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EXHIBIT 99.2
FORM OF STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered
into as of April 5, 2000, between Peregrine Systems, Inc., a Delaware
corporation ("Parent"), and Harbinger Corporation, a Georgia corporation (the
"Company"). Capitalized terms used but not otherwise defined herein will have
the meanings ascribed to them in the Reorganization Agreement (as defined
below).
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have
entered into an Agreement and Plan of Reorganization (the "Reorganization
Agreement") which provides for the merger (the "Merger") of a wholly-owned
subsidiary of Parent ("Merger Sub") with and into the Company. Pursuant to the
Merger, all outstanding capital stock of the Company will be converted into the
right to receive Common Stock of Parent.
B. As a condition to Parent's willingness to enter into the
Reorganization Agreement, Parent has requested that Company agree, and Company
has so agreed, to grant to Parent an option to acquire shares of Company's
Common Stock, $0.01 par value per share (the "Company Shares"), upon the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Reorganization Agreement
and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Parent an
irrevocable option (the "Option") to acquire up to 8,007,468 Company Shares (as
adjusted as set forth herein) (the "Option Shares"), in the manner set forth
below by paying cash at a price of $43.50 per share (the "Exercise Price").
2. Exercise of Option.
(a) The Option may be exercised by Parent, in whole or
in part, at any time or from time to time after (i) termination of the
Reorganization Agreement pursuant to Section 7.1(g) thereof or (ii) the time
immediately prior to the occurrence of an event within the scope of Section
7.3(b)(i)(B)(2) of the Reorganization Agreement that causes the Termination Fee
to become payable pursuant to Section 7.3(b)(i)(B) of the Reorganization
Agreement (any of the events being referred to herein as an "Exercise Event").
In the event Parent wishes to exercise the Option, Parent will
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deliver to the Company a written notice (each an "Exercise Notice") specifying
the total number of Option Shares it wishes to acquire. Each closing of a
purchase of Option Shares (a "Closing") will occur on a date and at a time
prior to the termination of the Option designated by Parent in an Exercise
Notice delivered at least two business days prior to the date of such Closing,
which Closing will be held at the principal offices of the Company.
(b) The Option will terminate upon the earliest of (i)
the Effective Time, (ii) twelve (12) months following the date on which the
Reorganization Agreement is terminated pursuant to Section 7.1(b) or 7.1(d)(i)
thereof, if no event causing the Termination Fee to become payable pursuant to
Section 7.3(b)(i)(B) of the Reorganization Agreement has occurred during such
12-month period, (iii) twelve (12) months following payment of the Termination
Fee in connection with termination of the Reorganization Agreement pursuant to
Section 7.1(g) thereof, (iv) in the event the Reorganization Agreement has been
terminated pursuant to Section 7.1(b) or 7.1(d)(i) thereof and the Termination
Fee became payable pursuant to Section 7.3(b)(i)(B) thereof, 12 months after
payment of the Termination Fee; and (v) the date on which the Reorganization
Agreement is otherwise terminated; provided, however, that if the Option cannot
be exercised by reason of any applicable government order or because the
waiting period related to the issuance of the Option Shares under the HSR Act
will not have expired or been terminated, then the Option will not terminate
until the tenth business day after such impediment to exercise will have been
removed or will have become final and not subject to appeal.
3. Conditions to Closing. The obligation of Company to issue
Option Shares to Parent hereunder is subject to the conditions that (A) any
waiting period under the HSR Act applicable to the issuance of the Option
Shares hereunder will have expired or been terminated; (B) all material
consents, approvals, orders or authorizations of, or registrations,
declarations or filings with, any Federal, state or local administrative agency
or commission or other Federal state or local governmental authority or
instrumentality, if any, required in connection with the issuance of the Option
Shares hereunder will have been obtained or made, as the case may be; and (C)
no preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining such issuance will be in
effect. It is understood and agreed that at any time during which the Option is
exercisable, the parties will use their respective best efforts to satisfy all
conditions to Closing, so that a Closing may take place as promptly as
practicable.
