<PAGE> 1
As filed with the Securities and Exchange Commission on July 1, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------------------
HARBINGER CORPORATION
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
GEORGIA 58-1817306
(State of Incorporation) (I.R.S. Employer Identification Number)
</TABLE>
1055 LENOX PARK BOULEVARD
ATLANTA, GEORGIA 30319
(404) 467-3000
(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices
and principal place of business)
---------------------------------
LOREN B. WIMPFHEIMER
DIRECTOR OF LEGAL AFFAIRS
HARBINGER CORPORATION
1055 LENOX PARK BOULEVARD
ATLANTA, GEORGIA 30319
(404) 467-3000
(404) 841-4399 (FAX)
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
JOHN C. YATES, ESQ.
LARRY W. SHACKELFORD, ESQ.
MORRIS, MANNING & MARTIN, L.L.P.
1600 ATLANTA FINANCIAL CENTER
3343 PEACHTREE ROAD, N.E.
ATLANTA, GEORGIA 30326
(404) 233-7000
(404) 365-9532 (FAX)
---------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement as the
Selling Shareholders shall determine.
If any of the securities being registered on this Form are offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [ X ]
CALCULATION OF REGISTRATION FEE
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Amount Proposed maximum Proposed maximum Amount of
Title of each class of securities to be offering price per aggregate offering registration
to be registered registered Share(1) price(1) fee
<S> <C> <C> <C> <C>
Common Stock, $.0001 par value
per share 300,000 $28.75 $8,625,000 $2,614
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(1) Computed in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee, based upon the average of the high and
low prices reported on June 25, 1997, as reported on the Nasdaq Stock
Market.
---------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE> 2
PROSPECTUS
300,000 SHARES
COMMON STOCK
($.0001 par value)
This Prospectus relates to up to 300,000 shares (the "Shares") of common
stock (the "Common Stock") of Harbinger Corporation, a Georgia corporation
("Harbinger" or the "Company"), which may be offered from time to time by the
selling shareholders named herein (the "Selling Shareholders"). See "Selling
Shareholders." The Company will not receive any of the proceeds from the sale
of shares of Common Stock.
The Shares being registered were issued in connection with the
acquisitions (the "Acquisitions") by the Company of SupplyTech, Inc.
("SupplyTech") and a portion of the outstanding equity interests in Harbinger
NET Services, LLC ("HNS") from BellSouth Telecommunications, Inc. ("BST").
Pursuant to the terms of the Acquisitions, the Company agreed in certain
circumstances to register the shares of Common Stock received by each Selling
Shareholder.
The Company has been advised by each Selling Shareholder that it expects
to offer Shares through brokers or dealers to be selected by it from time to
time. The Shares may be offered for sale through the Nasdaq Stock Market, in
the over-the-counter market, in one or more private transactions, or a
combination of such methods of sale, at prices and on terms then prevailing, at
prices related to such prices, or at negotiated prices. Each Selling
Shareholder may pledge all or a portion of the Shares owned by it as collateral
in loan transactions. Upon default by such Selling Shareholder, the pledgee in
such loan transaction would have the same rights of sale as such Selling
Shareholder under this Prospectus to the extent it remains part of an effective
registration statement. Each Selling Shareholder may also transfer Shares
owned by it by gift and upon any such transfer the donee would have the same
rights of sale as such Selling Shareholder under this Prospectus. In addition,
any securities covered by this Prospectus which qualify for sale pursuant to
Rule 144 of the Securities Act of 1933, as amended (the "1933 Act"), may be
sold under Rule 144 rather than pursuant to this Prospectus. Finally, each
Selling Shareholder and any brokers and dealers through whom sales of the
Shares are made may be deemed to be "underwriters" within the meaning of the
1933 Act, and the commissions or discounts and other compensation paid to such
persons may be regarded as underwriters' compensation.
The Common Stock is traded on the Nasdaq National Market ("Nasdaq") under
the symbol "HRBC." The average of the high and low prices of the Shares as
reported on the Nasdaq Stock Market on June 25, 1997 was $28.75 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS FOR A DISCUSSION
OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE
COMMON STOCK OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
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Price to Underwriting Proceeds to Selling
Public Discounts and Shareholders (2)
Commissions (1)
<S> <C> <C> <C>
Per Share.......... $28.75 $.72 $28.03
Total.............. $8,625,000 $216,000 $8,409,000
</TABLE>
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(1) Estimated brokerage commissions to be paid by Selling Shareholders.
(2) Before deducting estimated expenses of the offering estimated at $25,000,
all of which will be paid by the Company.
THE DATE OF THIS PROSPECTUS IS JULY ____, 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and files reports and other information with the
Securities and Exchange Commission (the "Commission") in accordance therewith.
Such reports, proxy statements, and other information filed by the Company are
available for inspection and copying at the public reference facilities of the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549, and at the Commission's Regional Offices located at Room 1028,
Jacob K. Javits Federal Building, 26 Federal Plaza, New York, New York 10278
and Room 3190, Kluczynski Federal Building, 230 South Dearborn Street, Chicago,
Illinois 60604. Copies of such material may be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549, at prescribed rates. The Commission maintains
a World Wide Web site on the Internet that contains reports, proxy and
information statements and other information regarding registrants which file
electronically with the Commission at http://www.sec.gov. The Company's common
stock is listed on the Nasdaq Stock Market. In addition to the addresses
listed above, reports, proxy statements, and other information concerning the
Company can be inspected at the offices of the Nasdaq Stock Market.
The Company has filed with the Commission a registration statement on Form
S-3 (together with any amendments, the "Registration Statement") under the 1933
Act, covering the Shares being offered by this Prospectus. This Prospectus,
which is part of the Registration Statement, does not contain all the
information and undertakings set forth in the Registration Statement and
reference is made to such Registration Statement, including exhibits, which may
be inspected and copied in the manner and at the location specified above, for
further information with respect to the Company and the Shares. Statements
contained in this Prospectus concerning the provisions of any documents are not
necessarily complete and, in each instance, reference is made to the copy of
such documents filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1996, filed on March 31, 1997.
2. The Company's Proxy Statement dated April 2, 1997 and filed on April 2,
1997.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997, filed on May 13, 1997.
4. The description of the Common Stock of the Company which is contained
in the Company's Form 8-A/A Amendment No. 1 dated August 21, 1995, as
incorporated by reference therein from the Company's Pre-Effective Amendment
No. 4 to its Registration Statement on Form S-1 dated August 18, 1995.
5. The statement of operations of EDI (formerly a business unit of Texas
Instruments, Incorporated) for the year ended December 31, 1994, included in
the Company's Registration Statement (File No. 33-93804) on Form S-1.
6. The Company's Current Report on Form 8-K dated April 4, 1996, and filed
on April 18, 1996, as amended by it's Current Report on Form 8-K/A Amendment
No. 1 dated April 4, 1996, and filed June 17, 1996.
7. The Company's Current Report on Form 8-K dated April 19, 1996, and
filed on May 2, 1996, as amended by it's Current Report on Form 8-K/A Amendment
No. 1 dated April 19, 1996, and filed July 1, 1996.
8. The Company's Current Report on Form 8-K dated April 20, 1996, and
filed on May 3, 1996, as amended by it's Current Report on Form 8-K/A Amendment
No. 1 dated April 20, 1996, and filed July 2, 1996.
9. The Company's Current Report on Form 8-K dated January 1, 1997, and
filed on January 15, 1997, as amended by its Current Report on Form 8-K/A
Amendment No. 1 dated January 1, 1997, and filed March 14, 1997.
10. The Company's Current Report on Form 8-K dated January 3, 1997, and
filed on January 16, 1997, as amended by its Current Report on Form 8-K/A
Amendment No. 1 dated January 3, 1997, and filed March 18, 1997.
11. The Company's Current Report on Form 8-K dated April 28, 1997, and
filed on April 28, 1997.
12. The Company's Current Report on Form 8-K dated July 1, 1997, and filed
on July 1, 1997.
<PAGE> 4
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares of Common Stock offered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus has been delivered, upon the written or oral request of
any such person, a copy of any and all of the foregoing documents incorporated
herein by reference (other than exhibits to such documents which are not
specifically incorporated by reference into the information that this
Prospectus incorporates). Written or telephone requests should be directed to
Investor Relations Department, Harbinger Corporation, 1055 Lenox Park
Boulevard, Atlanta, Georgia 30319, telephone number (404) 467-3000.
THE COMPANY
Harbinger Corporation ("Harbinger" or the "Company") is a leading
worldwide provider of electronic commerce products and services to businesses
and offers comprehensive, customizable, standards-based electronic commerce
solutions. The Company develops, markets and supports software products and
provides computer communications network and consulting services which enable
businesses to engage in electronic commerce. These electronic commerce
solutions are provided over the Harbinger value-added network ("VAN") or the
Company's Internet value-added servers ("IVAS"), or directly over standard
telephone lines, the Internet, or private internal computer networks known as
Intranets. Harbinger offers software products that operate on multiple
computer platforms, secure and reliable computer networks and secure Internet
communications to facilitate the transmission of business information and
transactions, and value-added products and services to enable businesses of all
sizes to maximize the number and value of their electronic trading
relationships. As of December 31, 1996 the Company's customers included
leading U.S. and international corporations and government agencies, including
Northrop, Compaq Computer, Digital Equipment Corporation, Hewlett-Packard,
Westinghouse Electric, Baxter Healthcare, Johnson & Johnson, Amoco, Chevron,
Mobil, Pacific Gas & Electric, Southern California Edison, Bank of America and
Barnett Banks.
