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EXHIBIT 10.30
HARBINGER EDI SERVICES, INC.
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
ARTICLE I
GENERAL
1.1 PURPOSE OF THE PLAN.
The purpose of the Harbinger EDI Services, Inc. 1989 Stock Option Plan
(the "Plan") is to promote the interests of Harbinger EDI Services, Inc.
(the "Company") by providing for the grant of Options to (i) Key Employees
in order to secure and retain employees of outstanding ability by making it
possible to offer them an increased incentive to join or continue in the
service of the Company, its Subsidiaries and its Parents and to increase
their efforts for its welfare by participating in the ownership and growth
of the Company, its Subsidiaries and its Parents and (ii) Directors and
Consultants in order to provide such parties with a stake in the future of
the Company that corresponds to each of the Company's shareholders.
1.2 DEFINITIONS.
(a) "ACCELERATION EVENT" means any event which in the opinion of
the Board of Directors of the Company is likely to lead to changes in
control of share ownership of the Company, whether or not such change in
control actually occurs;
(b) "BOARD OF DIRECTORS" or "BOARD" means the Board of Directors
of the Company;
(c) "CODE" means the Internal Revenue Code of 1986, as amended;
(d) "COMMON STOCK" means no par common stock of the Company;
(e) "CONSULTANT" means a consultant of the Company who is not a
Key Employee and who has rendered valuable service to the Company;
(f) "DIRECTOR" means a member of the Board, or a member of the
Board of Directors of a Parent or a Subsidiary, who is not a Key Employee;
(g) "FAIR MARKET VALUE" means the closing "asked" price of the
shares in the over-the-counter market on the day on which such value is
to be determined, or if such "asked" price is not available, the last sales
price on such day or, if no shares were traded on such day, on the next
preceding day on which the shares were traded, as reported by the National
Association of Securities Dealers Automatic Quotation System (NASDAQ) or
other national quotation service. If the shares are listed on a National
Securities Exchange, "fair market value" means the closing price of the
shares on such National Securities Exchange on the day of which such value
is to be determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded, as reported by National
Quotation Bureau, Inc. or other national quotation service. If at any time
shares of Common Stock are not traded on an exchange or in the
over-the-counter market, Fair Market Value shall be the value determined by
the Board of Directors or Committee administering the Plan, taking into
consideration those factors affecting or reflecting value which they deem
appropriate;
(h) "INCENTIVE STOCK OPTION" means an option to purchase shares
of Common Stock which is intended to qualify as an incentive stock option
as defined in Section 422 of the Code;
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(i) "KEY EMPLOYEE" mean any person, including officers and
directors, in the regular employment of the Company, a Subsidiary or a
Parent who is designated a Key Employee by the Committee referred to in
Section 1.3, and is or is expected to be primarily responsible for the
management, growth, or supervision of some part or all of the business of
the Company, a Subsidiary or a Parent. The power to determine who is and
who is not a Key Employee is reserved solely for the Committee;
(j) "NONQUALIFIED STOCK OPTION" means an option to purchase
shares of Common Stock which is not intended to qualify as an Incentive
Stock Option as defined in Section 422 of the Code;
(k) "OPTION" means an Incentive Stock Option or a Nonqualified
Stock Option;
(l) "OPTIONEE" means a Key Employee, Consultant or Director to
whom an Option is granted under the Plan;
(m) "PARENT" means any corporation which qualifies as a parent
of the Company under the definition of "parent corporation" contained in
Section 424(e) of the Code;
(n) "STOCK APPRECIATION RIGHT" shall have the meaning stated in
Article IV of the Plan;
(o) "SUBSIDIARY" means any corporation which qualifies as a
subsidiary of the Company under the definition of "subsidiary corporation"
contained in Section 424(f) of the Code;
(p) "TERM" means the period during which a particular Option may
be exercised as determined by the Committee and as provided in the option
agreement.
1.3 ADMINISTRATION OF THE PLAN.
The Plan shall be administered by the Stock Option Committee (the
"Committee") appointed by the Board of Directors consisting of at least two
members from the Board of Directors, each of whom shall be a "disinterested
person" within the meaning of Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended. No person while a member of the Committee
shall be eligible to participate in the Plan. Subject to the control of the
Board, and without limiting the control over decisions described in Section
1.7, the Committee shall have the power to interpret and apply the Plan and
to make regulations for carrying out its purpose. More particularly, the
Committee shall determine which Key Employees, Consultants and Directors
shall be granted Options under the Plan, the numbers of shares subject to
each Option, the price per share under each Option, the Term of each
Option, and any restrictions on the exercise of each Option. When granting
Options, the Committee shall designate the Option as either an Incentive
Stock Option or a Nonqualified Stock Option. The Committee shall also
designate whether the Option is granted with Stock Appreciation Rights.