4. Closing. At any Closing, (A) the Company will deliver to
Parent a single certificate in definitive form representing the number of
Company Shares designated by Parent in its Exercise Notice, such certificate to
be registered in the name of Parent and to bear the legend set forth in Section
9 hereof, against delivery of (B) payment by Parent to the Company of the
aggregate purchase price for the Company Shares so designated and being
purchased by delivery of a certified check or bank check.
5. Representations and Warranties of the Company. Company
represents and warrants to Parent that (A) Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia and has the corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder; (B) the execution and delivery of
this Agreement by the Company and consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company and
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no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or any of the transactions contemplated hereby; (C)
this Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company and, assuming
this Agreement constitutes a legal, valid and binding obligation of Parent, is
enforceable against the Company in accordance with its terms; (D) except for
any filings required under the HSR Act, the Company has taken all necessary
corporate and other actions to authorize and reserve for issuance and to permit
it to issue upon exercise of the Option, and at all times from the date hereof
until the termination of the Option will have reserved for issuance, a
sufficient number of unissued Company Shares for Parent to exercise the Option
in full and will take all necessary corporate or other action to authorize and
reserve for issuance all additional Company Shares or other securities which
may be issuable pursuant to Section 9(a) upon exercise of the Option, all of
which, upon their issuance and delivery in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable; (E) upon
delivery of the Company Shares and any other securities to Parent upon exercise
of the Option, Parent will acquire such Company Shares or other securities free
and clear of all material claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever, excluding those imposed by Parent;
(F) the execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not, (i) conflict with or
violate the Certificate of Incorporation or Bylaws or equivalent organizational
documents of the Company or any of its subsidiaries, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to the
Company or any of its subsidiaries or by which its or any of their respective
properties is bound or affected or (iii) result in any breach of or constitute
a default (or an event that with notice or lapse of time or both would become a
default) under, or impair the Company's or any of its subsidiaries' rights or
alter the rights or obligations of any third party under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the properties or assets of the
Company or any of its subsidiaries pursuant to, any material note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or its or any of
their respective properties are bound or affected; and (G) the execution and
delivery of this Agreement by the Company does not, and the performance of this
Agreement by the Company will not, require any consent, approval, authorization
or permit of, or filing with, or notification to, any Governmental Entity
except pursuant to the HSR Act.
6. Certain Rights.
(a) Parent Put. At the request of and upon notice by
Parent (the "Put Notice"), at any time during the period during which the
Option is exercisable pursuant to Section 2 (the "Purchase Period"), the
Company (or any successor entity thereof) will purchase from Parent the Option,
to the extent not previously exercised, at the price set forth in subparagraph
(i) below (as limited by subparagraph (iii) below), and the Option Shares, if
any, acquired by Parent pursuant thereto, at the price set forth in
subparagraph (ii) below (as limited by subparagraph (iii) below):
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(i) The difference between the "Market/Tender
Offer Price" for the Company Shares as of the date Parent gives notice of its
intent to exercise its rights under this Section 6(a) (defined as the higher of
(A) the highest price per share offered as of such date pursuant to any
Acquisition Proposal which was made prior to such date and (B) the highest
closing sale price of Company Shares then on the NASDAQ National Market during
the 20 trading days ending on the trading day immediately preceding such date)
and the Exercise Price, multiplied by the number of Company Shares purchasable
pursuant to the Option that remain, but only if the Market/Tender Offer Price
is greater than the Exercise Price. For purposes of determining the highest
price offered pursuant to any Acquisition Proposal which involves consideration
other than cash, the value of such consideration will be equal to the higher of
(x) if securities of the same class of the proponent as such consideration are
traded on any national securities exchange or by any registered securities
association, a value based on the closing sale price or asked price for such
securities on their principal trading market on such date and (y) the value
ascribed to such consideration by the proponent of such Acquisition Proposal,
or if no such value is ascribed, a value determined in good faith by the Board
of Directors of the Company.
(ii) The Exercise Price paid by Parent for
Company Shares acquired pursuant to the Option plus the difference between the
Market/Tender Offer Price and such Exercise Price (but only if the
Market/Tender Offer Price is greater than the Exercise Price) multiplied by the
number of Company Shares so purchased.