The Company's products and services facilitate electronic commerce and
electronic data interchange ("EDI") by businesses and financial institutions by
providing the ability to electronically transmit and receive routine business
information and documents in a standard format. The Harbinger VAN and IVAS
serve as electronic communications links for computer systems by receiving,
storing and forwarding electronically transmitted business documents and data
for re-transmission in a form that can be received and interpreted by the
computer of another commercial business. The method of document exchange is
user configurable by trading partner and by document type (such as purchase
order, invoice, quote or bid request). Both the Harbinger VAN and IVAS provide
encryption and other document management and security methods to allow
documents to be exchanged securely and reliably. Harbinger facilitates the
electronic link to its computer communications network through its electronic
commerce software packages for use in a broad range of computing environments,
including DOS, Windows (3.x, 95 and NT), UNIX, IBM AS/400 midrange and IBM MVS
mainframe platforms. The Company also provides professional services to assist
businesses in the installation, customization, operation and maintenance of
their electronic trading relationships.
RISK FACTORS
Integration of Recent Acquisitions. The Company has completed a number of
acquisitions since January 1, 1996, including the acquisitions of SupplyTech
and the minority interests of HNS. SupplyTech and HNS have historically
reported significant operating losses. The Company's acquisitions present a
number of risks and challenges, including the historical operating losses of
SupplyTech and HNS, the integration of the SupplyTech software products into
the Company's current suite of products, the integration of the sales force of
SupplyTech into the Company's existing sales operations, the coordination of
customer support services, the integration of international operations with the
Company's international affiliates, the development and commercialization of
HNS's Internet-related products and the integration of those products with the
Company's existing products, and the diversion of management's attention from
other business concerns. Several of the newly acquired products address the
same markets as, and may therefore be competitive with, existing Company
products. There can be no assurance that the Company can successfully
assimilate its operations and integrate its software products with these
recently acquired operations, software products and technologies, or that the
<PAGE> 5
Company will be successful in repositioning its products on a timely basis to
achieve market acceptance. Any delay in such integration could have a material
adverse effect on the Company.
Factors Affecting Operating Results; Potential Fluctuations in Quarterly
Results. The Company's quarterly operating results have in the past and may in
the future vary or decrease significantly depending on factors such as revenue
from software sales, the timing of new product and service announcements,
changes in pricing policies by the Company and its competitors, market
acceptance of new and enhanced versions of the Company's products, the size and
timing of significant orders, changes in operating expenses, changes in Company
strategy, personnel changes, government regulation, the introduction of
alternative technologies, the effect of acquisitions and general economic
factors. The Company has limited or no control over many of these factors.
The Company has experienced losses in the past, and at December 31, 1996, after
giving effect to the restatement of the financial statements of the Company to
reflect the acquisition of SupplyTech, the Company had an accumulated deficit
of approximately $20.0 million. The Company operates with virtually no
software product order backlog because its software products typically are
shipped shortly after orders are received. As a result, revenues in any
quarter are substantially dependent on the quantity of purchases of services
requested and product orders received in that quarter. Quarterly revenues also
are difficult to forecast because the market for electronic commerce and EDI
software products is rapidly evolving and the Company's revenues in any period
may be significantly affected by the announcements and product offerings of the
Company's competitors as well as alternative technologies. The Company's IVAS
product is more complex and expensive compared to its other electronic commerce
and Internet products introduced to date, and will generally involve
significant investment decisions by prospective customers. Accordingly, the
Company expects that in selling its IVAS product it will encounter risks
typical of companies that rely on large dollar purchase decisions, including
the reluctance of purchasers to commit to major investments in new products and
protracted sales cycles, both of which add to the difficulty of predicting
future revenues and may result in quarterly fluctuations. The Company's
expense levels are based, in part, on its expectations as to future revenues.
If revenue levels are below expectations, the Company may be unable or
unwilling to reduce expenses proportionately and operating results are likely
to be adversely affected. Due to all of the foregoing factors, it is likely
that in some future quarter or quarters the Company's operating results will be
below the expectations of public market analysts and investors. In such event,
the price of the Company's Common Stock will likely be adversely affected.
The Company recognizes revenues for software license fees upon shipment,
net of estimated returns. Customers using the Company's PC products are
permitted to return products after delivery for a specified period, generally
60 days. The Company generally has experienced returns of approximately 20% of
the PC product sales, and the Company records revenues after a deduction for
estimated returns. Any material increase in the Company's return experience
could have an adverse effect on its operating results. See "Non-Recurring
Charges; Loss in 1997 First Quarter and Expected Loss in Year Ended December
31, 1997."
Non-Recurring Charges; Loss in 1997 First Quarter and Expected Loss in
Year Ended December 31, 1997. In January 1997, the Company completed the
merger with SupplyTech, accounted for as a pooling of interests, and incurred a
$7.1 million first quarter 1997 charge related to merger related expenses.
Additionally, the Company incurred integration costs related to the merger of
$4.8 million during the first quarter of 1997. In January 1997, the Company
completed the purchase of the $3.0 million Subordinated Convertible Debenture
of HNS (the "Debenture") from BellSouth and the remaining equity in HNS from
other shareholders for an aggregate of approximately $9.8 million in
consideration. The Company incurred integration costs related to the HNS
transaction of $1.6 million during the first quarter of 1997. Additionally,
the Company incurred a $2.4 million loss on extinguishment of the Debenture
related to its acquisition and a $2.7 million charge for in-process product
development related to the acquisition of the minority interest of HNS in the
first quarter of 1997. As a result of these charges, the Company incurred a
net loss for the first quarter of 1997 and expects to incur a net loss for the
year ending December 31, 1997. See "Integration of Recent Acquisitions" and
"Risks of Potential Future Acquisitions."
Intense Competition. The electronic commerce, EDI and network services
and products businesses are intensely competitive, and the Company has many
competitors with substantially greater financial, marketing, personnel and
technological resources than the Company. Other companies offer products and
services that may be considered by customers to be acceptable alternatives to
the Company's products and services. Certain companies also operate private
computer networks for transacting business with their trading partners. It is
expected that other companies may develop and implement similar
computer-to-computer networks, some of which may be "public" networks such as
the Company's
<PAGE> 6
and others may be "private," providing services only to a
specific group of trading partners, thereby reducing the Company's ability to
increase sales of its network services. In addition, several companies offer
PC-based, UNIX, midrange and mainframe and Internet computer software products
which compete with the Company's software products. Advanced operating systems
and applications software from Microsoft and other vendors also may offer
electronic commerce functions that limit the Company's ability to sell its
software products. The Company believes that the continuing acceptance of
electronic commerce and EDI will attract new competitors, including software
applications and operating systems companies that may bundle electronic
commerce solutions with their programs, and alternative technologies that may
be more sophisticated and cost effective than the Company's products and
services. Competitive companies may offer certain electronic commerce products
or services, such as communications software or network transactional services,
at no charge or a deeply discounted charge, in order to obtain the sale of
other products or services. Since the Company's agreements with its network
subscribers are terminable upon 30 days' notice, the Company does not have the
contractual right to prevent its customers from changing to a competing
network. See "Dependence on New Products; Industry Standards." Competitors
that offer products and/or services that compete with various of the Company's
products and services include, among others, Advantis Systems, Inc.; AT&T;
Computer Associates International, Inc.; EDS; General Electric Information
Systems; Premenos Technology Corp.; QuickResponse Services, Inc.; Sterling
Commerce, Inc. and a joint venture between British Telecommunications Plc and
MCI Communications Corporation; as well as the internal programming staffs of
various businesses engaging in electronic commerce.
Emergence of Electronic Commerce Over the Internet. The Internet provides
a potential alternative means of providing electronic commerce to business
trading partners. The market for Internet software and services is both
emerging and highly competitive, ranging from small companies with limited
resources to large companies with substantially greater financial, technical
and marketing resources than the Company. In addition to the Company's
Internet related products and services, several existing competitors of the
Company have introduced their own Internet electronic commerce products and
services. Moreover, new competitors, which may include telephone companies and
media companies, are likely to increase the provision of business-to-business
data transmission services using the Internet. There is no assurance that the
Company's TrustedLink Guardian end user software and IVAS, which enable
electronic commerce over the Internet, will be accepted in the Internet market
or can be competitive with other products based on evolving technologies. If
the Internet becomes an accepted method of electronic commerce, the Company
could also lose network customers from its VAN which would reduce recurring
revenue from network services and have a material adverse effect on the
Company.
