Exhibit 10.1
PROMISSORY NOTE
PURCHASE AGREEMENT
This Promissory
Note Purchase Agreement dated as of April 15, 2005 (the
“ Agreement ”) by and between John J. Moores
(“ Purchaser ”), NEON Systems, Inc., a Delaware
corporation (“ Seller ”) and Neon Enterprise
Software, Inc., a Delaware corporation formerly known as
Peregrine/Bridge Transfer Corporation (the
“Company”):
WITNESSETH:
WHEREAS, Seller
owns the convertible promissory note dated August 14, 2002
made by the Company, payable to the order of Seller with a
principal amount of $3,000,000 (the “ Convertible Note
”);
WHEREAS, Seller
also owns the non-convertible promissory note dated August 14,
2002 made by the Company and payable to the order of Seller with a
principal amount of $3,584,028 (the “ Non-Convertible
Note ”), which Non-Convertible Note together with the
Convertible Note are hereinafter referred to as the
“Notes”;
WHEREAS, the
Company’s obligations under the Notes are secured by the
security interests granted pursuant to the Security Agreement dated
effective as of August 14, 2002 by and between the Company and
Seller (the “ Security Agreement ”);
WHEREAS, the Notes
have matured and the Company is in default under the Notes;
and
WHEREAS, Seller
desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, all of Seller’s right, title and interest in and
to the Notes, the Security Agreement and all related agreements and
instruments on the terms and subject to the conditions set forth in
this Agreement;
NOW, THEREFORE, in
consideration of these premises and the representations, warranties
and covenants set forth in this Agreement, the parties agree as
follows:
1.
Purchase of Assets . On the terms and conditions set
forth in this Agreement, at the Closing (as defined below), Seller
shall GRANT, BARGAIN, CONVEY, SELL, ASSIGN, TRANSFER AND DELIVER to
Purchaser, and Purchaser shall purchase, accept and assume from
Seller, all of Seller’s right, title and interest in and to
the following (collectively, the “ Purchased Assets
”):
(a)
the Notes and the indebtedness of the Company payable
thereunder;
(b)
all rights, titles, interests, liens, securing interests,
privileges, claims, demands and equities now existing or hereafter
arising under or out of the agreements and instruments listed on
Schedule I to this Agreement (the “ Assumed
Contracts ”); and
(c)
all rights, claims, credits, causes of action or rights of set-off
of Seller against third parties relating to the Notes and the
Assumed Contracts, including those relating to any breaches or
defaults by the Company prior to the Closing,
TO HAVE AND TO HOLD the
Purchased Assets unto the Purchaser, for the benefit of his
successors and assigns, forever; provided, however, the Purchaser
does not assume and shall not be obligated to pay, perform or
discharge any claim, debt, obligation, expense or liability of the
Seller of any kind, whether known or unknown, absolute or
contingent, under the Notes, Assumed Contracts or otherwise,
arising out of any act or omission occurring on or before the
Closing Date.
2.
Assumption of Liabilities . As partial consideration
for the sale, transfer, assignment and delivery of the Purchased
Assets and on the terms and subject to the conditions set forth in
this Agreement, Purchaser shall assume and
perform the
liabilities and obligations of Seller under the Notes and the
Assumed Contracts (collectively, the “ Assumed
Liabilities ”) arising from and after the Closing and no
others.
3.
Purchase Price . On the terms and subject to the
conditions set forth in this Agreement, in reliance on the
representations, warranties and agreements of Seller set forth in
this Agreement, and in consideration of the sale, transfer,
assignment and delivery by Seller of the Purchased Assets, at the
Closing Buyer shall (i) assume the Assumed Liabilities,
(ii) pay to Seller an amount in cash equal to $4,350,000 (the
“ Cash Purchase Price ”), and (iii) execute a
promissory note between Purchaser and Seller in the principal
amount of $2,234,028 in the form attached hereto as Exhibit
B (the “ Purchase Note ”).
4.
Closing . (a) The closing (the “
Closing ”) shall take place at the office of Seller at
10:00 a.m., Sugar Land, Texas time, on April 15, 2005, or
at such other date, time and place as may be agreed upon between
Purchaser and Seller (the date on which the Closing occurs, the
“ Closing Date ”).
(b)
At the Closing, Seller shall (i) deliver to Purchaser the
Notes, duly endorsed (or accompanied by an instrument duly
endorsed) in blank for transfer and (ii) execute and deliver
to Purchaser an instrument of assignment for effecting the grant,
bargain, conveyance, sale, assignment, transfer and delivery of the
Purchased Assets, which shall be in the form attached to this
Agreement as Exhibit D .
(c)
At the Closing, Purchaser shall (i) deliver to Seller the Cash
Purchase Price by wire transfer of immediately available funds to a
bank account designated by Seller, which designation shall be made
at least two business days before the Closing, (ii) execute and
deliver to Seller an instrument of assumption for effecting the
assumption of the Assumed Liabilities, which shall be in the form
attached to this Agreement as Exhibit E , and (ii) execute
and deliver to Seller the Purchase Note.
5.
Closing Conditions . (a) The obligations of
Purchaser under this Agreement to purchase the Purchased Assets at
the Closing are, at its option, subject to the satisfaction of the
following conditions:
(i)
The representations and warranties of Seller set forth in this
Agreement shall be true and correct in all material respects both
on the date of this Agreement and as of the Closing Date with the
same force and effect as if such representations and warranties
were made anew at and as of the Closing Date.
(ii)
Seller shall have performed and complied in all material respects
with all agreements, obligations and conditions set forth in this
Agreement that are to be performed by or complied with by Seller at
or before the Closing.
(iii)
Seller shall have
furnished to Purchaser a certificate dated the Closing Date, signed
by or on behalf of Seller, to the effect that the conditions set
forth in clauses (i) and (ii) of this Section 5(a) have been
satisfied.
(b)
The obligations of Seller under this Agreement to grant, bargain,
convey, sell, assign, transfer and deliver the Purchased Assets at
the Closing are, at its option, subject to the satisfaction of the
following conditions:
(i)
The representations and warranties of Purchaser set forth in this
Agreement shall be true and correct in all material respects both
on the date of this Agreement and as of the Closing Date with the
same force and effect as if such representations and warranties
were made anew at and as of the Closing Date.
(ii)
Purchaser shall have performed and complied in all material
respects with all agreements, obligations and conditions set forth
in this Agreement that are to be performed by or complied with by
Purchaser at or before the Closing.
(iii)
Purchaser shall have
furnished to Seller a certificate dated the Closing Date, signed by
Purchaser, to the effect that the conditions set forth in clauses
(i) and (ii) of this Section 5(b) have been
satisfied.
