EXHIBIT 3
COMPANY AFFILIATE AGREEMENT
THIS COMPANY AFFILIATE AGREEMENT (this "Agreement") is made and entered
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into as of June 10, 2001 by and among Peregrine Systems, Inc., a Delaware
corporation ("Parent"), Remedy Corporation, a Delaware corporation (the
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"Company"), and the undersigned stockholder of the Company (the "Stockholder").
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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. Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed thereto in the Merger
Agreement.
WHEREAS, the Stockholder understands that the shares of Parent Common Stock
being issued in the Merger will be issued pursuant to a registration statement
on Form S-4, and that the Stockholder may be deemed an "affiliate" of Parent as
such term is defined under Rule 145 ("Rule 145") under the Securities Act of
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1933, as amended (the "Securities Act"), and, as such, the Stockholder may only
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transfer, sell or dispose of such shares of Parent Common Stock in accordance
with this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby
agrees as follows:
1. Representations and Warranties. The Stockholder represents and
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warrants to Parent as follows:
(a) The Stockholder is the holder and "beneficial owner" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of shares
of Company Common Stock set forth on the signature page hereto (the
"Stockholder Company Shares").
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(b) The Stockholder is the holder of Company Stock Options to
purchase the number of shares of Company Common Stock set forth on the signature
page hereto (the "Stockholder Company Options").
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(c) The Stockholder does not own, of record or beneficially, directly
or indirectly, any securities of the Company other than the Stockholder Company
Shares or the Stockholder Company Options.
(d) The Stockholder has carefully read this Agreement and, to the
extent the Stockholder felt necessary, has discussed with counsel the
limitations imposed on the Stockholder's ability to sell, transfer or otherwise
dispose of the shares of Parent Common Stock that the Stockholder receives in
the Merger (the "Stockholder Parent Shares"). The Stockholder fully understands
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the limitations this Agreement places upon the Stockholder's ability to sell,
transfer or otherwise dispose of the Stockholder Parent Shares and to exercise
the Company Options.
2. Prohibitions Against Transfer. The Stockholder agrees that the
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Stockholder shall not effect any sale, transfer or other disposition of any
Stockholder Parent Shares unless:
(a) such sale, transfer or other disposition is effected pursuant to
an effective registration statement under the Securities Act;
(b) such sale, transfer or other disposition is made in conformity
with the applicable requirements of Rule 145 promulgated under the Securities
Act;
(c) counsel reasonably satisfactory to Parent shall have advised
Parent in a written opinion letter (satisfactory in form and content to Parent),
upon which Parent may rely, that such sale, transfer or other disposition will
be exempt from the registration requirements under the Securities Act; or
(d) an authorized representative of the Securities and Exchange
Commission (the "SEC") shall have rendered written advice to the Stockholder to
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the effect that the SEC would take no action, or that the staff of the SEC would
not recommend that the SEC take action, with respect to such sale, transfer or
other disposition, and a copy of such written advice and all other related
communications with the SEC shall have been delivered to Parent.
3. Option Exercises. The Stockholder agrees that from the execution and
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delivery of this Agreement until the Effective Time, the Stockholder shall not
exercise any Stockholder Company Options (in whole or in part) without the prior
written consent of the Company and Parent. The Company shall place an option
exercise limitation notice consistent with the foregoing in the stock option
records of the Company with respect to the Stockholder Company Options, and
notify the stock administrator under the Company Option Plans of such
restriction. The Company and Parent shall not withhold their consent to any
exercise of Stockholder Company Options if such exercise, together with all
exercises of Company Stock Options and notices of intent to exercise received as
of June 10, 2001, would not affect Parent's ability to effectuate the Merger
without a vote of its stockholders in compliance with Rule 4350 of the NASD
Marketplace Rules. In making its determination under the previous sentence,
Parent shall utilize the methodology utilized by Parent in connection with the
execution of the Merger Agreement for determining compliance with Rule 4350 of
the NASD Marketplace Rules. If the Stockholder wishes to exercise a Company
Option (in whole or in part), the Stockholder shall notify the Company and
Parent of the Stockholder's desire to do so. Such notice shall be in writing
and shall specify the number of shares of Company Common Stock that the
Stockholder wishes to purchase by exercising a Stockholder Company Option. As
soon as practicable following the delivery of such notice (but in no event more
than 5 business days thereafter), Parent and the Company shall advise the
Stockholder in writing as to whether or not each of them consents to such
exercise, and, if such consent is withheld, the basis on which the proposed
exercise would affect Parent's ability to effectuate the Merger without a vote
of Parent's stockholders in compliance with Rule 4350 of the NASD Marketplace
Rules.
