EXHIBIT 10.23
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "AGREEMENT") is made and entered into as
of June 1, 1998 by and between Neon Systems, Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxx, Xx. ("Xxxx"). Xxxx is also referred to herein as
the "COVERED STOCKHOLDER."
RECITALS
As of the date hereof, Xxxx is an employee of both the Company and PBTC (as
defined herein) . Pursuant to the terms of that certain Stock Purchase Agreement
dated the date hereof between the Company and Xxxx (the "STOCK PURCHASE
AGREEMENT"), the Company is issuing and selling 47,780 shares of its Common
Stock, par value $.01 per share, to Xxxx. It is a condition to the obligations
of the Company under the Stock Purchase Agreement that this Agreement be entered
into by the Company and Xxxx, and the Company and Xxxx desire to enter into this
Agreement and to be bound by the terms hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINED TERMS . As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "AFFILIATE" shall mean any person or entity that directly
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with another person or entity. The term "control" shall
mean the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and shall in any event
include the ownership or power to vote fifty percent (50%) or more of the
outstanding equity interests of such other person.
(b) "CAUSE" shall have the meaning provided therefor in Section 4(d).
(c) "COMMON STOCK" shall mean the Company's Common Stock, par value
$.01 per share.
(d) "COVERED SECURITIES" shall mean any of the following at any time
owned or held by the Covered Stockholder: the Purchased Shares and any other
securities of the Company (including, without limitation, any warrants, options
and other rights to purchase any Common Stock or other capital stock of the
Company) which may be issued in exchange for or in respect of the Purchased
Shares or any other securities the issuance of which derived directly or
indirectly from the Purchased Shares or any securities issued in exchange for or
in respect of the Purchased Shares (whether by way of stock split, stock
dividend, combination, reclassification, reorganization or any other means).
(e) "INVOLUNTARY TRANSFER NOTICE" shall have the meaning set forth in
Section 2(c).
(f) "INVOLUNTARY TRANSFEREE" shall have the meaning set forth in
Section 3(e).
(g) "OFFER" shall have the meaning set forth in Section 3(b).
(h) "OFFERED SECURITIES" shall have the meaning set forth in Section
3(b).
(i) "PBTC" shall mean Peregrine/Bridge Transfer Corporation, a
Delaware corporation.
(j) "PERMISSIBLE TRANSFEREE" shall have the meaning set forth in
Section 2(a).
(k) "PROPOSED TRANSFEREE" shall have the meaning set forth in Section
3(b).
(l) "PURCHASED SHARES" shall means the 47,780 shares of the Company's
Common Stock purchased by Xxxx from the Company pursuant to the Stock Purchase
Agreement.
(m) "REPURCHASE EVENT" shall have the meaning set forth in Section
4(a).
(n) "REPURCHASE PERIOD" shall have the meaning set forth in Section
4(a).
(o) "REPURCHASE PRICE" shall have the meaning set forth in Section
4(c).
(p) "REPURCHASE RIGHT" shall have the treating set forth in Section
4(a.).
(q) "SPECIFIED PURCHASE PRICE" initially shall mean an amount equal
to $1.80 per share for each of the Purchased Shares. in the event of any change
in the Common Stock of the Company through merger, consolidation,
reorganization, recapitalization, stock dividend, stock, split, combination or
exchange of shares or the like, appropriate adjustments shall be made in the
Specified Purchase Price and the shares that may be acquired pursuant to the
payment thereof such that the Company will be entitled to purchase and receive
in accordance with the terms of this Agreement, for the same aggregate purchase
price, the aggregate number and kind of Covered Securities which, if it had
purchased Purchased Shares immediately prior to any such change, it would have
been entitled to receive by virtual of such change. Such adjustment shall be
made successively when any such event or change shall occur. In the event of any
such adjustment, the "Specified Purchase Price" shall be such adjusted purchase
price.
(r) "TRANSFERRED SECURITIES" shall have the meaning set forth in
Section 3(e).
