<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 7, 1996
REGISTRATION NO. 33-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
HARBINGER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1817306
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1055 LENOX PARK BOULEVARD
ATLANTA, GA 30319
(404) 841-4334
(Address of registrant's principal executive offices, including zip code
and telephone number, including area code)
--------------------------
HARBINGER CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
AND
1996 STOCK OPTION PLAN
(Full title of Plans)
MR. C. TYCHO HOWLE COPY TO:
HARBINGER CORPORATION OBY T. BREWER III, ESQ.
1055 LENOX PARK BOULEVARD MORRIS, MANNING & MARTIN, L.L.P.
ATLANTA, GA 30319 1600 ATLANTA FINANCIAL CENTER
(404) 841-4334 3343 PEACHTREE ROAD, N.E.
(Name, address, including zip code, ATLANTA, GEORGIA 30326
and telephone number, including area (404) 233-7000
code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Per Aggregate Offering Registration Fee
Title of Securities to be Registered Registered (1) Share (2) Price (2) (2)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, $.0001 PAR VALUE PER
SHARE 2,888,112 SHARES $21.50 $62,094,408 $21,411.86
=========================================================================================================================
</TABLE>
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(1) Represents 150,000 shares of Common Stock to be issued and sold by
Registrant under the Harbinger Corporation Employee Stock Purchase Plan (the
"Stock Purchase Plan") and 2,738,112 shares of Common Stock to be issued and
sold by Registrant under the Harbinger Corporation 1996 Stock Option Plan (the
"Stock Option Plan") (the Stock Purchase Plan and Stock Option Plan are
collectively referred to herein as the "Plans").
(2) The offering price for such shares is estimated pursuant to Rule
457(h) of the Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is based upon the average of the high and
low sales prices of the Registrant's Common Stock as reported by the Nasdaq
National Market on May 2, 1996, a date within 5 business days prior to the
filing of this Registration Statement.
================================================================================
Exhibit Index appears on Page 7 of 10 sequentially numbered pages.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be sent
or given to employees as specified by Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act"). In accordance with the instructions
of Part I of Form S-8, such documents will not be filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of
the Securities Act. These documents and the documents incorporated by
reference pursuant to Item 3 of Part II of the registration statement, taken
together, constitute the prospectus as required by Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(1) The Company's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or either (i) the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act that contains audited financial statements for the Company's
latest fiscal year for which such statements have been filed, or (ii) the
Company's effective Registration Statement on Form 10 filed under the Exchange
Act containing audited financial statements for the Company's latest fiscal
year.
(2) All other reports filed pursuant to Section 13(a) or 15(b) of the
Exchange Act since the end of the fiscal year covered by the Company's document
referred to in (a) above.
(3) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment indicating that all securities offered under the Plans
have been sold or deregistering all securities then remaining unsold
thereunder, shall be deemed to be incorporated herein by reference and shall be
deemed to be a part hereof from the date of filing thereof.
Any statement contained in any document incorporated or deemed to be
incorporated by reference into the Prospectus shall be deemed to be modified or
superseded for purposes thereof to the extent that a statement contained
therein or in any other subsequently filed document that is also incorporated
or deemed to be incorporated therein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall now be deemed,
accepted so modified or superseded, to constitute a part of the Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
A description of the Registrant's Common Stock is incorporated by
reference under Item 3.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock offered hereby
were passed upon by Morris, Manning & Martin, L.L.P., Atlanta, Georgia.
Members of Morris, Manning & Martin, L.L.P. hold an aggregate of 4,000 shares
of Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-851 and Section 14-2-857 of the Georgia Business Corporation
Code provide that a corporation may indemnify its directors and officers
against certain civil and criminal liabilities. Directors and officers may be
indemnified against such liabilities if they acted in good faith and in a
manner reasonably believed to be in, or not opposed to, the best interest of
the corporation, if they have not been adjudged liable on the basis of the
improper receipt of a personal benefit and, with respect to any criminal
action, if they had no reasonable cause to believe their conduct was unlawful.
A director or officer may be indemnified against liability incurred in
connection with a derivative suit if he or she acted in good faith and in a
manner reasonably believed to be in, or not opposed to, the best interest of
the corporation, except that no indemnification may be made without court
approval if such person was adjudged liable for negligence or misconduct in the
performance of his or her duty to the corporation. The statutory
indemnification is not exclusive of any right provided by any by-law,
agreement, vote of shareholder or disinterested directors or otherwise.
Section 4.1 of the Registrant's Amended and Restated Articles of
Incorporation and Article IX of its Amended and Restated Bylaws set forth the
extent to which the Registrant's directors and officers may be indemnified
against liabilities which they may incur while serving in such capacities.
Such indemnification will be provided to the full extent permitted and in the
manner required by the Georgia Business Corporation Code. Pursuant to these
provisions, the directors and officers of the Registrant will be indemnified
against any losses incurred in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he or she is or was a director or
officer of the Registrant. The Registrant will provide advances for expenses
incurred in defending any such action, suit or proceeding upon receipt of a
written affirmation by the director or officer of his or her good faith belief
that he or she has met the applicable standard of conduct required for
indemnification and an undertaking by or on behalf of such officer or director
to repay such advances, if it is ultimately determined that he or she is not
entitled to indemnification by the Registrant.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of Harbinger
Corporation (Incorporated by reference to Exhibits 3.1, 3.2 and 3.3
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995)
4.2 Amended and Restated Bylaws of Harbinger Corporation (Incorporated
by reference to Exhibit 3.4 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995)
5 Opinion of Morris, Manning & Martin, L.L.P. as to the legality of
the securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included at Page 6 of this Registration Statement)
</TABLE>
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<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statements;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liability arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on this the 6th day
of May, 1996.