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4. Stop Transfer Instructions; Legend. The Stockholder acknowledges and
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agrees that (a) stop transfer instructions will be given to Parent's transfer
agent with respect to the Stockholder Parent Shares (which instructions shall be
terminated after any transfer of the Stockholder Parent Shares by the
Stockholder in compliance with the terms of Section 2 hereof), and (b) each
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certificate representing any of the Stockholder Parent Shares held by the
Stockholder shall bear a legend identical or similar in effect to the following
legend (together with any other legend or legends required by applicable state
securities laws or otherwise):
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION TO
WHICH RULE 145 OF THE SECURITIES ACT OF 1933, AS AMENDED, APPLIES AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF RULE 145 AND IN
ACCORDANCE WITH THE TERMS OF A COMPANY AFFILIATE AGREEMENT DATED AS OF JUNE
10, 2001, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF THE ISSUER
HEREOF.
It is understood and agreed that the legend set forth in this Section 4
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shall be removed by delivery of substitute certificates without such legend, and
Parent shall so instruct its transfer agent on the first anniversary of the
Effective Time (provided that the provisions of Rule 145(d)(2) are then
available to the Stockholder) or if (i) the securities represented thereby have
been registered for sale by the undersigned under the Securities Act and the
Stockholder certifies in writing to Parent that any prospectus delivery
requirement in respect thereof has been satisfied or (ii) Parent has received
either an opinion of counsel, which opinion and counsel shall be reasonably
satisfactory to Parent, or a "no-action" letter obtained by the undersigned from
the SEC staff, to the effect that the restrictions imposed by Rule 145 under the
Securities Act no longer apply to the Stockholder or that the legend referred to
above can otherwise be removed.
5. Representations and Warranties by Parent. For as long as and to the
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extent necessary to permit the Stockholder to sell the Parent Shares pursuant to
Rule 145 and, to the extent applicable, Rule 144 under the Securities Act ("Rule
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144"), Parent shall (a) use its reasonable efforts to (i) file, on a timely
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basis, all reports and data required to be filed with the Commission by it
pursuant to Section 13 of the Exchange Act, and (ii) furnish to me upon request
a written statement as to whether or not parent has complied with such reporting
requirements during the twelve months preceding any proposed sale of the Parent
Shares by the Stockholder pursuant to Rule 145, and (b) otherwise use its
reasonable efforts to permit such sales pursuant to Rule 145 and Rule 144.
Parent hereby represents that it has filed all reports required to be filed with
the Commission under Section 13 of the Exchange Act during the preceding twelve
months.
6. Specific Performance. The Stockholder agrees that in the event of any
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breach or threatened breach by the Stockholder of any covenant, obligation or
other provision contained in this Agreement, Parent and the Company shall be
entitled (in addition to any other remedy that may be available to Parent) to:
(a) a decree or order of specific performance or mandamus to enforce the
observance and performance of such covenant, obligation or other provision; and
(b) an injunction restraining such breach or threatened breach. The Stockholder
further agrees
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that none of the Parent, the Company or any other person or entity shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 6,
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and the Stockholder irrevocably waives any right he may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
7. Other Agreements. Nothing in this Agreement shall limit any of the
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rights or remedies of Parent or the Company under the Merger Agreement, or any
of the obligations of the Stockholder under any agreement between the
Stockholder and Parent or the Company or any certificate or instrument executed
by the Stockholder in favor of Parent or the Company, and nothing in the Merger
Agreement or in any other agreement, certificate or instrument shall limit any
of the rights or remedies of Parent or the Company, or any of the obligations of
the Stockholder, under this Agreement.