(iii) Notwithstanding subparagraphs (i) and (ii)
above, pursuant to this Section 6 Company will not be required to pay Parent in
excess of an aggregate of (x) $50,000,000 minus (z) any cash amounts paid (or
due to be paid in the future) to Parent by the Company pursuant to Section
7.3(b) of the Reorganization Agreement.
(b) Payment and Redelivery of Option or Shares. In the
event Parent exercises its rights under Section 6(a), the Company will, within
five business days after Parent delivers notice pursuant to Section 6(a), pay
the required amount to Parent in immediately available funds and Parent will
surrender to the Company the Option and the certificates evidencing the Company
Shares purchased by Parent pursuant thereto.
7. Registration Rights.
(a) Following the termination of the Reorganization
Agreement, Parent (sometimes referred to herein as the "Holder") may by written
notice (a "Registration Notice") to the Company (the "Registrant") request the
Registrant to register under the Securities Act all or any part of the shares
acquired by the Holder pursuant to this Agreement (such shares requested to be
registered, the "Registrable Securities") in order to permit the sale or other
disposition of any or all shares of the Registrable Securities that have been
acquired by or are issuable to Holder upon exercise of the Option in accordance
with the intended method of sale or other disposition stated by Holder,
including a "shelf" registration statement under Rule 415 under the Securities
Act or any successor provision. Holder agrees to cause, and to cause any
underwriters of any sale or other disposition to cause, any sale or other
disposition pursuant to such registration statement to be effected on a widely
distributed basis so that upon consummation thereof no purchaser or transferee
will own beneficially more than 5.0% of the then-outstanding voting power of
Registrant.
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(b) The Registrant will use all reasonable efforts to
effect, as promptly as practicable, the registration under the Securities Act
of the Registrable Securities requested to be registered in the Registration
Notice and to keep such registration statement effective for such period not in
excess of 120 calendar days from the day such registration statement first
becomes effective as may be reasonably necessary to effect such sale or other
disposition; provided, however, that the Holder will not be entitled to more
than an aggregate of two effective registration statements hereunder. The
obligations of Registrant hereunder to file a registration statement and to
maintain its effectiveness may be suspended for up to 120 calendar days in the
aggregate if the Board of Directors of Registrant shall have determined that
the filing of such registration statement or the maintenance of its
effectiveness would require premature disclosure of material nonpublic
information that would materially and adversely affect Registrant or otherwise
interfere with or adversely affect any pending or proposed offering of
securities of Registrant or any other material transaction involving
Registrant. If consummation of the sale of any Registrable Securities pursuant
to a registration hereunder does not occur within 120 days after the filing
with the SEC of the initial registration statement therefor, the provisions of
this Section 7 will again be applicable to any proposed registration. The
Registrant will use commercially reasonable efforts to cause any Registrable
Securities registered pursuant to this Section 7 to be qualified for sale under
the securities or blue sky laws of such jurisdictions as the Holder may
reasonably request and will continue such registration or qualification in
effect in such jurisdictions; provided, however, that the Registrant will not
be required to qualify to do business in, or consent to general service of
process in, any jurisdiction by reason of this provision. If Registrant effects
a registration under the Securities Act of Company Common Stock for its own
account or for any other stockholders of Registrant (other than on Form S-4 or
Form S-8, or any successor form), it will allow Holder the right to participate
in such registration by selling its Registrable Securities, and such
participation will not affect the obligation of Registrant to effect demand
registration statements for Holder under this Section 7; provided that, if the
managing underwriters of such offering advise Registrant in writing that in
their opinion the number of shares of Company Common Stock requested to be
included in such registration exceeds the number which can be sold in such
offering, Registrant will include the shares requested to be included therein
by Holder pro rata with the shares intended to be included therein by
Registrant and such other stockholders.
(c) The registration rights set forth in this Section 7
are subject to the condition that the Holder will provide the Registrant with
such information with respect to the Holder's Registrable Securities, the plan
for distribution thereof, and such other information with respect to the Holder
as, in the reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in a registration statement all facts required
to be disclosed with respect to a registration thereunder.
