FIRST AMENDMENT TO TENDER AND VOTING AGREEMENT
Exhibit 2.3
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 | |||||
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| /s/ Alon Goren | ||||||
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[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 | |||||
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| /s/ John H. Heyman | ||||||
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[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 | |||||
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| /s/ Andrew S. Heyman | ||||||
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[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 | |||||
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| /s/ Mark E. Haidet | ||||||
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[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 | |||||
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| /s/ Carlyle Taylor | ||||||
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[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 | |||||
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| /s/ James S. Balloun | ||||||
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[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. | |||||
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| /s/ William A. Clement, Jr. | ||||||
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[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. | |||||
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| /s/ J. Alexander M. Douglas, Jr. | ||||||
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[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. | |||||
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| /s/ Philip J. Hickey, Jr. | ||||||
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[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 | |||||
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| /s/ Donna A. Lee | ||||||
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[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 | |||||
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| /s/ Nick Shreiber | ||||||
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[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. |