Determinations by the Committee under the Plan (including, without
limitation, determinations of the person to receive Options, the form,
amount and timing of such Options, and the terms and provisions of such
Options and the agreements evidencing same) need not be uniform and may be
made by it selectively among persons who receive, or are eligible to
receive, Options under the Plan, whether or not such persons are similarly
situated.
1.4 SHARES SUBJECT TO THE PLAN.
The total number of shares that may be purchased pursuant to Options or
transferred pursuant to the exercise of Stock Appreciation Rights under the
Plan shall not exceed 900,000 shares of Common Stock. Shares subject to the
Options which terminate or expire prior to exercise shall be available for
future Options. Shares represented by an unexercised Option surrendered
upon an exercise of Stock Appreciation Rights including, without
duplication, any shares issued in payment of any Stock Appreciation Rights,
shall be deducted from the aggregate and shall not be available for further
Options hereunder. Shares issued pursuant to the Plan may be either
unissued shares of Common Stock or reacquired shares of Common Stock held
in treasury.
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1.5 TERMS AND CONDITIONS OF OPTIONS.
All Options shall be evidenced by agreements in such form as the Committee
shall approve from time to time subject to the provisions of Article II or
Article III, as appropriate, and the following provisions:
(a) EXERCISE PRICE. Except as provided in Section 3.1, the
exercise price of the Option shall not be less than the Fair Market Value
(as determined by the Committee) or the Common Stock at the time the Option
is granted.
(b) EXERCISE. The Committee shall determine whether the Option
shall be exercisable in full at any time during the Term or in cumulative
or noncumulative installments during the Term.
(c) TERMINATION OF OPTIONS. An Optionee's Option shall expire on
the earlier of the expiration of (i) the date specified in the Option,
which if the Optionee is a Key Employee shall in no event be later than
three (3) months after the termination of the Key Employee's employment by
the Company, a Parent or a Subsidiary for any reason other than death or
disability (as defined in Section 422(c)(6) of the Code), if the Optionee
is a Director shall be no later than five (5) years after the date of
termination of such Optionee's role as a Director of the Company, a Parent
or Subsidiary, as the case may be, and if the Optionee is a Consultant
shall be no later than one (1) year after the date of termination of such
Optionee's role as a Consultant of the Company, a Parent or Subsidiary, as
the case may be, or (ii) the Term specified in Section 2.1 or 3.1(a) as the
case may be. In the event of exercise of the Option after termination of
the Optionee's relationship with the Company, the Optionee may exercise the
Option only with respect to the shares which could have been purchased by
the Optionee at the date of such termination. However, the Committee may,
but is not required to, waive any requirements made pursuant to
Section 1.5(b) so that some or all of the shares subject to the Option may
be exercised within the time limitation described in this subsection. A Key
Employee's employment shall be deemed to terminate on the last date for
which he receives a regular wage or salary payment. A Consultant's or
Director's relationship with the Company shall be deemed to terminate upon
the date determined by the Board in its sole discretion.
(d) DEATH OR DISABILITY. Upon termination of a Key Employee's
employment by reason of death or disability (as determined by the Committee
consistent with the definition of Section 422(c)(6) of the Code), the
Option shall expire on the earlier of the expiration of (i) the date
specified in the Option which in no event shall be later than twelve (12)
months after the date of such termination, or (ii) the Term specified in
Section 2.1 or 3.1(a) as the may be. The Key Employee or his successor in
interest, as the case may be, may exercise the Option only as to the shares
which could have been purchased by the Key Employee at the date of his
termination of employment. However, the Committee may, but is not required
to, waive any requirements made pursuant to Section 1.5(b) so that some or
all of the shares subject to the Option may be exercised within the time
limitation described in this subsection.
(e) PAYMENT. Payment for shares as to which an Option is exercised
shall be made in such manner and at such time or times as shall be provided
in the option agreement, including cash, Common Stock of the Company which
was previously acquired by the Optionee, or any combination thereof. The
Fair Market Value of the surrendered Common Stock as of the date of
exercise shall be determined in valuing Common Stock used in payment for
Options.
(f) NONTRANSFERABILITY. No Option granted under the Plan shall be
transferable other than by will or by the laws of descent and distribution.
During the lifetime of the Optionee, an Option shall be exercisable only by
the Optionee.