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(d) A registration effected under this Section 7 will be
effected at the Registrant's expense, except for underwriting discounts and
commissions and the fees and expenses of counsel to the Holder, and the
Registrant will provide to the underwriters such documentation (including
certificates, opinions of counsel and "comfort" letters from auditors) as are
customary in connection with underwritten public offerings and as such
underwriters may reasonably require. In connection with any registration, the
Holder and the Registrant agree to enter into an underwriting agreement
reasonably acceptable to each such party, in form and substance customary for
transactions of this type with the underwriters participating in such offering.
(e) Indemnification.
(i) The Registrant will indemnify the Holder,
each of its directors and officers and each person who controls the Holder
within the meaning of Section 15 of the Securities Act, and each underwriter of
the Registrant's securities, with respect to any registration, qualification or
compliance which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or any violation by the Registrant of any rule or
regulation promulgated under the Securities Act applicable to the Registrant in
connection with any such registration, qualification or compliance, and the
Registrant will reimburse the Holder, each of its directors and officers and
each person who controls the Holder within the meaning of Section 15 of the
Securities Act, and each underwriter for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending
any such claim, loss, damage, liability or action; provided, that the
Registrant will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to the
Registrant by such Holder or director or officer or controlling person or
underwriter seeking indemnification.
(ii) The Holder will indemnify the Registrant,
each of its directors and officers and each underwriter of the Registrant's
securities covered by such registration statement and each person who controls
the Registrant within the meaning of Section 15 of the Securities Act, against
all expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
such registration statement, prospectus, offering circular or other document,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Holder of any rule or regulation
promulgated under the Securities Act applicable to the Holder in connection
with any such registration, qualification or compliance, and will reimburse the
Registrant, such directors, officers or control persons or underwriters for any
legal or any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability
or
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action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Registrant by the Holder for use therein; provided, that in no event
will any indemnity under this Section 7(e) exceed the net proceeds of the
offering received by the Holder.
(iii) Each party entitled to indemnification
under this Section 7(e) (the "Indemnified Party") will give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and will permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided, that counsel
for the Indemnifying Party, who will conduct the defense of such claim or
litigation, will be approved by the Indemnified Party (whose approval will not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
will pay such expense if representation of the Indemnified Party by counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding, and provided further, however,
that the failure of any Indemnified Party to give notice as provided herein
will not relieve the Indemnifying Party of its obligations under this Section
7(e) unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action. No Indemnifying Party, in
the defense of any such claim or litigation will, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. No Indemnifying Party will be
required to indemnify any Indemnified Party with respect to any settlement
entered into without such Indemnifying Party's prior consent (which will not be
unreasonably withheld).
8. Profit Limitation.
(a) Notwithstanding any other provision in this
Agreement or the Reorganization Agreement, in no event shall Parent's Total
Profit (as defined below) exceed $60,000,000 (the "Maximum Profit") and, if
Parent's Total Profit otherwise would exceed the Maximum Profit, Parent, at its
sole discretion, shall either (i) reduce the number of Option Shares subject to
the Option, (ii) deliver to the Company for cancellation Option Shares (or
other securities into which such Option Shares are converted or exchanged)
previously purchased by, or Company Shares issued by the Company pursuant to
Section 7.3 of the Reorganization Agreement ("Termination Fee Shares") (or
other securities into which such Termination Fee Shares are converted or
exchanged) to, Parent, (iii) pay cash to the Company, (iv) reduce the number of
Termination Fee Shares to be paid by the Company or (v) any combination of the
foregoing, so that Parent's actually realized Total Profit shall not exceed the
Maximum Profit after taking into account the foregoing actions; provided,
however, that to the extent the payment by the Company of cash to Parent in
satisfaction of the Termination Fee pursuant to Section 7.3 of the
Reorganization Agreement would cause Parent's Total Profit to exceed the
Maximum Profit (after Parent has had an opportunity to reduce Parent's Total
Profit pursuant to clause (iv) of this sentence), then the Company need not pay
such cash portion of the Termination Fee.