2. LIMITATIONS ON TRANSFER.
(a) The Covered Stockholder agrees that he shall not sell, assign,
transfer, pledge, hypothecate, mortgage, encumber, grant a security interest in
or otherwise dispose of all or any Covered Securities except to the Company or
as expressly provided in this Agreement. Notwithstanding the foregoing, the
Covered Stockholder may transfer all or any Covered
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Securities by will, by the laws of descent and distribution, or in accordance
with the provisions of Sections 3 and 4, if applicable. As used in this
Agreement, the term "PERMISSIBLE TRANSFEREE" shall mean any transferee to whom a
transfer of shares is permitted by the terms of this Section 2. In the event of
any transfer by will. or by laws of descent and distribution, the Covered
Stockholder's personal representative or, in the event the Covered Stockholder
has no personal representative, the Permitted Transferee shall, promptly upon
the consummation of such transfer, provide written notice to the Company of such
transfer, which notice shall specify the date of the transfer, the number and
type of Covered Securities involved and the name and address of the Permitted
Transferee.
(b) If the Covered Stockholder transfers any Covered Securities to a
Permissible Transferee pursuant to this Section 2, such Permissible Transferee
shall take and hold such Covered Securities, and such Covered Securities shall
be, subject to this Agreement and to all of the rights, obligations and
restrictions provided herein and applicable to the Covered Stockholder and
Covered Securities. Without limiting the generality of the foregoing or any
other provision of this Agreement, any sale, transfer or encumbrance of any
Covered Securities held by a Permissible Transferee shall be subject to the
limitations on transfer and the Company's right of first refusal and Repurchase
Right provided for in this Agreement.
(c) In the event of an involuntary transfer (as defined in the
immediately succeeding sentence) of any Covered Securities to any person, the
transferee (which term, as used herein, shall include any and all transferees
and subsequent transferees of the initial transferee) shall take and hold
such Covered Securities subject to this Agreement and to all the obligations
of, and restrictions upon, the initial transferor Covered Stockholder, and
shall observe and comply with this Agreement and with such obligations and
restrictions. As used in this Section 2(c) and elsewhere in this Agreement,
the term "INVOLUNTARY TRANSFER" shall mean any transaction, proceeding or
action by or in which the Stockholder is involuntarily deprived or divested
of any right, title or interest in or to any Covered Securities (including,
without limitation, a seizure under levy of attachment or execution, transfer
to a trustee in bankruptcy or receiver or other officer or agency, or a
transfer to a state or to a public officer or agency pursuant to a statute
pertaining to escheat or abandoned property; provided, however, that the term
"INVOLUNTARY TRANSFER" shall not be deemed to include. any transfer of
Covered Securities to a Permissible Transferee of an individual Covered
Stockholder that occurs upon the death of such individual. In the event of an
involuntary transfer, or the entry of any order compelling an involuntary
transfer, of any Covered Securities to any Person, the transferor Covered
Stockholder (or, if he fails to do so, the transferee) shall forthwith give
notice (the "INVOLUNTARY TRANSFER NOTICE") to the Company stating (A) when
the involuntary transfer occurred or is to occur, (B) the circumstances
alleged to require such transfer, (C) the number and type of Covered
Securities involved, and (D) the name, address and capacity of the
transferee. If both the transferor Covered Stockholder and the transferee
fail to give the Involuntary Transfer Notice, then the Involuntary Transfer
Notice may be given by any then existing Permissible Transferee and the
Involuntary Transfer Notice so given shall contain such of the information
set forth in the immediately preceding sentence as is known to the person so
giving the Involuntary Transfer Notice. Any such involuntary transfer shall
be subject to the rights of the Company set forth in Section 3(e).
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(d) Notwithstanding anything to the contrary in this Agreement, no
transfer of Covered Securities permitted or required by this Agreement shall be
effected except in compliance with federal and state securities laws, including,
without limitation, the Securities Act of 1933, as amended.
3. RIGHT OF FIRST REFUSAL ON DISPOSITIONS.
(a) The provisions of this Section 3 are subject to the rights of the
Company pursuant to Section 4 hereof.