The use of the Company's Internet electronic commerce products and
services will depend in large part upon the continued development of the
infrastructure for providing Internet access and services. Use of the Internet
for business-to-business electronic commerce services raises numerous issues
that greatly impact the development of this market. These issues include
reliability, data security and data integrity, timely transmission, and pricing
of products and services. Because global commerce and online exchange of
information on the Internet is new and evolving, it is difficult to predict
with any assurance whether the Internet will prove to be a viable commercial
marketplace. The Internet has experienced, and is expected to continue to
experience, substantial growth in the number of users and the amount of
traffic. There can be no assurance that the Internet will continue to be able
to support the demands placed on it by this continued growth. In addition, the
Internet could lose its viability due to delays in the adoption of new
standards and protocols to handle increased levels of Internet activity, or due
to increased governmental regulation. There can be no assurance that the
infrastructure or complementary services necessary to make the Internet a
viable commercial marketplace will be developed, or, if developed, that the
Internet will become a viable commercial marketplace for products and services
such as those offered by the Company. If the necessary infrastructure or
complementary services or facilities are not developed, or if the Internet does
not become a viable commercial marketplace, the Company's business, operating
results or financial condition will be materially adversely affected. See
"Dependence on New Products; Industry Standards."
Risks of Potential Future Acquisitions. The Company's growth has been
significantly enhanced through acquisitions of other businesses, products and
licenses. There can be no assurance that in the future the Company will be
able to identify suitable acquisition candidates available for sale at
reasonable prices, consummate any acquisition or successfully integrate any
acquired business into the Company's operations. Operational and software
integration problems may arise if the Company undertakes future acquisitions of
complementary products, technologies or businesses. Future acquisitions may
also result in potentially dilutive issuances of equity securities, the
incurrence of additional debt, the write-off of in-process product development
and capitalized product costs, and the amortization of expenses related to
<PAGE> 7
goodwill and other intangible assets, all of which could have a material
adverse effect on the Company. Acquisitions involve numerous additional risks,
including difficulties in the assimilation of the operations, products and
personnel of the acquired company, differing company cultures, the diversion of
management's attention from other business concerns, risks of entering markets
in which the Company has little or no direct prior experience, and the
potential loss of key employees of the acquired company. Customer satisfaction
or performance problems at a single acquired firm could have a material adverse
impact on the reputation of the Company as a whole. The Company expects to
finance any future acquisitions with debt financing, the issuance of equity
securities (common or preferred stock) or a combination of the foregoing.
There can be no assurance that the Company will be able to arrange adequate
financing on acceptable terms. See "Ability to Manage Growth."
Dependence on New Products; Industry Standards. The electronic commerce
industry is characterized by rapid technological change, frequent new product
and service introductions and evolving industry standards. The Company's
future success will depend in significant part on its ability to anticipate
industry standards, continue to apply advances in electronic commerce product
and service technologies, enhance existing products and services and introduce
and acquire new products and services on a timely basis to keep pace with
technological developments. There can be no assurance that the Company will be
successful in developing, acquiring or marketing new or enhanced products or
services that respond to technological change or evolving industry standards,
that the Company will not experience difficulties that could delay or prevent
the successful development, acquisition or marketing of such products or
services or that its new or enhanced products and services will adequately meet
the requirements of the marketplace and achieve market acceptance. In the past,
the Company has experienced delays in the commencement of commercial shipments
of new products and enhancements, resulting in delays or losses of product
revenues. Such delays or failure in the introduction of new or enhanced
products or services, or the failure of such products or services to achieve
market acceptance, could have a material adverse effect on the business,
results of operations and financial condition of the Company.
Ability to Manage Growth. The Company has recently experienced
significant growth in revenue, operations and personnel as it has made
strategic acquisitions, added subscribers to the Harbinger VAN and IVAS and
increased the number of licensees of its software products. This growth could
continue to place a significant strain on the Company's management and
operations, including its sales, marketing, customer support, research and
development, finance and administrative operations. Achieving and maintaining
profitability during a period of expansion will depend, among other things, on
the Company's ability to successfully expand its products, services and markets
and to manage its operations and acquisitions effectively. Difficulties in
managing growth, including difficulties in obtaining and retaining talented
management and product development personnel, especially following an
acquisition, could have a material adverse effect on the Company.
Investment in International Subsidiaries; International Growth and
Operations. The Company believes that its continued growth and profitability
will require expansion of its international operations through its
international subsidiaries, including NTEX Holding, B.V. in the Netherlands and
INOVIS GmbH & Co. in Germany as well as the international operations of
SupplyTech in the United Kingdom, Italy, Australia and Mexico (the
"International Subsidiaries"). This expansion will require financial resources
and significant management attention, particularly by certain members of the
management of the Company. The Company's ability to successfully expand its
business internationally will also depend upon its ability to attract and
retain both talented and qualified managerial, technical and sales personnel
and electronic commerce services customers outside the United States and its
ability to continue to effectively manage its domestic operations while
focusing on international expansion. Certain of the International Subsidiaries
have experienced operating losses in their recent histories and some have
experienced significant operating losses in their recent histories. To the
extent that the International Subsidiaries are unable to penetrate
international markets in a timely and profitable manner, the Company's growth,
if any, in international sales will be limited, and the Company could be
materially adversely affected. Moreover, the Company's ability to successfully
implement its international strategy may require installation and operation of
a value-added network and implementation of its IVAS software in other
countries, as well as additional improvements to its infrastructure and
management information systems, including its international customer support
systems. In addition, there can be no assurance that the Company will be able
to maintain or increase international market demand for the Company's products
or services. See "Integration of Recent Acquisitions" and "Risks of Potential
Future Acquisitions."
<PAGE> 8
International operations are subject to certain inherent risks, including
unexpected changes in regulatory requirements and tariffs, longer payment
cycles, increased difficulties in collecting accounts receivable and
potentially adverse tax consequences. To the extent international sales are
denominated in foreign currencies, gains and losses on the conversion to U.S.
dollars of revenues, operating expenses, accounts receivable and accounts
payable arising from international operations may contribute to fluctuations in
the Company's results of operations. The Company has not entered into any
hedging or other arrangements for the purpose of guarding against the risk of
currency fluctuation. In addition, sales in Europe and certain other parts of
the world typically are adversely affected in the third calendar quarter of
each year because many customers reduce their business activities in the summer
months.
Dependence on Key Management and Personnel; Ability to Attract and Retain
Qualified Personnel. The Company's success is largely dependent upon its
executive officers and key sales and technical personnel, the loss of one or
more of whom could have a material adverse effect on the Company. The future
success of the Company will depend in large part upon its ability to attract
and retain talented and qualified personnel. In particular, the Company
believes that it will be important for the Company to hire experienced product
development and sales personnel. Competition in the recruitment of
highly-qualified personnel in the computer software and electronic commerce
industries is intense. The inability of the Company to locate and retain such
personnel may have a material adverse effect on the Company. No assurance can
be given that the Company can retain its key employees or that it can attract
qualified personnel in the future.
Dependence Upon Major Customer. The Company has an agreement with System
Software Associates, Inc. ("SSA") for the distribution and marketing of certain
software products of the Company. SSA is to pay the Company royalties
representing a percentage of annual net fees generated by SSA from the sale of
software licensed from the Company. For the years ended December 31, 1995 and
1996, revenues from SSA represented approximately 3.4% and 9.7%, respectively
of the Company's total revenues for such periods after giving effect to the
restatement of the financial statements of the Company to reflect the
acquisition of SupplyTech. SSA had minimum royalty obligations of $1.4 million
in 1995 and $5.7 million in 1996, which accounted for all of the revenues
earned by the Company from SSA. There is no minimum royalty obligation after
1996, and the Company expects that revenues from SSA may substantially decline
in 1997 and subsequent years as compared to 1996, and that the average
collection period related to cash flows derived from royalty revenues earned
from SSA in the future will substantially decline. In the event that SSA
ceases to perform under its agreement with the Company or fails to generate
product sales consistent with 1996 royalty levels, or the agreement with SSA is
terminated, the Company may be adversely affected.
Risks of Product Development. Software products as complex as those
offered by the Company may contain undetected errors or failures when first
introduced or when new versions are released. If software errors are
discovered after introduction, the Company could experience delays or lost
revenues during the period required to correct these errors. There can be no
assurance that, despite testing by the Company and by current and potential
customers, errors will not be found in new products or releases after
commencement of commercial shipments, resulting in loss of or delay in market
acceptance, additional and unexpected expenses to fund further product
development or to add programming personnel to complete a development project,
and loss of revenue because of the inability to sell the new product on a
timely basis, any one or more of which could have a material adverse effect on
the Company.
Dependence on Data Centers. The network service operations of the Company
are dependent upon the ability to protect computer equipment and the
information stored in the Company's data centers against damage that may be
caused by fire, power loss, telecommunication failures, unauthorized intrusion,
computer viruses and disabling devices and other similar events.
Notwithstanding precautions the Company has taken, there can be no assurance
that a fire or other natural disaster, including national, regional or local
telecommunications outages, would not result in a prolonged outage of the
Company's network services. In the event of a disaster, and depending on the
nature of the disaster, it may take from several hours to several days before
the Company's off-site computer system can become operational for all of the
Company's customers, and use of the alternative off-site computer would result
in substantial additional cost to the Company. In the event that an outage of
the Company's network extends for more than several hours, the Company will
experience a reduction in revenues by reason of such outage. In the event that
such outage extends for one or more days, the Company could potentially lose
many of its customers, which may have a material adverse effect on the Company.