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(b) For purposes of this Agreement, "Total Profit" shall
mean: (i) the aggregate amount (before taxes) of (A) any excess of (x) the net
cash amounts or fair market value of any property received by Parent pursuant
to a sale of Option Shares or Termination Fee Shares (or securities into which
such shares are converted or exchanged) over (y) the Parent's aggregate
purchase price for such Option Shares (or other securities), plus (B) any
amounts received by Parent pursuant on the repurchase of the Option by the
Company pursuant to Section 6, plus (C) any termination fee paid in cash by the
Company and received by Parent pursuant to the Reorganization Agreement, minus
(ii) the amounts of any cash previously paid by Parent to the Company pursuant
to this Section 8 plus the value of the Option Shares or Termination Fee Shares
(or other securities) previously delivered by Parent to the Company for
cancellation pursuant to this Section 8.
(c) For purposes of Section 8(a) and clause (ii) of
Section 8(b), the value of any Option Shares delivered by Parent to the Company
shall be the Market/Tender Offer Price of such Option Shares, and the value of
any Termination Fee Shares delivered by Parent to the Company shall be the
Market/Tender Offer Price of such Termination Fee Shares (deeming the date of
notice of intent described in Section 6(a)(i) to be the date on which such
Termination Fee Shares have been issued to Parent).
9. Adjustment Upon Changes in Capitalization or Issuance of
Termination Fee Shares.
(a) In the event of any change in the Company Shares by
reason of stock dividends, stock splits, reverse stock splits, mergers (other
than the Merger), recapitalizations, combinations, exchanges of shares and the
like, the type and number of shares or securities subject to the Option, the
Exercise Price will be adjusted appropriately, and proper provision will be
made in the agreements governing such transaction so that Parent will receive,
upon exercise of the Option, the number and class of shares or other securities
or property that Parent would have received in respect of the Company Shares if
the Option had been exercised immediately prior to such event or the record
date therefor, as applicable.
(b) Without limiting the parties' relative rights and
obligations under the Reorganization Agreement, if the number of outstanding
Company Shares increases or decreases after the date of this Agreement (other
than pursuant to an event described in Section 9(a)) or if the Company
satisfies a portion of its obligation to pay Parent the Termination Fee
pursuant to Section 7.3 by issuing to Parent shares of Company Common Stock
(the "Termination Fee Shares"), then the number of Company Shares subject to
the Option (including those Option Shares which may have already been
exercised) will be adjusted so that the sum of the number of Company Shares
subject to the Option and the number of Termination Fee Shares equals 19.99% of
the number of Company Shares then issued and outstanding, without giving effect
to any Option Shares or Termination Fee Shares; provided, however, that if any
such reduction in the number of Company Shares subject to the Option shall
decrease Parent's Total Profit and if such decreased Total Profit would be
below the Maximum Profit, then the Exercise Price of the Company Shares then
subject to the Option shall be reduced to the extent necessary to cause
Parent's Total Profit to equal the lesser of (i) the Maximum Profit or (ii)
Parent's Total Profit in the absence of such reduction in the number of Company
Shares subject to the Option.
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10. Restrictive Legends. Each certificate representing Option
Shares issued to Parent hereunder will include a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION
AGREEMENT DATED AS OF APRIL 5, 2000, A COPY OF WHICH MAY BE OBTAINED
FROM THE ISSUER.
It is understood and agreed that (i) the reference to restrictions
arising under the Securities Act in the above legend will be removed by
delivery of substitute certificate(s) without such reference if such Option
Shares have been registered pursuant to the Securities Act, such Option Shares
have been sold in reliance on and in accordance with Rule 144 under the
Securities Act or Holder has delivered to Registrant a copy of a letter from
the staff of the SEC, or an opinion of counsel in form and substance reasonably
satisfactory to Registrant and its counsel, to the effect that such legend is
not required for purposes of the Securities Act and (ii) the reference to
restrictions pursuant to this Agreement in the above legend will be removed by
delivery of substitute certificate(s) without such reference if the Option
Shares evidenced by certificate(s) containing such reference have been sold or
transferred in compliance with the provisions of this Agreement under
circumstances that do not require the retention of such reference.
