EXHIBIT 2
COMPANY VOTING AGREEMENT
THIS COMPANY VOTING AGREEMENT (this "Agreement") is made and entered into
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as of June 10, 2001 by and between Peregrine Systems, Inc., a Delaware
corporation ("Parent"), and the undersigned Stockholder (the "Stockholder") of
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Remedy Corporation, a Delaware corporation (the "Company").
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WHEREAS, Parent, the Company and Merger Sub (as defined below), have
entered into an Agreement and Plan of Merger and Reorganization of even date
herewith (the "Merger Agreement"), which provides (subject to Section 2.12 of
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the Merger Agreement) for the merger (the "Merger") of the Company with and into
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a wholly-owned subsidiary of Parent ("Merger Sub"). Pursuant to the Merger, all
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outstanding capital stock of the Company will be converted into the right to
receive the consideration set forth in the Merger Agreement, and Merger Sub
(subject to Section 2.12 of the Merger Agreement) will succeed to all of the
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rights and liabilities of the Company.
WHEREAS, the Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
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the shares of capital stock of the Company, and options to acquire shares of
capital stock of the Company, each as set forth on the signature page of this
Agreement.
WHEREAS, in consideration of the execution of the Merger Agreement by
Parent, the Stockholder (solely in his capacity as such) is hereby agreeing to
vote the Shares (as defined below), and such other shares of capital stock of
the Company over which the Stockholder has voting power, so as to facilitate the
consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby
agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise defined
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herein shall have the respective meanings ascribed to them in the Merger
Agreement. For purposes of this Agreement, the following terms shall have the
following respective meanings:
(a) "Expiration Date" shall mean the earlier to occur of (i) such
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date and time as the Merger Agreement shall have been validly terminated
pursuant to Article VIII thereof, or (ii) such date and time as the Merger shall
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become effective in accordance with the terms and conditions of the Merger
Agreement.
(b) "Person" shall mean any individual, any corporation, limited
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liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental body or authority.
(c) "Shares" shall mean: (i) all voting securities of the Company
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beneficially owned by the Stockholder as of the date of this Agreement, and (ii)
all additional voting securities of the Company of which the Stockholder
acquires beneficial ownership during the period commencing with the execution
and delivery of this Agreement until the Expiration Date, including, without
limitation, through the exercise of options, warrants or other rights to acquire
such voting
securities of the Company, or the conversion of other securities of the Company
into such voting securities of the Company.
(d) Transfer. A Person shall be deemed to have effected a "Transfer"
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of a security if such person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security, or (ii) enters into an agreement or
commitment providing for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
2. Transfer of Shares.
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(a) Transferee of Shares to be Bound by this Agreement. The
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Stockholder hereby agrees that, at all times during the period commencing with
the execution and delivery of this Agreement until the Expiration Date, the
Stockholder shall not cause or permit any Transfer of any of the Shares (or any
securities convertible into or exercisable or exchangeable for Shares), or any
interest in the foregoing, to be effected unless each Person to which any of
such Shares (or any securities convertible into or exercisable or exchangeable
for Shares), or any interest in any of the foregoing, is or may be Transferred
shall have (i) executed a counterpart of this Agreement and a Irrevocable Proxy
in the form attached hereto as Exhibit A (with such modifications as Parent may
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reasonably request), and (ii) agreed in writing to hold such Shares (or any
securities convertible into or exercisable or exchangeable for Shares), or such
interest in the foregoing, subject to the terms and conditions of this
Agreement.
(b) Transfer of Voting Rights. The Stockholder hereby agrees that,
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at all times during the period commencing with the execution and delivery of
this Agreement until the Expiration Date, the Stockholder shall not deposit (or
permit the deposit of) any Shares (or any securities convertible into or
exercisable or exchangeable for Shares), or any interest in the foregoing, in a
voting trust or grant any proxy, or enter into any voting agreement or similar
agreement or arrangement in contravention of the obligations of the Stockholder
under this Agreement with respect to any of the Shares (or any securities
convertible into or exercisable or exchangeable for Shares), or any interest in
the foregoing.
