EXHIBIT 10.1
EXHIBIT A
VOTING AND TENDER
AGREEMENT
This VOTING AND TENDER AGREEMENT (this “
Agreement ”), is made and entered into as of
December 19, 2005, by and among Progress Software Corporation, a
Massachusetts corporation (“ Parent ”),
Noble Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent (“ Merger Sub ”),
and the undersigned stockholder (“ Stockholder
”) of NEON Systems, Inc., a Delaware corporation (the “
Company ”).
RECITALS
A.
Concurrently with the execution of this Agreement, Parent, Merger
Sub and the Company are entering into an Agreement and Plan of
Merger (the “ Merger Agreement ”)
pursuant to which Merger Sub has agreed to make a tender offer (the
“ Offer ”) for all outstanding shares of
common stock, par value $0.01 per share, of the Company (“
Company Common Stock ”) at a price per share of
$6.20, net to the seller in cash and subject to adjustment as set
forth in the Merger Agreement (the “ Offer
Price ”), such tender offer to be followed by the
merger of Merger Sub with and into the Company (the “
Merger ”). Capitalized terms used but not
defined herein shall have the meanings given to them in the Merger
Agreement.
B.
Stockholder is the record holder of such number of outstanding
shares of Company Common Stock as is indicated on the signature
pages to this Agreement.
C.
As a material inducement to enter into the Merger Agreement, Parent
and Merger Sub desire Stockholder to agree, and Stockholder is
willing to agree, to vote and tender the Shares (as defined in
Section 1.1 below), and such other shares of capital stock of the
Company over which Stockholder has voting power, so as to
facilitate consummation of the Offer and the Merger.
In consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement,
the parties agree as follows:
1.
Tender and
Voting of Shares .
1.1
Shares . The term “
Shares ” shall mean all
issued and outstanding shares of Company Common Stock owned of
record and beneficially owned by Stockholder or over which
Stockholder exercises sole voting power, in each case, as of the
date of this Agreement. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with
respect to which Stockholder otherwise acquires beneficial
ownership or over which Stockholder exercises sole voting power
after the date of this Agreement and prior to the termination of
this Agreement pursuant to Section 4 below shall be subject to the
terms and conditions of this Agreement to the same extent as if
they constituted Shares as of the date hereof.
1.2
Agreement to Tender Shares . Stockholder hereby
covenants and agrees to tender and, subject to the satisfaction of
the Minimum Condition, to sell to Merger Sub, not later than one
(1) business day prior to the initial expiration date of the Offer,
without regard to any
extension thereof (the
“ Initial Expiration
Date ”), all the Shares,
pursuant to and in accordance with the Offer and this
Agreement. Stockholder agrees that Stockholder shall deliver
or cause to be delivered to the depositary for the Offer, not later
than one (1) business day before the Initial Expiration Date of the
Offer, either a letter of transmittal together with the
certificates for the Shares, if available, or a “Notice of
Guaranteed Delivery”, if the certificates for the Shares are
not available. After such tender Stockholder shall not
withdraw any such Shares, until this Agreement is terminated in
accordance with its terms. Stockholder further agrees not to
enter into any agreement or understanding with any person the
effect of which would be inconsistent with or violative or any
provision contained in this Section 1.2.
1.3
Agreement to Vote Shares . Stockholder hereby
covenants and agrees that during the period commencing on the date
hereof and continuing until this Agreement terminates pursuant to
Section 4 hereof, at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of the
stockholders of the Company, however called, and in any action by
written consent of the stockholders of the Company, Stockholder
shall appear at the meeting or otherwise cause any and all Shares
to be counted as present thereat for purposes of establishing a
quorum and vote (or cause to be voted) any and all Shares:
(i) in favor of the approval and adoption of the Merger Agreement
and the approval of the Merger; and (ii) against any Acquisition
Proposal or Superior Offer. Stockholder further agrees not to
enter into any agreement or understanding with any person the
effect of which would be inconsistent with or violative of any
provision contained in this Section 1.3.
1.4
Irrevocable Proxy . Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Parent a proxy in
the form attached hereto as Exhibit I (the
“Proxy”
), which shall be
irrevocable, with respect to the Shares, subject to the other terms
of this Agreement.
