PEREGRINE SYSTEMS, INC.
AMENDED STOCK OPTION AGREEMENT
This AGREEMENT is made effective as of the 7th day of
December, 1990 ("Option Grant Date"), by and between PEREGRINE SYSTEMS, INC.,
a California corporation, ("Company") and Xxxxxxxxxxx Xxxx ("Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established the
Peregrine Systems, Inc. Nonqualified Stock Option Plan ("Plan") effective as of
November 29, 1990; and
WHEREAS, pursuant to the provisions of said Plan, the Board of
Directors of the Company, by action duly taken on December 7, 1990 , granted
to the Optionee an option or options ("0ption(s)") to purchase shares of the
common stock of the Company ("Common Stock") on the terms and conditions set
forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. THE OPTION(s). The Optionee at the optionee's option and on
the terms and conditions set forth herein, may purchase all or any part of an
aggregate of 56,250 shares of common Stock (as adjusted for the three-for-two
and 2-for-one stock splits effected in connection with the Company's
reincorporation in Delaware and on in February 1997, respectively) at the
price per share set forth in Section 2 below ("Option Price").
2. OPTION PRICE AND EXERCISE DATES. The Option(s) shall be
exercisable at the option Price as to the specified number of shares ("Optioned
Shares") on and after the "Start" dates and on or before the "Terminate" dates
set forth below:
Option Exercise Dates
Number of Shares Price Start Terminate
---------------- ----- ---------- ---------
14,062.50 $0.51 7/1/91 12/7/2000
---------------- ----- ---------- ---------
14,062.50 $0.51 7/1/92 12/7/2000
---------------- ----- ---------- ---------
14,062.50 $0.51 7/1/93 12/7/2000
---------------- ----- ---------- ---------
14,062.50 $0.51 7/1/94 12/7/2000
---------------- ----- ---------- ---------
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Optionee acknowledges that he understands he has no right whatsoever to exercise
the Option(s) granted hereunder with respect to any Optioned Shares covered by
any installment except as provided above. Optionee further understands that the
Option(s) granted hereunder shall expire and become unexercisable as provided in
Section 3(c) below.
3. GOVERNING PLAN. This Agreement hereby incorporates by
reference the Plan and all of the terms and conditions of the Plan as the same
may be amended from time to time hereafter in accordance with the terms thereof,
but no such subsequent amendment shall adversely affect the Optionee's rights
under this Agreement and the Plan except as may be required by applicable law.
Optionee expressly acknowledges and agrees that the provisions of this Agreement
are subject to the Plan; the terms of this Agreement shall in no manner limit or
modify the controlling provisions Of the Plan; and in case of any conflict
between the provisions of the Plan and this Agreement, the provisions of the
Plan shall be controlling and binding upon the parties hereto. The Optionee
also hereby expressly acknowledges, represents and agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which
is attached hereto and by reference incorporated herein, and represents that
Optionee is familiar with the terms and provisions of said Plan, and hereby
accepts this Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors (or the Committee, if so
authorized) upon any questions arising under the Plan.
(c) Acknowledges that Optionee is familiar with Section 8 of the
Plan regarding the terms and conditions of the Option(s) and represents that
Optionee understands that said Option(s) must be exercised an or before the
earliest of the following dates, whichever is applicable: (i) the "Terminate"
date noted above in Section 2; (ii) the day prior to the day the Option shall
expire, as provided in Section 8(b) of the Plan; (iii) the date on which a
transaction specified under Section 8(c) of the Plan is consummated.
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(d) Acknowledges and understands that Optionee shall pay the
entire option Price in cash or shares of the Company's Common Stock at the time
the Option(s) are exercised, as permitted by Section 8(h) of the Plan; that use
Of Common Stock to pay the exercise price of an Option may have significant
adverse tax consequences for Optionee; and that Optionee should consult with a
competent tax advisor prior to utilizing common Stock of the Company to exercise
an Option.
(e) Acknowledges and understands that the Option(s) granted
hereunder to optionee supersede any and all other options, or promise(s) to
grant options, that may have been previously granted or made at any prior time
to Optionee by the Company, and that any and all other option plans of the
Company, and any unexercised options existing pursuant to those plans,
terminated on the date that the Plan was adopted.
4. EXERCISE.
(a) In order to exercise an Option, the Optionee shall deliver a
written notice of exercise to the Company at its principal business office,
which notice shall specify the number of shares to be purchased and shall be
accompanied by payment in cash or check made payable to the order of the Company
in the full amount of the Option Price of the shares to be purchased.
(b) In lieu of paying the total purchase price by cash or check,
the Optionee shall have the right to pay all or any portion of the total
purchase price with shares of common Stock of the Company held by the Optionee.
