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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
______________
FORM 8-K
______________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report January 15, 1997
(Date of earliest event reported): January 1, 1997
HARBINGER CORPORATION
(Exact name of Company specified in its charter)
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GEORGIA 0-26298 58-1817306
(State or other jurisdiction of (Commission File Number) (IRS Employer Identification No.)
incorporation or organization)
1055 LENOX PARK BOULEVARD, ATLANTA, GEORGIA 30319
(Address of principal executive offices) (Zip Code)
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(404) 467-3000
(Company's telephone number, including area code)
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Item 2. Acquisition or Disposition of Assets.
Pursuant to a Debenture Purchase Agreement dated January 1, 1997 (the
"Purchase"), Harbinger Corporation (the "Company") completed its
purchase from BellSouth Telecommunications, Inc. ("BST") of a
$3,000,000 Subordinated Convertible Debenture (the "Debenture") of
Harbinger Net Services, LLC ("HNS"). After completing the purchase
and assuming Harbinger's conversion of the Debenture, the Company
owned approximately 93% of HNS assuming the conversion of the
Debenture. The Company acquired the Debenture for a purchase price
consisting of (i) $1.5 million in cash, and (ii) 161,525 unregistered
shares of the Company's common stock, par value of $0.0001 per share.
The cash portion was funded from working capital. The Company has
agreed to register the common stock issued to BST in certain
circumstances.
The purchase price was determined in arms-length negotiations between
the parties. A member of the Board of Directors of Harbinger
("Harbinger Directors") and certain employees or affiliates of BST
were members of the HNS Board of Managers. The Harbinger Director
abstained from voting on the acquisition of the Debenture at the
Company's Board meeting and from approving the Call at the HNS meeting
of Managers. Other than as described above, neither the Company nor
any of its affiliates had any material relationship with BST prior to
the transactions described above.
In connection with the Purchase, which was accounted for under the
purchase method of accounting, management anticipates that the Company
will take a $6.0 to $7.5 million charge in the first quarter of 1997
related to in-process R&D charges and associated integration costs.
Concurrently, HNS exercised an option under its operating agreement to
call the remaining 585,335 shares held by minority shareholders (which
include affiliates of the Company) and exchanged the shares (the
"Call") for cash of approximately $1,557,000 or $2.66 per share, an
amount based on the amount paid to BellSouth. As a result of these
transactions, the Company became the sole shareholder of HNS. As the
sole shareholder of HNS, the Company has dissolved HNS, and is
exchanging the options held by various individuals affiliated with
HNS with approximately 295,000 options of the Company, ranging in
price from $22.83 to $24.80 per option. A complete description of the
transaction is contained in the Agreement filed as Exhibit 2(a) and
hereby incorporated herein by reference.
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Item 7. Financial Statements and Exhibits.
a) Financial Statements of Business Acquired: To be filed by
amendment as soon as practicable but not later than March 17,
1997.
b) Pro Forma Financial Information: To be filed by amendment as soon
as practicable but not later than March 17, 1997.
c) Exhibits:
2.1 Debenture Purchase Agreement Dated as of January 1, 1997
between the Company and BellSouth Telecommunications, Inc.
99.1 Text of Press Release of Harbinger Corporation, dated
January 2, 1997.
99.2 Text of Press Release of Harbinger Corporation, dated
October 28, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HARBINGER CORPORATION
/s/ Joel G. Katz
-----------------------------
JOEL G. KATZ
Vice President, Finance
(Principal Financial Officer;
Principal Accounting Officer)
Date: January 14, 1997
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EXHIBIT INDEX
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Exhibit Page No.
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2.1 Debenture Purchase Agreement Dated as of January 1, 1997 6
99.1 Text of Press Release of Harbinger Corporation, Dated January 2, 19
1997
99.2 Text of Press Release of Harbinger Corporation, Dated October 28, 21
1996
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EXHBIT 2.1
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DEBENTURE PURCHASE AGREEMENT
DATED AS OF JANUARY 1, 1997
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DEBENTURE PURCHASE AGREEMENT
This Debenture Purchase Agreement (the "Agreement") is made as of January 1,
1997, by and between BELLSOUTH TELECOMMUNICATIONS, INC. ("BST") and HARBINGER
CORPORATION ("HC").
R E C I T A L S:
A. BST or its affiliate is the holder of that certain Subordinated
Convertible Debenture, due June 20, 2000, of Harbinger Net Services, LLC (the
"Company") in the original principal amount of $3,000,000 (the "Debenture").
B. BST desires to sell, and HC desires to purchase, the Debenture upon
the terms and conditions contained herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the parties hereby agree as follows:
SECTION 1.
PURCHASE AND SALE OF DEBENTURE
(a) Subject to the terms and conditions hereof, on the
Closing Date (as hereinafter defined) HC will purchase from BST, and BST shall
sell to HC, the Debenture, free and clear of all liens, claims and encumbrances
of any kind whatsoever, except for such liens, claims or encumbrances arising
solely under (i) the Amended and Restated Operating Agreement of Harbinger Net
Services, LLC, dated June 20, 1995 (the "Operating Agreement") and (ii) that
certain Agreement, dated June 20, 1995, by and among the Company, HC and
BellSouth Corporation (together with the Operating Agreement, the "Debenture
Documents").
