FIRST AMENDMENT TO TENDER AND VOTING AGREEMENT

EX-10.2 2 dex102.htm FIRST AGREEMENT TO TENDER AND VOTING AGREEMENT, DATED AS OF JULY 21, 2011 First Agreement to Tender and Voting Agreement, dated as of July 21, 2011

Exhibit 10.2

FIRST AMENDMENT TO

TENDER AND VOTING AGREEMENT

THIS FIRST AMENDMENT TO TENDER AND VOTING AGREEMENT (this “Amendment”), effective as of July 21, 2011, is made by and among NCR Corporation, a Maryland corporation (“Buyer”), Ranger Acquisition Corporation, a Georgia corporation and a wholly-owned subsidiary of Buyer (“Merger Sub”) and the Company Shareholders.

W I T N E S S E T H:

WHEREAS, the parties hereto have executed that certain Tender and Voting Agreement, dated as of July 11, 2011 (the “Voting Agreement”); and

WHEREAS, the parties desire to execute this Amendment to amend the Voting Agreement by replacing Schedule I attached thereto with Schedule I attached hereto, pursuant to and in accordance with the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereby agree as set forth herein:

 

  1. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Voting Agreement.

 

  2. The Voting Agreement is hereby amended by deleting Schedule I attached to the Voting Agreement in its entirety and inserting in lieu thereof Schedule I attached hereto and incorporated herein by reference.

 

  3. Except as amended hereby, the Voting Agreement shall continue to be in full force and effect, and the execution and delivery of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of either party thereto. Neither this Amendment nor any term hereof may be amended other than by an instrument in writing signed by Buyer, Merger Sub and the Company Shareholders.

 

  4. This Amendment may be executed in multiple counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment.

 

  5. This Amendment, including its existence, validity, construction, and operating effect, and the rights of each of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Georgia without giving effect to any conflicts or choice of laws provisions that would cause the application of the domestic substantive laws of any other jurisdiction.

 

  6. The Voting Agreement, as amended by this Amendment, constitutes the entire agreement among the parties with respect to the subject matter thereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of the Voting Agreement, as amended hereby.

[SIGNATURE PAGES FOLLOW]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

NCR CORPORATION
By:  

/s/ William Nuti

Name: William Nuti

Title:  Chairman of the Board, Chief Executive Officer,

           President

RANGER ACQUISITION CORPORATION
By:  

/s/ John G. Bruno

Name:  John G. Bruno
Title:  Chief Executive Officer and President

[Signature Page to First Amendment to Tender and Voting Agreement]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

Alon Goren

   Print Name of Individual
  

/s/ Alon Goren

   Signature of Individual
Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

   Signature of Individual Co-Owner
   as (check one):
  

¨ tenants in common; or

  

¨ JTWROS

Signature by Entity:   

 

   Print Name of Partnership, Company, Trust or Other Entity
  

 

   State of Formation of Entity
   By:   

 

      Signature of Authorized Agent
     

 

      Print Name of Authorized Agent
   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

John H. Heyman

   Print Name of Individual
  

/s/ John H. Heyman

   Signature of Individual
Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

   Signature of Individual Co-Owner
   as (check one):
  

¨ tenants in common; or

  

¨ JTWROS

Signature by Entity:   

 

   Print Name of Partnership, Company, Trust or Other Entity
  

 

   State of Formation of Entity
   By:   

 

      Signature of Authorized Agent
     

 

      Print Name of Authorized Agent
   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

Andrew S. Heyman

   Print Name of Individual
  

/s/ Andrew S. Heyman

Signature of Individual

Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

   Signature of Individual Co-Owner
   as (check one):
  

¨ tenants in common; or

  

¨ JTWROS

Signature by Entity:   

 

   Print Name of Partnership, Company, Trust or Other Entity
  

 

State of Formation of Entity

   By:   

 

      Signature of Authorized Agent
     

 

      Print Name of Authorized Agent
   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

Mark E. Haidet

   Print Name of Individual
  

/s/ Mark E. Haidet

Signature of Individual

Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

Signature of Individual Co-Owner

   as (check one):
  

¨ tenants in common; or

  

¨ JTWROS

Signature by Entity:   

 

   Print Name of Partnership, Company, Trust or Other Entity
  

 

State of Formation of Entity

   By:   

 

      Signature of Authorized Agent
     

 

Print Name of Authorized Agent

   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

Carlyle Taylor

   Print Name of Individual
  

/s/ Carlyle Taylor

Signature of Individual

Signature by Additional Individual as Co-Owner (jointly or in common):   
  

 

Print Name of Individual Co-Owner

  

 

Signature of Individual Co-Owner

   as (check one):
  

¨ tenants in common; or

  

¨ JTWROS

Signature by Entity:   
  

 

Print Name of Partnership, Company, Trust or Other Entity

  

 

State of Formation of Entity

   By:   

 

      Signature of Authorized Agent
     

 

      Print Name of Authorized Agent
   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

James S. Balloun

   Print Name of Individual
   /s/ James S. Balloun
  

 

Signature of Individual

Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

Signature of Individual Co-Owner

   as (check one):
  

¨ tenants in common; or

  

¨ JTWROS

Signature by Entity:   
  

 

Print Name of Partnership, Company, Trust or Other Entity

  

 

State of Formation of Entity

   By:   

 

      Signature of Authorized Agent
     

 

Print Name of Authorized Agent

   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

William A. Clement, Jr.