(b) If at any time the Covered Stockholder desires to sell all or any
part of his Covered Securities pursuant to a bona fide offer from a third party
(the "PROPOSED TRANSFEREE"), the Covered Stockholder shall submit a written
offer (the "OFFER") to sell such Covered Securities (the "OFFERED SECURITIES")
to the Company on terms and conditions, including price, not less favorable to
the Company than those on which the Covered Stockholder proposes to sell such
Offered Securities to the Proposed Transferee. The offer shall disclose the
identity of the Proposed Transferee. The Offered Securities proposed to be sold,
the total number of each class and series of Covered Securities owned by the
Covered Stockholder, the terms and conditions, including price, of the proposed
sale, and any other material facts relating to the proposed sale. The Offer
shall further state that the Company may acquire, in accordance with the
provisions of this Agreement, all of the Offered Securities for the price and
upon the other terms and conditions, including deferred payment (if applicable),
set forth therein. The Company shall have the absolute right to acquire all of
the Offered Securities.
(c) If the Company desires to purchase all of the Offered Securities
pursuant to the Offer, it shall communicate in writing its election to do so to
the transferring Covered Stockholder, which communication shall be given to the
transferring Covered Stockholder in accordance with Section 10 below within
fifteen (15) days after the date the offer was received by the Company. Such
communication shall, when taken in conjunction with the Offer, be deemed to
constitute a valid, legally binding and enforceable agreement for the sale and
purchase of such Offered Securities. If the Company does not accept the offer
within such time period, it shall be deemed to have rejected the Offer. Sales of
the Offered Securities to be sold to the Company pursuant to this Section 3
shall be made at the offices of the Company on the 45th day following the date
the Offer was accepted (or if such 45th day is not a business day, then on the
next succeeding business day) or at such other time and place as the
transferring Covered Stockholder and the Company may agree. Such sales shall he
effected by the transferring Covered Stockholder's delivery to the Company of a
certificate or certificates evidencing the Offered Securities to be purchased
(or, in the case of any uncertificated. securities, such instruments of transfer
as shall be acceptable to the Company), duly endorsed for transfer to the
Company against payment to the transferring Covered Stockholder of the purchase
price therefor by the Company.
(d) If the Company does not purchases all of the Offered Securities,
the Offered Securities may be sold by the transferring Covered Stockholder at
any time within one hundred days after the date the Offer was first made to the
Company pursuant to subsection (b) above; provided, however, that any such sale
shall be to the Proposed Transferee, at not less than the price and upon other
terms and conditions, if any, not more favorable to the Proposed
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Transferee than those specified in the Offer; and provided further, that prior
to the sale of the Offered Securities to the Proposed Transferee, the Proposed
Transferee shall execute an agreement with the Company pursuant to which the
Proposed Transferee agrees that, from and after the date of its acquisition of
the Offered Securities, it and the Offered Securities will be subject to this
Agreement and the obligations and restrictions set forth herein applicable to
the Covered Stockholder and the Covered securities. Any Offered Securities not
sold within such 100-day period shall continue to be subject to the requirements
of a prior offer pursuant, to this Section 3.
(e) If an involuntary transfer of any Covered Securities shall occur,
the Company shall have the same right of first refusal with respect to the
Covered Securities subject to such involuntary transfer (the "TRANSFERRED
SECURITIES") as if the involuntary transfer had been a proposed voluntary
transfer by the transferor Covered Stockholder governed by the foregoing
paragraphs of this Section 3, except that: (i) price to be paid for such
Transferred Securities shall be the fair market value thereof, as determined by
an independent valuation expert or investment barking firm; (ii) the periods
within which such right must be exercised shall run from the date the
Involuntary Transfer Notice is received; and (iii) such rights shall be
exercised by notice to the transferee of such Transferred Securities (the
"INVOLUNTARY TRANSFEREE") rather than to the transferor Covered Stockholder. The
closing of any purchase of Transferred Securities pursuant to this Section 3(e)
shall be in accordance with the procedures set forth in Section 3(c), except
that the date of such closing shall be the earlier of (i) the 90th day after the
date of the Involuntary Transfer Notice and (ii) any earlier date specified by
the Company. If the provisions of this Section 3(e) shall be held to be
unenforceable with respect to any particular involuntary transfer of Covered
Securities, the Company shall have a right of first refusal if the Involuntary
Transferee subsequently obtains a BONA FIDE offer for and desires to transfer
such Covered Securities, in which. event the Involuntary Transferee shall be
bound by the foregoing paragraphs of this Section 3.