<PAGE> 9
Dependence upon Certain Licenses. The Company relies on certain
technology that it licenses from third parties and other products that are
integrated with internally developed software and used in the Company's
products to perform key functions or to add important features. There can be no
assurance that the Company will be successful in negotiating third-party
technology licenses on suitable terms or that such licenses will not be
terminated in the future. Moreover, any delay or product problems experienced
by such third party suppliers could result in delays in introduction of the
Company's products and services until equivalent technology, if available, is
identified, licensed and integrated, which could have a material adverse effect
on the Company's business, operating results and financial condition.
Limited Protection of Proprietary Technology; Risks of Infringement. The
Company relies primarily on a combination of copyright, patent and trademark
laws, trade secrets, confidentiality procedures and contractual provisions to
protect its proprietary rights. The Company seeks to protect its software,
documentation and other written materials principally under trade secret and
copyright laws, which afford only limited protection. The Company presently
has one patent for an electronic document interchange test facility and a
patent application pending for an EDI communication system. Despite the
Company's efforts to protect its proprietary rights, unauthorized parties may
attempt to copy aspects of the Company's products or to obtain and use
information that the Company regards as proprietary. There can be no assurance
that the Company's means of protecting its proprietary rights will be adequate
or that the Company's competitors will not independently develop similar
technology. In distributing many of its products, the Company relies primarily
on "shrink wrap" licenses that are not signed by licensees and, therefore,
may be unenforceable under the laws of certain jurisdictions. In addition, the
Company has licensed it products to users and distributors in other countries,
and the laws of some foreign countries do not protect the Company's proprietary
rights to as great an extent as the laws of the United States. The Company
does not believe that any of its products infringe the proprietary rights of
third parties. There can be no assurance, however, that third parties will not
claim infringement by the Company with respect to current or future products,
and the Company has agreed to indemnify many of its customers against such
claims. The Company expects that software product developers will increasingly
be subject to infringement claims as the number of products and competitors in
electronic commerce grows and the functionality of products in different
industry segments overlaps. Any such claims, with or without merit, could be
time-consuming, result in costly litigation, cause product shipment delays or
require the Company to enter into royalty or licensing agreements and indemnify
its customers against resulting liability, if any. Such royalty or licensing
agreements, if required, may not be available on terms acceptable to the
Company or at all, which could have a material adverse effect on the Company.
Government Regulatory and Industrial Policy Risks. The Company's network
services are transmitted to its customers over dedicated and public telephone
lines. These lines are governed by Federal and state regulations establishing
the rates, terms and conditions for their use. Changes in the legislative and
regulatory environment relating to online services, EDI or the Internet access
industry, including regulatory or legislative changes which directly or
indirectly affect telecommunication costs, restrict content or increase the
likelihood of competition from regional telephone companies or others, could
have an adverse effect on the Company's business. The Telecommunications Act
of 1996 ("Act") amended the federal telecommunications laws by lifting
restrictions on regional telephone companies and others competing with the
Company and imposed certain restrictions regarding obscene and indecent content
communicated to minors over the Internet or through interactive computer
services. The Act set in motion certain events that will lead to the
elimination of restrictions on regional telephone companies providing transport
between defined geographic boundaries associated with the provision of their
own information services. This will enable regional telephone companies to
more readily compete with the Company by packaging information service
offerings with other services and providing them on a wider geographic scale.
Additionally, the Act imposes fines and other criminal liability on any entity
that knowingly uses a telecommunications device or interactive computer service
to send or display indecent material to minors or intentionally permit any
telecommunications facility under such entity's control to be used for such a
purpose. The Act provides a defense for persons providing Internet or on-line
access, such as the Company, so long as the access is to sites or networks not
under the access provider's control. Litigation has been filed in U.S. federal
court challenging the constitutionality of certain provisions of the Act.
Preliminary injunctions have been issued by a federal court enjoining the U.S.
Attorney General from enforcing the Act's "indecency" prohibition. These cases
are currently on appeal to the U.S. Supreme Court. The ability and likelihood
of state regulators and/or the FCC, or the governments of foreign countries, to
impose regulations on the Internet is unclear. At present the Internet is
treated by the FCC as an unregulated enhanced service, but the FCC is currently
considering whether to regulate certain aspects of the Internet. Also, some
countries such as Germany have adopted laws regulating aspects of the Internet,
and there are a number of bills currently being considered in the United States
at the federal and state levels involving encryption and digital signatures,
all of which may
<PAGE> 10
impact the Company. The Company cannot predict the impact, if
any, that the Act and future court opinions, legislation, regulations or
regulatory changes in the United States or other countries may have on its
business. Management believes that the Company is in compliance with all
material applicable regulations.
Anti-Takeover Provisions. The Board of Directors has authority to issue
up to 20,000,000 shares of preferred stock and to fix the rights, preferences,
privileges and restrictions, including voting rights, of the preferred stock
without further vote or action by the Company's shareholders. The rights of
the holders of Common Stock will be subject to, and may be adversely affected
by, the rights of the holders of any preferred stock that may be issued in the
future. While the Company has no present intention to issue additional shares
of preferred stock, such issuance, while providing desired flexibility in
connection with possible acquisitions and other corporate purposes, could have
the effect of making it more difficult for a third party to acquire a majority
of the outstanding voting stock of the Company. In addition, the Company's
Amended and Restated Articles of Incorporation and Bylaws contain provisions
that may discourage proposals or bids to acquire the Company. This could limit
the price that certain investors might be willing to pay in the future for
shares of Common Stock. The Company's Amended and Restated Articles of
Incorporation provide for a classified Board of Directors with three-year,
staggered terms for its members. The classification of the Board of Directors
could have the effect of making it more difficult for a third party to acquire
control of the Company.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares. All of the proceeds from the sale of the Shares will be received by
the Selling Shareholders.
SELLING SHAREHOLDERS
The following table sets forth certain information regarding beneficial
ownership of the Company's Shares by the Selling Shareholders at June 17, 1997.
<TABLE>
<CAPTION>
Shares Beneficially Shares Beneficially
---------------------------- --------------------------
Name of Selling Owned Prior to Offering(2) Number of Owned After Offering(2)
Shareholders(1) Number Percent Offered Number Percent
- ---------------------------------- ------------- ------------- --------- ------------ ------------
<S> <C> <C> <C> <C> <C>
A. Gail Jackson................... 1,041,552 5.4% 133,000 908,552 4.9%
Jerry Steward..................... 136,947 * 37,000 99,947 *
Endeavor Capital Management, LLC.. 179,949 * 65,000 114,949 *
BellSouth Telecommunications, Inc. 242,287 1.3% 65,000 177,287 *
------------- ------------- --------- ------------ ------------
Total Selling Shareholders........ 1,600,735 8.3% 300,000 1,300,735 6.7%
</TABLE>
* Less than 1% of the issued and outstanding shares of the Common Stock.
(1) Ms. Jackson is Senior Vice President of Harbinger and prior to its merger
with the Company, was the President and a shareholder of SupplyTech, Inc.
Endeavor Capital Management, LLC served as a financial advisor to
SupplyTech, Inc. in connection with the Company's merger with SupplyTech
and provides consulting services to the Company. Otherwise, the Selling
Shareholders have no material relationship with the Company.
(2) Based on 19,292,204 shares of Common Stock outstanding as of June 17,
1997. In accordance with Rule 13d-3 under the Exchange Act, a person is
deemed to be the beneficial owner, for purposes of this table, of any
shares of Common Stock if such person has or shares voting power or
investment power with respect to such security, or has the right to
acquire beneficial ownership at any time within 60 days from June 30,
1997. As used herein, "voting power" is the power to vote or direct the
voting of shares and "investment power" is the power to dispose or direct
the disposition of shares.
LEGAL MATTERS
The validity of the Common Stock offered hereby and the issuance thereof
will be passed upon for the Company by Morris, Manning & Martin, L.L.P.,
Atlanta, Georgia.
<PAGE> 11
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company as of December 31, 1996 and 1995, and for each of the years in the
two-year period ended December 31, 1996, have been incorporated by reference
herein and in the registration statement from the Company's Current Report on
Form 8-K filed on July 1, 1997 in reliance upon the reports of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by reference
herein and in the registration statement and upon the authority of said firm as
experts in accounting and auditing. The report of KPMG Peat Marwick LLP
expressed reliance on the report of other auditors as it relates to the amounts
included for SupplyTech, Inc. and SupplyTech International, LLC for 1995.
The financial statements of Harbinger NET Services, LLC as of December 31,
1996 and 1995 and for the periods ended December 31, 1996 and 1995 have been
incorporated by reference herein and in the registration statement from the
Company's Current Report on Form 8-K/A Amendment No. 1 filed on March 14, 1997
in reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein and in the registration
statement and upon the authority of said firm or experts in accounting and
auditing.
The combined financial statements of SupplyTech, Inc. and SupplyTech
International, LLC as of December 31, 1996 and for the year then ended have
been incorporated by reference herein and in the registration statement from
the Company's Current Report on Form 8-K/A Amendment No. 1 filed on March 18,
1997 in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein and in the
registration statement and upon the authority of said firm as experts in
accounting and auditing.
The financial statements and schedule of the Company for the year ended
December 31, 1994, which have been incorporated by reference herein and in the
registration statement from the Company's Current Report on Form 8-K filed on
July 1, 1997 have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated by reference herein and in the registration statement in reliance
upon the authority of said firm as experts in accounting and auditing in giving
said reports.