1.5
Adjustments Upon Changes in Capitalization . In the
event of any change in the number of issued and outstanding shares
of Company Common Stock by reason of any stock split, reverse
split, stock dividend (including any dividend or distribution of
securities convertible into Company Common Stock), combination,
reorganization, recapitalization or other like change, conversion
or exchange of shares, or any other change in the corporate or
capital structure of the Company, the term “
Shares ” shall be deemed to
refer to and include the Shares as well as all such stock dividends
and distributions and any shares into which or for which any or all
of the Shares may be changed or exchanged.
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2.
Transfer and Other Restrictions . Stockholder
represents, covenants and agrees that, except for the proxy granted
in Section 1.4 hereof and as contemplated by this Agreement:
(i) Stockholder shall not, directly or indirectly, during the
period commencing on the date hereof and continuing until this
Agreement terminates pursuant to Section 4 hereof, offer for sale
or agree to sell, transfer, tender, assign, pledge, hypothecate or
otherwise dispose of or enter into any contract, option or other
arrangement or understanding with respect to, or consent to, the
offer for sale, sale, transfer, tender, pledge, hypothecation,
encumbrance, assignment or other disposition of, or create any
Encumbrance of any nature whatsoever with respect to any or all of
the Shares or any interest thereon; (ii) Stockholder shall not
grant any proxy, irrevocable proxy or power of attorney or deposit
any Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the voting of Shares (each a
“ Voting
Proxy ”) to any person
except as provided by this Agreement; and (iii) Stockholder has
granted no Voting Proxy which is currently (or which will hereafter
become) effective with respect to the Shares, and if any Voting
Proxy has been granted to any person, such Voting Proxy is hereby
revoked. Notwithstanding the foregoing, Stockholder may
transfer any Shares as a bona fide gift or gifts, provided
that it shall be a condition to such transfer that each donee
thereof executes and delivers to Parent (A) an agreement with
Parent and Merger Sub in the form of this Agreement and (B) an
irrevocable proxy in the form attached hereto as Exhibit I ,
in each case with respect to any and all Shares so
transferred.
3.
Representations and Warranties of Stockholder .
Stockholder represents and warrants to Parent and Merger Sub
that:
3.1
Authority; Validity . Stockholder has all requisite
capacity, power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby, including, without
limitation, to sell, assign, transfer and deliver to Parent and/or
Merger Sub, pursuant to the terms and subject to the conditions of
this Agreement and the Merger Agreement, the Shares. The execution
and delivery of this Agreement by Stockholder and the consummation
by Stockholder of the transactions contemplated hereby have been
duly and validly authorized by all necessary action on the part of
Stockholder. This Agreement has been duly executed and
delivered by Stockholder. If this Agreement is being executed
in a representative or fiduciary capacity with respect to
Stockholder, the person signing this Agreement has full power and
authority to enter into and perform such Agreement.
3.2
Non-Contravention . The execution, delivery and
performance of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the provisions
hereof will not, contravene, conflict with, or result in any
violation of, breach of or default by (with or without notice or
lapse of time, or both) Stockholder under, or give rise to a right
of termination, cancellation or acceleration of any obligation
under, or result in the creation of any Encumbrance upon any of the
properties or assets of Stockholder under, any provision of (i) any
loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise or
license applicable to Stockholder or (ii) any judgment, order,
decree, statute, law, ordinance, injunction, rule or regulation
applicable to Stockholder or any of Stockholder’s properties
or assets, other than, in the case of clauses (i) and (ii), any
such conflicts, violations, defaults, rights, or Encumbrances that,
individually or in the aggregate, would not materially impair the
ability of Stockholder to perform Stockholder’s obligations
hereunder or prevent, limit or restrict the consummation of any of
the transactions
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contemplated hereby.
There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which Stockholder is settlor or
trustee or any other person or Governmental Entity whose consent,
approval, order or authorization is required by or with respect to
Stockholder for the execution, delivery and performance of this
Agreement by Stockholder or the consummation by Stockholder of the
transactions contemplated hereby.
3.3
Title . Stockholder is the record owner of the shares
of Company Common Stock indicated on the signature pages hereto,
which, on and as of the date hereof, are free and clear of any
Encumbrances that would adversely affect the ability of Stockholder
to carry out the terms of this Agreement. The number of
Shares set forth on the signature pages hereto are the only Shares
owned of record or beneficially owned by Stockholder or over which
Stockholder exercises voting power and, except as set forth on such
signature pages, Stockholder holds no options or warrants to
purchase or rights to subscribe for or otherwise acquire any
securities of the Company and has no other interest in or voting
rights with respect to any securities of the Company.
3.4
Power . Stockholder has sole voting power and sole
power to issue
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