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Exhibit 4.1
PEREGRINE SYSTEMS, INC.
DECLARATION OF REGISTRATION RIGHTS
This Declaration of Registration Rights ("DECLARATION") is made as of
August 15, 2000, by Peregrine Systems, Inc., a Delaware corporation ("PARENT"),
for the benefit of shareholders of Loran Network Holding Corporation Inc., a
Canada Business Corporations Act corporation ("COMPANY"), acquiring shares of
Parent Common Stock pursuant to and as a result of that Acquisition Agreement
for Amalgamation, dated as of August 15, 2000 (the "AMALGAMATION AGREEMENT"), by
and among Parent, Peregrine Ottawa Nova Scotia Company, 3791980 Canada Inc. and
Jay Lefton.
1. DEFINITIONS. As used in this Declaration:
(a) "HOLDER" means: (i) a shareholder of Company to whom shares of
Parent Common Stock are issued pursuant to the Amalgamation Agreement or (ii) a
transferee to whom registration rights granted under this Declaration are
assigned pursuant to Section 7(a) of this Declaration. A Holder shall not
include any holder of any option, warrant or other right to acquire Company
Common Shares which was not exercised on or before the Effective Time.
(b) The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(c) "REGISTRATION EXPENSES" shall mean all expenses incurred in
complying with Section 2 of this Agreement, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for Parent, blue sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration; PROVIDED, HOWEVER, Registration Expenses shall not include any
selling commissions, transfer taxes, or fees and disbursements of any Holder's
counsel (which expenses shall be borne by Holder and not Parent).
(d) "REGISTRABLE SECURITIES" means for each Holder the number of
shares of Parent Common Stock issued to such Holder pursuant to the Amalgamation
Agreement; PROVIDED, HOWEVER, that such shares of Parent Common Stock shall
cease to be Registrable Securities at such time as (i) they have been registered
for resale pursuant to a prospectus included in a Registration Statement on Form
S-8 under the Securities Act or (ii) they are otherwise available for resale
under Rule 144 of the Securities Act within a period of 90 days.
(e) "SEC" means the United States Securities and Exchange
Commission.
(f) "SECURITIES ACT" shall mean the United States Securities Act of
1933, as amended, or any similar federal statute and the rules and regulations
of the SEC thereunder, all as the same shall be in effect at the time.
Any capitalized term not otherwise defined herein shall have the
meanings ascribed to such term in the Amalgamation Agreement.
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2. HOLDER REGISTRATION.
(a) Parent shall use its best efforts to cause the Registrable
Securities held by the Holders to be registered under the Securities Act so as
to permit the resale thereof, and in connection therewith shall prepare and file
with the SEC within seven (7) days following the Effective Time a registration
statement on Form S-3 covering the Registrable Securities; PROVIDED, HOWEVER, if
Parent shall furnish to the Holders a certificate signed by the President of
Parent stating that, in the good faith judgment of the Board of Directors of
Parent, it would be seriously detrimental to Parent or its stockholders for
registration statements to be filed within such seven (7) day period, then, one
time only, Parent's obligation to use its best efforts to file a registration
statement shall be deferred for a period not to exceed sixty (60) days from the
Effective Time. The offerings made pursuant to such registration shall not be
underwritten.
(b) Parent shall (i) prepare and file with the SEC the registration
statement in accordance with Section 2 hereof with respect to the Registrable
Securities and shall use its commercially reasonable best efforts to cause such
registration statement to become effective as promptly as practicable after
filing and to keep such registration statement effective until the sooner to
occur of (A) the date on which all Registrable Securities included within such
registration statement have been sold or (B) the expiration of sixty (60) days
after the day on which such registration statement has been declared effective;
(ii) prepare and file with the SEC such amendments to such registration
statement and amendments or supplements to the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all securities registered
by such registration statement; (iii) furnish to each Holder such number of
copies of any prospectus (including any amended or supplemented prospectus) in
conformity with the requirements of the Securities Act, and such other
documents, as each Holder may reasonably request in order to effect the offering
and sale of the Registrable Securities to be offered and sold, but only while
Parent shall be required under the provisions hereof to cause the registration
statement to remain effective; (iv) use its best efforts to register or qualify
the Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as each Holder shall
reasonably request (provided that Parent shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdiction where it has not
been qualified), and do any and all other acts or things which may be necessary
or advisable to enable each Holder to consummate the public sale or other
disposition of such Registrable Securities in such jurisdictions; and (v) notify
each Holder, promptly after it shall receive notice thereof, of the date and
time the registration statement and each post-effective amendment thereto has
become effective or a supplement to any prospectus forming a part of such
registration statement has been filed.
3. SUSPENSION OF PROSPECTUS. Under any registration statement filed
pursuant to Section 2 hereof, Parent may restrict the disposition of Registrable
Securities, and the Holders will not be able to dispose of such Registrable
Securities, if Parent shall have delivered a notice in writing to the Holders
stating that a delay in the disposition of such Registrable Securities is
necessary because Parent, in its reasonable judgment, has determined that such
sales would require public disclosure by Parent of material nonpublic
information that is not included in such registration statement. In the event of
the delivery of the notice described above by Parent, Parent shall use its
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best efforts to amend such registration statement and/or amend or supplement the
related prospectus if necessary and to take all other actions necessary to allow
the proposed sale to take place as promptly as possible, subject, however, to
the right of Parent to delay further sales of Registrable Securities until the
conditions or circumstances referred to in the notice have ceased to exist or
have been disclosed. Such right to delay sales of Registrable Securities shall
not exceed sixty (60) days. Any such delay shall result in a corresponding
extension of the period of time that Parent is required to maintain the
effectiveness of the registration statement under Section 2. Parent represents
and warrants that as of the day it executed the Amalgamation Agreement it knew
of no fact or circumstance that would prevent the filing of a registration
statement by Parent with respect to the Registrable Securities; PROVIDED,
HOWEVER, Parent makes no representation or warranty with respect to its ability
to file a registration statement with respect to the Registrable Securities, or
to permit resales of Registrable Securities under a registration statement that
has been declared effective by the SEC, as of any subsequent date.