4. RIGHT OF REPURCHASE.
(a) The Company shall have the right (the "REPURCHASE RIGHT") to
repurchase from the Covered Stockholder, all, but not less than all, of the
Covered Securities then owned by the Covered stockholder, upon the occurrence or
any of the events specified in Section 4(b) Below (a "REPURCHASE EVENT"). The
Repurchase Right may be exercised by the Company within 60 days following the
date that Company receives actual knowledge of such event (the "REPURCHASE
PERIOD"). The Repurchase Right shall be exercised by the Company by giving the
Covered Stockholder written notice on or before the last day of the Repurchase
Period of its intention to exercise the Repurchase Right, and together with such
notice, tendering to the Covered Stockholder an amount equal to the applicable
Repurchase Price, as determined pursuant to Section 4(c). The Company may assign
the Repurchase Right to one or more persons. Upon timely exercise of the
Repurchase Right in the manner provided in this Section 4(a), the holder shall
deliver to the Company the stock certificate or certificates representing the
shares and any other securities being repurchased, duly endorsed and free and
clear of any and all liens, charges and encumbrance. if the Covered Securities
are not purchased under the Repurchase Right, the Covered Stockholder and his or
her successor in interest, if any, will hold the Covered Securities subject to
all of the provisions of this Agreement.
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(b) The Repurchase Right shall be exercisable it any of the following
events shall occur:
(i) The termination at any time of Xxxx'x employment with PBTC
and the Company, voluntarily or involuntarily, for any reason
whatsoever other than for Cause;
(ii) The termination at any time of Xxxx'x employment with PBTC
or the Company for Cause;
(iii) The receivership, bankruptcy or other creditor's
proceeding regarding the Covered Stockholder or the taking of any of
the Covered Securities by legal process, such as a levy of execution;
(iv) Distribution of shares held by the covered Stockholder to
his or her spouse as such spouse's joint or community interest
pursuant to a decree of dissolution, operation of law, divorce,
property settlement agreement or for any other reason, except as may
be otherwise permitted by the Company; or
(v) Within one year of the termination of Xxxx'x employment
with PBTC or the Company for any reason whatsoever (including without
limitation any resignation or termination without Cause) , the
engagement by Xxxx, directly or indirectly, alone or with others, in
(A) any business activity which is in competition with the Company,
PBTC or any of their respective Affiliates or (B) the solicitation of,
interference with or endeavor to entice away any employee of the
Company, PBTC or any of their respective Affiliates.
(c) The repurchase price (the "Repurchase Price") payable pursuant to
an exercise of the Repurchase Right shall be determined as follows:
(i) Subject to Section 4(c)(ii) and below, the Repurchase
Price shall be as follows:
(A) with respect to any exercise of the Repurchase Right
on or after June 2, 1998 through May 31, 1999, the Repurchase
Price shall be the Purchase Price for the Covered Securities
being repurchased;
(B) with respect to any exercise of the Repurchase Right
on or after June 1, 1999 through May 31, 2000, the Repurchase
Price shall be an amount equal to the sum of (1) the fair market
value of twenty-five percent (25%) of the Covered Securities
being repurchased and (2) the Specified Purchase Price for
seventy-five percent (75%) of the Covered Securities being
repurchased;
(C) with respect to any exercise of the Repurchase Right
on or after June 1, 2000 through May 31, 2001, the Repurchase
Price shall be an amount equal to the sum of (1) the fair market
value of fifty percent (50%) of the covered Securities being
repurchased and (2) the Specified
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Purchase Price for fifty percent (50%) of the Covered Securities
being repurchased;
(D) with respect to any exercise of the Repurchase Right
on or after June 1, 2001 through May 31, 2002, the Repurchase
Price shall be an amount equal to the sum of (1) the fair market
value of seventy-five percent (75%) of the Covered securities
being repurchased and (2) the Specified Purchase Price for
twenty-five percent (25%) of the Covered Securities being
repurchased; and
(E) with respect to any exercise of the Repurchase Right
on or after June 1, 2002, the Repurchase Price shall be an amount
equal to the fair market value of the Covered Securities being
repurchased.
