EXHIBIT 2.4
THIRD AMENDMENT TO ACQUISITION AGREEMENT
This Third Amendment to Acquisition Agreement (this "Third Amendment")
is made as of this 18th day of November, 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 Third Amendment amends the Acquisition Agreement dated as of
September 20, 2002 among the Stockholder, the Company and the Purchaser (the
"Original Agreement") as amended by the First Amendment to Acquisition
Agreement, dated as of September 24, 2002, among the Stockholder, the Company
and the Purchaser (the "First Amendment") and the Second Amendment to
Acquisition Agreement, dated as of October 25, 2002, among the Stockholder, the
Company and the Purchaser (the "Second Amendment"). The Original Agreement as
amended by the First Amendment and the Second Amendment is referred to herein as
the "Acquisition Agreement." Capitalized terms used in this Third 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.
(a) Clause (i) of the definition of "Assumed Liabilities" contained in
Section 1.1 of the Acquisition Agreement is hereby amended and restated to read
in its entirety as follows:
(i) the obligations of the Sellers under the Assumed Contracts
(including, for the avoidance of doubt, any Assumed Contracts that have
generated accounts receivable that have been sold or factored prior to
the date hereof to one or more financial institutions) and the Company
Plans, in each case existing as of the Closing Date;
(b) Section 1.1 of the Acquisition Agreement is hereby amended to add
the following definition of "EDS Contract:"
"EDS Contract" means that certain Master Software License
Agreement dated March 30, 2000 between the Stockholder and Electronic
Data Systems Corporation, as amended by Amendment No. 1 dated July 31,
2002 between the same parties and Amendment No. 2 dated September 4,
2002.
(c) Section 1.1 of the Acquisition Agreement is hereby amended to add
the following definition of "Fujitsu Contract:"
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"Fujitsu Contract" means that certain Master Software License
Agreement Number SP-US-003119V01, dated as of September 28, 2001, made
by and between the Stockholder and Fujitsu Transaction Solutions Inc.
(d) The definition of "Stockholder Contracts" contained in Section 1.1
of the Acquisition Agreement is hereby amended and restated to read in its
entirety as follows:
"Stockholder Contracts" means (x) all contracts and agreements,
existing as of the Closing Date, between the Stockholder or any of its
Subsidiaries (other than the Company or any of its Subsidiaries) and
any Third Party to the extent related to the sale, license,
distribution, maintenance, services or escrow of any Company Products
or Software Products, but excluding those portions of such agreements
that do not relate to the Company Products or the Software Products and
excluding the Fujitsu Contract and the EDS Contract, and (y) all of the
Lease Agreements to which the Stockholder or one of its Subsidiaries
(other than the Company or one of its Subsidiaries) is a party.
1.2 Amendment of Section 2.2 of the Acquisition Agreement. Section
2.2 of the Acquisition Agreement is hereby amended and restated to read in its
entirety as follows:
The purchase price (the "Purchase Price") for the Purchased
Assets shall be (i) Three Hundred Fifty-Five Million Dollars
($355,000,000), as adjusted pursuant to Section 2.4 (the "Cash Purchase
Price"), and (ii) assumption of the Assumed Liabilities. The Cash
Purchase Price shall be payable as provided in Section 2.3(c). The
payment of the Cash Purchase Price and assumption of the Assumed
Liabilities is referred to herein as the "Consideration."
1.3 Amendment of Section 2.3(b) of the Acquisition Agreement. Section
2.3(b) of the Acquisition Agreement is hereby amended to delete the last two
sentences of said Section.