(b) In exchange for the Debenture, HC shall deliver to
BST (i) a cash payment in the amount of $1,500,000 (the "Cash Payment"), and
(ii) 161,525 shares of common stock, par value $.0001 per share, of HC (the "HC
Shares") (the Cash Payment and the HC Shares are referred to collectively as
the "Purchase Price").
SECTION 2.
CLOSING DATES; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the
Debenture shall be held at the offices of Morris, Manning & Martin, L.L.P at
1600 Atlanta Financial Center, 3343 Peachtree Road, N.E., Atlanta, Georgia
30326 on January 1, 1997 (the "Closing"), or at such other time and place upon
which BST and HC shall agree. The effective date of the Closing is hereinafter
referred to as the "Closing Date".
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2.2 DELIVERY. At the Closing or as otherwise provided below,
each of the following deliveries shall be made:
(a) BST shall deliver the following to HC:
(i) the Debenture, duly endorsed for transfer; and
(ii) the certificate contemplated by Section 5.3.
(b) HC shall deliver the following to BST:
(i) the Cash Payment to be delivered by wire
transfer;
(ii) a stock certificate representing the HC
Shares, registered in the name of BST or an affiliate
(defined for purposes of this Agreement as set forth
in Rule 405 of the Securities Act) of BST designated
by BST (provided the affiliate (i) makes
representations to HC in substantially the form of
Section 3.8 hereof and (ii) agrees in writing in a
form reasonably acceptable to HC to abide by the
provisions of Sections 7.2 and 8 of this Agreement),
and which may be delivered by HC up to five (5) days
following the Closing; and
(iii) the certificate contemplated by Section 6.3.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF BST
BST represents and warrants to HC as follows:
3.1. ORGANIZATION AND STANDING; ARTICLES OF INCORPORATION AND
BYLAWS. BST is a corporation validly incorporated and existing under the laws
of the State of Georgia and is in good standing under such laws. BST has the
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted.
3.2. CORPORATE POWER. BST has the requisite legal power and
authority to execute and deliver this Agreement and carry out and perform its
obligations under the terms of this Agreement.
3.3. AUTHORIZATION. The execution and delivery of this Agreement
by BST and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of BST, and no
other corporate proceeding on the part of BST is necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This
Agreement constitutes a valid and binding obligation of BST, enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
3.4. OWNERSHIP OF DEBENTURE. BST has good title to the Debenture,
free and clear of any mortgage, pledge, lien, lease, encumbrance or charge of
any nature whatsoever, subject to any liens, claims or encumbrances arising
solely under the Debenture Documents. Assuming compliance with all
requirements for transfer of the Debenture under the Debenture Documents, the
delivery by BST of the Debenture endorsed for
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transfer pursuant to Section 2.2(a)(i) hereof shall be sufficient to vest in HC
good title to the Debenture free and clear of all mortgages, pledges, liens,
leases, encumbrances, taxes or charges of any nature whatsoever, subject to any
liens, claims or encumbrances arising solely under the Debenture Documents.
3.5. NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery
and performance of and compliance with the terms of this Agreement have not
resulted and will not result in any violation of, or conflict with, or
constitute a default under, BST's Articles of Incorporation, Bylaws or any of
its agreements that limit BST's ability to consummate the transactions
contemplated hereby.
3.6. GOVERNMENTAL OR REGULATORY CONSENTS. No consent, approval or
authorization of or designation, declaration or filing with any governmental or
regulatory authority on the part of BST is required in connection with the
valid execution and delivery of this Agreement, or the consummation by BST of
the transactions contemplated hereby.
3.7. LITIGATION. There is no action, proceeding or investigation
pending or, to BST's knowledge, threatened against BST or any affiliate which
holds the Debenture or receives the HC Shares that could reasonably be expected
to affect the validity of this Agreement or BST's rights with respect to the
Debenture or that would have a material adverse effect on the consummation of
the transactions contemplated hereby.
3.8. INVESTMENT REPRESENTATIONS. BST is an "accredited investor"
within the meaning of Regulation D under the Securities Act of 1933, as amended
(the "Securities Act"), and is acquiring the HC Shares for its own account for
investment and not with the view to the distribution thereof, except in
accordance with applicable federal and state securities laws. BST acknowledges
and agrees that the HC Shares are subject to the transfer restrictions
contained in Section 7.2 hereof.
3.9. COMPLIANCE WITH OPERATING AGREEMENT. BST is not in
violation in any material respect of any term or provision of the Operating
Agreement.
3.10. BROKERS OR FINDERS. BST has not and will not prior to Closing
engage, or otherwise incur any liability with respect to, any broker, finder or
agent with respect to the Debenture.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF HC
HC hereby represents and warrants to BST as follows:
4.1. ORGANIZATION AND STANDING; ARTICLES OF INCORPORATION AND
BYLAWS. HC is a corporation duly incorporated and existing under the laws of
the State of Georgia and is in good standing under such laws. HC has the
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted.
