Agreement and Plan of Merger - Peregrine Systems Inc. and XVT Software Inc.
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger dated as of November 30, 1995 (the
"AGREEMENT") by and among Peregrine Systems, Inc., a Delaware corporation
("PEREGRINE"), XVT Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Peregrine (the "COMPANY"), and XVT Software Inc., a Delaware
corporation ("XVT"; XVT and the Company being hereinafter sometimes called the
"CONSTITUENT CORPORATIONS"):
WITNESSETH:
WHEREAS, the authorized capital stock of Peregrine consists of (i)
2,000,000 shares of Preferred Stock, par value $.001 per share, of which no
shares are issued and outstanding, and (ii) 20,000,000 shares of Common Stock,
par value $.001 per share (the "PEREGRINE COMMON"), of which 5,101,963 shares
are issued and outstanding;
WHEREAS, the authorized capital stock of the Company consists of 100 shares
of Common Stock, par value $.0l per share, all of which shares are outstanding
and owned beneficially and of record by Peregrine;
WHEREAS, the authorized capital stock of XVT consists of (a) 520,918 shares
of Preferred Stock, (i) 192,588 shares of which have been designated as Series A
Convertible Preferred Stock, par value $.001 per share (the "XVT SERIES A
PREFERRED"), of which 192,588 shares are issued and outstanding, (ii) 93,808
shares of which have been designated as Series B Convertible Preferred Stock,
par value $.001 per share (the "XVT SERIES B PREFERRED"), of which 93,808 shares
are, issued and outstanding, and (iii) 234,522 shares of which have been
designated as Series C Convertible Preferred Stock, par value $.001 per share
(the "XVT SERIES C PREFERRED," the XVT Series A Preferred, XVT Series B
Preferred and the XVT Series C Preferred collectively, the "XVT PREFERRED"), of
which 140,713 shares are issued and outstanding, and (ii) 7,000,000 shares of
Common Stock, par value $.0005 per share (the "XVT COMMON"), of which 1,230,768
shares are issued and outstanding;
WHEREAS, the respective Boards of Directors of Peregrine, the Company and
XVT have by resolutions approved this Agreement and deem it advisable for the
mutual benefit of the Constituent Corporations, and of the respective
stockholders of each, that the Company merge with and into XVT under and
pursuant to the General Corporation Law of the State of Delaware (the "DELAWARE
CORPORATION LAW") and upon the terms and subject to the conditions hereinafter
set forth; and
WHEREAS, the parties intend by executing and delivering this Agreement, to
adopt a plan of reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code");
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NOW, THEREFORE, in consideration of these premises and the mutual
agreements, provisions and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings set forth below:
"AFFILIATE" means, with respect to a specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Person specified.
"GOVERNMENTAL AUTHORITY" means any government, court, tribunal, regulatory
or administrative agency or commission, or other governmental authority, agency
or instrumentality, whether federal, state or local (domestic or foreign).
"LIEN" means, with respect to any asset, any mortgage, lien, pledge, claim,
charge, security interest, easement, assessment, restrictive covenant,
reservation, restriction or encumbrance of any kind in respect of such asset.
"MATERIAL ADVERSE EFFECT" means, with respect to a specified Person, a
material adverse affect on the business, assets, condition (financial or
otherwise) or result of operations of the Person.
"PERSON" means an individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, trust or
other entity or organization, including a Governmental Authority.
1.2 ADDITIONAL DEFINITIONS. Each of the following terms is defined in the
Section set forth opposite such term:
TERM SECTION
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Agreement Recitals
Closing 2.7
Closing Date 2.7
Code Recitals
Common Exchange Ratio 3.3
Company Recitals
Constituent Corporations Recitals
Delaware Corporation Law Recitals
Dissenting Shares 3.7
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TERM SECTION
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Effective Time 2.2
Merger 2.1
Outstanding Options 6.5
Peregrine Recitals
Peregrine Common Recitals
Surviving Corporation 2.1
XVT Recitals
XVT Common Recitals
XVT Series A Preferred Recitals
XVT Series B Preferred Recitals
XVT Series C Preferred Recitals
XVT Preferred Recitals
ARTICLE II
THE MERGER
2.1 THE MERGER. In accordance with Section 251 of the Delaware
Corporation Law, the Company shall be merged with and into XVT (the "MERGER"),
and XVT shall be the surviving corporation (such corporation in its capacity as
such surviving corporation, the "SURVIVING CORPORATION"). The terms and
conditions of the Merger, the mode of carrying the same into effect, and the
manner and basis of converting shares of each of the Constituent Corporations
into the consideration which the holders of those shares are to receive upon
conversion of such shares shall be as set forth in this Agreement.