The combined financial statements of SupplyTech, Inc. and SupplyTech
International, LLC as of December 31, 1995 and for each of the years in the
two-year period ended December 31, 1995 have been incorporated by reference
herein and in the registration statement from the Company's Current Report on
Form 8-K/A Amendment No. 1 filed on March 18, 1997 and from the Company's
Current Report on Form 8-K filed on July 1, 1997 in reliance upon the report
of Ciulla, Smith & Dale, LLP, independent certified public accountants,
incorporated by reference herein and in the registration statement and upon the
authority of said firm as experts in accounting and auditing.
The consolidated financial statements of NTEX Holding B.V. as of December
31, 1995 and for the year then ended, have been incorporated by reference
herein and in the registration statement from the Company's Current Report on
Form 8-K/A Amendment No. 1 filed on June 17, 1996 in reliance upon the report
of Moret Ernst & Young Accountants, independent certified public accountants,
incorporated by reference herein and in the registration statement and upon the
authority of said firm as experts in accounting and auditing.
The financial statements of INOVIS GmbH & Co. computergestuzte
Informationssysteme as of December 31, 1995, and for the year then ended have
been incorporated by reference herein and in the registration statement from
the Company's Current Report of Form 8-K/A Amendment No. 1 filed on July 1,
1996 in reliance upon the report of KPMG Deutsche Treuhand-Gesellschaft AG,
independent certified public accountants, incorporated by reference herein and
in the registration statement and upon the authority of said firm as experts in
accounting and auditing.
<PAGE> 12
The consolidated financial statements of Harbinger N.V. and subsidiaries
as of December 31, 1995, 1994, and 1993, and for the two years ended December
31, 1995, and 1994, and the one month ended December 31, 1993, have been
incorporated by reference herein and in the registration statement from the
Company's Current Report on Form 8-K/A Amendment No. 1 filed on July 2, 1996 in
reliance upon the report of KPMG Accountants N.V., independent certified public
accountants, incorporated by reference herein and in the registration statement
and upon the authority of said firm as experts in accounting and auditing.
The statement of operations of EDI (formerly a business unit of Texas
Instruments, Incorporated) for the year ended December 31, 1994, incorporated
by reference in this Prospectus and registration statement, has been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included in the Company's registration statement (Form S-1, No. 33-93804).
Such financial statements have been incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Company's Amended and Restated Bylaws authorize the Company to
indemnify any present or former director, officer, employee, or agent of the
Company, or a person serving in a similar post in another organization at the
request of the Company, against expenses, judgments, fines, and amounts paid in
settlement incurred by him in connection with any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, to the fullest extent not prohibited by the Georgia Business
Corporation Code, public policy or other applicable law. The Georgia Business
Corporation Code authorizes a corporation to indemnify its directors, officers,
employees, or agents in terms sufficiently broad to permit such indemnification
under certain circumstances for liabilities (including provisions permitting
advances for expenses incurred) arising under the 1933 Act.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers, or persons controlling the registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 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 its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the questions whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
<PAGE> 13
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED IN CONNECTION
WITH THE OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN SO
AUTHORIZED BY THE COMPANY OR ANY SELLING SHAREHOLDER. THIS PROSPECTUS DOES NOT
CONSTITUTE ANY OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY TO ANY PERSON OR BY ANYONE IN ANY JURISDICTION TO
WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
__________________
TABLE OF CONTENTS
Available Information ...................
Incorporation of Certain Information
by Reference .........................
The Company ............................
Risk Factors ............................
Use of Proceeds .........................
Selling Shareholders ....................
Legal Matters ...........................
Experts. ........................
Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities ..........................
__________________
300,000 SHARES
[LOGO]
COMMON STOCK
($.0001 PAR VALUE)
________________
PROSPECTUS
________________
July ___, 1997
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses relating to the registration of Shares will be borne by the
Company. Such expenses are estimated to be as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee $2,591
Accountants' fees and expenses..................... 12,000
Legal fees and expenses............................ 5,000
Miscellaneous...................................... 5,409
--------------
Total Expenses..................................... $25,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Georgia Business Corporation Code permits a corporation to eliminate
or limit the personal liability of a director to the corporation or its
shareholders for monetary damages for breach of duty of care of other duty as a
director, provided that no provision shall eliminate or limit the liability of
a director: (A) for an appropriation, in violation of his duties, of any
business opportunity of the corporation; (B) for acts or omissions which
involve intentional misconduct or a knowing violation of law; (C) for unlawful
corporate distributions; or (D) for any transaction from which the director
received an improper personal benefit. This provision pertains only to
breaches of duty by directors in their capacity as directors (and not in any
other corporate capacity, such as officers) and limits liability only for
breaches of fiduciary duties under Georgia corporate law (and not for violation
of other laws, such as the federal securities laws). The Company's Amended and
Restated Articles of Incorporation (the "Restated Articles") exonerate the
Company's directors from monetary liability to the extent permitted by this
statutory provision.
The Company's Restated Articles and Amended and Restated Bylaws (the
"Restated Bylaws") also provide that the Company shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including any action by or in the right of the
Company), by reason of the fact that such person is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including reasonable attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Company (and with respect
to any criminal action or proceeding, if such person had no reasonable cause to
believe such person's conduct was unlawful), to the maximum extent permitted
by, and in the manner provided by, the Georgia Business Corporation Code.
Notwithstanding any provisions of the Company's Restated Articles and
Bylaws to the contrary, the Georgia Business Corporation Code provides that the
Company shall not indemnify a director or officer for any liability incurred in
a proceeding in which the director is adjudged liable to the Company or is
subjected to injunctive relief in favor of the Company: (1) for any
appropriation, in violation of his duties, of any business opportunity of the
Company; (2) for acts or omissions which involve intentional misconduct or a
knowing violation of law; (3) for unlawful corporate distributions; or (4) for
any transaction from which the director or officer received an improper
personal benefit.
The officers and directors of the Company are entitled to indemnification by
the Selling Shareholders against any cause of action, loss, claim, damage or
liability to the extent it arises out of or is based upon the failure of the
Selling Shareholders (or his donees, legatees, or pledgees) and each
underwriter to comply with the Prospectus delivery requirements under the
federal securities laws or any applicable state securities laws or upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in this Registration Statement and the Prospectus contained herein, as the
same shall be
<PAGE> 15
amended or supplemented, made in reliance upon or in conformity
with written information furnished to the Company by such Selling Shareholder
or such underwriter.
ITEM 16. LIST OF EXHIBITS.
The following exhibits are filed as part of, or are incorporated by
reference into, this report on Form S-3:
<TABLE>
<S> <C>
EXHIBIT
NUMBER DESCRIPTION
2.1 Share Purchase Agreement effective as of March 31, 1996 among F.J.
Nederlof B.V., H.W.I. Bol, Arthur Nederlof B.V. (the "NTEX
Shareholders") and the Company (incorporated by reference to Exhibit
2(a) filed with the Company's Current Report on Form 8-K dated April
18, 1996).
2.2 Share Purchase Agreement effective as of March 31, 1996 among Jakob
Karszt, Helmut Grimm, Hans Rauh, Nikolai Preis, Ulrich Rehn, Eugen
Volbers, Jurgen M. Diet, Wolffried Stucky and Jorg Blum (the "INOVIS
Shareholders") and the Company (incorporated by reference to Exhibit
2(a) filed with the Company's Current Report on Form 8-K dated May 2,
1996).
2.3 Debenture Purchase Agreement effective as of January 1, 1997 between
BellSouth Telecommunications, Inc. and the Company (incorporated by
reference to Exhibit 2.1 filed with the Company's Current Report on
Form 8-K dated January 15, 1997).
2.4 Merger Agreement dated January 3, 1997 among SupplyTech, Inc.,
Harbinger Acquisition Corporation II and the Company (incorporated by
reference to Exhibit 2.1 filed with the Company's Current Report on
Form 8-K dated January 16, 1997).
2.5 Agreement and Plan of Reorganization between and among Vulcan Ventures,
Inc., AXA Equity & Law Life Assurance Society, Ltd. (the "HNV
Shareholders"), Harbinger N.V. and the Company effective as of March
29, 1996 (incorporated by reference to Exhibit 2(a) filed with the
Company's Current Report on Form 8-K dated May 3, 1996).
4.1 Provisions of the Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws of the Company defining rights of the
holders of the Common Stock (incorporated by reference to Exhibits 3.1
through 3.4 to the Company's Registration Statement on Form S-1 (File
No. 33-93804) declared effective on August 22, 1995).
4.2 Specimen Stock Certificate (incorporated by reference to Exhibit 4.3 to
the Company's Registration Statement on Form S-1 (File 33-93804)).
4.3 Form of Registration Rights Agreement effective March 31, 1996 between
the Company and each of the NTEX Shareholders (incorporated by
reference to Exhibit 2(a) filed with the Company's Current Report on
Form 8-K dated April 18, 1996).
</TABLE>
<PAGE> 16
<TABLE>
<S> <C>
4.4 Form of Registration Rights Agreement effective March 29, 1996 between
each of the Harbinger N.V. Shareholders and the Company (incorporated
by reference to Exhibit 2(a) filed with the Company's Current Report on
Form 8-K dated May 3, 1996).