1.4 Amendment of Section 2.3(c) of the Acquisition Agreement. Section
2.3(c) of the Acquisition Agreement is hereby amended and restated to read in
its entirety as follows:
(c) At the Closing, the Purchaser shall (i) deliver to the
Sellers the Cash Purchase Price, less (A) the Escrow Amount (as defined below)
and (B) any amounts outstanding under or owed pursuant to the Financing
Agreement or the Promissory Note as of the Closing Date, by wire transfer of
immediately available funds, pursuant to the instructions set forth on Schedule
2.3(c) of the Stockholder Disclosure Schedule, (ii) deliver and deposit Ten
Million Dollars ($10,000,000) (the "Escrow Amount") by wire transfer of
immediately available funds to an escrow account with JP Morgan Chase Bank or,
upon the mutual agreement of the Purchaser and the Stockholder, another national
bank (the "Escrow Agent"), (iii) deliver to the Stockholder reasonable evidence
of full payment and release of any amounts outstanding under or owed pursuant to
the Financing Agreement and (iv) deliver instruments evidencing Purchaser's
assumption and agreement to perform the Assumed Contracts in accordance with
this Agreement in form reasonably satisfactory to the Stockholder and the
Company. The Purchaser and the Stockholder further agree that the payment of the
Consideration to Sellers contemplated by Section 2.2 or any payment required by
Section 2.4 may be made to one or more Sellers that are designated by the
Stockholder in writing as being authorized to act as agent
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for the Sellers, whereupon each Seller shall be deemed to have received the
Consideration allocable to the Purchased Assets owned by such Seller; provided,
that the Stockholder shall ensure that its Subsidiaries receive fair value for
the Purchased Assets owned by such Subsidiaries. The Escrow Amount together with
all subsequent earnings on investments thereof while deposited with the Escrow
Agent shall be referred to as the "Escrow Fund." The Escrow Fund shall be held
by the Escrow Agent pursuant to the terms and conditions of an Escrow Agreement
in substantially the form attached hereto as Exhibit E (the "Escrow Agreement")
among the Purchaser, the Stockholder and the Escrow Agent. On or prior to the
Closing, each of the Purchaser and the Stockholder shall execute and deliver the
Escrow Agreement and shall use their commercially reasonable efforts to cause
the Escrow Agent to execute and deliver the Escrow Agreement.
1.5 Amendment of Section 9.2 of the Acquisition Agreement. Section 9.2
of the Acquisition Agreement is hereby amended and restated to read in its
entirety as follows:
9.2 Tax Certificate. Not later than the later of 15 days
following the Purchase Price Allocation becoming final and February 3,
2003, the Purchaser shall request (and the Stockholder shall provide
reasonable cooperation and assistance to the Purchaser with respect to
such request), pursuant to California Revenue & Taxation Code Section
6811, that the California State Board of Equalization either (i) issue
the Stockholder a receipt showing that the Stockholder and its
Subsidiaries have paid any amount for which the Stockholder and its
Subsidiaries were liable, including with respect to the transactions
contemplated by this Agreement, or (ii) issue Purchaser a certificate
stating that no amount is due.
ARTICLE II.
GENERAL PROVISIONS
2.1. Effectiveness and Ratification. All of the provisions of this
Second Amendment shall be effective as of the date hereof. Except as
specifically provided for in this Second 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 Second Amendment are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Second Amendment.
2.3 Severability. In the event that any provision of this Second
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 Second 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 Second 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.
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2.4 Amendment; Entire Agreement. Whenever the Acquisition Agreement is
referred to in the Original Agreement, the First Amendment or in any other
agreements, documents and instruments, such reference shall be deemed to be to
the Original Agreement as amended by the First Amendment and this Second
Amendment. The Acquisition Agreement and any schedules or exhibits thereto,
together with this Second 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 Second 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 Second Amendment shall be heard and determined in a Delaware state or
federal 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 Second 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 Second
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 Second 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 Second 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 Second
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 Second Amendment.
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IN WITNESS WHEREOF, the Company, the Stockholder and the Purchaser have
caused this Third 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.
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Name: Robert H. Whilden, Jr.
Title: Senior Vice President and
General Counsel
PEREGRINE SYSTEMS, INC.
By /s/ Ken Sexton
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Name: Ken Sexton
Title: Chief Financial Officer
PEREGRINE REMEDY, INC.
By /s/ Ken Sexton
-------------------------------------
Name: Ken Sexton
Title: Chief Financial Officer
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