cause a written consent to be provided with respect to
the Existing Shares) in favor of the Merger. Shareholder will also vote or
provide a written consent with respect to the Existing Shares (or will cause the
Existing Shares to be voted, or cause a written consent to be provided with
respect to the Existing Shares) against any action, proposal, transaction or
agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of Seller
contained in the Merger Agreement. Shareholder agrees not to enter into any
agreement or commitment with any Person the effect of which would be
inconsistent with or violative of the provisions and agreements contained in
this Section 5.
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6. GRANT OF IRREVOCABLE PROXY; FURTHER ASSURANCES.
(a) Shareholder hereby appoints Buyer and any designee of Buyer, and
each of them individually, as such Shareholder's proxy and attorney-in-fact,
with full power of substitution and resubstitution, to vote or act by written
consent during the Voting Period with respect to the Existing Shares in
accordance with Section 5. This proxy is given to Buyer to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall
promptly cause a copy of this Agreement to be deposited with Seller at its
principal place of business. Shareholder shall take further action or execute
such other instruments as may be necessary to effectuate the intent of this
proxy.
(b) The proxy and power of attorney granted pursuant to Section 6(a)
by Shareholder shall be irrevocable during the term of this Agreement, shall be
deemed to be coupled with an interest sufficient in law to support an
irrevocable proxy and shall revoke any and all prior proxies granted by such
Shareholder. The power of attorney granted by Shareholder herein is a durable
power of attorney and shall survive the dissolution, bankruptcy, death or
incapacity of such Shareholder. The proxy and power of attorney granted
hereunder shall terminate upon the termination of this Agreement.
(c) Shareholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in Buyer
the power to carry out and give effect to the provisions of this Agreement.
7. COVENANTS.
(a) Except for Encumbrances in existence as of the date hereof,
Shareholder agrees that during the Voting Period, except as contemplated by the
terms of this Agreement, it shall not (i) sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of (collectively, "Transfer"), or enter
into any contract, option or other agreement to Transfer any or all of the
Existing Shares; provided, however, that Shareholder may Transfer any or all of
its Existing Shares to any Person that agrees in writing to be bound by the
terms of this Agreement and, with the consent of Buyer, may pledge or encumber
any Existing Shares so long as such pledge or encumbrance would not impair any
Shareholder's ability to perform its obligations under this Agreement; or (ii)
take any action that would have the effect of preventing, impeding, interfering
with or adversely affecting its ability to perform its obligations under this
Agreement.
(b) In the event of a stock dividend or distribution, or any change
in the Seller Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Existing Shares" shall be deemed to refer to and include the Existing
Shares as well as all such stock dividends and distributions and any securities
into which or for which any or all of the Existing Shares may be changed or
exchanged or which are received in such transaction.
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8. REASONABLE EFFORTS. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable to effectuate the provisions by this
Agreement.
9. TERMINATION. This Agreement shall terminate on the earliest to occur
of: (a) the termination of the Merger Agreement; (b) the agreement of the
parties hereto to terminate this Agreement; or (c) the consummation of the
Merger.
10. MISCELLANEOUS.
(a) Subject to applicable law, this Agreement may be amended,
modified or supplemented only by written agreement of Buyer and Shareholder at
any time prior to the Effective Time.
(b) Any failure of Shareholder, on the one hand, or Buyer, on the
other hand, to comply with any obligation, covenant, agreement or condition
herein may be waived by Buyer (with respect to any failure by Shareholder) or
Shareholder (with respect to any failure by Buyer or Merger Sub), respectively,
only by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Section 10(b).