4.2. CORPORATE POWER. HC has the requisite legal power and
authority to execute and deliver this Agreement and carry out and perform its
obligations under the terms of this Agreement.
4.3. AUTHORIZATION. The execution and delivery of this Agreement
by HC and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of HC, and no
other corporate proceeding on the part of HC is necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This
Agreement constitutes a valid and binding obligation of HC, enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy,
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insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
4.4 NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery
and performance of and compliance with the terms of this Agreement have not
resulted and will not result in any violation of, or conflict with, or
constitute a default under, HC's Articles of Incorporation, Bylaws or any of
its agreements that limit HC's ability to consummate the transactions
contemplated hereby.
4.5 GOVERNMENTAL OR REGULATORY CONSENTS. Except for the listing
of the HC Shares on the Nasdaq National Market, no consent, approval or
authorization of or designation, declaration or filing with any governmental or
regulatory authority on the part of HC is required in connection with the valid
execution and delivery of this Agreement, or the consummation by HC of the
transactions contemplated hereby.
4.6 LITIGATION. There is no action, proceeding or investigation
pending or, to HC's knowledge, threatened against HC that could reasonably be
expected to affect the validity of this Agreement or that would have a material
adverse effect on the consummation of the transactions contemplated hereby.
4.7 AUTHORIZATION OF HC SHARES. The HC Shares have been duly
authorized, and when issued in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable.
4.8 COMPLIANCE WITH OPERATING AGREEMENT. HC is not in
violation in any material respect of any term or provision of the Operating
Agreement.
4.9 SALE OF THE COMPANY. Solely as of the date hereof, HC has no
present intent to sell all or substantially all of its shares in the Company or
to cause the Company to be merged or consolidated with any other person or
entity or to transfer all or substantially all of its properties and assets to
any other person or entity (other than the transfer by the Company of its assets
and liabilities to its shareholders in connection with its dissolution or
liquidation).
4.10 REGISTRATION RIGHTS. HC has not granted to any holders of its
securities any rights to require the registration of any of HC's securities
under the Securities Act except (i) piggyback registration rights granted to
certain former shareholders of NTEX Holding B.V. in any underwritten public
offering by HC, (ii) one demand registration and piggy-back registration rights
granted to certain former shareholders of INOVIS Verwaltungs GmbH and its
affiliates, (iii) piggyback registration rights granted to former shareholders
of Harbinger NV in any underwritten public offering by HC and (iv) piggyback
registration rights granted to the former shareholders of Comtech Management
Systems, Inc. in any underwritten public offering by HC.
4.11 SEC FILINGS. HC has filed all required forms, reports,
statements, schedules and other documents with the Securities and Exchange
Commission since January 1, 1996.
4.12 BROKERS OR FINDERS. HC has not and will not prior to Closing
engage, or otherwise incur any liability with respect to, any broker, finder or
agent with respect to the Debenture.
4.13 INVESTMENT REPRESENTATIONS. HC is an "accredited investor"
within the meaning of Regulation D under the Securities Act, and is acquiring
the Debenture for its own account for investment and not with the view to the
distribution thereof, except in accordance with applicable federal and state
securities laws.
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SECTION 5.
CONDITIONS TO CLOSING OF HC
The obligations of HC to consummate the transactions contemplated hereby are
subject to the fulfillment or waiver by HC of the following conditions:
5.1 REPRESENTATIONS. The representations and warranties of BST
made in Section 3 hereof shall be true and correct in all material respects
when made, and shall be true and correct in all material respects as of the
Closing Date, with the same force and effect as if they had been made on and as
of the Closing Date.
5.2 PERFORMANCE OF AGREEMENTS. All agreements and conditions
contained in this Agreement to be performed by BST on or prior to the Closing
shall have been performed or complied with in all material respects.
5.3 CERTIFICATE. BST shall have delivered to HC a certificate,
dated the Closing Date, certifying to the fulfillment of the conditions
specified in Sections 5.1 and 5.2 of this Agreement and the incumbency of
certain officers of BST.
SECTION 6.
CONDITIONS TO CLOSING OF BST
The obligations of BST to consummate the transactions contemplated hereby are
subject to the fulfillment or waiver by BST of the following conditions:
6.1 REPRESENTATIONS. The representations and warranties of HC
made in Section 4 hereof shall be true and correct in all material respects
when made, and shall be true and correct in all material respects as of the
Closing Date, with the same force and effect as if they had been made on and as
of the Closing Date.
6.2 PERFORMANCE OF AGREEMENTS. All agreements and conditions
contained in this Agreement to be performed by HC on or prior to the Closing
Date shall have been performed or complied with in all material respects.
6.3 CERTIFICATE. HC shall have delivered to BST a certificate,
dated the Closing Date, certifying to the fulfillment of the conditions
specified in Sections 6.1 and 6.2 of this Agreement and the incumbency of
certain officers of HC.
6.4 TERMINATION OF OBLIGATIONS. BST's obligations under the
Operating Agreement shall have been terminated at or prior to the Closing.
