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EXHIBIT 2
FORM OF PARENT VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
April 5, 2000, among Harbinger Corporation, a Georgia corporation ("Company"),
and the undersigned stockholder and/or option holder (the "Stockholder") of
Peregrine Systems, Inc., a Delaware corporation ("Parent").
RECITALS
A. 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 shall be converted into the right to
receive common stock of Parent, as set forth in the Reorganization Agreement;
and
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
number of shares of the outstanding capital stock of Parent and shares subject
to outstanding options and warrants as is indicated on the signature page of
this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Reorganization Agreement. For purposes of
this Agreement:
(a) "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Reorganization Agreement shall have been terminated
pursuant to Article VII thereof, or (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the
Reorganization Agreement.
(b) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(c) "Shares" shall mean: (i) all securities of the Parent
(including all shares of Parent Common Stock and all options, warrants and other
rights to acquire shares of Parent Common Stock) beneficially owned by
Stockholder as of the date of this Agreement; and (ii) all additional securities
of Parent (including all additional shares of Parent Common Stock and all
additional options, warrants and other rights to acquire shares of Parent Common
Stock) of which Stockholder acquires beneficial ownership during the period from
the date of this Agreement through the Expiration Date.
(d) Transfer. A Person shall be deemed to have effected a
"Transfer" of a security if such person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with
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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.
(a) Transferee of Shares to be Bound by this Agreement.
Stockholder agrees that, during the period from the date of this Agreement
through the Expiration Date, except as may be required by court order or
operation of law, Stockholder shall not cause or permit any Transfer of any of
the Shares to be effected unless each Person to which any of such Shares or any
interest in any of such Shares is or may be transferred shall have (i) executed
a counterpart of this Voting Agreement and a proxy in the form attached hereto
as Exhibit A and (ii) agreed to hold such Shares or interest in such Shares
subject to all of the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Stockholder agrees that, during
the period from the date of this Agreement through the Expiration Date,
Stockholder shall not deposit (or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or similar agreement
in contravention of the obligations of Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. At every meeting of the stockholders of
Parent called, and at every adjournment thereof, and on every action or approval
by written consent of the stockholders of Parent, Stockholder (in his or her
capacity as such) shall cause the Shares to be voted (to the extent such Shares
have voting rights and are entitled to vote thereon) (i) in favor of the Share
Issuance, (ii) in favor of any matter that could reasonably be expected to
facilitate the Share Issuance, and (iii) against any matter that could
reasonably be expected to prevent the Merger. Notwithstanding the foregoing, and
notwithstanding any other provision of this Agreement, nothing in this Agreement
shall limit or restrict Stockholder from acting in Stockholder's capacity as a
director or officer of Parent (it being understood that this Agreement shall
apply to Stockholder solely in Stockholder's capacity as a stockholder of
Parent) or voting in Stockholder's sole discretion on any matter other than
those matters referred to in the foregoing clauses (i), (ii), and (iii) of this
Section 3.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Company a proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest
extent permissible by law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. Stockholder (i)
is the beneficial owner of the shares of Parent Common Stock and the options and
warrants to purchase shares of Common Stock of Parent indicated on the final
page of this Agreement, free and clear of any liens, claims, options, rights of
first refusal, co-sale rights, charges or other encumbrances that, in each case,
would deprive Company of the benefits of this Agreement; (ii) does not
beneficially own any securities of Parent other than the shares of Parent Common
Stock and options and warrants to purchase shares of Common Stock of Parent
indicated on the final page of this Agreement; and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy.
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6. Legending of Shares. If so requested by Company, Stockholder 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 2 hereof,
Stockholder agrees that Stockholder shall not Transfer the Shares without first
having the aforementioned legend affixed to the certificates representing the
Shares.
7. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
8. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the 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 parties hereto may be assigned by
either of the parties without prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Company upon any such
violation, Company shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Company at law or in equity.
(e) Notices. All notices and other communications pursuant to
this 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
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Company: Harbinger Corporation
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxxxxxx
Telecopy No.:(000) 000-0000
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With a copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxx
Facsimile No.: (000) 000-0000 and
(000) 000-0000
and
Xxxxxx Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile No.: (000) 000-0000
If to Stockholder: To the address for notice set forth on the
signature page hereof.
(f) Governing Law. This Agreement shall be governed by the
laws of the State of Delaware, without giving effect to the conflicts of law
principles thereof.
(g) Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(i) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) Nothing in this Agreement shall be construed to require
Stockholder to exercise any option, warrant or other right to acquire Parent
Common Stock, and nothing in this Agreement shall be construed to prohibit
Stockholder from (i) engaging in customary sales of Shares consistent with
Stockholder's past sales (but in no event aggregating more than 15% of
Stockholder's total Shares), or (ii) engaging in a net exercise of any option,
warrant or other right to acquire Parent Common Stock (if the contractual terms
of such option, warrant, or other right currently permit such a net exercise).
[Remainder Of This Page Left Blank Intentionally]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
COMPANY STOCKHOLDER
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Signature Signature
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Print Name Print Name
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Print Title Print Title
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Print Address
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Print Telephone
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Print Facsimile No.
Shares beneficially owned:
_______________shares of Parent Common Stock
_______________shares of Parent Common Stock issuable
upon exercise of outstanding options or
warrants
[SIGNATURE PAGE TO PARENT VOTING AGREEMENT]
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IRREVOCABLE PROXY
The undersigned stockholder of Peregrine Systems, Inc., a Delaware
corporation (the "Parent"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of Harbinger
Corporation, a Georgia corporation ("Company"), and each of them, as the sole
and exclusive 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 Parent that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Parent issued or issuable in respect thereof on or after
the date hereof (collectively, the "Shares") in accordance with the terms of
this Proxy. The Shares beneficially owned by the undersigned stockholder of
Parent as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this 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 on any matters covered hereby until after the Expiration Date (as defined
below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Company and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Company
entering into that certain Agreement and Plan of Reorganization (the
"Reorganization Agreement"), among Parent, Soda Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and
the Company. The Reorganization Agreement provides for the merger of 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 occur of (i) such
date and time as the Reorganization Agreement shall have been validly terminated
pursuant to Article VII thereof or (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the
Reorganization 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 Parent and in every written consent in lieu of such meeting (i) in favor of
the Share Issuance (as defined in the Reorganization Agreement), (ii) in favor
of any matter that reasonably be expected to facilitate the Stock Issuance or
the Merger, and (iii) against any matter that could reasonably be expected to
prevent the Merger.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder may vote,
and grant proxies with respect to, the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: April 5, 2000
Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
_______shares of Parent Common Stock
_______shares of the Parent Common Stock
issuable upon exercise of outstanding
options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