(c) All notices and other communications hereunder shall be in
writing and shall be delivered personally by overnight courier or similar means
or sent by facsimile with written confirmation of receipt, to the parties at the
addresses specified below (or at such other address for a party as shall be
specified by like notice. Any such notice shall be effective upon receipt, if
personally delivered or on the next business day following transmittal if sent
by confirmed facsimile. Notices, including oral notices, shall be delivered as
follows:
if to Shareholder, at the
address set forth on the
signature page, with a
copy to: Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 206-839-4301
Attention: Xxxxxxx Xxxxxx, Esq.
if to Buyer, or
Merger Sub, to: 0000 Xxxxxxx Xxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx XxXxxxxx
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with a copy to: 0000 Xxxx Xxxx Xxxx
Xx. Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxx, Esq.
and
Xxxxxx Xxxxxx White & XxXxxxxxx llp
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000-0000
Telephone: 000 000-0000
Facsimile: 000 000-0000
Attention: Xxxx Xxxx, Esq.
(d) Neither this Agreement nor any right, interest or obligation
hereunder shall be assigned by either of the parties hereto without the prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement is not intended to confer any rights or
remedies hereunder upon any other person except the parties hereto.
(e) This Agreement shall be governed by the laws of the State of
Washington without reference to principles of conflicts of law.
(f) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(g) In case any one or more of the provisions contained in this
Agreement should be finally determined to be invalid, illegal or unenforceable
in any respect against a party hereto, it shall be adjusted if possible to
effect the intent of the parties. In any event, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby, and such invalidity, illegality or
unenforceability shall only apply as to such party in the specific jurisdiction
where such final determination shall have been made.
(h) The article and section headings contained in this Agreement are
solely for the purpose of reference and shall not in any way affect the meaning
or interpretation of this Agreement. The word "including" shall be deemed to
mean "including without limitation."
(i) This Agreement embodies the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There
are no representations, promises, warranties, covenants, or undertakings, other
than those expressly set forth or referred to herein and therein.
(j) When used in this Agreement "law" refers to any applicable law
(whether civil, criminal or administrative) including, without limitation,
common law, statute, statutory
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instrument, treaty, regulation, directive, decision, code, order, decree,
injunction, resolution or judgment of any government, quasi-government,
supranational, federal, state or local government, statutory or regulatory body,
court, or agency.
(k) Each of the parties hereto recognizes and acknowledges that a
breach by it of any covenants or agreements contained in this Agreement will
cause the other party to sustain damages for which it would not have an adequate
remedy at law for money damages. Therefore, in the event of any such breach, the
aggrieved party shall be entitled to the remedy of specific performance of such
covenants and agreements and injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity.
(l) All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
(m) Notwithstanding any other provision of this Agreement
(including, without limitation, Section 5 hereof), nothing contained in this
Agreement shall bind or obligate Shareholder to act or refrain from acting in
any capacity other than as a shareholder of Seller, it being expressly
understood and agreed that this Agreement shall not bind or obligate Shareholder
in his capacity as a director or officer of Seller.
(n) Each party to this Agreement has been represented by counsel
during the preparation and execution of this Agreement, and therefore waives any
rule of construction that would construe ambiguities against the party drafting
the agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have signed this Voting Agreement,
in the case of Buyer by its duly authorized officer, as of the date first above
written.
SECURE COMPUTING CORPORATION
------------------------------------
Shareholder Name
By:
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Print Name:
----------------------------
Signature: Print Title:
------------------------ ---------------------------
NUMBER OF OUTSTANDING SHARES
BENEFICIALLY OWNED BY
SHAREHOLDER:
----------------------
NUMBER OF SHARES SUBJECT TO STOCK
OPTIONS HELD BY SHAREHOLDER:
------
NUMBER OF SHARES SUBJECT TO
WARRANTS HELD BY SHAREHOLDER:
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ADDRESS OF SHAREHOLDER:
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SHAREHOLDER SIGNATORIES TO VOTING AGREEMENT
XXXXXX X. XXXX
XXXXXXX X. XXXXXX
XXXXX X. XXXXXXXXX
J. XXXX XXXXX
XXXXXXX X. XXXX
XXXX X. XXXXXX
XXXX XXXXXXX
XXXXXX XXXXXX WELT