For purposes of this Section 4(c)(i), in connection with any
repurchase of a specified percentage of the Covered Securities, the
Covered Securities to be repurchased shall be comprised of the
specified percentage of the Purchased Shares and any and all of the
Covered Securities derived directly or indirectly therefrom or from
any Securities issued in exchange for or in respect of the Purchased
Shares (whether by way of stock split, stock dividend, combination,
reclassification, reorganization or otherwise).
(ii) Subject to Section 4(c)(iii) below and notwithstanding the
provisions of paragraphs (A) through (E) of section 4(c)(i), the
Repurchase Price payable pursuant to any exercise of the Repurchase
Right following a Change of Control shall be an amount equal to the
fair market value of all of the Covered Securities being repurchased.
(iii) The Repurchase Price payable pursuant to any exercise of
the Repurchase Right (A) upon or following any termination at any time
of Xxxx'x employment with PBTC or the Company for Cause or (B) in
respect of an event described in Section 4(b)(iv) or 4(b)(v) above
shall be an amount equal to the Specified Purchase Price for all of
the Covered Securities being repurchased.
(d) As used in this Agreement, the term "CAUSE" shall mean conduct
involving one or more of the following: (i) the substantial and continuing
failure of the Covered Stockholder, after notice thereof, to render services to
PBTC, the Company or any or their respective Affiliates in accordance with the
terms or requirements of the Covered Stockholder's employment with or engagement
by PBTC, the Company or any such Affiliate, as the case may be; (ii) disloyalty,
gross negligence, willful misconduct, dishonesty or breach of fiduciary duty to
PBTC, the Company or any of their respective Affiliates; (iii) the commission of
an act of embezzlement or fraud; (iv) deliberate disregard of the rules or
policies of PBTC, the Company or any of their respective Affiliates which
results in direct or indirect 'Loss, damage or injury to PBTC, me Company or any
such Affiliate; (v) the unauthorized disclosure of any trade secret or
confidential information, of PBTC, the Company or any of their respective
Affiliates; or (vi) the commission of an act which constitutes unfair
competition with PBTC, the Company or any of
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their respective Affiliates or which induces any customer or supplier to break a
contract with PBTC, the Company or any of their respective Affiliates.
(e) For purposes of any repurchase of Covered Securities pursuant
to this Section 4, the fair market value of the Covered Securities as of any
determination date shall be, in the case of any Covered Securities that are
publicly traded on the determination date, (i) the average, on the last
business day for which the prices or quotes discussed in this sentence are
available prior to the determination. date, of the high and low prices of the
covered securities on the principal national securities exchange on which
such Covered Securities are traded, if the Covered Securities are then traded
on a national securities exchange; (ii) the last reported sale price, on the
last business day prior to the determination date, of this Covered Securities
on the NASDAQ National Market List, if the Common Stock is not then traded on
a national securities exchange; or (iii) the closing bid price (or average of
bid prices), last quoted on the last business day prior to the determination
date, by an established quotation service for over-the-counter securities, if
the Covered Securities are not reported on the NASDAQ National Market List.
If the Covered Securities are not publicity traded on any determination date,
the fear market valid thereof shall be seemed to be the fair market value
thereof as determined by the Board of Directors of the Company, after taking
into consideration all factors which it deems appropriate, including, without
limitation, any recent sale and offer prices of the Covered Securities in
private transactions negotiated at arm's length. The determination by the
Board of Directors of the fair market value shall be conclusive and binding.
(f) The Repurchase Right of the Company shall include, without
limitation, the right, in accordance with this Xxxxxxx 0, xxxxxxxxxx Covered
Securities from any and all Permissible Transferees and involuntary Transferees
in the event of the occurrence of an event described in Section 4(b),
notwithstanding that such event may involve termination of Xxxx'x employment
with PBTC and/or the Company and may not otherwise involve or affect any such
Permissible Transferee or involuntary Transferee.
5. TERM. This Agreement shall terminate upon the earlier of (a) the
tenth anniversary of the date of this Agreement or (b) the date of the
consummation of the first firm commitment underwritten, public offering
pursuant to an effective registration statement on Form S-1 (or its then
equivalent) under the Securities Act of 1933, as amended, or any Successor
statute, pursuant to which the net proceeds to the Company amount to at least
$10,000,000; provided, however, that if such a public offering occurs prior
to December 1, 1999, than this Agreement shall terminate on December 1, 1999.