HARBINGER CORPORATION
By: /s/ C. Tycho Howle
---------------------------------
C. Tycho Howle
Chairman of the Board and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signatures appears
below constitutes and appoints C. Tycho Howle and/or Joel G. Katz, jointly and
severally, as his true and lawful attorneys-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign a Registration Statement relating to the
registration of shares of common stock on Form S-8 and to sign any and all
amendments (including post effective amendments) to the Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing required or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute, could lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<S> <C> <C>
/s/ C. Tycho Howle Chairman of the Board of Directors May 6, 1996
- --------------------- and Chief Executive Officer
C. Tycho Howle (Principal Executive Officer)
/s/ David T. Leach President, Chief Operating Officer May 6, 1996
-------------------- and Director
David T. Leach
/s/ Joel G. Katz Vice President - Finance and Secretary May 6, 1996
-------------------- (Principal Financial Officer and Principal
Joel G. Katz Accounting Officer)
/s/ Donald L. House Director May 6, 1996
--------------------
Donald L. House
/s/ William D. Savoy Director May 6, 1996
--------------------
William D. Savoy
/s/ William B. King Director May 6, 1996
--------------------
William B. King
/s/ Stuart L. Bell Director May 6, 1996
--------------------
Stuart L. Bell
/s/ Roger E. Covey Director May 6, 1996
--------------------
Roger E. Covey
</TABLE>
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EXHIBIT INDEX
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description Sequential Page Number
- ----------- ----------- ----------------------
<S> <C> <C>
4.1 Amended and Restated Articles of
Incorporation of Harbinger Corporation
(Incorporated by reference to Exhibits
3.1, 3.2 and 3.3 to the Company's Report
on Form 10-K for the year ended December
31, 1995) ..............N/A
4.2 Amended and Restated Bylaws of Harbinger
Corporation (Incorporated by reference to
Exhibit 3.4 to the Company's Report on
Form 10-K for the year ended December 31,
1995) ..............N/A
5 Opinion of Morris, Manning & Martin,
L.L.P. as to the legality of the
securities being registered ................8
23.1 Consent of Arthur Andersen LLP ................9
23.2 Consent of KPMG Peat Marwick LLP ...............10
23.3 Consent of Counsel (included in Exhibit 5) ..............N/A
24 Power of Attorney (included at Page 6 of
this Registration Statement) ..............N/A
</TABLE>
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<PAGE> 1
EXHIBIT 5
<TABLE>
<S> <C> <C>
MORRIS, MANNING, MARTIN & PLAYER, L.L.P.
A LIMITED LIABILITY PARTNERSHIP
ATTORNEYS AT LAW
1600 ATLANTA FINANCIAL CENTER
3343 PEACHTREE ROAD, N.E. WASHINGTON, D.C. OFFICE
-----------------------
ATLANTA, GEORGIA 30326-1044 MORRIS, MANNING, MARTIN & PLAYER, L.L.P.
TELEPHONE 404 233-7000 SOUTHERN BUILDING
FACSIMILE 404 365-9532 805 FIFTEENTH STREET, N.W.
E-MAIL [email protected] WASHINGTON, DC 20005
TELEPHONE 202 408-5153
MEMBER, FACSIMILE 202 408-5146
COMMERCIAL LAW AFFILIATES
OBY T. BREWER III WITH INDEPENDENT FIRMS NORTHSIDE OFFICE
IN PRINCIPAL CITIES WORLDWIDE ----------------
SUITE 150
5775-B PEACHTREE DUNWOODY ROAD
ATLANTA, GEORGIA 30342
TELEPHONE 404 255-6900
FACSIMILE 404 843-2317
</TABLE>
May 6, 1996
Harbinger Corporation
1055 Lenox Park Blvd.
Atlanta, Georgia 30319
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Harbinger Corporation, a Georgia corporation
(the "Company"), in connection with the registration of the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-8, of a
proposed offering of 150,000 shares of the Company's common stock, $.0001 par
value per share ("Shares"), issuable pursuant to the Harbinger Corporation
Employee Stock Purchase Plan (the "Stock Purchase Plan") and 2,743,756 Shares
issuable pursuant to the Harbinger Corporation 1996 Stock Option Plan (the
"Stock Option Plan") (the Stock Purchase Plan and the Stock Option Plan are
collectively referred to as the "Plans").
We have examined and are familiar with the originals or copies of
certified or otherwise identified to our satisfaction of such documents,
corporate records, and other instruments relating to the incorporation of the
Company and to the authorization and issuance of Shares under the Plans as
would be necessary and advisable for purposes of rendering this opinion. Based
upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated and is in existence
under the laws of the State of Georgia; and
2. The Shares have been duly authorized and, when issued as contemplated
by the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as Exhibit 5 to the
Company's registration statement on Form S-8.
Very truly yours,
/s/ Oby T. Brewer III
MORRIS, MANNING & MARTIN, L.L.P.
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<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to incorporation by
reference in this Form S-8 registration statement of our report dated March 14,
1995 included in Harbinger Corporation's report on Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
May 6, 1996
9
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use of our report incorporated by reference in the Form S-8
Registration Statement of Harbinger Corporation.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Atlanta, Georgia
May 6, 1996
10
