Exhibit 3
EXHIBIT B
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
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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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: /S/ XXXXXXX X. XXXXXXX
-------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
------------------------------------
Print Title: President
-----------------------------------
HARBINGER CORPORATION
Signature: /S/ XXXXX X. XXXXXXX
-------------------------------------
Print Name: Xxxxx X. Xxxxxxx
------------------------------------
Print Title:
-----------------------------------