11. Listing and HSR Filing. The Company, upon the request of
Parent, will promptly file an application to list the Company Shares to be
acquired upon exercise of the Option for quotation on the Nasdaq National
Market and will use commercially reasonable efforts to obtain approval of such
listing as soon as practicable. Promptly after the date hereof, each of the
parties hereto will promptly file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice all required
premerger notification and report forms and other documents and exhibits
required to be filed under the HSR Act to permit the acquisition of the Company
Shares subject to the Option at the earliest possible date.
12. Binding Effect. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective successors and permitted assigns any rights or remedies of any
nature whatsoever by reason of this Agreement. Any shares sold by a party in
compliance with the provisions of Section 7 will, upon consummation of such
sale, be free of the restrictions imposed with respect to such shares by this
Agreement and any transferee of such shares will not be entitled to the rights
of such party. Certificates representing shares sold in a registered public
offering pursuant to Section 7 will not be required to bear the legend set
forth in Section 10.
13. Specific Performance. The parties hereto recognize and agree
that if for any reason any of the provisions of this Agreement are not
performed in accordance with their specific terms or are otherwise breached,
immediate and irreparable harm or injury would be caused for which money
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damages would not be an adequate remedy. Accordingly, each party hereto agrees
that in addition to other remedies the other party hereto will be entitled to
an injunction restraining any violation or threatened violation of the
provisions of this Agreement or the right to enforce any of the covenants or
agreements set forth herein by specific performance. In the event that any
action will be brought in equity to enforce the provisions of the Agreement,
neither party hereto will allege, and each party hereto hereby waives the
defense, that there is an adequate remedy at law.
14. Entire Agreement. This Agreement and the Reorganization
Agreement (including the appendices thereto) constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof.
15. Further Assurances. Each party hereto will execute and
deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
16. Validity. The invalidity or unenforceability of any provision
of this Agreement will not affect the validity or enforceability of the other
provisions of this Agreement, which will remain in full force and effect. In
the event any Governmental Entity of competent jurisdiction holds any provision
of this Agreement to be null, void or unenforceable, the parties hereto will
negotiate in good faith and will execute and deliver an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the extent
permitted by law, the intent of the parties hereto with respect to such
provision.
17. Notices. All notices and other communications hereunder will
be in writing and will be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at
the following addresses or telecopy numbers (or at such other address or
telecopy numbers for a party as will be specified by like notice):
(a) if to Parent, to:
Peregrine Systems, Inc.
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
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and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
(b) if to the Company, to:
Harbinger Corporation
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxxxxxx
Telecopy No.: (000) 000-0000
And (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telecopy No.: (000) 000-0000 and (000) 000-0000
18. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the conflicts of law principles thereof.
19. Expenses. Except as otherwise expressly provided herein or in
the Reorganization Agreement, all costs and expenses incurred in connection
with the transactions contemplated by this Agreement will be paid by the party
incurring such expenses.
20. Amendments; Waiver. This Agreement may be amended by the
parties hereto and the terms and conditions hereof may be waived only by an
instrument in writing signed on behalf of each of the parties hereto, or, in
the case of a waiver, by an instrument signed on behalf of the party waiving
compliance.
21. Assignment. Neither of the parties hereto may sell, transfer,
assign or otherwise dispose of any of its rights or obligations under this
Agreement or the Option created hereunder to any other person, without the
express written consent of the other party, except that the rights and
obligations hereunder will inure to the benefit of and be binding upon any
successor of a party hereto.
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12
22. Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed to be an original, but both of which, taken
together, will constitute one and the same instrument.
23. Effect of Headings. The section headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
PEREGRINE SYSTEMS, INC.
Signature:
--------------------------------
Print Name:
-------------------------------
Print Title:
------------------------------
HARBINGER CORPORATION
Signature:
--------------------------------
Print Name:
-------------------------------
Print Title:
------------------------------
[SIGNATURE PAGE TO STOCK OPTION AGREEMENT]