2.2 EFFECTIVE TIME. The Merger shall become effective as of the time of
the filing of the executed certificate of merger with the Secretary of State of
Delaware pursuant to Section 251(c) of the Delaware Corporation Law (the
"EFFECTIVE TIME").
2.3 CERTAIN EFFECTS OF THE MERGER. As of the Effective Time, the effect
of the Merger shall be as provided by the applicable provisions of the Delaware
Corporation Law. Without limiting the generality of the foregoing and subject
thereto, at the Effective Time: the separate existence of the Company shall
cease and the Company shall be merged into XVT; the Surviving Corporation shall
possess, without further act or deed, all the rights, privileges, powers and
franchises of a public as well as a private nature, and be subject to all the
restrictions, disabilities and duties of each of the Constituent Corporations;
and all and singular, the rights, privileges, powers and franchises of each of
the Constituent Corporations; and all property, real, personal and mixed, and
all debts due to any of the Constituent Corporations on whatever account, as
well for stock subscriptions as all other things in action or belonging to each
of the Constituent Corporations shall be vested in the Surviving Corporation;
and all property, rights, privileges, powers and franchises, and all and every
other interest shall be thereafter as effectively the property of the Surviving
Corporation as they were of the several and respective Constituent
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Corporations; and the title to any real estate vested by deed or otherwise,
under the laws of Delaware, in any of the Constituent Corporations, shall not
revert or be in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon any property of any of the Constituent
Corporations shall be preserved unimpaired, and all debts, liabilities and
duties of the respective Constituent Corporations shall thenceforth attach to
the Surviving Corporation, and may be enforced against it to the same extent
as if such debts, liabilities and duties had been incurred or contracted by
it. Any action or proceeding, whether civil, criminal or administrative,
pending by or against any of the Constituent Corporations shall be prosecuted
as if the Merger had not taken place, and the Surviving Corporation may be
substituted in such action or proceeding.
2.4 CERTIFICATE OF INCORPORATION. The certificate of incorporation of the
Surviving Corporation shall, from and after the Effective Time, be amended to
read in its entirety as set forth in the certificate of incorporation of the
Company as in effect immediately prior to the Effective Time until changed as
permitted by law or by such certificate of incorporation, except that Paragraph
FIRST of such certificate of incorporation shall be amended to change the name
of the Surviving Corporation to "XVT Software Inc." so that as so amended said
Paragraph FIRST shall read in its entirety as follows: "The name of the
Corporation is "XVT Software Inc."
2.5 BY-LAWS. The By-Laws of the Surviving Corporation shall, from and
after the Effective Time, be amended to read in their entirety as set forth in
the by-laws of the Company as in effect immediately prior to the Effective Time
until changed as permitted by law, by the certificate of incorporation of the
Surviving Corporation or by such bylaws.
2.6 DIRECTORS AND OFFICERS. The directors and officers of the Surviving
Corporation from and after the Effective Time shall be the directors and
officers of the Company immediately prior to the Effective Time, each to hold
office in accordance with applicable law and the certificate of incorporation
and by-laws of the Surviving Corporation.
2.7 THE CLOSING. Subject to the satisfaction or waiver of all conditions
precedent set forth in Article VII, the closing (the "CLOSING") shall be held at
the offices of Testa, Hurwitz & Thibeault, High Street Tower, 125 High Street,
Boston, Massachusetts 02110 on November 30, 1995 or as soon thereafter as
practicable (the "CLOSING DATE"). If any condition in Article VII is not
satisfied in any material respect (or is not duly waived) at the Closing, any
party whose obligations are subject to such condition may extend the period in
which the Closing must be consummated (during which period each other party
shall use its respective reasonable efforts to cause all such conditions to be
satisfied in all material respects). If all conditions are determined to be
satisfied in all material respects (or are duly waived) at the Closing (whether
or not delayed), the Closing shall be consummated by the making of all necessary
filings with the Secretary of State of Delaware under the Delaware Corporation
Law. Each of Peregrine, the Company and XVT shall use all reasonable efforts,
on or prior to the Closing, to execute and deliver all such instruments,
documents or certificates as may be necessary or advisable, on the advice of
counsel, for the consummation at the Closing of the transactions contemplated by
this
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Agreement or to cause the Effective Time, subject to consummation at the
Closing, to occur as soon as practicable.