SECTION 7.
COVENANTS OF THE PARTIES
7.1 REASONABLE EFFORTS. Upon the terms and subject to the
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do or
cause to be done all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement.
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7.2 TRANSFER RESTRICTIONS.
(a) The HC Shares shall not be transferred or otherwise disposed of, in
whole or in part, except pursuant to a registration statement under the
Securities Act or pursuant to an exemption from registration thereunder. BST
shall not transfer any HC Shares unless prior to the proposed transfer it shall
have provided to HC an opinion of counsel (which counsel may be an employee of
BST or its ultimate parent corporation) to the effect that no registration
under the Securities Act is required in connection with the proposed transfer
and that the proposed transfer is exempt from registration or qualification and
is otherwise permissible under applicable state securities law. The foregoing
notwithstanding, BST may transfer the HC Shares to an affiliate of BST
designated by BST without delivery of the opinion of counsel required by the
foregoing sentence (provided the affiliate (i) makes representations to HC in
substantially the form of Section 3.8 hereof and (ii) agrees in writing in a
form reasonably acceptable to HC to the provisions of this Agreement relating
to the HC Shares). The registration rights described below in Section 8 shall
be transferable in connection with a transfer of all, but not less than all, of
the HC Shares to the extent permitted herein.
(b) The certificates representing the HC Shares shall bear such legends as
may be deemed reasonably necessary by HC, including without limitation the
following:
"The shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under the securities laws of any state. Except as may be
permitted by that certain Debenture Purchase Agreement, dated
as of January 1, 1997, by and between BellSouth
Telecommunications, Inc. and Harbinger Corporation, the shares
may not be sold, transferred, pledged or hypothecated in the
absence of an effective registration statement under the
Securities Act of 1933, as amended, and such registration or
qualification as may be necessary under the securities law of
any state, or an opinion of counsel (who may be an employee of
BST or its ultimate parent corporation) which opinion and
counsel shall be satisfactory to the Company and its counsel,
that such registration or qualification is not required."
7.3 ASSUMPTION OF INDEMNIFICATION OBLIGATIONS. HC hereby assumes
effective upon the dissolution of the Company the obligation of the Company
pursuant to Section 5.11 of the Operating Agreement to indemnify the managers of
the Company.
SECTION 8.
REGISTRATION RIGHTS
8.1. DEMAND REGISTRATION RIGHTS.
(a) Upon written notice delivered by the Holder (as defined in
Section 8.7) to HC following the six (6) month anniversary of the Closing Date,
HC agrees to effect on one occasion a registration on behalf of the Holder on a
"shelf" registration statement all of the HC Shares for sale in the open market
for a period not to exceed 45 days as provided in this Section 8.1. Such
registration statement shall be on Form S-3 if HC is eligible to use such form.
The fees and expenses of such registration and offering shall be borne by HC;
provided, however, that the Holder will pay all of the underwriting discounts
and
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commissions, transfer taxes, transfer agent fees and the expenses,
disbursements and charges of their own counsel with respect to the HC Shares.
(b) Whenever required under this Section 8.1 to effect the
registration of the HC Shares, HC shall use its reasonable efforts to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration
statement with respect to all of the HC Shares, cause
such registration statement to become effective, and
keep such registration statement effective for up to
forty-five (45) days or until all such shares are
sold, whichever is earlier; and
(ii) Prepare and file with the Commission such amendments
and supplements to such registration statement and
the prospectus used in connection with such
registration statement (including documents
incorporated therein) as may be necessary to comply
with the provisions of the Securities Act with
respect to the disposition of all HC Shares covered
by such registration statement.
(c) The Holder may request that the offer of its shares be
underwritten and shall include in its request made pursuant to this Section 8.1
the name of the managing underwriter or underwriters, if any, that the Holder
would propose to employ in connection with the public offering proposed to be
made pursuant to the registration requested. In the event the Holder's offer
of HC Shares is underwritten at its request, notwithstanding any other
provision of this Agreement, the Holder shall bear the incremental expense
incurred by HC relating to the use of the underwriter or underwriters in
connection with the Holder's offer of its HC Shares, including without
limitation incremental legal and printing expenses associated with changes made
in the content or number of prospectuses due to the involvement of such
underwriter or underwriters. HC may object to any managing underwriter or
underwriters proposed by the Holder, in which case the Holder shall propose
another managing underwriter or underwriters that is or are reasonably
acceptable to HC. HC and the Holder shall each use its reasonable efforts to
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting in the manner set forth above. HC
will take such reasonable actions as are necessary to comply with the terms and
obligations of such underwriting agreement and will furnish such underwriters
and their respective representatives full access to all information reasonably
requested in connection with their due diligence review of HC and its
operations.