6. FAILURE TO DELIVER COVERED SECURITIES. If the Covered Stockholder
becomes obligated to sell any Covered Securities to the company under this
Agreement and fails to deliver such Covered Securities in accordance with the
terms of this Agreement, the company may, at its option, in addition to all
other remedies it may have, send to the Covered Stockholder the purchase price
for such Covered Securities as is herein specified. Thereupon, the Company, upon
written notice to the Covered Stockholder, (a) shall cancel on its books any
certificate, certificates or other instruments representing the Covered
Securities to be sold and (b) shall issue, in lieu thereof, in the name of the
Company a new certificate, certificates or other instruments representing such
Covered securities, and thereupon all of the Covered Stockholder's rights in and
to such Covered Securities shall terminate.
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7. SPECIFIC ENFORCEMENT. The Covered Stockholder expressly agrees that
the Company will be irreparably damaged if this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants and/or
conditions of this Agreement by the Covered Stockholder, the Company shall, in
addition to all other remedies, be entitled to a temporary or permanent
injunction, without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions hereof.
8. LEGEND. Each certificate or instrument evidencing any of tire Covered
Securities shall bear a legend substantially as follows (with appropriate
changes if the Covered securities are other than shares of capital stock):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND MAY NOT BE SOLD, EXCHANGED, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH AND SUBJECT TO ALL THE
TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDERS AGREEMENT BY AND BETWEEN
THE COMPANY AND THE HOLDER OF THIS CERTIFICATE, A COPY OF WHICH THE
COMPANY WILL FURNISH TO THE HOLDER OF THIS CERTIFICATE UPON REQUEST AND
WITHOUT CHARGE.
9. LOCK-UP AGREEMENT. The Covered Stockholder agrees that in connection
with an underwritten public offering of Common Stock, upon the request of, the
Company or the principal underwriter managing such public offering, the Covered
Securities may not be sold, offered for sale or otherwise disposed of without
the prior written consent of the Company or such underwriter, as the case may
be, for at least 90 days or such other period of time as the Board of Directors
may determine.
10. NOTICES. Notices given hereunder shall be deemed to have been duly
given on the date of personal delivery, on the date of postmark if mailed by
certified or registered mail, return receipt requested, or on the date sent by
telecopier or, telex to the party being, notified at his or its address
specified on the applicable signature page hereto or such other address as the
addressee may subsequently notify the other party or parties of in writing.
11. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and neither
this Agreement nor any provision hereof may he waived, modified or amended
except by a written agreement signed by the parties hereto. to the extent that
any term or other provision of any other indenture, agreement or instrument by
which any party hereto is bound conflicts with this Agreement, this Agreement
shall have precedence over such conflicting term or provision.
12. GOVERNING LAW; SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE AS TO MATTERS WITHIN THE SCOPE THEREOF
AND AS TO ALL OTHER MATTERS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS. WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
THE CONFLICTS OF LAWS THEREOF. THIS AGREEMENT SHALL BE BINDING UPON THE
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HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND
ASSIGNS OF THE PARTIES.
13. WAIVERS. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
14. SEVERABILITY. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or tender illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
Invalid or unenforceable provision were not contained herein.
15. CAPTIONS. Captions are for convenience only and are not deemed to be
part of this Agreement.
16. NO OBLIGATION TO CREATE OR CONTINUE EMPLOYMENT RELATIONSHIP. This
Agreement shall not impose any obligation on the Company or PBTC to create or
continue to maintain an employment or consulting relationship with the Covered
Stockholder.
17. COUNTERPARTS. 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.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
NEON SYSTEMS, INC.
By:/s/ F. Xxxxxx Xxxxxx
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Name: F. Xxxxxx Xxxxxx
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Title: President
Address: 00000 Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxx Xxxx, Xxxxx 00000
Fax: 281/000-0000
/s/ Xxxxx X. Xxxx, Xx.
Address: 000 Xxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
000-000-0000
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