4. INDEMNIFICATION.
(a) Parent will indemnify and hold harmless each Holder, each of its
officers and directors and partners and members, and each person controlling
such Holder within the meaning of Section 15 of the Securities Act, with respect
to which registration, qualification or compliance has been effected pursuant to
this Agreement against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by Parent of any rule or
regulation promulgated under the Securities Act applicable to Parent or any
state securities law applicable to Parent in connection with any such
registration, qualification or compliance, and Parent will reimburse (on an as
incurred basis), each Holder, each of its officers and directors and partners
and members, and each person controlling such Holder, for any reasonable legal
and other expenses incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action; PROVIDED, HOWEVER,
that Parent will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to Parent by
a Holder; and PROVIDED, FURTHER, that Parent will not be liable to any such
person or entity with respect to any such untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus that is
corrected in the final prospectus filed with the SEC pursuant to Rule 424(b)
promulgated under the Securities Act (or any amendment or supplement to such
prospectus) if the person asserting any such loss, claim, damage or liability
purchased securities but was not sent or given a copy of the prospectus (as
amended or supplemented) at or prior to the written confirmation of the sale of
such securities to such person in any case where such delivery of the prospectus
(as amended or supplemented) is required by the Securities Act, unless such
failure to deliver the prospectus (as amended or supplemented) was a result of
Parent's failure to provide such prospectus (as amended or supplemented).
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(b) By electing to exercise the registration rights granted pursuant
to this Declaration, each Holder participating in the registration statement
described in Section 2 agrees to indemnify Parent, each of its directors and
officers and each person who controls Parent within the meaning of Section 15 of
the Securities Act against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, and will reimburse Parent and such
directors, officers and partners and members, persons, or control persons of
Parent for any reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to Parent by
such Holder; PROVIDED, HOWEVER, that the liability of such Holder for
indemnification under this Section 1.4(b) shall not exceed the proceeds from the
offering received by such Holder, prior to deducting any commissions, transfer
taxes or other selling expenses incurred with respect to such sale.
(c) Each party entitled to indemnification under this Section 4 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. Any
Indemnified Party shall reasonably cooperate with the Indemnifying Party in the
defense of any claim or litigation brought against such Indemnified Party.
(d) If the indemnification provided for in this Section 4 is for any
reason not available to an Indemnified Party with respect to any loss,
liability, claim, damage, or expense referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and of the Indemnified Party on the other in connection with the statements
or omissions that resulted in such loss, liability, claim, damage, or expense as
will as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or the alleged untrue statement of a
material fact or the omission to state a material fact
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relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. The liability of
Holder under this Section 4(d) shall not exceed the proceeds from the offering
received by Holder, after deducting any reasonable selling commissions incurred
with respect to such sale.
5. EXPENSES. All Registration Expenses incurred in connection with any
registration pursuant to Section 2 shall be borne by Parent.
6. INFORMATION BY HOLDER. Each Holder shall furnish to Parent such
information regarding such Holder, the Registrable Securities held by it, the
manner in which such Holder holds any securities of Parent, and the distribution
proposed by such Holder as Parent may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
7. MISCELLANEOUS.
(a) ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause Parent to
register Registrable Securities pursuant to this Declaration may be assigned by
a Holder to a transferee of Registrable Securities only if: (i) Parent is, prior
to such transfer, furnished with written notice of the name and address of such
transferee and the Registrable Securities with respect to which such
registration rights are being assigned and a copy of a duly executed written
instrument in form reasonably satisfactory to Parent by which such transferee
assumes all of the obligations and liabilities of its transferor hereunder and
agrees itself to be bound hereby; (ii) immediately following such transfer the
disposition of such Registrable Securities by the transferee is restricted under
the Securities Act; and (iii) such assignment includes all of the Registrable
Securities originally issued to the transferee pursuant to the Amalgamation
Agreement.
(b) THIRD PARTIES. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties to this Agreement, and
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement PROVIDED, HOWEVER, it is intended that the shareholders of
Company shall be third party beneficiaries to this Declaration.
(c) GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California in the United States of America
without giving effect to the conflicts of laws principles thereof.
(d) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(e) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, portions of such provisions, or
such provisions in their entirety, to the extent necessary, shall be severed
from this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
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(f) AMENDMENT AND WAIVER. The registration rights granted hereunder
may only be amended with the consent of Whitecastle (as defined in Article XIII
of the Amalgamation Agreement), the holders of a majority of the Registrable
Securities from time to time outstanding, and Parent; PROVIDED, HOWEVER, if at
the time of such amendment and after the Closing (as defined in the Amalgamation
Agreement), Whitecastle is no longer a holder of Registrable Securities, the
registration rights granted hereunder may be amended with the consent of Parent
and the holder of a majority of the Registrable Securities then outstanding.
PEREGRINE SYSTEMS, INC.
By:
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Name:
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Title:
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