4.5 Form of Warrant issued to former Harbinger N.V. Shareholders on July
18, 1996 (incorporated by reference to Exhibit 4.5 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1996).
4.6 Registration Rights Agreement among the former shareholders of
SupplyTech, Inc. and the Company effective January 3, 1997
(incorporated by reference to Exhibit 4.1 filed with the Company's
Current Report on Form 8-K dated January 16, 1997).
4.7 Form of Warrant issued to former INOVIS Shareholders on April 19, 1996
(incorporated by reference to Exhibit 2(a) filed with the Company's
Current Report on Form 8-K dated July 1, 1996).
4.8 Form of Registration Rights Agreement effective March 31, 1996 between
each of the former INOVIS Shareholders and the Company (incorporated by
reference to Exhibit 2(a) filed with the Company's Current Report on
Form 8-K dated July 1, 1996).
5.1 Opinion of Morris, Manning & Martin, L.L.P. at to the legality of the
securities being registered.
10.1 Promissory Note for $10,000,000 payable by the Company to NationsBank
of Georgia, N.A. dated April 16, 1997.
10.2 Loan Agreement between the Company and NationsBank of Georgia, N.A.
dated as of August 15, 1994, with First Amendment dated as of May 2,
1995 (incorporated by reference to Exhibit 10.13 filed to the Company's
Registration Statement on Form S-1 (File 33-93804) declared effective
on August 22, 1995).
10.3 Second Amendment to Loan Agreement between the Company and NationsBank,
National Association (South) dated April 16, 1997.
10.4 Employment Agreement between the Company and Mr. James M. Travers
effective as of February 1, 1995 with letter from the Company to Mr.
Travers dated December 27, 1994 (incorporated by reference to Exhibit
10.14 filed to the Company's Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.5 Employment Agreement between the Company and Mr. James C. Davis
effective as of January 18, 1995 (incorporated by reference to Exhibit
10.15 filed to the Company's Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.6 Assignment of Invention and Patents Thereon (Patent 5,367,664) by Texas
Instruments, Incorporated (''TI'') to the Company dated January 12,
1995 as recorded with United States Patent and Trademark Office on
March 13, 1995 (incorporated by reference to Exhibit 10.16 filed to the
Company's Registration Statement on Form S-1 (File 33-93804) declared
effective on August 22, 1995).
</TABLE>
<PAGE> 17
<TABLE>
<S> <C>
10.7 U.S. Patent 5,367,664 issued November 22, 1994 (incorporated by
reference to Exhibit 10.17 filed to the Company's Registration
Statement on Form S-1 (File 33-93804) declared effective on August 22,
1995).
10.8 Assignment of Invention and Patents Thereon (Application 07/502,955) by
TI to the Company dated January 12, 1995 as recorded with United States
Patent and Trademark Office on March 13, 1995 (incorporated by
reference to Exhibit 10.18 filed to the Company's Registration
Statement on Form S-1 (File 33-93804) declared effective on August 22,
1995).
10.9 Asset Purchase Agreement between the Company and TI dated as of
December 31, 1994 (incorporated by reference to Exhibit 10.19 filed to
the Company's Registration Statement on Form S-1 (File 33-93804)
declared effective on August 22, 1995).
10.10 Employment Agreement between the Company and Mr. David A. Meeker
effective as of December 21, 1994 (incorporated by reference to Exhibit
10.21 filed to the Company's Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.11 401(k) Profit Sharing Plan amended and restated effective as of
September 1, 1994; original effective date October 1, 1991
(incorporated by reference to Exhibit 10.24 filed to the Company's
Registration Statement on Form S-1 (File 33-93804) declared effective
on August 22, 1995).
10.12 Employment Agreement between the Company and Mr. C. Tycho Howle
effective as of March 4, 1997 (incorporated by reference to Exhibit
10.11 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1996).
10.13 Employment Agreement between the Company and Mr. Joel G. Katz effective
as of March 7, 1994 (incorporated by reference to Exhibit 10.26 filed
to the Company's Registration Statement on Form S-1 (File 33-93804)
declared effective on August 22, 1995).
10.14 Employment Agreement between the Company and Mr. David T. Leach
effective as of March 7, 1994 (incorporated by reference to Exhibit
10.27 filed to the Company's Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.15 License and Service Agreement between the Company and Bank of America
National Trust and Savings Association dated as of February 18, 1994
(incorporated by reference to Exhibit 10.29 filed to the Company's
Registration Statement on Form S-1 (File 33-93804) declared effective
on August 22, 1995).
10.16 Amended and Restated 1993 Stock Option Plan for Nonemployee Directors
effective as of August 11, 1993 (incorporated by reference to Exhibit
10.33 filed to the Company's Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.17 Third Amendment to Amended and Restated 1993 Stock Option Plan for
Nonemployee Directors (incorporated by reference to Exhibit 10.17 to
the Company's Annual Report on Form 10-K for the year ended December
31, 1996).
</TABLE>
<PAGE> 18
<TABLE>
<S> <C>
10.18 Co-Marketing Agreement between the Company and Sprint Communications
Company Limited Partnership of Delaware made as of August 9, 1993
(incorporated by reference to Exhibit 10.34 filed to the Company's
Registration Statement on Form S-1 (File 33-93804) declared effective
on August 22, 1995).
10.19 Lease between the Company and Lenox Park Development 1 L.P. for office
located at 1055 Lenox Park Boulevard, Atlanta, Georgia dated July 16,
1992 with First Amendment dated July 22, 1993 and Second Amendment
dated December 27, 1993 (incorporated by reference to Exhibit 10.38
filed to the Company's Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.20 Amended and Restated 1989 Stock Option Plan effective as of April 15,
1992 (incorporated by reference to Exhibit 10.39 filed to the Company's
Registration Statement on Form S-1 (File 33-93804) declared effective
on August 22, 1995).
10.21+ Harbinger Business Financial Management System License Agreement
between the Company as assignee of Harbinger Computer Services, Inc.
and Barnett Banks, Inc. dated November 18, 1991 with amendment dated
May 21, 1992 (incorporated by reference to Exhibit 10.40 filed to the
Company's Registration Statement on Form S-1 (File 33-93804) declared
effective on August 22, 1995).
10.22 Software License and Distribution Agreement between the Company and
Sprint International Communications Corporation (''Sprint'') effective
July 27, 1990 with First Amendment effective as of May 24, 1993
(incorporated by reference to Exhibit 10.41 filed to the Company's
Registration Statement on Form S-1 (File 33-93804) declared effective
on August 22, 1995).
10.23 Reseller Agreement (now known as Service Management Agreement) between
the Company and Sprint effective July 27, 1990 with First Amendment
effective as of May 1, 1991, Second Amendment effective as of May 1,
1992, and Third Amendment dated July 1, 1994 (incorporated by reference
to Exhibit 10.42 filed to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August 22, 1995).
10.24 Form of Indemnification Agreement between the Company and Directors
(incorporated by reference to Exhibit 10.43 filed to the Company's
Registration Statement on Form S-1 (File 33-93804) declared effective
on August 22, 1995).
10.25 Harbinger Corporation 1996 Stock Option Plan (incorporated by reference
to Exhibit 10.48 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995).
10.26 First Amendment to Harbinger Corporation 1996 Stock Option Plan.
(incorporated by reference to Exhibit 10.26 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1996).
10.27 Amended and Restated Harbinger Corporation Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.49 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995).
</TABLE>
<PAGE> 19
<TABLE>
<S> <C>
10.28 First Amendment to Harbinger Corporation Employee Stock Purchase Plan.
(incorporated by reference to Exhibit 10.28 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1996).
10.29 First Amendment to Harbinger Corporation Amended and Restated 1989
Stock Option Plan (incorporated by reference to Exhibit 10.50 to the
Company's Annual Report on Form 10-K for the year ended December 31,
1995).
10.30 Alliance Agreement dated July 21, 1995 between Systems Software
Associates, Inc. and the Company (incorporated by reference to Exhibit
10.47 to the Company's Registration Statement on Form S-1 (File No.
33-93804)).
10.31 First Amendment to Alliance Agreement between System Software
Associates, Inc. and Harbinger Corporation (incorporated by reference
to Exhibit 10.51 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995).
10.32 Employment Agreement between the Company and Mr. Theodore C. Annis
effective January 3, 1997 (incorporated by reference to Exhibit 99.2
filed with the Company's Current Report on Form 8-K/A dated March 17,
1997).
10.33 Employment Agreement between the Company and Ms. A. Gail Jackson
effective January 3, 1997 (incorporated by reference to Exhibit 99.3
filed with the Company's Current Report on Form 8-K/A dated March 17,
1997).
23.1 Consents of KPMG Peat Marwick LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Ciulla, Smith & Dale, LLP.
23.4 Consent of Moret Ernst & Young Accountants.
23.5 Consent of KPMG Deutsche Treuhand-Gesellschaft AG.
23.6 Consent of KPMG Accountants N.V.
23.7 Consent of Ernst & Young LLP.
23.8 Consent of Morris Manning & Martin, L.L.P. (included in Exhibit 5).
24.1 Power of Attorney (include at Page II-8 of this Registration Statement).
</TABLE>
+ The Company has received confidential treatment with respect to portions
of these Exhibits.