ARTICLE III
CONVERSION AND EXCHANGE OF SECURITIES
3.1 SHARES OF THE SURVIVING CORPORATION. The authorized number and par
value of shares of all classes of stock of the Company immediately prior to the
Effective Time shall be the authorized number and par value of shares of the
classes of stock of the Surviving Corporation from and after the Effective Time.
3.2 CONVERSION OF COMPANY COMMON. At the Effective Time, each share of
Common Stock, par value $.01 per share, of the Company issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, automatically be converted
into and represent one validly issued, fully paid and nonassessable share of
Common Stock, par value $.01 per share, of the Surviving Corporation.
3.3 CONVERSION OF XVT SECURITIES.
(a) At the Effective Time, each share of XVT Common issued and
outstanding immediately prior to the Effective Time (other than shares of XVT
Common (i) held in the treasury of XVT, which shall not be considered as
outstanding for purposes of this Agreement, (ii) held by Peregrine or any
subsidiary of Peregrine or XVT, or (iii) which are Dissenting Shares (as
hereinafter defined)) shall, by virtue of the Merger and without any action on
the part of the holder thereof, automatically be canceled and extinguished and
converted into the right to receive 0.1178 shares of Peregrine Common (the
"COMMON EXCHANGE RATIO").
(b) At the Effective Time, each share of XVT Series A Preferred
issued and outstanding immediately prior to the Effective Time (other than
shares of XVT Series A Preferred (i) held in the treasury of XVT, which shall
not be considered as outstanding for purposes of this Agreement, (ii) held by
Peregrine or any subsidiary of Peregrine or XVT, or (iii) which are Dissenting
Shares (as hereinafter defined)) shall, by virtue of the Merger and without any
action on the part of the holder thereof, automatically be canceled and
extinguished and converted into the right to receive
1.6409 shares of Peregrine Common.
(c) At the Effective Time, each share of XVT Series B Preferred
issued and outstanding immediately prior to the Effective Time (other than
shares of XVT Series B Preferred (i) held in the treasury of XVT, which shall
not be considered as outstanding for purposes of this Agreement, (ii) held by
Peregrine or any subsidiary of Peregrine or XVT, or (iii) which are Dissenting
Shares (as hereinafter defined)) shall, by virtue of the Merger and without
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any action on the part of the holder thereof, automatically be canceled and
extinguished and converted into the right to receive 2.4331 shares of
Peregrine Common.
(d) At the Effective Time, each share of XVT Series C Preferred
issued and outstanding immediately prior to the Effective Time (other than
shares of XVT Series C Preferred (i) held in the treasury of XVT, which shall
not be considered as outstanding for purposes of this Agreement, (ii) held by
Peregrine or any subsidiary of Peregrine or XVT, or (iii) which are Dissenting
Shares (as hereinafter defined)) shall, by virtue of the Merger and without any
action on the part of the holder thereof, automatically be canceled and
extinguished and converted into the right to receive
2.2753 shares of Peregrine Common.
(e) At the Effective Time, each share of XVT Preferred and XVT Common
held (i) in the treasury of XVT, or (ii) by Peregrine or any subsidiary of
Peregrine or XVT, immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof,
automatically be canceled and retired and all rights in respect thereof shall
cease to exist.
(f) Notwithstanding anything to the contrary in this Agreement, if
the conversion of any shares of XVT Common for Peregrine Common would result in
the offer and sale of the shares of Peregrine Common to be issued in the Merger
not being exempt from any applicable registration or qualification requirements
under either federal or state securities or Blue Sky laws, Peregrine may
purchase such shares for cash in an amount equal to $0.59 per share of XVT
Common.
3.4 NO FRACTIONAL PEREGRINE COMMON. Notwithstanding any other provision
of this Agreement, neither certificates nor scrip for fractional shares of
Peregrine Common shall be issued to any holder of XVT Preferred or XVT Common in
the Merger and the holder thereof shall not be entitled to any voting or other
rights of a holder of shares or a fractional share interest. Each holder of
shares of XVT Preferred or XVT Common who otherwise would have been entitled to
receive a fraction of a share of Peregrine Common shall receive in lieu thereof
cash, without interest, in an amount determined by multiplying such holder's
fractional interest by $5.00. All amounts of cash in respect of fractional
interests which have not been claimed at the end of three years from the
Effective Time by surrender of certificates for shares of XVT Preferred or XVT
Common shall be repaid to the Surviving Corporation, subject to the provisions
of applicable escheat or similar laws, for the account of the holders entitled
thereto.