(d) HC shall be entitled to defer for a reasonable period of time,
but not exceeding ninety (90) days, the filing of any registration statement
otherwise required to be prepared and filed by it pursuant to this Section 8.1
if HC's Board of Directors determines in good faith that such deferral is
necessary to avoid a requirement to disclose prematurely information regarding
a possible merger or acquisition transaction or they otherwise determine in
good faith that such deferral is in the best interests of HC and its
shareholders. If HC shall so postpone the filing of a registration statement,
the Holder shall have the right to withdraw such request for registration by
giving written notice to HC within fifteen (15) days after receipt of notice
from HC of such postponement. In the event of such withdrawal, such request
shall not be counted for purposes of Section 8.1 hereof.
(e) HC shall be entitled to include in any registration statement
referred to in this Section 8.1, for sale in accordance with the method of
disposition specified by the Holder, shares of HC's common stock to be sold by
HC for its own account, or other shareholders for their own account (except as
and to the extent that, in the opinion of the managing underwriter if such
method of disposition shall be effected in HC's sole discretion as an
Underwritten Public Offering, such inclusion would result in any of the HC
Shares being excluded from the offering or would materially adversely affect
the marketing of the HC Shares). For purposes of this Section 8, "Underwritten
Public Offering" means a public offering of HC's common stock for cash which is
offered and sold in a registered transaction on a firm commitment underwritten
basis through one or more underwriters, all pursuant to an underwriting
agreement between HC and any selling shareholders on the one hand and such
underwriters on the other hand.
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(f) Anything in this Section 8.1 to the contrary notwithstanding,
HC shall not be required to file a registration statement requested pursuant to
this Section 8.1 which would be declared effective after the last day of a
fiscal year of HC and prior to the earlier of the date on which HC's audited
financial statements for such fiscal year are first available or 75 days after
the end of the fiscal year, or in a manner which would require the inclusion of
financial statements other than such audited financial statements.
(g) No request for registration under this Section 8.1 may be made
within six (6) months after the effective date of any other registration
statement filed by HC or within three (3) months after the completion of the
sale of the securities included in any other registration statement filed by
HC. If a registration statement requested pursuant to this Section 8.1 shall
not have become effective within twelve (12) months after the initial filing
thereof with the Commission as a result of any reason other than (i) a material
adverse development in the business or condition (financial or other) of HC or
(ii) any act or matter within the control of HC, or if such registration
statement shall be abandoned or withdrawn at the request of the Holder, then HC
shall be deemed to have satisfied its obligation to register the HC Shares
pursuant to this Section 8.
8.2. "PIGGYBACK" REGISTRATION RIGHTS. If HC at any time after the
date hereof and prior to the date on which the Holder delivers the notice
contemplated by Section 8.1(a) proposes to register under the Securities Act
any class of HC's equity or debt securities for sale to the public on a general
form registration statement on Form S-1, S-2, S-3 or any successor form, then
and in each such case HC shall give fifteen (15) days prior written notice of
such proposed registration to the Holder and shall cause such number of HC
Shares as shall be requested by the Holder within ten (10) days thereafter to
be included, upon the same terms (including the method of distribution), in any
such offering; provided that the number of HC Shares requested to be included
by the Holder must be at least (i) one-half of the HC Shares originally issued
hereunder or (ii) the number of HC Shares then owned by the Holder, whichever
is less. HC may, without the consent of the Holder, withdraw any such
registration and abandon any proposed offering if in the reasonable good faith
belief of the Board of Directors of HC such withdrawal and abandonment appears
to be in HC's best interests. The failure of the Holder to exercise its rights
hereunder with respect to any registration shall not constitute a waiver of its
rights to participate in any other registration or to demand registration of HC
Shares under Section 8.1 hereof. The foregoing obligations shall be subject to
the following conditions and limitations:
(i) HC shall not be required to give such notice or
include any HC Shares in any form of registration
statement unless such HC Shares of the Holder are
eligible for inclusion in the applicable form of
registration statement as described above;
(ii) In an Underwritten Public Offering of the HC Shares,
the Holder shall agree (a) to have the HC Shares sold
to or by such underwriter or managing agent on terms
substantially equivalent to the terms upon which HC
is selling the securities so registered by it, and
(b) to delay the sale of any securities of HC not
sold by it in such registration statement for the
period requested by such underwriter or managing
agent up to 180 days following the effective date of
such registration statement;
(iii) If any underwriter in such Underwritten Public
Offering shall advise HC that it declines to include
a portion of the HC Shares requested by the Holder to
be included in the registration statement, then in
case of an exclusion as to a
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portion of such HC Shares, such portion shall be
allocated in proportion to the respective number of
shares of common stock requested to be registered by
all such holders of HC's securities; and
(iv) The fees and expenses of the offering shall be borne
by HC; provided, however, that the Holder will pay
all of the underwriting discounts and commissions,
transfer taxes, transfer agent fees and the expenses,
disbursements and charges of their own counsel with
respect to the HC Shares.
8.3. UNDERTAKINGS OF HOLDER. As a condition of the registration
provided for in this Section 8, the Holder shall (a) furnish such information
concerning itself and the terms of its proposed offering to HC as requested in
connection with such registration; (b) agree to indemnify HC (and each of its
officers and directors who have signed the registration statement relating to
the registration) and each person, if any, who controls HC within the meaning
of the Securities Act, the underwriters and each person, if any, who controls
such underwriter within the meaning of the Securities Act, to the extent
reasonably deemed necessary by HC with respect to the accuracy of any
information so furnished by the Holder; and (c) reasonably cooperate with HC
and its representatives to cause such registration to become effective at the
earliest practicable time.
