EXHIBIT 99.2
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
instructions with respect to the matters set forth in Section 1 and Section 2
hereof, sole power of disposition 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 securities laws).
3.5 No Other Rights. Except for this Agreement, there are no outstanding
options, warrants or other rights to purchase or acquire any of the Shares.
4. Effectiveness; Termination; No Survival. This Agreement shall become
effective upon its execution by Stockholder, Parent and Merger Sub and upon the
execution of the Merger Agreement. This Agreement may be terminated at any time
by mutual written consent of Stockholder, Parent and Merger Sub. This Agreement,
and the obligations of Stockholder hereunder, including, without limitation,
Stockholder's obligations under Section 1 and Section 2 above, shall terminate,
without any action by the parties hereto, upon the earliest to occur of the
following: (i) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Merger Agreement; (ii) such date
and time as Merger Sub accepts for payment all of the Shares held by
Stockholder; (iii) such date and time as the Merger Agreement has been amended
by the parties thereto to lower or change the form of consideration set forth in
the Offer Price; and (iv) such date and time as the Merger Agreement shall have
been validly terminated pursuant to Article 8 thereof.
5. Further Assurances. Subject to the terms of this Agreement, from time to
time, Stockholder shall execute and deliver such additional documents and use
commercially reasonable efforts to take, or cause to be taken, all such further
actions, and to do or cause to be done, all things reasonably necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement.
6. Miscellaneous.
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6.1 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
6.2 Binding Effect and Assignment. This Agreement and all of the
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 the parties hereto may be assigned by either
of the parties without the prior written consent of the other. Any purported
assignment in violation of this Section 6.2 shall be void.
6.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
6.4 Specific Performance; Injunctive Relief; Attorneys Fees. The parties
hereto acknowledge that Parent and Merger Sub will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any of the
covenants or agreements of Stockholder set forth herein. Therefore, it is agreed
that, in addition to any other remedies that may be available to Parent or
Merger Sub upon any such violation, Parent and Merger Sub shall have the right
to enforce such covenants and agreements by specific performance, injunctive
relief or by any other means available to Parent or Merger Sub at law or in
equity and Stockholder hereby irrevocably and unconditionally waives any
objection to Parent and Merger Sub seeking so to enforce such covenants and
agreements by specific performance, injunctive relief and other means. If any
action, suit or other proceeding (whether at law, in equity or otherwise) is
instituted concerning or arising out of this Agreement or any transaction
contemplated hereunder, the prevailing party shall recover, in addition to any
other remedy granted to such party therein, all such party's costs and attorneys
fees incurred in connection with the prosecution or defense of such action, suit
or other proceeding.
6.5 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon delivery either personally or by
commercial delivery service, or sent via facsimile (receipt confirmed) to the
parties at the following addresses or facsimile numbers (or at such other
address or facsimile numbers for a party as shall be specified by like notice):
if to Parent or Merger Sub, to:
Progress Software Corporation
00 Xxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Chief Executive Officer
with copies to:
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Progress Software Corporation
00 Xxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Senior Vice President
and General Counsel
and
Xxxxx Xxxx LLP
Seaport World Trade Center West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq. and
Xxxxxxx X. Xxxx, Esq.
if to Stockholder, at its address set forth on the signature pages
hereto,
with a copy (which shall not constitute notice) to each of:
NEON Systems, Inc.
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Chief Executive Officer
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
6.6 Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law thereof. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the United
States of America located in Boston, Massachusetts for any actions, suits or
proceedings arising out of or relating to this Agreement (and the parties agree
not to commence any action, suit or proceeding relating thereto except in such
courts), and further agree that service of any process, summons, notice or
document by U.S. certified mail shall be effective service of process for any
action, suit or proceeding brought against the parties in any such court. The
parties hereby irrevocably and unconditionally waive any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement, in the
courts of the United States of America located in Boston, Massachusetts, and
hereby further irrevocably and unconditionally
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waive and agree not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
6.7 Entire Agreement. The Merger Agreement, this Agreement and the Proxy
granted hereunder constitute and contain the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersede any and
all prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
6.8 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.9 Captions. The captions to sections of this Agreement have been
inserted only for identification and reference purposes and shall not be used to
construe or interpret this Agreement.
6.10 Stockholder Capacity. Notwithstanding anything herein to the
contrary, Stockholder makes no agreement or understanding herein in his capacity
as a director or officer of the Company or any subsidiary of the Company, and
the agreements set forth herein shall in no way restrict Stockholder in the
exercise of his fiduciary duties as a director or officer of the Company or any
subsidiary of the Company or limit or affect any actions taken by Stockholder in
his capacity as an officer or director of the Company or any subsidiary of the
Company. Stockholder has executed this Agreement solely in his capacity as the
record and/or beneficial holder of Shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Voting and Tender
Agreement to be executed as of the date first above written.
PROGRESS SOFTWARE CORPORATION
By: ------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
NOBLE ACQUISITION CORP.
By: ------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
STOCKHOLDER:
(Stockholder Name)
Stockholder's Address for Notice:
----------------------------------------
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Attention:
Outstanding Shares of Company Common
Stock Beneficially Owned by Stockholder:
----------------------------------------
Options, Warrants or Rights to purchase
Company Common Stock Beneficially Owned
by Stockholder:
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EXHIBIT I
IRREVOCABLE PROXY
The undersigned stockholder ("STOCKHOLDER") of NEON Systems, Inc., a
Delaware corporation (the "COMPANY"), hereby irrevocably appoints and
constitutes the members of the Board of Directors of Progress Software
Corporation ("PARENT") and each such Board member (collectively, the
"PROXYHOLDERS"), the agents, attorneys-in-fact and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of the Company
which are listed below (the "SHARES"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof and
prior to the date this proxy terminates, to vote the Shares as follows: the
Proxyholders named above are empowered at any time prior to termination of this
proxy to exercise all voting and other rights (including, without limitation,
the power to execute and deliver written consents with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of the Company's
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, (i) in favor of the approval and adoption of the Agreement and Plan
of Merger (the "MERGER AGREEMENT") by and among Parent, Noble Acquisition Corp.,
a Delaware corporation and wholly owned subsidiary of Parent ("MERGER SUB"), and
the Company and the approval of the merger of Merger Sub with and into the
Company (the "MERGER"); and (ii) against approval of any Acquisition Proposal or
Superior Offer (each as defined in the Merger Agreement).
The Proxyholders may not exercise this proxy on any other matter.
Stockholder may vote the Shares on all matters other than those set forth in the
immediately preceding paragraph. The proxy granted by Stockholder to the
Proxyholders hereby is granted as of the date of this Irrevocable Proxy in order
to secure the obligations of Stockholder set forth in Section 1.3 of the Voting
Agreement, and is irrevocable and coupled with an interest in accordance with
Section 212 of the Delaware General Corporation Law.
This proxy will terminate upon the termination of the Voting Agreement in
accordance with its terms. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Stockholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
*****
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned. Dated:
__________________________________
Signature
Name (and Title)
Shares of Company Common Stock beneficially owned: __________
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