3.5 DISTRIBUTION OF PEREGRINE COMMON.
(a) As soon as practicable after the Effective Time, Peregrine shall
distribute the Peregrine Common and cash as provided in this Section 3.5.
(b) At the Effective Time, each holder of an outstanding certificate
or certificates for shares of XVT Preferred or XVT Common shall cease to have
any rights as a
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stockholder of XVT, except such rights, if any, as such holder
may have with respect to Dissenting Shares. Each such holder of an outstanding
certificate or certificates for shares of XVT Preferred or XVT Common converted
in the Merger, upon surrender of each such certificate to Peregrine shall
receive promptly in exchange for each such certificate the shares of Peregrine
Common and cash (if any) to which such holder is entitled pursuant to
Sections 3.3 and 3.4 of this Agreement. Pending such surrender and exchange,
such holder's certificate or certificates for shares of XVT Preferred or XVT
Common shall be deemed for all corporate purposes, by virtue of the Merger and
without any action on the part of the holder thereof, to evidence only the right
to receive the shares of Peregrine Common and cash (if any) provided for under
this Agreement. Unless and until any such outstanding certificates for shares
of XVT Preferred or XVT Common shall be so surrendered, no dividend (cash or
stock) payable to holders of record of shares of Peregrine Common as of any date
subsequent to the Effective Time shall be paid to the holder of any such
outstanding certificate and his other rights as a stockholder of Peregrine shall
be suspended, but upon such surrender of such outstanding certificate there
shall be paid to the record holder of the certificate of shares of Peregrine
Common issued in exchange therefor the amount of dividends, if any, without
interest and less any taxes which may have been imposed thereon, that have
theretofore become such certificate issued upon such surrender and exchange, and
his other rights as a stockholder of Peregrine shall thereafter be restored.
3.6 CLOSING OF STOCK TRANSFER BOOKS. The stock transfer books of XVT
shall be closed at the close of business on the business day immediately
preceding the Effective Time. In the event of a transfer of ownership of XVT
Preferred or XVT Common which is not registered in the transfer records of XVT,
the shares of Peregrine Common and cash (if any) to be issued in the Merger as
provided in this Agreement may be delivered to a transferee, if the certificate
representing such XVT Preferred or XVT Common is presented to Peregrine,
accompanied by all documents required to evidence and effect such transfer and
by payment of any applicable stock transfer taxes.
3.7 DISSENTING SHARES. Shares of XVT Preferred or XVT Common that have
not been voted for adoption of this Agreement and with respect to which
appraisal rights shall have been properly perfected in accordance with
Section 262 of the Delaware Corporation Law (the "DISSENTING SHARES") shall not
be converted into the right to receive shares of Peregrine Common and cash (if
any) in accordance with this Agreement, at or after the Effective Time, unless
and until the holder of such Dissenting Shares withdraws his demand for such
appraisal in accordance with Section 262(k) of the Delaware Corporation Law or
becomes ineligible for such appraisal. If a holder of Dissenting Shares shall
withdraw in accordance with Section 262(k) of the Delaware Corporation Law his
demand for such appraisal or shall become ineligible for such appraisal, then,
as of the latter of the Effective Time or the occurrence of such event, such
holder's Dissenting Shares shall cease to be Dissenting Shares and shall be
converted into the right to receive the shares of Peregrine Common and cash (if
any) into which his XVT Preferred or XVT Common was converted as of the
Effective Time pursuant to this Agreement. Any amounts to be paid to holders of
Dissenting Shares with respect to such Dissenting Shares shall be paid by the
Surviving Corporation.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF XVT
XVT hereby represents and warrants to each of Peregrine and the Company as
follows:
4.1 CORPORATE EXISTENCE AND POWER. XVT is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate power and authority and all governmental
licenses, authorizations, consents, permits and approvals necessary to enable it
to own, lease or otherwise hold its properties and assets and to carry on its
business as now conducted and currently proposed to be conducted. XVT is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the character of the property owned or leased by it or
the nature of its activities makes such qualification necessary, except for
those jurisdictions where the failure to be so qualified would not, individually
or in the aggregate, have a Material Adverse Effect on XVT.
4.2 CORPORATE AUTHORIZATION. The execution, delivery and performance by
XVT of this Agreement, and the consummation by XVT of the Merger and the other
transactions contemplated by this Agreement are within XVT's corporate power and
authority and, subject to the adoption of this Agreement by the stockholders of
XVT as required by law, have been duly authorized by all necessary corporate
action. This Agreement has been duly authorized, executed and delivered by XVT
and constitutes a valid and binding obligation XVT, enforceable against XVT in
accordance with its terms.