3. Agreement to Vote Shares. The Stockholder hereby agrees that, at
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all times during the period commencing with the execution and delivery of this
Agreement until the Expiration Date, at every meeting of stockholders of the
Company called with respect to any of the following, and at every adjournment or
postponement thereof, and on every action or approval by written consent of
stockholders of the Company with respect to any of the following, the
Stockholder shall vote, to the extent not voted by the person(s) appointed under
the Proxy (as defined in Section 4 hereof), the Shares:
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(a) in favor of the adoption and approval of the Merger Agreement and
the approval of the Merger, and in favor of each of the other actions
contemplated by the Merger Agreement and the Proxy and any action required in
furtherance thereof;
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(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the other transactions
contemplated by the Merger Agreement;
(c) against any of the following actions (other than those actions
that relate to the Merger and the other transactions contemplated by the Merger
Agreement): (i) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any person, (ii) any sale, lease or transfer of any significant
part of the assets of the Company or any subsidiary of the Company, (iii) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any subsidiary of the Company, (iv) any change in the capitalization
of the Company or any subsidiary of the Company, or the corporate structure of
the Company or any subsidiary of the Company, or (v) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement; and
(d) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of
the Company with or into any other person.
Prior to the Expiration Date, the Stockholder shall not enter into any agreement
or understanding with any person to vote or give instructions in any manner
inconsistent with the terms of this Section 3.
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4. Irrevocable Proxy. The Stockholder hereby agrees to deliver to
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Parent, concurrently with the execution and delivery of this Agreement, a proxy
in the form attached hereto as Exhibit A (the "Proxy"), which shall be
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irrevocable to the fullest extent permitted by applicable law, with respect to
the Shares.
5. Representations and Warranties of the Stockholder. The
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Stockholder hereby represents and warrants to Parent that, as of the date hereof
and at all times until the Expiration Date: (i) the Stockholder is (and will be,
unless Transferred pursuant to Section 2(a) hereof) the sole beneficial owner of
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the shares of Company Common Stock and the options to purchase shares of Company
Common Stock set forth on the signature page of this Agreement, with full power
to vote or direct the voting of the Shares for and on behalf of all beneficial
owners of the Shares; (ii) the Shares are (and will be, unless Transferred
pursuant to Section 2(a) hereof) free and clear of any liens, claims, options,
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rights of first refusal, co-sale rights, charges or other encumbrances of any
kind or nature; (iii) the Stockholder does not beneficially own any securities
of the Company other than the shares of Company Common Stock and options and to
purchase shares of Company Common Stock set forth on the signature page of this
Agreement; and (iv) has (and will have, unless Transferred pursuant to Section
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2(a) hereof) full power and authority to make, enter into and carry out the
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terms of this Agreement and the Proxy.
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6. Additional Documents. The Stockholder (solely in his or her
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capacity as such) hereby agrees to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of Parent, to carry out the
intent of this Agreement.
7. Legending of Shares. If so requested by Parent, the Stockholder
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hereby agrees that the Shares shall bear a legend stating that they are subject
to this Agreement and to an irrevocable proxy. Subject to the terms of Section
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2 hereof, the Stockholder hereby agrees that the Stockholder shall not Transfer
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the Shares without first having the aforementioned legend affixed to the
certificates representing the Shares.
8. Termination. This Agreement shall terminate and shall have no
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further force or effect after the Expiration Date.
9. Miscellaneous.
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(a) Waiver. No waiver by any party hereto of any condition or any
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breach of any term or provision set forth in this Agreement shall be effective
unless writing and signed by each party hereto. The waiver of a condition or any
breach of any term or provision of this Agreement shall not operate as or be
construed to be a waiver of any other previous or subsequent breach of any term
or provision of this Agreement.
(b) Severability. In the event that any term, provision, covenant or
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restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is determined
to be invalid, unlawful, void or unenforceable, shall remain in full force and
effect, shall not be impaired, invalidated or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by
applicable law.
(c) Binding Effect; Assignment. This Agreement and all of the terms
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and provisions hereof shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the Stockholder may be assigned to
any other Person without the prior written consent of Parent.
(d) Amendments. This Agreement may not be modified, amended,
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altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
(e) Specific Performance; Injunctive Relief. Each of the parties
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hereto acknowledge that (i) the representations, warranties, covenants and
restrictions set forth in this Agreement are necessary, fundamental and required
for the protection of Parent and to preserve for Parent the benefits of the
Merger; (ii) such covenants relate to matters which are of a special, unique,
and extraordinary character that gives each such representation, warranty,
covenant and restriction
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a special, unique, and extraordinary value; and (iii) a breach of any such
representation, warranty, covenant or restriction, or any other term or
provision of this Agreement, will result in irreparable harm and damages to
Parent which cannot be adequately compensated by a monetary award. Accordingly,
Parent and the Stockholder hereby expressly agree that in addition to all other
remedies available at law or in equity, Parent shall be entitled to the
immediate remedy of specific performance, a temporary and/or permanent
restraining order, preliminary injunction, or such other form of injunctive or
equitable relief as may be used by any court of competent jurisdiction to
restrain or enjoin any of the parties hereto from breaching any representations,
warranties, covenants or restrictions set forth in this Agreement, or to
specifically enforce the terms and provisions hereof.
