EXHIBIT 10.2
FIRST AMENDMENT TO ACQUISITION AGREEMENT
This First Amendment to Acquisition Agreement (this "First Amendment")
is made as of this 24th day of September, 2002 by and among Peregrine Systems,
Inc., a Delaware corporation ("Stockholder"), Peregrine Remedy, Inc., a Delaware
corporation (the "Company"), and BMC Software, Inc., a Delaware corporation (the
"Purchaser"). This First Amendment amends the Acquisition Agreement dated as of
September 20, 2002 among the Stockholder, the Company and the Purchaser (the
"Acquisition Agreement"). Capitalized terms used in this First Amendment that
are not otherwise defined herein shall have the meanings ascribed to them in the
Acquisition Agreement.
RECITALS:
WHEREAS, pursuant to Section 11.9 of the Acquisition Agreement, the
parties to the Acquisition Agreement desire to amend the Acquisition Agreement.
NOW THEREFORE, the parties hereto, in consideration of the premises and
of the mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
agree as follows:
ARTICLE I.
AMENDMENTS
1.1 Amendment of Section 1.1 of the Acquisition Agreement. The
definition of "Excluded Liabilities" contained in Section 1.1 is hereby amended
and restated to read in its entirety as follows:
"Excluded Liabilities" means the following:
(i) any and all obligations or liabilities for any
administrative expenses or fees or expenses of professional
persons (including any attorney, consultant, financial
advisor, broker or investment banker) employed or retained by
the Stockholder or any of its Subsidiaries in connection with,
resulting from or attributable to any of the transactions
contemplated by the Acquisition Documents including the
Bankruptcy Case;
(ii) all Stockholder Plans and any and all
obligations, liabilities and guarantees related thereto except
to the extent of any obligations or liabilities described in
clauses (ii) or (iii) of the definition of Assumed Liabilities
that relate to accrued vacation;
(iii) any and all Claims or Damages that have been or
could be asserted against, imposed upon or incurred, directly
or indirectly, by reason of, arising out of or resulting from
the purchase, sale or ownership of capital stock or other
securities of the Stockholder, the Company or any of their
Subsidiaries by any present or former securityholder of the
Stockholder, the Company or any of their Subsidiaries or any
violation of any state, federal or foreign securities Laws by
the
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Stockholder, the Company, any of their Subsidiaries or any of
their respective officers, directors, employees or Affiliates;
(iv) any and all liabilities or obligations of the
Stockholder or any of its Subsidiaries for any Taxes of any
kind, accrued for, applicable to or arising from any period
(or portion thereof) other than state and local transfer,
sales, use, stamp, registration or other similar Taxes that in
each case result from the transfer of the Purchased Assets
pursuant to the Acquisition Documents;
(v) any and all payables or other amounts owed by the
Company or any of its Subsidiaries to the Stockholder or any
of its Subsidiaries including the Company or any of its
Subsidiaries outstanding as of the Closing Date;
(vi) any and all Claims or Damages asserted against,
imposed upon or incurred, directly or indirectly, by reason
of, arising out of or resulting from any of the facts or
circumstances asserted in Motive Communications, Inc.'s
Original Petition, Application for Temporary Restraining
Order, and Application for Temporary Injunction filed on
September 10, 2002 in the 261st District Court, Travis County,
Texas or otherwise arising from the relationship between
Motive Communications, Inc. and the Stockholder or any of its
Subsidiaries;
(vii) any and all obligations and liabilities of the
Sellers under the Excluded Contracts;
(viii) any and all liabilities and obligations owed
by the Company or any of its Subsidiaries under or pursuant to
Colt Express Outsourcing or Blue Cross of California;
(ix) any and all Claims and Damages for fraud,
misrepresentation, breach of duty (fiduciary or otherwise),
deceit, racketeering, securities violations, conspiracy,
aiding and abetting or similar Claims or Damages that have
been or could be asserted against, imposed upon or incurred,
directly or indirectly, by any of the Sellers by reason of,
arising out of or resulting from any liabilities or
obligations of the Stockholder or any of its Subsidiaries in
connection with or related to their ownership or operation of
their business;
(x) any and all Claims and Damages that have been or
could be asserted against, imposed upon or incurred, directly
or indirectly, by any of the Sellers by reason of any
indemnity, hold harmless or similar obligation to any present
or former representative, director, officer, employee,
attorney or agent of, the Company or any of their respective
Subsidiaries or Affiliates in connection with or related to
their ownership or operation of the Business;
(xi) any and all Claims and Damages which the
Stockholder and any of its Subsidiaries and Affiliates have or
may come to have against the Purchaser, the Company or any of
their Subsidiaries or Affiliates except for rights granted
under and any claims pursuant to any of the Acquisition
Documents, the Confidentiality Agreement or any other
agreement between the Purchaser or its
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Subsidiaries on the one hand and the Stockholder and its
Subsidiaries on the other hand;
(xii) any and all Claims and Damages that have been
or could be asserted against, imposed upon or incurred,
directly or indirectly, by any of the Sellers by reason of,
arising out of or resulting from any liabilities or
obligations of the Sellers on account of any claim or cause of
action arising under the Bankruptcy Code or any related
equitable bankruptcy doctrine; and
(xiii) any and all liabilities and obligations
incurred by the Company or any of its Subsidiaries on or after
the Closing Date other than the Assumed Liabilities.