   Print Name of Individual
  

/s/ William A. Clement, Jr.

Signature of Individual

Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

Signature of Individual Co-Owner

   as (check one):
  

¨ tenants in common; or

  

¨ JTWROS

 

Signature by Entity:   

 

   Print Name of Partnership, Company, Trust or Other Entity
  

 

   State of Formation of Entity
   By:   
     

 

Signature of Authorized Agent

     

 

Print Name of Authorized Agent

   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:  

J. Alexander M. Douglas, Jr.

  Print Name of Individual
 

/s/ J. Alexander M. Douglas, Jr.

Signature of Individual

Signature by Additional Individual as Co-Owner (jointly or in common):  

 

  Print Name of Individual Co-Owner
 

 

Signature of Individual Co-Owner

  as (check one):
 

¨ tenants in common; or

 

¨ JTWROS

Signature by Entity:  

 

  Print Name of Partnership, Company, Trust or Other Entity
 

 

State of Formation of Entity

  By:   

 

     Signature of Authorized Agent
    

 

     Print Name of Authorized Agent
  Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

Philip J. Hickey, Jr.

   Print Name of Individual
  

/s/ Philip J. Hickey, Jr.

   Signature of Individual
Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

Signature of Individual Co-Owner

  

as (check one):

¨ tenants in common; or

¨ JTWROS

Signature by Entity:   

 

   Print Name of Partnership, Company, Trust or Other Entity
  

 

   State of Formation of Entity
   By:   

 

      Signature of Authorized Agent
     

 

      Print Name of Authorized Agent
   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:

   

Donna A. Lee

    Print Name of Individual
   

/s/ Donna A. Lee

Signature of Individual

Signature by Additional Individual as Co-Owner (jointly or in common):    

 

    Print Name of Individual Co-Owner
   

 

Signature of Individual Co-Owner

   

as (check one):

¨ tenants in common; or

¨ JTWROS

Signature by Entity:    

 

    Print Name of Partnership, Company, Trust or Other Entity
   

 

State of Formation of Entity

    By:  

 

      Signature of Authorized Agent
     

 

Print Name of Authorized Agent

    Title:  

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

Signature by Individual:   

Nick Shreiber

   Print Name of Individual
  

/s/ Nick Shreiber

   Signature of Individual
Signature by Additional Individual as Co-Owner (jointly or in common):   

 

   Print Name of Individual Co-Owner
  

 

   Signature of Individual Co-Owner
  

as (check one):

¨ tenants in common; or

¨ JTWROS

Signature by Entity:   

 

   Print Name of Partnership, Company, Trust or Other Entity
  

 

   State of Formation of Entity
   By:   

 

      Signature of Authorized Agent
     

 

      Print Name of Authorized Agent
   Title:   

 

[Signature Page to First Amendment to Tender and Voting Agreement Continued]


Schedule I

Company Shareholders

 

Company Shareholder

   Company Common  Stock1   Subject Options

Alon Goren

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   2,803,767 shares2   148,675 options

John H. Heyman

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   280,204 shares   296,875 options

Andrew S. Heyman

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   142,400 shares   288,401 options

Mark E. Haidet

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   65,654 shares   72,578 options

Carlyle Taylor

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   67,301 shares   62,778 options

James S. Balloun

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   18,889 shares   84,483 options

William A. Clement, Jr.

5726 Registry Oaks Lane SE

Mableton, GA 30126

   13,322 shares   52,083 options

J. Alexander M. Douglas, Jr.

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   18,889 shares   89,483 options


Company Shareholder

   Company Common Stock1    Subject Options

Philip J. Hickey, Jr.

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   0 shares    0 options

Donna A. Lee

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   18,889 shares    51,083 options

Nick Shreiber

c/o Radiant Systems, Inc.

3925 Brookside Parkway

Alpharetta, GA 30022

   0 shares    0 options

 

1 

Company Common Stock does not include Subject Options, and is deemed to be amended after the date hereof, without any further action by any of the parties, to include any additional shares of Company Common Stock or other shares of capital stock of the Company owned, beneficially or of record, by such Company Shareholder during the term of this Agreement.

2

Alon Goren 150,000 shares are subject to pledge in connection with ownership of property.