SPECIFIED BY LIKE NOTICE):
if to Parent or Merger Sub, to:
Progress Software Corporation
14 Oak Park
Bedford, MA
01730
Facsimile:
(781) 280-4304
Attention:
Joseph W. Alsop, Chief Executive Officer
with copies to:
5
Progress Software Corporation
14 Oak Park
Bedford, MA
01730
Facsimile:
(781) 280-4035
Attention:
James D. Freedman, Senior Vice President
and General Counsel
and
Foley Hoag LLP
Seaport World Trade Center West
155 Seaport Boulevard
Boston, Massachusetts
02210
Facsimile:
(617) 832-7000
Attention:
Robert L. Birnbaum, Esq. and
William R. Kolb, 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.
14100 Southwest Freeway, Suite 500
Sugar Land, TX
77478
Facsimile:
(281) 242-3880
Attention:
Mark J. Cresswell, Chief Executive Officer
and
Wilson Sonsini Goodrich &
Rosati, Professional Corporation
8911 Capital of Texas Highway North
Austin, TX
78759
Facsimile:
(512) 338-5499
Attention:
Paul Tobias, 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
6
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