ITEM 17. UNDERTAKINGS.
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 in any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
<PAGE> 20
(ii) To reflect in the Prospectus any facts or events arising after the
effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of Prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) For purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's Annual Report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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.
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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 the 27th day of June,
1997.
HARBINGER CORPORATION
By: /s/ David T. Leach
__________________________________________
David T. Leach,
Chief Executive Officer
<PAGE> 22
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints C. Tycho Howle, David T. Leach 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-3
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 of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ C. Tycho Howle Chairman of the Board of Directors June 27, 1997
- ---------------------
C. Tycho Howle
/s/ David T. Leach Chief Executive Officer June 27, 1997
- --------------------- and Director
David T. Leach (Principal Executive Officer)
/s/ James C. Davis President, Chief Operating Officer June 27, 1997
- --------------------- and Director
James C. Davis
/s/ Joel G. Katz Chief Financial Officer and Secretary June 27, 1997
- --------------------- (Principal Financial Officer and Principal
Joel G. Katz Accounting Officer)
/s/ William D. Savoy Director June 27, 1997
- ---------------------
William D. Savoy
/s/ William B. King Director June 27, 1997
- ---------------------
William B. King
/s/ Stuart L. Bell Director June 27, 1997
- ---------------------
Stuart L. Bell
/s/ Benn R. Konsynski Director June 27, 1997
- ---------------------
Benn R. Konsynski
/s/ Klaus Neugebauer Director June 27, 1997
- ---------------------
Klaus Neugebauer
/s/ Ad Nederlof Director June 27, 1997
- ---------------------
Ad Nederlof
</TABLE>
<PAGE> 23
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 SEQUENTIAL PAGE
NUMBER DESCRIPTION NUMBER
<S> <C> <C>
2.1 Share Purchase Agreement effective as of March N/A
31, 1996 among F.J. Nederlof B.V., H.W.I. Bol,
Arthur Nederlof B.V. (the "NTEX Shareholders")
and the Company (incorporated by reference to
Exhibit 2(a) filed with the Company's Current
Report on Form 8-K dated April 18, 1996).
2.2 Share Purchase Agreement effective as of March N/A
31, 1996 among Jakob Karszt, Helmut Grimm, Hans
Rauh, Nikolai Preis, Ulrich Rehn, Eugen Volbers,
Jurgen M. Diet, Wolffried Stucky and Jorg Blum
(the "INOVIS Shareholders") and the Company
(incorporated by reference to Exhibit 2(a) filed
with the Company's Current Report on Form 8-K
dated May 2, 1996).
2.3 Debenture Purchase Agreement effective as of N/A
January 1, 1997 between BellSouth
Telecommunications, Inc. and the Company
(incorporated by reference to Exhibit 2.1 filed
with the Company's Current Report on Form 8-K
dated January 15, 1997).
2.4 Merger Agreement dated January 3, 1997 among N/A
SupplyTech, Inc., Harbinger Acquisition
Corporation II and the Company (incorporated by
reference to Exhibit 2.1 filed with the Company's
Current Report on Form 8-K dated January 16,
1997).
2.5 Agreement and Plan of Reorganization between and N/A
among Vulcan Ventures, Inc., AXA Equity & Law
Life Assurance Society, Ltd. (the "HNV
Shareholders"), Harbinger N.V. and the Company
effective as of March 29, 1996 (incorporated by
reference to Exhibit 2(a) filed with the
Company's Current Report on Form 8-K dated May 3,
1996).
3.1 Amended and Restated Articles of Incorporation of N/A
the Company (incorporated by reference to Exhibit
3.1 to the Company's Registration Statement on
Form S-1 (File 33-93804) declared effective on
August 22, 1995).
3.2 Amended and Restated Bylaws of the Company N/A
(incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 1996).
4.1 Provisions of the Amended and Restated Articles N/A
of Incorporation and Amended and Restated Bylaws
of the Company defining rights of the holders of
the Common Stock (incorporated by reference to
Exhibits 3.1 through 3.4 to the Company's
Registration Statement on Form S-1 (File No.
33-93804) declared effective on August 22, 1995).
</TABLE>
<PAGE> 24
<TABLE>
<S> <C> <C>
4.2 Specimen Stock Certificate (incorporated by N/A
reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-1 (File
33-93804)).
4.3 Form of Registration Rights Agreement effective N/A
March 31, 1996 between the Company and each of
the NTEX Shareholders (incorporated by reference
to Exhibit 2(a) filed with the Company's Current
Report on Form 8-K dated April 18, 1996).
4.4 Form of Registration Rights Agreement effective N/A
March 29, 1996 between each of the Harbinger N.V.
Shareholders and the Company (incorporated by
reference to Exhibit 2(a) filed with the
Company's Current Report on Form 8-K dated May 3,
1996).
4.5 Form of Warrant issued to former Harbinger N.V. N/A
Shareholders on July 18, 1996 (incorporated by
reference to Exhibit 4.5 to the Company's Annual
Report on Form 10-K for the year ended December
31, 1996).
4.6 Registration Rights Agreement among the former N/A
shareholders of SupplyTech, Inc. and the Company
effective January 3, 1997 (incorporated by
reference to Exhibit 4.1 filed with the Company's
Current Report on Form 8-K dated January 16,
1997).
4.7 Form of Warrant issued to former INOVIS N/A
Shareholders on April 19, 1996 (incorporated by
reference to Exhibit 2(a) filed with the
Company's Current Report on Form 8-K dated July
1, 1996).
4.8 Form of Registration Rights Agreement effective N/A
March 31, 1996 between each of the former INOVIS
Shareholders and the Company (incorporated by
reference to Exhibit 2(a) filed with the
Company's Current Report on Form 8-K dated July
1, 1996).
5.1 Opinion of Morris, Manning & Martin, L.L.P. at to
the legality of the securities being registered.
10.1 Promissory Note for $10,000,000 payable by the
Company to NationsBank of Georgia, N.A. dated
April 16, 1997.
10.2 Loan Agreement between the Company and N/A
NationsBank of Georgia, N.A. dated as of August
15, 1994 with First Amendment dated as of May 2,
1995 (incorporated by reference to Exhibit 10.13
filed to the Company's Registration Statement on
Form S-1 (File 33-93804) declared effective on
August 22, 1995).
10.3 Second Amendment to Loan Agreement between the
Company and NationsBank, National Association
(South) dated April 16, 1997.
</TABLE>
<PAGE> 25
<TABLE>
<S> <C> <C>
10.4 Employment Agreement between the Company and Mr. N/A
James M. Travers effective as of February 1, 1995
with letter from the Company to Mr. Travers dated
December 27, 1994 (incorporated by reference to
Exhibit 10.14 filed to the Company's Registration
Statement on Form S-1 (File 33-93804) declared
effective on August 22, 1995).
10.5 Employment Agreement between the Company and Mr. N/A
James C. Davis effective as of January 18, 1995
(incorporated by reference to Exhibit 10.15 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.6 Assignment of Invention and Patents Thereon N/A
(Patent 5,367,664) by Texas Instruments,
Incorporated ("TI") to the Company dated
January 12, 1995 as recorded with United States
Patent and Trademark Office on March 13, 1995
(incorporated by reference to Exhibit 10.16 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.7 U.S. Patent 5,367,664 issued November 22, 1994 N/A
(incorporated by reference to Exhibit 10.17 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.8 Assignment of Invention and Patents Thereon N/A
(Application 07/502,955) by TI to the Company
dated January 12, 1995 as recorded with United
States Patent and Trademark Office on March 13,
1995 (incorporated by reference to Exhibit 10.18
filed to the Company's Registration Statement on
Form S-1 (File 33-93804) declared effective on
August 22, 1995).
10.9 Asset Purchase Agreement between the Company and N/A
TI dated as of December 31, 1994 (incorporated by
reference to Exhibit 10.19 filed to the Company's
Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.10 Employment Agreement between the Company and Mr. N/A
David A. Meeker effective as of December 21, 1994
(incorporated by reference to Exhibit 10.21 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.11 401(k) Profit Sharing Plan amended and restated N/A
effective as of September 1, 1994; original
effective date October 1, 1991 (incorporated by
reference to Exhibit 10.24 filed to the Company's
Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.12 Employment Agreement between the Company and Mr. N/A
C. Tycho Howle effective as of March 4, 1997
(incorporated by reference to Exhibit 10.11 to
the Company's Annual Report on Form 10-K for the
year ended December 31, 1996).
</TABLE>
<PAGE> 26
<TABLE>
<S> <C> <C>
10.13 Employment Agreement between the Company and Mr. N/A
Joel G. Katz effective as of March 7, 1994
(incorporated by reference to Exhibit 10.26 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.14 Employment Agreement between the Company and Mr. N/A
David T. Leach effective as of March 7, 1994
(incorporated by reference to Exhibit 10.27 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.15+ License and Service Agreement between the Company N/A
and Bank of America National Trust and Savings
Association dated as of February 18, 1994
(incorporated by reference to Exhibit 10.29 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.16 Amended and Restated 1993 Stock Option Plan for N/A
Nonemployee Directors effective as of August 11,
1993 (incorporated by reference to Exhibit 10.33
filed to the Company's Registration Statement on
Form S-1 (File 33-93804) declared effective on
August 22, 1995).