4.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance
by XVT of this Agreement, and the consummation by XVT of the Merger and the
other transactions contemplated by this Agreement, do not and will not require
any consent, approval or action by or in respect of, or any declaration, filing
or registration with, any Governmental Authority, other than routine filings
with the Secretary of State of Delaware necessary to consummate the Merger.
4.4 NON-CONTRAVENTION. The execution, delivery and performance by XVT of
this Agreement, and the consummation by XVT of the Merger and the other
transactions contemplated by this Agreement, do not and will not, with or
without the giving of notice, the lapse of time or both: (i) contravene or
conflict with the certificate of incorporation or bylaws of XVT, (ii) assuming
compliance with the matters referred to in Section 4.3, contravene or conflict
with or constitute a violation of any provision of any law, rule, regulation,
judgment, injunction, order or decree currently in effect and binding upon or
applicable to XVT, (iii) require any consent, approval or other action by any
Person, contravene or conflict with or constitute a violation of or a default
under, or give rise to any right of termination, cancellation or acceleration of
any right or obligation of XVT or to a loss of any benefit to which XVT is
entitled, under any material provision of (a) any agreement, contract,
indenture, lease or other instrument binding upon XVT or (b) assuming compliance
with the matters referred to in
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Section 4.3, any license, franchise, permit or other similar authorization
held by XVT or (iv) except for the rights of any holders of Dissenting
Shares, result in the creation or imposition of any Lien on any asset of XVT.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PEREGRINE AND THE COMPANY
Peregrine and the Company hereby represent and warrant to XVT as follows:
5.1 CORPORATE EXISTENCE AND POWER. Each of Peregrine and the Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all corporate power and authority and all
governmental licenses, authorizations, consents, permits and approvals necessary
to enable it to own, lease or otherwise hold its properties and assets and to
carry on its business as now conducted and currently proposed to be conducted.
Peregrine is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the character of the property owned or
leased by it or the nature of its activities makes such qualification necessary,
except for those jurisdictions where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect on Peregrine.
5.2 CORPORATE AUTHORIZATION. The execution, delivery and performance by
Peregrine and the Company of this Agreement, and the consummation by Peregrine
and the Company of the Merger and the other transactions contemplated by this
Agreement, are within the corporate power and authority of Peregrine and the
Company, respectively, and, subject to the adoption of this Agreement by the
stockholder of the Company as required by law, have been duly authorized by all
necessary corporate action. This Agreement has been duly and validly
authorized, executed and delivered by Peregrine and the Company and constitutes
a valid and binding obligation of Peregrine and the Company, enforceable against
Peregrine and the Company in accordance with its terms.
5.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance
by Peregrine and the Company of this Agreement, and the consummation by
Peregrine and the Company of the Merger and the other transactions contemplated
by this Agreement, do not and will not require any consent, approval or action
by or in respect of, or any declaration, filing or registration with, any
Governmental Authority, other than routine filings with the Secretary of State
of Delaware necessary to consummate the Merger, and compliance with the
applicable requirements of the Securities Act of 1933, and any applicable state
securities and blue sky laws in connection with the offering, sale and delivery
of the shares of Peregrine Common to be issued in the Merger.
5.4 NON-CONTRAVENTION. The execution, delivery and performance by
Peregrine and the Company of this Agreement, and the consummation by Peregrine
and the Company of the
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Merger and the other transactions contemplated by this Agreement, do not and
will not, with or without the giving of notice, the lapse of time or both:
(i) contravene or conflict with the certificates of incorporation or by -laws
of Peregrine or the Company, (ii) assuming compliance with the matters
referred to in Section 5.3, contravene or conflict with or constitute a
violation of any provision of any law, rule, regulation, judgment,
injunction, order or decree binding upon or applicable to Peregrine or the
Company, (iii) require any consent, approval or other action by any Person,
contravene or conflict with or constitute a violation of or a default under,
or give rise to any right of termination, cancellation or acceleration of any
right or obligation of Peregrine or the Company or to a loss of any benefit
to which Peregrine or the Company is entitled, under any material provision
of (a) any material agreement, contract, indenture, lease or other instrument
binding upon Peregrine or the Company or (b) assuming compliance with the
matters referred to in Section 5.3, any license, franchise, permit or other
similar authorization held by Peregrine or the Company, or (iv) result in the
creation or imposition of any Lien on any asset of Peregrine or the Company.