8.4. ADDITIONAL UNDERTAKINGS OF HC. Without limiting the
generality of the provisions of Section 8, if and whenever HC is under an
obligation to effect the registration of any HC Shares, HC shall at its sole
cost and expense:
(i) furnish to the Holder such numbers of each prospectus
(including each preliminary prospectus and prospectus
supplement) in conformity with the requirements of
the Securities Act, and such other documents as are
reasonably requested by the Holder to facilitate the
public offering of its HC Shares; and
(ii) use its reasonable efforts to register or qualify the
HC Shares covered by such registration under the
securities or blue sky laws of such jurisdictions
(and shall do any and all other acts or things) as is
reasonable to enable the Holder to consummate the
public sale or the disposition of its HC Shares;
provided, however, that HC 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 states or
jurisdictions.
8.5. INDEMNIFICATION BY HC. In connection with the offering
contemplated by this Section 8, HC will indemnify the Holder (and each of its
officers, directors and controlling persons, if any, within the meaning of the
Securities Act), and each underwriter for HC, the Holder and each person, if
any, who controls such underwriter within the meaning of the Securities Act,
against any and all loss, liability, claim, damage and expense whatsoever
arising out of any (a) untrue statement of a material fact contained in the
registration statement, or the omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon and in conformity with information
furnished or confirmed to HC by the Holder, or any other person who might be
entitled to indemnification hereunder, for use in such registration statement,
prospectus or supplement, or (b) violation by HC of any law or rule or
regulation relating to action or inaction required by HC in connection with such
registration statement or the offering contemplated thereby.
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8.6 RULE 144 REQUIREMENTS. With a view to making available to
the Holder the benefits of Rule 144 (or any successor rule thereto) promulgated
under the Securities Act, HC agrees to file with the Commission in a timely
manner all reports and other documents required of HC under the Securities Act
and the Securities Exchange Act of 1934, as amended. The Holder's right to
require HC to register the HC Shares pursuant to Sections 8.1 and 8.2 shall not
be exercisable at any time during which any HC Shares are eligible for sale in
the open market pursuant to Rule 144 (or any successor rule thereto) under the
Securities Act.
8.7 TRANSFER OF REGISTRATION RIGHTS. For purposes of this
Section 8, the term "Holder" shall refer to BST and any assignee who is an
affiliate of BST (a "Permitted Assignee"). The registration rights described
in this Section 8 shall be transferable only in connection with a transfer of
all, but not less than all, of the HC Shares and only upon the Permitted
Assignee agreeing in writing to the provisions of this Section 8.
SECTION 9.
MISCELLANEOUS
9.1. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Georgia.
9.2. SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
9.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the provisions hereof shall insure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
9.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
documents delivered pursuant hereto at the Closing constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is
sought.
9.5 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed to each party, at such address set forth on the signature
page, or at such other address as such person shall have furnished to the other
parties in writing. Each such notice or other communication shall for all
purposes of this Agreement be treated as effective or having been given when
delivered if delivered personally, or, if sent by mail, at the earlier of its
receipt or 48 hours after the same has been deposited in a regularly maintained
receptacle for the deposit of the United States mail, addressed and mailed as
aforesaid.
9.6. EXPENSES. Each party shall pay its own expenses and legal
fees incurred with respect to this Agreement and the transactions contemplated
hereby.
9.7 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument.
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9.8. SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Agreement shall continue in
full force and effect, and the invalid unenforceable provision shall be
modified to the extent necessary to make it valid and enforceable.
9.9. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.10. GOOD FAITH ACTIONS. The parties to this Agreement agree to
act in good faith in exercising, fulfilling and performing their respective
rights, obligations and agreements hereunder. The foregoing agreement shall
not be deemed to be in derogation of any obligation to act in good faith
otherwise applicable to any party at law or in equity.
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The foregoing agreement is hereby executed as of the date first above written.
BELLSOUTH TELECOMMUNICATIONS, INC.
By: /s/ Robert L. Capell III
-----------------------------
HARBINGER CORPORATION
By: /s/ C. Tycho Howle
-----------------------------
Address: 1055 Lenox Park Boulevard
Atlanta, Georgia 30319
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EXHIBIT 99.1
Contacts: Rebecca Metzger
Marketing Communications
Harbinger Corporation
Phone: 404-467-3211
E-Mail: [email protected]
Internet: www.harbinger.com
For Immediate Release....
HARBINGER CORPORATION COMPLETES ACQUISITION
AND INTEGRATION OF HARBINGER NET SERVICES
ATLANTA - (January 2, 1997) - Harbinger Corporation (NASDAQ:HRBC),
today announced the completion of the purchase of 100% of the equity in its
Harbinger NET Services (HNS) subsidiary. Harbinger announced last October that
it would acquire the 30% equity interest in Harbinger NET Services currently
owned by BellSouth Telecommunications, Inc. and other minority shareholders
for approximately $7.2M in consideration. Those plans have been executed on
schedule.