8. Notices. All notices, requests, demands, waivers and other
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communications required or permitted to be given under this Agreement to any
party hereunder shall be in writing and deemed given upon (i) personal delivery,
(ii) transmitter's confirmation of a receipt of a facsimile transmission, (iii)
confirmed delivery by a nationally-recognized overnight carrier or when
delivered by hand or (iv) when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by notice given hereunder):
If to Parent or the Company (following the Effective Time):
Peregrine Systems, Inc
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
If to the Stockholder, to the address for notice set forth on the
signature page hereof with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Velleneuve Franklin & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. X'Xxxxxx, Esq.
Xxxxxxxxxxx X. Xxxxxx, Esq.
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9. Severability. In the event that any provision of this Agreement,
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or the application of any such provision to any person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
10. Applicable Law; Jurisdiction. This Agreement shall be governed
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by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. In any action between any of the parties arising
out of or relating to this Agreement or any of the transactions contemplated by
this Agreement: (i) each of the parties irrevocably and unconditionally consents
and submits to the jurisdiction and venue of the state and federal courts
located in San Diego, California; (ii) each of the parties irrevocably waives
the right to trial by jury; and (iii) each of the parties irrevocably consents
to service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in
accordance with this Section 10.
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11. Waiver; Termination. No failure on the part of Parent or the
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Company to exercise any power, right, privilege or remedy under this Agreement,
and no delay on the part of Parent or the Company in exercising any power,
right, privilege or remedy under this Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial exercise of any
such power, right, privilege or remedy shall preclude any other or further
exercise thereof or of any other power, right, privilege or remedy. Neither
Parent nor the Company shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of
Parent or the Company, as applicable; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given. If the Merger Agreement is terminated, this Agreement shall thereupon
terminate.
12. Headings. The headings contained in this Agreement are for
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convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
13. Further Assurances. The Stockholder shall execute and/or cause
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to be delivered to Parent and/or the Company, as applicable, such instruments
and other documents and shall take such other actions as Parent and/or the
Company may reasonably request to effectuate the intent and purposes of this
Agreement.
14. Entire Agreement; Counterparts. This Agreement constitutes the
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entire agreement and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
This Agreement may be executed in several counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same
instrument.
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15. Non-Exclusivity. The rights and remedies of Parent and the
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Company hereunder are not exclusive of or limited by any other rights or
remedies which Parent or the Company may have, whether at law, in equity, by
contract or otherwise, all of which shall be cumulative (and not alternative).
16. Amendments. This Agreement may not be amended, modified, altered
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or supplemented other than by means of a written instrument duly executed and
delivered on behalf of Parent, the Company and the Stockholder.
17. Assignment. This Agreement and all obligations of the
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Stockholder hereunder are personal to the Stockholder and may not be transferred
or delegated by the Stockholder at any time.
18. Binding Nature. This Agreement will inure to the benefit of
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Parent, the Company and their respective successors and assigns, and will be
binding upon the Stockholder and the Stockholder's representatives, executors,
administrators, estate, heirs, successors and assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
STOCKHOLDER:
__________________________________________
(Signature)
__________________________________________
(Print Name)
__________________________________________
__________________________________________
(Address)
____________ Shares of Company Common Stock
____________ Shares of Company Common Stock
issuable upon the exercise of Company Stock
Options
PEREGRINE SYSTEMS, INC.
By:____________________________
Name:__________________________
Title:_________________________
REMEDY CORPORATION
By:____________________________
Name:__________________________
Title:__________________________
[COMPANY AFFILIATED AGREEMENT]
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