5.5 INVESTMENT. The capital stock of XVT being acquired by Peregrine in
the Merger is being acquired for its own account for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof.
ARTICLE VI
COVENANTS OF ALL PARTIES
Each of the parties hereby covenants and agrees with the other parties as
follows:
6.1 COOPERATION. It shall cooperate fully with the other parties hereto
in furnishing any information or perforating any action reasonably requested by
any such party, which information or action is necessary to the speedy and
successful consummation of the transactions contemplated by this Agreement or is
necessary, appropriate or desirable for the respective corporate purposes of
Peregrine and XVT. Subject to its further rights under this Agreement, it shall
use all reasonable efforts to cause the Closing to occur at the earliest
practicable time.
6.2 OTHER REQUIRED INFORMATION. It shall furnish to the other parties
hereto any application or statement, and all information concerning itself and
its Affiliates as is required to be set forth in any application or statement,
to be filed with any Governmental Authority in connection with the transactions
contemplated by this Agreement or otherwise.
6.3 MISCELLANEOUS AGREEMENTS AND CONSENTS. Subject to the terms and
conditions provided in this Agreement, it shall use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, appropriate or desirable under applicable laws and regulations
to consummate the transactions contemplated by this Agreement. It shall use
reasonable efforts to obtain consents of all Persons and Governmental
Authorities necessary, appropriate or desirable for the consummation of the
transactions contemplated by this Agreement.
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6.4 CERTAIN TAX AND ACCOUNTING MATTERS. It shall not, either before or
after the consummation of the Merger, take any actions which would prevent the
Merger from qualifying as a tax-free reorganization under Section 368(a) of the
Code.
6.5 XVT STOCK OPTIONS. At or prior to the Effective Time, Peregrine and
XVT shall take all action necessary to cause the assumption by Peregrine as of
the Effective Time of the options to purchase XVT Common outstanding as of the
Effective Time (the "OUTSTANDING OPTIONS"). Each of the Outstanding Options
shall be converted without any action on the part of the holder thereof into an
option to purchase shares of Peregrine Common as of the Effective Time. The
number of shares of Peregrine Common that the holder of an assumed Outstanding
Option shall be entitled to receive upon the exercise of such option shall be a
number-of whole and fractional shares determined by multiplying the number of
shares of XVT Common subject to such option, determined immediately before the
Effective Time, by the Common Exchange Ratio. The option price of each share of
Peregrine Common subject to an assumed Outstanding Option shall be the amount
(rounded up to the nearest whole cent) obtained by dividing the exercise price
per share of XVT Common at which such option is exercisable immediately before
the Effective Time by the Common Exchange Ratio. The assumption and
substitution of Outstanding Options as provided herein shall not give the
holders of such options additional benefits which they did not have immediately
prior to the Effective Time or relieve the holders of any obligations or
restrictions applicable to their options or the shares obtainable upon exercise
of the options. Only whole shares of Peregrine Common shall be issued upon
exercise of any Outstanding Option, and in lieu of receiving any fractional
share of Peregrine Common, the holder of such option shall receive in cash the
fair market value of the fractional share, net of the applicable exercise price
of the fractional share and applicable withholding taxes.
ARTICLE VII
CONDITIONS OF CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF PEREGRINE, THE COMPANY. The obligations
of each of the parties hereto under this Agreement to consummate the Merger are,
at its option, subject to the satisfaction of the following conditions:
(a) STOCKHOLDER APPROVALS. The adoption of this Agreement and the
transactions contemplated hereby shall have been approved by the stockholders of
XVT and the Company as required by the Delaware Corporation Law and the
certificates of incorporation and by-laws of XVT and the Company.
(b) LITIGATION; INJUNCTIONS. No action, suit, litigation, proceeding
or investigation shall (i) have been formally instituted and be pending with
regard to the Merger, or (ii) be threatened by any Governmental Authority with
regard to the Merger, which, if resolved substantially in accordance with the
plaintiff's demands, would be reasonably likely to materially and adversely
affect the Merger contemplated by this Agreement. On the Closing Date, there
shall not be in force any order or decree restraining or enjoining consummation
of the Merger, or
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placing any limitation upon such consummation or to invalidate, suspend or
require modification of any provision of this Agreement.
7.2 CONDITIONS APPLICABLE TO PEREGRINE AND THE COMPANY. The obligations
of Peregrine and the Company under this Agreement to consummate the Merger are,
at their option, subject to the satisfaction of the following conditions, in
addition to the conditions contained in Section 7. 1:
(a) PERFORMANCE OF THIS AGREEMENT. All the terms, covenants and
conditions of this Agreement to be complied with and performed by XVT on or
before the Closing Date shall have been complied with, and performed in all
material respects.