"Harbinger is better positioned to compete in the marketplace as a
result of this acquisition in two significant ways," began Tycho Howle,
Harbinger Corporation Chairman and Chief Executive Officer. "First, we have
eliminated the potential organizational confusions between Harbinger and
Harbinger NET Services. Second, the marketplace has indicated to us that we
need to deliver solutions which broaden the level of participation among their
trading partners. We believe that the Internet represents a key missing link
in the equation. With the acquisition now complete, Harbinger Corporation's
entire product line will utilize the rich Internet-based offerings developed by
HNS in order to meet this Internet connectivity requirement. In short,
Harbinger begins 1997 positioned to deliver the strongest set of electronic
commerce products and services in the industry."
Howle added, "We would like to take this opportunity to express our
gratitude to our joint venture partner, BellSouth, for their participation in
the HNS venture and for their cooperation in putting HNS and Harbinger
Corporation back together. Their involvement and support played a key role in
enabling us to create this new venture on the scale we undertook," Howle
added. BellSouth remains an important customer of Harbinger Corporation, and
with this transaction, becomes a significant shareholder.
The HNS products have now been integrated into Harbinger Corporation's
total product offering. This allows Harbinger Corporation to address the
entire electronic commerce market with specific products and services targeted
at defined niches. These market segments range from the largest users of
electronic commerce to those smaller businesses whose transaction volumes
warrant a simple, low-cost solution.
The new Web-based EDI service from HNS, Harbinger Express, which was
designed for companies that exchange smaller quantities of business documents,
becomes Harbinger's entry-level EDI offering. Meanwhile, Harbinger's flagship
desktop product, TrustedLink Commerce, is now complemented by the HNS product
TrustedLink Guardian, enabling companies to securely send EDI documents via the
Internet.
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<PAGE> 2
Harbinger's enterprise-level EDI solutions, TrustedLink Enterprise, are
similarly Internet-enabled with the HNS TrustedLink Guardian offering.
Regarding the company's network solutions, the Harbinger Value-Added
Network (VAN) is now fully integrated with the Internet Value-Added Server
(IVAS) architecture developed by HNS, allowing customers to seamlessly and
securely route messages between the Internet and Value-Added Networks. In
addition, Harbinger continues to have success with HNS's TrustedLink INP, the
industry's easiest Web site creation and management offering which empowers
small to mid- sized businesses to establish their own instant net presence.
From the human resource perspective, Howle noted, "As we anticipated,
we have retained all fifty-five HNS employees. HNS had a highly qualified,
motivated and talented team and we are pleased that they have all remained with
the company. Integration has occurred at all levels. Among the new
assignments: HNS president James Davis has assumed the role of President of
Harbinger's Network and Mass Deployment division, which develops and markets
the company's desktop EDI products as well as its Value-Added Network. Bob
Geiger, formerly HNS Vice President of Development and Operations, has become
General Manager of the Network Solutions Division. Ron Rosenthal, HNS's
Director of Strategic Relations, has been appointed Director of Product
Management in the Harbinger Enterprise Solutions division, where he is
responsible for developing marketing programs for enterprise wide IVAS
(Internet Value-Added Server) solutions. Dennis Freeman, who headed HNS's
Product Management and Marketing group, takes the role of Senior Director for
Product Management and Marketing, with responsibility for the combined
company's desktop EDI products.
Harbinger Corporation is one of the largest electronic commerce
providers in the world, with more than 23,000 billable subscribers and more
than 39,500 active mailboxes on its global value-added network. In addition to
millions of electronic data interchange transactions, over 1.5 billion dollars
in Automated Clearing House (ACH ) transfers flow through the Harbinger network
each month. Since 1988, Harbinger has been dedicated to providing the
electronic commerce industry with comprehensive EC/EDI software solutions for
MVS(R), AS/400(R), Windows NT(R), UNIX, Windows(R) 95, Windows(R) 3.x and DOS.
Harbinger offers worldwide service and support.
Harbinger's corporate headquarters are located in Atlanta, Harbinger's
Enterprise Solutions Division is headquartered in Dallas, and the company's
European operations are in several countries including The Netherlands and
Germany.
For additional information on Harbinger, please visit our site on the
World Wide Web at http://www.harbinger.com.
###
Harbinger and TrustedLink are trademarks or registered trademarks of Harbinger
Corporation. All other company and product names referenced herein are
trademarks or registered trademarks of their respective owners.
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<PAGE> 1
EXHIBIT 99.2
<TABLE>
<S> <C> <C>
Contacts: James C. Davis Joel G. Katz
President, Harbinger Group Operations Vice President, Finance
Harbinger Corporation Harbinger Corporation
Phone: 404-841-4334 ext. 3143 Phone: 404-841-4334 ext. 3011
E-mail: [email protected] E-Mail: [email protected]
Internet: www.harbinger.com Internet: www.harbinger.com
</TABLE>
For Immediate Release...