(g) ELIGIBILITY. Only Key Employees shall be eligible for the grant
of Incentive Stock Options pursuant to the Plan, but not employee,
including Key Employees, shall have the right to be granted any Option
pursuant to the Plan merely as a result of his or her status as an employee
of the Company. Consultants and Directors shall not be eligible for the
grant of Incentive Stock Options pursuant to the Plan.
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(h) ADDITIONAL PROVISIONS. Each option agreement may contain such
other terms and conditions not inconsistent with the provisions of the Plan
as the Committee may deem appropriate from time to time.
1.6 STOCK ADJUSTMENTS: MERGERS.
Notwithstanding Section 1.4, in the event the outstanding shares of Common
Stock are increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or of
any other corporation by reason of any merger, sale of stock,
consolidation, liquidation, recapitalization, reclassification, stock
split up, combination of shares, or stock dividend, the total number of
shares set forth in Section 1.4 shall be proportionately and appropriately
adjusted by the Committee, but only to the extent necessary to reflect
changes in outstanding options. If the Company continues in existence,
(i) the number and kind of shares that are subject to any Option and the
option price per share shall be proportionately and appropriately adjusted
without any change in the aggregate price to be paid therefor upon exercise
of the Option, and (ii) the Committee may make such adjustments in the
number and kind of Stock Appreciation Rights as it shall deem appropriate
in the circumstances. If the Company will not remain in existence or
substantially all of its voting Common Stock and Common Stock will be
purchased by a single purchaser or group of purchasers acting together,
then the Committee may (i) declare that all Options and Stock Appreciation
Rights shall terminate 30 days after the Committee gives written notice to
all Optionees of their immediate right to exercise all Options and Stock
Appreciation Rights then outstanding (without regard to limitations on
exercise otherwise contained in the Options), or (ii) notify all Optionees
that all Options and Stock Appreciation Rights granted under the Plan shall
apply with appropriate adjustments as determined by the Committee to the
securities of the successor corporation to which holders of the numbers of
shares subject to such Options and Stock Appreciation Rights would have
been entitled, or (iii) some combination of aspects of (i) and (ii). The
determination by the Committee as to the terms of any of the foregoing
adjustments shall be conclusive and binding. Any fractional shares
resulting from any of the foregoing adjustments under this section shall be
disregarded and eliminated.
1.7 ACCELERATION EVENT.
If an Acceleration Event occurs in the opinion of the Committee, based on
circumstances known to it, the Committee may declare that all Options and
Stock Appreciation Rights granted under the Plan shall become exercisable
immediately notwithstanding the provisions of the respective Option
agreements regarding exercisability.
1.8 NOTIFICATION OF EXERCISE.
Options shall be exercised by written notice directed to the Secretary of
the Company at the principal executive offices of the Company. Such written
notice shall be accompanied by any payment required pursuant to Section
1.5(e). Exercise by an Optionee's heirs or the representative of his estate
shall be accompanied by evidence of authority of such person or persons to
so act in form reasonably satisfactory to the Company.
ARTICLE II
INCENTIVE STOCK OPTIONS
2.1 TERMS OF INCENTIVE STOCK OPTIONS.
Each Incentive Stock Option granted under the Plan shall be exercisable only
during a Term fixed by the Committee; provided however, that the Term shall end
no later than 10 years after the date the Incentive Stock Option is granted.
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2.2 LIMITATION ON OPTIONS.
The aggregate Fair Market Value of Common Stock (determined at the time the
Incentive Stock Option is granted) subject to Incentive Stock Options
granted to a Key Employee under all plans of the Key Employee's employer
corporation and its Parent or Subsidiary corporations and that become
exercisable for the first time by such Key Employee during any calendar
year may not exceed $100,000.
2.3 CONTINUED EMPLOYMENT.
Whether military, government or other service or other leave of absence
shall constitute a termination of employment shall be determined in each
case by the Committee at its discretion, and any determination by the
Committee shall be final and conclusive. A termination of employment
shall not occur where the Optionee transfers from the Company to its
Parent or one of its Subsidiaries or transfers from a Subsidiary or Parent
to the Company.
2.4 SPECIAL RULE FOR TEN PERCENT SHAREHOLDER.
If at the time an Incentive Stock Option is granted, an employee owns
stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of his employer corporation or of
its Parent or any of its Subsidiaries, as determined using the
attribution rules of Section 424(d) of the Code, then the terms of the
Incentive Stock Option shall specify that the option price shall be at
lease 110% of the Fair Market Value of the stock subject to the
Incentive Stock Option and such Incentive Stock Option shall not be
exercisable after the expiration of five years from the date such
Incentive Stock Option is granted.