(b) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of XVT set forth in this Agreement shall be true and correct in
all material respects both on the date of this Agreement and as of the Closing
Date with the same force and effect as if such representations and warranties
were made anew at and as of the Closing Date, except: (i) to the extent such
representations and warranties are by their express provisions made as of the
date of this Agreement or another specified date; and (ii) for the effect of any
activities or transactions which may have taken place after the date of this
Agreement which are contemplated by this Agreement.
(c) CLOSING CERTIFICATES. Peregrine and the Company shall have
received a certificate dated the Closing Date, signed by the chief executive
officer and chief financial officer of XVT to the effect that the conditions set
forth in Sections 7.2(a) through 7.2(b) have been satisfied.
(d) PROCEEDINGS. All proceedings to be taken in connection with the
Merger and the other transactions contemplated by this Agreement and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Peregrine and the Company, and Peregrine and the Company shall have
received copies of all such documents and other evidence as they may reasonably
request to establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
7.3 CONDITIONS APPLICABLE TO XVT. The obligations of XVT under this
Agreement to consummate the Merger are, at its option, subject to the
satisfaction of the following conditions, in addition to the conditions
contained in Section 7. 1:
(a) PERFORMANCE OF THIS AGREEMENT. All the terms, covenants and
conditions of this Agreement to be complied with and performed by Peregrine and
the Company on or before the Closing Date shall have been complied with, and
performed in all material respects.
(b) ACCURACY OF REPRESENTATIONS WARRANTIES. The representations and
warranties of Peregrine and the Company set forth in this Agreement shall have
been true and correct in all material respects on the date of this Agreement and
as of the Closing Date with the
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same force and effect as if such representations and warranties were made
anew at and as of the Closing Date, except: (i) to the extent such
representations and warranties are by their express provisions made as of the
date of this Agreement or another specified date; and (ii) for the effect of
any activities or transactions which may have taken place after the date of
this Agreement which are contemplated by this Agreement.
(c) OFFICERS' CERTIFICATE. XVT shall have received a certificate
dated the Closing Date, signed by the chief executive officer and the chief
financial officer of Peregrine, to the effect that, the conditions set forth in
Sections 7.3(a) through 7.3(b) hereof have been satisfied.
(d) PROCEEDINGS. All proceedings to be taken in connection with the
Merger and the other transactions contemplated by this Agreement and all
documents incident thereto shall be reasonably satisfactory in form and
substance to XVT, and XVT shall have received copies of all such documents and
other evidence as it may reasonably request to establish the consummation of
such transactions and the taking of all proceedings in connection therewith.
ARTICLE VIII
TERMINATION
8.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time by (a) the mutual written agreement of Peregrine and XVT or
(b) by either party in the event of the failure of the stockholders of the other
constituent corporation to approve the Merger or any matter required to be
approved by such stockholders in order to consummate the Merger. The party
desiring to terminate this Agreement shall give notice of such termination to
the other party.
8.2 PROCEDURE UPON TERMINATION. In the event of the termination of this
Agreement, the Board or Boards of Directors so terminating may direct its or
their officers not to file the certificate of merger in the office of the
Secretary of State of Delaware notwithstanding favorable action by the
stockholders of the Company and XVT.
ARTICLE IX
MISCELLANEOUS
9.1 SPECIFIC PERFORMANCE. Each of the parties to this Agreement hereby
acknowledges that the other parties will have no adequate remedy at law if it
fails to perform any of its obligations under this Agreement. In such event,
each of the parties agrees ' that the other parties shall have the right, in
addition to any other rights it may have (whether at law or in equity), to
specific performance of this Agreement.
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9.2 EXPENSES. All fees and expenses incurred by Peregrine and the Company
in connection with this Agreement and the transactions contemplated hereby
(including without limitation the fees and expenses of their financial, legal
and accounting advisers) will be borne by Peregrine. All fees and expenses
incurred by XVT in connection with this Agreement and the transactions
contemplated hereby (including without limitation the fees and expenses of its
financial, legal and accounting advisers) will be borne by XVT.