(f) Governing Law. This Agreement shall be governed by and
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construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without giving effect to any choice or conflict of law
provision, rule or principle (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
(g) Entire Agreement. This Agreement and the Proxy and the other
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agreements referred to in this Agreement set forth the entire agreement and
understanding of Parent and the Stockholder with respect to the subject matter
hereof and thereof, and supersede all prior discussions, agreements and
understandings between Parent and the Stockholder, both oral and written, with
respect to the subject matter hereof and thereof.
(h) Notices. All notices and other communications pursuant to this
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Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
respective parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Parent: Peregrine Systems, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Stockholder: To the address for notice set forth on the
signature page hereof.
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And to: Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx
& Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. X'Xxxxxx, Esq.
Xxxxxxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Further Assurances. The Stockholder (in his or her capacity as
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such) shall execute and deliver any additional certificate, instruments and
other documents, and take any additional actions, as Parent may deem necessary
or desirable, in the reasonable opinion of Parent, to carry out and effectuate
the purpose and intent of this Agreement.
(j) Headings. The section headings set forth in this Agreement are
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for convenience of reference only and shall not affect the construction or
interpretation of this Agreement in any manner.
(k) Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed on the date first above written.
PEREGRINE SYSTEMS, INC. STOCKHOLDER:
By:_________________________________ By: ______________________________
Signature
Name:_______________________________ Name: ____________________________
Title:______________________________ Title:____________________________
__________________________________
__________________________________
Print Address
___________________________________
Telephone Number
___________________________________
Facsimile Number
Shares Beneficially Owned:
________ shares of Company common Stock
________ shares of Company Common Stock
issuable upon the exercise of
outstanding Company Stock Options
[COMPANY VOTING AGREEMENT]
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholder of Remedy Corporation, a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
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appoints the members of the Board of Directors of Peregrine Systems, Inc., a
Delaware corporation ("Parent"), and each of them, as the sole and exclusive
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attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "Shares") in accordance with the terms of this
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Irrevocable Proxy. The Shares beneficially owned by the undersigned stockholder
of the Company as of the date of this Irrevocable Proxy are listed on the final
page of this Irrevocable Proxy. Upon the undersigned's execution of this
Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent permitted by
applicable law), is coupled with an interest and is granted pursuant to that
certain Voting Agreement of even date herewith by and among Parent and the
undersigned stockholder (the "Voting Agreement"), and is granted in
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consideration of Parent entering into that certain Agreement and Plan of Merger
and Reorganization of even date herewith (the "Merger Agreement") by and among
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Parent, Rose Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), and the Company. The Merger Agreement
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provides (subject to Section 2.12 of the Merger Agreement) for the merger of
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Merger Sub with and into the Company in accordance with its terms (the
"Merger"). As used herein, the term "Expiration Date" shall mean the earlier to
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occur of (i) such date and time as the Merger Agreement shall have been validly
terminated pursuant to Article VIII thereof or (ii) such date and time as the
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Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of the Company and in every written consent in lieu of such meeting, as follows:
(a) in favor of the adoption and approval of the Merger Agreement and
the approval of the Merger, and in favor of each of the other actions
contemplated by the Merger Agreement and the Proxy and any action required in
furtherance thereof;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the other transactions
contemplated by the Merger Agreement;
(c) against any of the following actions (other than those actions
that relate to the Merger and the other transactions contemplated by the Merger
Agreement): (i) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any person, (ii) any sale, lease or transfer of any significant
part of the assets of the Company or any subsidiary of the Company, (iii) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any subsidiary of the Company, (iv) any change in the capitalization
of the Company or any subsidiary of the Company, or the corporate structure of
the Company or any subsidiary of the Company, or (v) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement; and
(d) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of
the Company with or into any other person.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned stockholder
may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
[Remainder of Page Intentionally Left Blank]
This Irrevocable Proxy is irrevocable (to the fullest extent permitted by law).
This Irrevocable Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: June ____, 2001
Signature: ____________________________________
Name: _________________________________________
Name and Title of
Authorized Signatory: _________________________
Shares Beneficially Owned:
___________ shares of Company Common Stock
___________ shares of the Company Common Stock
issuable upon the exercise of outstanding Company
Stock Options
[IRREVOCABLE PROXY]