2.5 INTERPRETATION.
In interpreting this Article II of the Plan and the provisions of
individual option agreements, the Committee and the Board shall be governed
by the principles and requirements of Sections 421, 422 and 424 of the
Code, and applicable Treasury Regulations.
ARTICLE III
NONQUALIFIED STOCK OPTIONS
3.1 TERMS AND CONDITIONS OF OPTIONS.
In addition to the requirements of Section 1.5, Nonqualified Stock Options
shall be subject to the following provisions:
(a) TERM. Each Nonqualified Stock Option granted under the Plan
shall be exercisable only during a Term fixed by the Committee.
(b) TERMINATION OF EMPLOYMENT. Notwithstanding the provisions
of Sections 1.5(c) and 1.5(d), the Stock Option Committee in its
discretion may provide, either upon the original grant of an Option or
in an amendment to an Incentive or Nonqualified Stock Option, that an
Option may be exercisable during a Term that does not expire upon the
expiration of three months following a Key Employees's termination of
employment, a Consultant's termination of his or her consulting
relationship, or a Director's termination as a Director of the Company,
a parent or a Subsidiary (one year in the case of termination as a
result of death or disability), but in no event later than the Term
specified in Section 3.1(a) above.
(c) EXERCISE PRICE. The Company may elect to grant Nonqualified
Stock Options at a price less than the Fair Market Value of the Common
Stock at the time Option is granted.
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(d) ADDITIONAL TERMS. Pursuant to Section 1.5(h), the Committee
may add additional terms and conditions to a Nonqualified Stock Option,
including, but not limited to, a cash award for any federal tax liability
suffered by the Optionee upon the grant and/or exercise or a Nonqualified
Stock Option.
3.2 SECTION 83(b) ELECTION.
The Company recognizes that certain persons who receive Nonqualified
Stock Options may be subject to restrictions regarding their right to
trade Common Stock under applicable securities laws. Such may cause
Optionees exercising such Options not to be taxable under the provisions
of Section 83(c) of the Code. Accordingly, Optionees exercising such
Nonqualified Stock Options may consider making a election to be taxed
upon exercise of the Option under Section 83(b) of the Code and to
effect such election will file such election with the Internal Revenue
Service within thirty (30) days of exercise of the Option and otherwise
in accordance with applicable Treasury Regulations.
ARTICLE IV
STOCK APPRECIATION RIGHTS
4.1 TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS.
Stock Appreciation Rights ("SAR") may be, but are not required to be,
granted by the Committee in connection with grant of an Option. All SARs
shall be in such form as the Committee may from time to time determine and
shall be subject to the following terms and conditions:
(a) TERM AND EXERCISE. An SAR shall be exercisable only (i)
with the approval of the Committee, (ii) during the Term of the Option
to which it relates, (iii) at such times as the Option to which it
relates is exercisable, and (iv) if the Fair Market Value of the Common
Stock subject to the Option surrendered (on the date surrendered) minus
the aggregate option price of the Common Stock subject to the Option
surrendered is a positive amount.
(b) PAYMENT. In the event the Committee agrees to permit
exercise of the SAR, the Optionee shall surrender to the Company the
right to exercise the Option with respect to a specified number of
shares as to which the Option is then exercisable. In return, the
Optionee shall receive from the Company no more than an amount payable
in cash and/or in shares (as determined by the Committee after
considering the request of the Optionee) equal to the difference between
the Fair Market Value of Common Stock as to which the Optionee has
surrendered the Option and the exercise price with respect thereto. In
the event the Committee determines to tender shares in full or partial
payment of the SAR, the number of shares to be issued to the Optionee
shall be based on the Fair Market Value of the shares as of the date of
exercise of the SAR. No fractional shares shall be issued to Optionees
upon exercise of an SAR. Instead, the Company shall pay the Optionee the
value of such fractional share based upon the Fair Market Value of a
share on the date the SAR is exercised.
(c) NONTRANSFERABILITY. An SAR granted under the Plan shall be
transferable only when the Option to which it relates is transferable.
4.2 OTHER TERMS AND CONDITIONS.
Option agreements reflecting Stock Appreciation Rights which are granted
under the Plan may contain such other conditions not inconsistent with the
provisions of the Plan as the Committee may deem appropriate from time to
time.
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4.3 NOTIFICATION OF REQUEST TO EXERCISE.