9.3 FURTHER ASSURANCES. lf at any time after the Effective Time, Peregrine
or the Company shall consider it advisable that any further conveyance,
agreements, documents, instruments and assurances of law or any other things are
necessary or desirable to vest, perfect, confirm or record in the Surviving
Corporation, the tide to any property, rights, privileges, powers and franchises
of XVT, the officers of XVT last in office and such other Persons, if any, as
the Board of Directors of XVT last in office may authorize shall execute and
deliver, upon Peregrine's reasonable request, any and all proper conveyances,
agreements, documents, instruments and assurances of law, and do all things
necessary or proper to vest, perfect, confirm or record title to such property,
rights, privileges, powers and franchises in the Surviving Corporation and
otherwise to carry out the provisions of this Agreement.
9.4 PARTIES IN INTEREST. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and permitted assigns of the parties hereto. Nothing
expressed or implied in this Agreement is intended or shall be construed to
confer upon or give any Person other than the parties hereto, their permitted
successors or assigns, and their respective stockholders any rights or remedies
under or by reason of this Agreement or any transaction contemplated hereby.
9.5 ENTIRE AGREEMENT. This Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into by Peregrine
and XVT (or by any officers, directors, stockholders or partners of any of such
parties) relating to the matters contemplated hereby. This Agreement
constitutes the entire agreement by the parties, 'and there are no agreements or
commitments except as set forth herein.
9.6 AMENDMENT OR MODIFICATION. At any time before or after the adoption
of this Agreement and the transactions contemplated hereby by the stockholders
of any party, this Agreement may be amended or supplemented by additional
agreements, articles or certificates, as may be determined by the parties hereto
to be necessary, desirable or expedient to further the purposes of this
Agreement, or to clarify the intention of the parties hereto, or to add to or to
modify the covenants, terms or conditions hereof or to effect or facilitate any
governmental approval or acceptance of the Merger or of this Agreement or to
effect or facilitate the filing or recording of this Agreement or the
consummation of any of the transactions contemplated hereby.
9.7 WAIVER. Any party to this Agreement may, by written notice to the
other parties to this Agreement, (a) extend the time for the performance of any
of the obligations or other actions of the other parties for its benefit under
this Agreement; (b) waive any inaccuracies in the
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representations or warranties of the other parties made to it contained in
this Agreement or in any document delivered pursuant hereto; (c) waive
compliance with any of the conditions or covenants of the other parties for
its benefit contained in this Agreement; or (d) waive or modify performance
of any of the obligations of the other parties for its benefit under this
Agreement. Except as provided in the preceding sentence, no action taken
pursuant to this Agreement, including any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants,
conditions or agreements contained in this Agreement. The failure of any
party hereto to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right
of such party thereafter to enforce each and every such provision. No waiver
of any breach of or non-compliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or noncompliance.
9.8 ASSIGNABILITY. This Agreement and any rights hereunder shall be
assignable by either party.
9.9 HEADINGS AND INTERPRETATION. The headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. Terms such as "herein", "hereof ' and
"hereinafter" refer to this Agreement as a whole and not to the particular
sentence or paragraph where they appear, unless the context otherwise requires.
Unless the context otherwise requires, (i) terms used in the plural include the
singular, and vice versa, and (ii) words in the masculine gender include the
feminine, and vice versa. References in this Agreement in which they appear to
Articles or Sections shall be to Articles or Sections to this Agreement, unless
otherwise indicated.
9.10 NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by graphic scanning or other telegraphic communications equipment
of the sending party, as follows:
If to Peregrine or the Company:
Peregrine Systems, Inc.
12670 High Bluff Drive
San Diego, CA 92130
Attention: Chief Executive Officer
If to XVT:
XVT Software Inc.
4900 Pearl East Circle Boulder, CO 80301
Attention: Chief Executive Officer
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or to such other address as any party may have @shed to the others in writing in
accordance herewith, except that notices of change of address shall only be
effective upon receipt All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt if delivered by hand or overnight courier
service or sent by telex, graphic scanning or other telegraphic communications
equipment of the sender, or on the date five business days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 9. 1 0 or in
accordance with the latest unrevised direction from such party given in
accordance with this Section 9.10.
9.11 LAW GOVERNING. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
9.12 INVALIDITY OF PROVISIONS. Each of the provisions contained in this
Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other
provision hereof or thereof.
9.13 COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties on the date first above written.
PEREGRINE SYSTEMS, INC.
By: /s/ Alan Hunt
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Title: CEO & President
--------------------------------
XVT ACQUISITION CORP.
By: /s/ Charles E. Noell
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Title: President
--------------------------------
XVT SOFTWARE, INC.
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By: /s/ David A. Farley
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Title: Chief Financial Officer
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