HARBINGER CORPORATION TO ACQUIRE 100% OF HARBINGER NET SERVICES, LLC
ATLANTA -- (October 28, 1996) -- Harbinger Corporation (NASDAQ: HRBC)
today announced its intent to purchase the remaining 30% equity interest in
Harbinger NET Services, LLC (HNS), currently a 70% owned subsidiary, from
BellSouth Telecommunications, Inc. (BellSouth) and other minority shareholders
for approximately $7.2M in consideration. Harbinger will pay BellSouth $1.5
million in cash and approximately $4.2 million in Harbinger Corporation common
stock for its approximately 24% interest in HNS and approximately $1.5 million
in cash to the other minority shareholders. Management anticipates a first
quarter 1997 charge of between $6 million and $7.5 million as a result of the
combination related to in-process R&D charges and associated integration costs.
Harbinger is retaining all of HNS's 60 employees.
Formed in 1994 to develop Internet EC products and services for the
business market, HNS was funded with approximately $12 million in June 1995 ($9
million from Harbinger and $3 million from BellSouth). HNS introduced its
first product this year, TrustedLink INP, a web site development tool for the
non-technical user. HNS has also developed, and is currently in Beta with
several other Internet electronic commerce products, including TrustedLink
Guardian, a security and encryption document management tool: Harbinger Web
Xpress, a Web EDI product and services offering; and IVAS (Internet Value Added
Server) platform technology.
"The consolidation of HNS with Harbinger Corporation creates both
operational and market efficiencies," said C. Tycho Howle, Chairman and CEO of
Harbinger Corporation. "HNS has made substantial progress in building its
first family of products for the Internet. These are excellent products which
are getting very favorable reviews from early customers. We have found that
the most promising opportunities we see for our Internet products require
integration of HNS and Harbinger technologies. Further, these opportunities
appear to be more vertical market oriented around specific trading communities,
which is Harbinger Corporation's approach to marketing its products. One of
the
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<PAGE> 2
considerations in forming HNS was to provide a vehicle for horizontal marketing
across multiple industries at the same time. We continue to believe that there
are horizontal market opportunities but we believe that they should be pursued
through alliance partners such as our recently announced alliance with
Peachtree Software. Putting the HC and HNS organizations together allows our
sales force and partners in the U.S. and around the globe to more easily
license a complete portfolio of EC products. With this consolidation, HNS can
leverage off of Harbinger's existing infrastructure and sales channels, thus
lowering its administrative and marketing costs going forward. Lastly, we have
found that Internet technologies are integral to all of Harbinger Corporation's
products and services, and we intend to continue investing heavily in this area
going forward. Given those plans, it would have become increasingly difficult
to separate staff members and products and for the HC and HNS organizations to
remain separate legal entities."
"BellSouth and Harbinger will continue to work together in this area
in the future", noted Rob Capell, Vice President of Strategic Management of
BellSouth. "Harbinger and BellSouth share a common interest in the mass
deployment of electronic commerce and in providing Internet-based products and
services. We are pleased that we will be able to continue our involvement with
Harbinger through our equity ownership interest," said Mr. Capell.
Mr. Howle continued: "As to the financial impact of this combination,
we are currently working on our 1997 financial plan, and we cannot be specific
on the expected impact. However, based on our current view of our business, we
can say that we do not believe that the transaction will have a negative impact
on our earnings prospects going forward (excluding the one time first quarter
charge described in the first paragraph), and in fact believe the combination
may be accretive to the earnings of the company's base business in 1997."
This press release includes forward-looking statements relating to
Harbinger that involve risks and uncertainties including, but not limited to,
quarterly fluctuations in results, the management of growth, market acceptance
of certain products and other risks. For further information about these and
other factors that could effect Harbinger future results, please see the
company's reports filed with the Securities and Exchange Commission, including
the company's Form 10-K for the year ended December 31, 1995. Actual results
may differ materially from management expectations.
Headquartered in Atlanta, Georgia, BellSouth Telecommunications, Inc.
provides communications services for nearly 22 million access lines in a
nine-state region that includes Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina and Tennessee.
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<PAGE> 3
Harbinger Corporation is one of the largest Electronic Commerce
providers in the world, with an installed base of its end-user software of
24,000 and more than 30,000 active mailboxes on its value-added network. In
addition to millions of EDI transactions, over $1.5 billion in Automated
Clearing House (ACH) transfers flow through the Harbinger Network each month.
Since 1988, Harbinger has been dedicated to providing the Electronic
Commerce industry with comprehensive EC/EDI software solutions for all major
platforms, including MVS mainframes, AS/400(R) and UNIX(R), NT(R), midrange
systems, and Windows(R) and DOS personal computers.
Harbinger's corporate headquarters are located in Atlanta, Harbinger's
Enterprise Solutions Division is headquartered in Dallas, and the company's
European operations are in several countries including The Netherlands and
Germany.
For more information, please visit Harbinger's site on the World Wide
Web at http://www.harbinger.com.
###
Harbinger is a trademark of Harbinger Corporation. All other company and
product names referenced herein are registered trademarks or trademarks of
their respective owners.
23