The amount of the purchase price deemed paid in this manner shall be the fair
market value as of the date of exercise of the shares surrendered, as determined
by the Board of Directors of the Company in its sole discretion, exercised in
good faith. If the Optionee elects to pay all or any portion of the total
purchase price in this manner, he shall accompany his notice of exercise with
the stock certificates he desires to surrender, duly endorsed for transfer to
the Company.
5. STOCK BUY-SELL AGREEMENT. As a condition to the exercise of any
portion of an Option, the Board may require the Optionee to enter into a Stock
Buy-Sell Agreement with the company in the form that is in effect at the time of
the exercise.
6. REPRESENTATION AND WARRANTIES. Optionee represents and warrants
that optionee is acquiring this Option for his own account and not with any
distribution of this Option or the shares of Common Stock which may be acquired
upon exercise
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of the Option. As a condition to the exercise of any portion of an Option, the
Company may require the person exercising such Option to make any representation
and/or warranty to the Company as may, in the judgment of counsel to the
Company, be required under any applicable law or regulation, including but not
limited to a representation and warranty that the shares are being acquired only
for investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation is
required under the Securities Act of 1933 or any other applicable law,
regulation or rule of any governmental agency.
7. OPTIONS NOT TRANSFERABLE. The Option(s) may be exercised during
the lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution subject to the provisions of section
8(e) of the Plan.
8. NO ENLARGEMENT OF EMPLOYEE RIGHTS. Nothing in this Agreement
shall be construed to confer upon the Optionee any right to continued employment
with the Company, or to restrict in any way the right of the company to
terminate his employment.
9. RELEASE. Optionee for himself or herself and on behalf of any
present or former spouse and any other person claiming by or through any of them
hereby releases, discharges and forever acquits the Company and each of its
present or former officers, directors, shareholders, agents, accountants,
attorneys and employees from any and all demands, debts, liabilities, duties,
causes of action or any other claims of any kind or character, whether known or
unknown, suspected or unsuspected, which now exists or which may be alleged to
now exist or which has existed or may be alleged to have existed, arising out of
Optionee's employment by the Company. Optionee agrees and expressly intends
that the release set forth in this Section 9 shall include a release of unknown
or unsuspected claims. Optionee expressly acknowledges that unknown or
unsuspected claims may exist which, if know or suspected by Optionee, might have
materially affected this Agreement between the parties. However, as a material
inducement for the Company's promises as set forth herein, Optionee offers and
intends to release all such unknown or unsuspected claims, In this regard,
Optionee acknowledges that he or she is aware of the provisions of civil Code
Section 1542 and, being fully advised by counsel, knowingly waives the benefit
of such provisions. The provisions of civil
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Code Section 1542 which are being waived by Optionee are as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
10. WITHHOLDING OF TAXES. Optionee authorizes the Company to
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
11. LAWS APPLICABLE TO CONSTRUCTION. This Agreement shall be
construed and enforced in accordance with the internal substantive laws of the
State of California without reference to conflicts of law principles.
12. AGREEMENT BINDING ON SUCCESSORS. The terms of this Agreement
shall be binding upon the executors, administrators, heirs, successors,
transferees and assignees of the Optionee.
13. COSTS OF LITIGATION. In any action at law or in equity to
enforce any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgement or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses and fees on any appeals),
and if the successful party recovers judgement in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgement.
14 NECESSARY ACTS. The Optionee agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
15. COUNTERPARTS. For convenience, this Agreement may be executed in
any number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purposes without the production of any other counterparts.
16. INVALID PROVISIONS. In the event that any provision of this
Agreement is found to be invalid or otherwise
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unenforceable under any applicable law, such invalidity or unenforceability
shall not be construed as rendering any other provisions contained herein
invalid or unenforceable, and all such other provisions shall be given full
force and effect to the same extent as though the invalid and unenforceable
provision was not contained herein.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written above.
PEREGRINE SYSTEMS, INC. OPTIONEE
/s/ Xxxxx Xxxx
--------------------
Signature
/s/ Xxxxx X. Xxxxxx Xxxxxxxxxxx Xxxx
-------------------- --------------------
Xxxxx X. Xxxxxx, Printed Name
President
X.X. Xxx 0000
--------------------
/s/ Xxxxxxx X. Xxxxx Street Address
--------------------
Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxx, XX 00000-0000
Secretary --------------------
City and State
###-##-####
--------------------
Social Security Number
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By his or her signature below, the spouse of the Optionee, if such
Optionee be legally married as of the date of his execution of this Agreement,
acknowledges that he or she has read this Agreement and the Plan and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of said Agreement and said Plan.
/s/ Xxxx X. Xxxx
-----------------------
Spouse's signature
Xxxx X. Xxxx
-----------------------
Printed Name
Dated: 12/2/91
-----------------
By his or her signature below, the Optionee represents that he or she
is not legally married as of the date of execution of this Agreement.
-----------------------
Optionee's Signature
Dated:
-----------------
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