EXHIBIT 2
EXECUTION COPY
VOTING AND DISTRIBUTION AGREEMENT
VOTING AND DISTRIBUTION AGREEMENT, dated as of August 5, 2003
(this "Agreement"), among Peregrine Systems, Inc., a Delaware corporation
("Peregrine"), Peregrine in its capacity as Stock Disbursing Agent ("Agent")
under the Plan (as defined below) and the Post-Emergence Equity Committee of
Peregrine under the Plan (the "Committee").
A. The United States Bankruptcy Court for the District of
Delaware has confirmed Peregrine's Fourth Amended Plan of Reorganization, as
modified, dated July 14, 2003 (the "Plan"). Capitalized terms used herein
without definition have the respective meanings ascribed to such terms in the
Plan.
B. In accordance with the terms of the Plan, 5,550,000 shares
of New PSI Common Stock (the "Shares") have been issued to and deposited with
the Agent pending distribution in accordance with the terms of the Plan.
C. The Plan specifies that pending distribution of the Shares,
the Committee shall exercise all voting rights with respect to the Shares.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Fiduciary Capacity. Agent holds the Shares in a fiduciary
capacity and shall act in its fiduciary capacity with
respect to the voting of the Shares and the distribution of
the Shares as the Stock Disbursing Agent, as provided in
this Agreement, and as otherwise required by the Plan or the
Bankruptcy Court.
2. Voting of Shares. For so long as Agent holds any of the Shares
(or any other voting securities issued to Agent in respect of
the Shares), Agent shall cause the Shares (and any other
voting securities issued to Agent in respect of the Shares) to
be voted, whether at any meeting of the stockholders of
Peregrine or in any consent in lieu of such a meeting, in
accordance with written directions received from the
Committee.
3. Irrevocable Proxy. Agent hereby irrevocably appoints
the Committee as its attorney and proxy pursuant to the
provisions of Section 212 of the General Corporation Law of
the State of Delaware, with full power of substitution, to
vote and take other actions (by written consent or
otherwise) with respect to the Shares (and all other
securities issued to the Agent in respect of the Shares)
which Agent is entitled to take at any meeting of
stockholders of Peregrine (whether annual or special and
whether or not an adjourned or postponed meeting) or in
respect of any consent in lieu of any such meeting or
otherwise. This proxy and power of attorney is irrevocable
and coupled with an interest in favor of the Committee.
Agent hereby revokes all other proxies and powers of
attorney with respect to the Shares (and all other
securities issued to the Agent in respect of the Shares)
which it may have heretofore appointed
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or granted, and no subsequent proxy or power of attorney
shall be given or written consent executed (and if given or
executed, shall not be effective) by the Agent with respect
thereto.
4. Notice of Meetings. For so long as Agent holds any Shares (or
any other securities issued in respect of the Shares),
Peregrine and Agent shall cause the Committee to receive
copies of all notices of meetings of stockholders or requests
for consent in lieu of meeting, and any other materials
received by Agent as the registered holder of the Shares, as
soon as reasonably practicable and in no event later than the
second business day following receipt of such notice, request
or other materials by the Agent.
5. No Disposition or Encumbrance of Shares. Agent hereby
covenants and agrees that except as contemplated by the Plan,
the Agent shall not, and shall not offer or agree to, sell,
transfer, tender, assign, hypothecate or otherwise dispose of,
or create or permit to exist any security interest, lien,
claim, pledge, option, right of first refusal, agreement,
limitation on the Agent's voting rights, charge or other
encumbrance of any nature whatsoever with respect to the
Shares (or any other securities issued in respect of the
Shares).
6. Distribution in Accordance with the Plan. Agent will
distribute the Shares only in accordance with the terms of
the Plan.
7. Actions by the Committee. Any action which is required to be
taken by the Committee pursuant to this Agreement shall be
taken by the vote of a majority of the members of the
Committee. Any written directions given by the Committee in
accordance with the terms hereof shall be executed by a
majority of the members of the Committee and the Agent is
expressly entitled to rely on such written directions.
