EXHIBIT 2.3
[FORM OF AFFILIATE AGREEMENT]
July 28, 2003
Secure Computing Corporation
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Ladies and Gentlemen:
The undersigned has been advised that as of the date hereof the
undersigned may be deemed to be an "affiliate" of N2H2, Inc., a Washington
corporation ("SELLER"), as the term "affiliate" is defined for purposes of
paragraph (c) of Rule 145 of the Rules and Regulations (the "RULES AND
REGULATIONS") of the Securities and Exchange Commission (the "COMMISSION") under
the Securities Act of 1933, as amended (the "ACT"). Pursuant to the terms of the
Agreement and Plan of Merger, dated as of July 28, 2003 (the "AGREEMENT"), among
Secure Computing Corporation, a Delaware corporation ("Buyer"), Nitro
Acquisition Corp., a Washington corporation, and Seller, at the Effective Time
(as defined in the Agreement) Seller will become a wholly-owned subsidiary of
Buyer.
As a result of the Merger (as defined in the Agreement), the undersigned
will receive shares of Common Stock, par value $0.01 per share, of Buyer ("BUYER
COMMON STOCK") in exchange for shares of Common Stock of Seller owned by the
undersigned.
The undersigned hereby represents and warrants to, and covenants with,
Buyer that in the event the undersigned receives any Buyer Common Stock in the
Merger:
(A) The undersigned shall not make any sale, transfer or other
disposition of the Buyer Common Stock in violation of the Act or the Rules
and Regulations.
(B) The undersigned has carefully read this letter and discussed its
requirements and other applicable limitations upon the undersigned's
ability to sell, transfer or otherwise dispose of the Buyer Common Stock,
to the extent the undersigned has felt it necessary, with the
undersigned's counsel.
(C) The undersigned has been advised that the issuance of shares of
Buyer Common Stock to the undersigned in the Merger is expected to be
registered under the Act by a Registration Statement on Form S-4. However,
the undersigned has also been advised that because (i) at the time of the
Merger's submission for a vote of the shareholders of Seller the
undersigned may be deemed an affiliate of Seller, and (ii) the
distribution by the undersigned of the Buyer Common Stock has not been
registered under the Act, the undersigned may not sell, transfer or
otherwise dispose of Buyer Common Stock issued to the undersigned in the
Merger unless (a) such sale, transfer or other disposition has been
registered under the Act, (b) such sale, transfer or other disposition is
made in conformity with the volume and other applicable limitations
imposed by Rule 145 under the Act, or (c) in the opinion of counsel
reasonably acceptable to Buyer, such sale, transfer or other disposition
is otherwise exempt from registration under the Act.
(D) The undersigned understands that Buyer will be under no
obligation to register the sale, transfer or other disposition of the
Buyer Common Stock by the undersigned or on the
undersigned's behalf under the Act or to take any other action necessary
in order to make compliance with an exemption from such registration
available.
(E) The undersigned understands that stop transfer instructions will
be given to Buyer' transfer agent with respect to the Buyer Common Stock
owned by the undersigned and that there may be placed on the certificates
for the Buyer Common Stock issued to the undersigned, or any substitutions
therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE
TRANSFERRED IN ACCORDANCE WITH THE TERMS OF A LETTER AGREEMENT DATED
JULY 28, 2003, A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICES OF SECURE COMPUTING CORPORATION."
It is understood and agreed that the legend set forth in paragraph E above
shall be removed by delivery of substitute certificates without such legend if
the undersigned shall have delivered to Buyer (i) a copy of a letter from the
staff of the Commission, or an opinion of counsel, in form and substance
reasonably satisfactory to Buyer to the effect that such legend is not required
for purposes of the Act or (ii) reasonably satisfactory evidence or
representations that the shares represented by such certificates are being or
have been transferred in a transaction made in conformity with the provisions of
Rule 145.
Very truly yours,
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Signature
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Print Name
Acknowledged this day of , 2003.
SECURE COMPUTING CORPORATION
By:
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Name:
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Title:
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SHAREHOLDER SIGNATORIES TO AFFILIATES AGREEMENT
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