The Optionee shall request the Committee's approval to exercise a Stock
Appreciation Right by written notice to the Secretary of the Company at
the principal executive offices of the Company. Such written notice
shall state the number of shares subject to the Option for which
approval of the exercise of the SAR is requested and the Optionee's
preferred form of payment of the SAR, as hereinafter provided. The
Optionee may indicate his or her preference to receive payment of the
SAR in cash in or Common Stock or in a combination thereof.
Notwithstanding anything to the contrary contained herein, the Committee
shall have absolute discretion in determining whether the request for
approval of the exercise of the SAR shall be approved and, if such
approval is given, whether payment shall be made in cash or Common Stock
or in a combination thereof.
Within 30 days after the delivery to the Secretary of the Optionee's
request to exercise the SAR as provided above, the Committee shall
inform the Optionee in writing of its determination by personal delivery
of such written determination to the Optionee or by mailing its written
determination to the Optionee by certified or registered mail, return
receipt requested. The Optionee must act on any approved exercise of an
SAR within 30 days after the date of such determination by the Committee
(or such longer period as may be permitted by the Committee) and in
accordance with the terms approved by the Committee. Exercise shall be
by written notice actually delivered, or mailed by certified or
registered mail, return receipt requested, to the Secretary of the
Company at the principal executive office of the Company.
4.4 EFFECT OF EXERCISE.
Upon exercise of a Stock Appreciation Right, the Option to which it
relates shall lapse with respect to the shares as to which the SAR is
exercised and such shares shall not be available for further grant of
Options.
ARTICLE V
ADDITIONAL PROVISIONS
5.1 STOCKHOLDER APPROVAL.
The Plan was initially submitted for the approval of the stockholders of
the Company at the first annual meeting of stockholders held subsequent
to the adoption of the Plan and in all events within one year of its
approval by the Board of Directors.
5.2 COMPLIANCE WITH OTHER LAWS AND REGULATIONS.
The Plan, the grant and exercise of Options hereunder, and the
obligation of the Company to sell and deliver shares under such Options,
shall be subject to all applicable Federal and state laws, rules, and
regulations and to such approvals by any government or regulatory agency
as may be required. The Company shall not be required to issue or
deliver any deliver any certificates for shares of Common Stock prior to
(a) the listing of such shares on any stock exchange on which the Common
Stock may then be listed and (b) the completion of any registration or
qualification of such shares under any Federal or state law, or any
ruling or regulation of any government body which the Company shall, in
its sole discretion, determine to be necessary or advisable.
5.3 AMENDMENTS.
The Board of Directors may discontinue the Plan at any time, and may amend
it from time to time, but no amendment, without approval by stockholders,
may (a) increase the total number of shares which may be issued under the
Plan or to any individual under the Plan, (b) reduce the Option price for
shares which may be purchased pursuant to Options under Articles II and III
of the Plan, (c) extend the period during which Options may be granted, or
(d) change the class of employees to whom Options may be granted, except as
provided in Section 1.6. Other than as expressly permitted under the Plan,
no outstanding Option may be revoked or altered in a manner unfavorable to
the Optionee without the consent of the Optionee.
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5.4 NO RIGHTS AS SHAREHOLDER.
No Optionee shall have any rights as a shareholder with respect to any
share subject to his or her Option prior to the date of issuance to him or
her of a certificate or certificates for such shares.
5.5 WITHHOLDING.
Whenever the Company proposes or is required to issue or transfer shares of
Common Stock under the Plan, the Company shall have the right to require
the Optionee to remit to the Company an amount sufficient to satisfy any
Federal, state or local withholding tax liability prior to the delivery of
any certificate or certificates for such shares. Whenever under the Plan
payments are to made in cash, such payments shall be made net of an amount
sufficient to satisfy any Federal, state, or local withholding tax
liability.
5.6 CONTINUED EMPLOYMENT NOT PERMITTED.
This Plan and any document describing this Plan and the grant of any stock
Option or Stock Appreciation Right hereunder shall not give any Optionee or
other employee a right to employment or continued employment by the Company
or its Subsidiaries or affect the right of the Company or its Subsidiaries
to terminate the employment of any such person with or without cause.
5.7 EFFECTIVE DATE: DURATION.
The Plan shall become effective as of July 27, 1989 subject to stockholder
approval pursuant to Section 5.1 and shall expire on July 26, 1999. No
Options may be granted under the Plan after July 26, 1999, but Options
granted on or before that date may be exercised according to the terms of
the option agreements and shall continue to be governed by and interpreted
consistent with the terms hereof.
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