8. Exculpation of Committee. The Committee shall not be liable
for any error in judgment or any action taken, suffered or
omitted to be taken by it hereunder, including without
limitation, any vote in favor of or against, or any abstention
from voting on, any matter submitted to the stockholders of
Peregrine, except in the case of its gross negligence or
willful misconduct.
9. Miscellaneous.
(a) Expenses. Except as otherwise provided in the Plan,
all costs and expenses incurred by any party in
connection with the performance of this Agreement
shall be paid by Peregrine.
(b) Further Assurances. Each party 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.
(c) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of
the provisions of this Agreement were not performed
in accordance with the terms hereof and that the
parties shall be entitled to
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specific performance of the terms hereof (without
establishing the likelihood of irreparable injury or
posting bond or other security) in addition to any
other remedy to which they may be entitled at law or
in equity.
(d) Entire Agreement; Inconsistency with the Plan. This
Agreement, together with the Plan, constitutes the
entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral,
between the parties with respect to the subject
matter hereof. In the event of any inconsistency
between the Plan and any provision of this Agreement,
the applicable provisions of the Plan shall be
controlling.
(e) Assignment. This Agreement shall not be assigned by
operation of law or otherwise.
(f) Obligations of Successors; Parties in Interest. This
Agreement shall be binding upon, inure solely to the
benefit of, and be enforceable by, the successors and
permitted assigns of the parties hereto. Nothing in
this Agreement, express or implied, is intended to or
shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under
or by reason of this Agreement.
(g) Amendment; Waiver. This Agreement may not be amended
or changed except by an instrument in writing signed
by the parties hereto.
(h) Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the
validity or enforceability of any other provision of
this Agreement, which shall remain in full force and
effect.
(i) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been
duly given upon receipt) by delivery in person, by
cable, telecopy, telegram or telex or by registered
or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following
addresses (or at such other address for a party as
shall be specified in a notice given in accordance
with this Section 9(i)):
if to Peregrine:
Peregrine Systems, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
0
Xxxxxxxxx, Xxxxx, Xxxxx, Xxxxx, Xxxxx and Xxxxxxxxx, P.C.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxx, Esq.
Telecopy: (000) 000-0000
if to Agent:
Peregrine Systems, Inc., as Stock Disbursing Agent
0000 Xxxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Pachulski, Stang, Ziehl, Young, Xxxxx and Xxxxxxxxx, P.C.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxx, Esq.
Telecopy: (000) 000-0000
if to the Committee:
Post-Emergence Equity Committee of Peregrine Systems, Inc.
0000 Xxxx Xxxxxx Xxxx
Xx. Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Kronish, Lieb, Weiner & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(j) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be
performed in that State.
(k) Bankruptcy Court Jurisdiction. The Bankruptcy Court
shall retain original and exclusive jurisdiction over
the determination of all controversies and disputes
arising under or in connection with this Agreement.
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(l) Headings. The descriptive headings contained in this
Agreement are included for convenience of reference
only and shall not affect in any way the meaning or
interpretation of this Agreement.
(m) Counterparts; Facsimile Signatures. This Agreement
may be executed in one or more counterparts, and by
the different parties hereto in separate
counterparts, each of which when executed shall be
deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Signed copies of this Agreement transmitted by
facsimile will be accepted by the parties, and the
parties shall be entitled to rely on such copies as
though they bear original signatures.
(n) WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT
IT MIGHT HAVE TO A JURY TRIAL OF ANY DISPUTE ARISING IN
CONNECTION WITH THIS AGREEMENT.
IN WITNESS WHEREOF, each party has caused this Agreement to be
executed by its officers thereunto duly authorized as of the date first written
above.
PEREGRINE SYSTEMS, INC.
By:______________________________
Name:
Title:
PEREGRINE SYSTEMS, INC., as Stock
Disbursing Agent under the Plan
By:_______________________________
Name:
Title:
POST-EMERGENCE EQUITY
COMMITTEE OF PEREGRINE UNDER
THE PLAN
By:_______________________________
Name:
Title:
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