ARTICLE II.
GENERAL PROVISIONS
2.1. Effectiveness and Ratification. All of the provisions of this
First Amendment shall be effective as of the date hereof. Except as specifically
provided for in this First Amendment, the terms of the Acquisition Agreement are
hereby ratified and confirmed and remain in full force and effect.
2.2 Headings. The headings contained in this First Amendment are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this First Amendment.
2.3 Severability. In the event that any provision of this First
Amendment or the application thereof becomes, or is declared by a court of
competent jurisdiction to be, illegal, void or unenforceable, the remainder of
this First Amendment will continue in full force and effect and the application
of such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this First Amendment with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
2.4 Amendment; Entire Agreement. Whenever the Acquisition Agreement is
referred to in the Acquisition Agreement or in any other agreements, documents
and instruments, such reference shall be deemed to be to the Acquisition
Agreement as amended by this First Amendment. The Acquisition Agreement and any
schedules or exhibits thereto, together with this First Amendment, constitute
the entire agreement of the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and undertakings, both written and
oral, other than the Confidentiality Agreement, by and between, the parties with
respect to the subject matter hereof and except as otherwise expressly provided
herein.
2.5 Governing Law. This First Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State without regard to any
conflict or choice of law principles that would apply the substantive law of
some other jurisdiction. All actions and proceedings arising out of or relating
to this First Amendment shall be heard and determined in a Delaware state or
federal
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court sitting in the City of Wilmington, and the parties hereto hereby
irrevocable submit to the exclusive jurisdiction of such courts in any such
action or proceeding and irrevocably waive and agree not to assert any defense
of an inconvenient forum to the maintenance of any such action or proceeding.
Notwithstanding the foregoing, upon filing the Bankruptcy Case, the Bankruptcy
Court shall have exclusive jurisdiction over all disputes arising under or in
connection with the Acquisition Agreement, this First Amendment, the
Confidentiality Agreement or any Acquisition Document, and each party hereto
hereby irrevocably submits and consents to the exclusive jurisdiction of the
Bankruptcy Court for such purposes.
2.6 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this First
Amendment and, therefore, waive the application of any law regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
2.7 Counterparts. This First Amendment may be executed by facsimile
signature and in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
2.8 Specific Performance. The parties hereby acknowledge and agree that
the failure of any party to this First Amendment to perform its agreements and
covenants hereunder, including its failure to take all actions as are necessary
on its part to the consummation of the transactions contemplated hereby, will
cause irreparable injury to the other parties to this First Amendment for which
monetary damages, even if available, will not be an adequate remedy.
Accordingly, each of the parties hereto hereby consents to the granting of
equitable relief (including specific performance and injunctive relief) by any
Court of competent jurisdiction to enforce any party's obligations hereunder.
The parties further agree to waive any requirement for the securing or posting
of any bond in connection with the obtaining of any such equitable relief and
that this Section 2.8 is without prejudice to any other rights that the parties
hereto may have for any failure to perform this First Amendment.
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IN WITNESS WHEREOF, the Company, the Stockholder and the Purchaser have
caused this First Amendment to be executed as of the date first written above by
their respective officers thereunto duly authorized.
BMC SOFTWARE, INC.
By /s/ ROBERT H. WHILDEN, JR.
Name: Robert H. Whilden, Jr.
Title: Senior Vice President and General
Counsel
PEREGRINE SYSTEMS, INC.
By /s/ KEN SEXTON
Name: Ken Sexton
Title: CFO
PEREGRINE REMEDY, INC.
By /s/ KEN SEXTON
Name: Ken Sexton
Title: CFO
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