10.17 Third Amendment to Amended and Restated 1993 N/A
Stock Option Plan for Nonemployee Directors
(incorporated by reference to Exhibit 10.17 to
the Company's Annual Report on Form 10-K for the
year ended December 31, 1996).
10.18 Co-Marketing Agreement between the Company and N/A
Sprint Communications Company Limited Partnership
of Delaware made as of August 9, 1993
(incorporated by reference to Exhibit 10.34 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.19 Lease between the Company and Lenox Park N/A
Development 1 L.P. for office located at 1055
Lenox Park Boulevard, Atlanta, Georgia dated July
16, 1992 with First Amendment dated July 22, 1993
and Second Amendment dated December 27, 1993
(incorporated by reference to Exhibit 10.38 filed
to the Company's Registration Statement on Form
S-1 (File 33-93804) declared effective on August
22, 1995).
10.20 Amended and Restated 1989 Stock Option Plan N/A
effective as of April 15, 1992 (incorporated by
reference to Exhibit 10.39 filed to the Company's
Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.21+ Harbinger Business Financial Management System N/A
License Agreement between the Company as assignee
of Harbinger Computer Services, Inc. and Barnett
Banks, Inc. dated November 18, 1991 with
amendment dated May 21, 1992 (incorporated by
reference to Exhibit 10.40 filed to the Company's
Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
</TABLE>
<PAGE> 27
<TABLE>
<S> <C> <C>
10.22 Software License and Distribution Agreement N/A
between the Company and Sprint International
Communications Corporation ("Sprint") effective
July 27, 1990 with First Amendment effective as
of May 24, 1993 (incorporated by reference to
Exhibit 10.41 filed to the Company's Registration
Statement on Form S-1 (File 33-93804) declared
effective on August 22, 1995).
10.23 Reseller Agreement (now known as Service N/A
Management Agreement) between the Company and
Sprint effective July 27, 1990 with First
Amendment effective as of May 1, 1991, Second
Amendment effective as of May 1, 1992, and Third
Amendment dated July 1, 1994 (incorporated by
reference to Exhibit 10.42 filed to the Company's
Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.24 Form of Indemnification Agreement between the N/A
Company and Directors (incorporated by reference
to Exhibit 10.43 filed to the Company's
Registration Statement on Form S-1 (File
33-93804) declared effective on August 22, 1995).
10.25 Harbinger Corporation 1996 Stock Option Plan N/A
(incorporated by reference to Exhibit 10.48 to
the Company's Annual Report on Form 10-K for the
year ended December 31, 1995).
10.26 First Amendment to Harbinger Corporation 1996 N/A
Stock Option Plan (incorporated by reference to
Exhibit 10.26 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996).
10.27 Amended and Restated Harbinger Corporation N/A
Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.49 to the Company's
Annual Report on Form 10-K for the year ended
December 31, 1995).
10.28 First Amendment to Harbinger Corporation Employee N/A
Stock Purchase Plan. (incorporated by reference
to Exhibit 10.28 to the Company's Annual Report
on Form 10-K for the year ended December 31,
1996).
10.29 First Amendment to Harbinger Corporation Amended N/A
and Restated 1989 Stock Option Plan (incorporated
by reference to Exhibit 10.50 to the Company's
Annual Report on Form 10-K for the year ended
December 31, 1995).
10.30 Alliance Agreement dated July 21, 1995 between N/A
Systems Software Associates, Inc. and the Company
(incorporated by reference to Exhibit 10.47 to
the Company's Registration Statement on Form S-1
(File No. 33-93804)).
10.31 First Amendment to Alliance Agreement between N/A
System Software Associates, Inc. and Harbinger
Corporation (incorporated by reference to Exhibit
10.51 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1995).
</TABLE>
<PAGE> 28
<TABLE>
<S> <C> <C>
10.32 Employment Agreement between the Company and Mr. N/A
Theodore C. Annis effective January 3, 1997
(incorporated by reference to Exhibit 99.2 filed
with the Company's Current Report on Form 8-K/A
dated March 17, 1997).
10.33 Employment Agreement between the Company and Ms. N/A
A. Gail Jackson effective January 3, 1997
(incorporated by reference to Exhibit 99.3 filed
with the Company's Current Report on Form 8-K/A
dated March 17, 1997).
23.1 Consents of KPMG Peat Marwick LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Ciulla, Smith & Dale, LLP.
23.4 Consent of Moret Ernst & Young Accountants.
23.5 Consent of KPMG Deutsche Treuhand-Gesellschaft AG.
23.6 Consent of KPMG Accountants N.V.
23.7 Consent of Ernst & Young LLP.
23.8 Consent of Morris Manning & Martin, L.L.P. N/A
(included in Exhibit 5).
24.1 Power of Attorney (include at Page II-9 of this N/A
Registration Statement).
</TABLE>
+ The Company has received confidential treatment with respect to portions of
these Exhibit
<PAGE> 1
MORRIS, MANNING & MARTIN
[Letterhead]
June 27, 1997
Harbinger Corporation
1055 Lenox Park Blvd.
Atlanta, Georgia 30319
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel for Harbinger Corporation, a Georgia corporation
(the "Company"), in connection with the registration under the Securities Act
of 1933, as amended, pursuant to a Registration Statement on Form S-3, of a
proposed offering of 300,000 shares of the Company's common stock, $.0001 par
value per share ("Shares"), by certain shareholders of the Company.
We have examined such documents, corporate records, and other instruments
as we have considered necessary and advisable for purposes of rendering this
opinion. Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized and validly issued, and are fully paid and
nonassessable.
This opinion is limited by and is in accordance with, the January 1, 1992,
edition of the Interpretive Standards applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion committee of the
Corporate and Banking Law Section of the State Bar of Georgia.
We hereby consent to the filing of this Opinion as an exhibit to the
Company's registration statement on Form S-3 and to the reference to our firm
under the caption "Legal Matters" in the Prospectus contained in the
Registration Statement.
Very truly yours,
/s/ Larry W. Shackelford
MORRIS, MANNING & MARTIN, L.L.P.
<PAGE> 1
EXHIBIT 10.1
PROMISSORY NOTE
Date April 16, 1997 [_] New [X] Renewal Amount $10,000,000
Maturity Date: May 2, 1998
<TABLE>
<S> <C>
Bank: Borrower:
NationsBank, N.A. (South) Harbinger Corporation
Banking Center: High Technology Division 1055 Lenox Park Boulevard
Attention: Michael Paulson Atlanta, Georgia 30319
Assistant Vice President Attention: Joel Katz
600 Peachtree Street
Atlanta, Georgia 30308 Fulton County
Fulton County
</TABLE>
FOR VALUE RECEIVED, the undersigned Borrower unconditionally (and jointly and
severally, if more than one) promises to pay to the order of Bank, its
successors and assigns, without setoff, at its offices indicated at the
beginning of this Note, or at such other place as may be designated by Bank,
the principal amount of TEN MILLION AND NO/100THS DOLLARS ($10,000,000.00), or
so much thereof as may be advanced from time to time in immediately available
funds, together with interest computed daily on the outstanding principal
balance hereunder, at an annual interest rate, and in accordance with the
payment schedule, indicated below.
1. RATE.
PRIME RATE. The Rate shall be the Prime Rate per annum. The "Prime Rate" is
the fluctuating rate of interest established by Bank from time to time, at its
discretion, whether or not such rate shall be otherwise published. The Prime
Rate is established by Bank as an index and may or may not at any time be the
best or lowest rate charged by Bank on any loan.
Notwithstanding any provision of this Note, Bank does not intend to charge and
Borrower shall not be required to pay any amount of interest or other charges
in excess of the maximum permitted by the applicable law of the State of
Georgia; if any higher rate ceiling is lawful, then that higher rate ceiling
shall apply. Any payment in excess of such maximum shall be refunded to
Borrower or credited against principal, at the option of Bank.
2. ACCRUAL METHOD. Unless otherwise indicated, interest at the Rate set forth
above will be calculated by the 365/360 day method (a daily amount of interest
is computed for a hypothetical year of 360 days; that amount is multiplied by
the actual number of days for which any principal is outstanding hereunder).
3. RATE CHANGE DATE. Any Rate based on a fluctuating index or base rate will
change, unless otherwise provided, each time and as of the date that the index
or base rate changes. In the event any index is discontinued, Bank shall
substitute an index determined by Bank to be comparable, in its sole
discretion.
4. PAYMENT SCHEDULE. All payments received hereunder shall be applied first to
the payment of any expense or charges payable hereunder or under any other loan
documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as Bank
shall determine at its option.
SINGLE PRINCIPAL PAYMENT. Principal shall be paid in full in a single payment
on May 2, 1998. Interest thereon shall be paid monthly, commencing on June 2,
1997 and continuing on the same day of each successive month thereafter, with a
final payment of all unpaid interest at the stated maturity of this Note.
<PAGE> 2
5. REVOLVING FEATURE. Borrower may borrow, repay and reborrow hereunder at any
time, up to a maximum aggregate amount outstanding at any one time equal to the
principal amount of this Note, provided that Borrower is not in default under
any provision of this Note, any other documents executed in connection with this
Note, or any other note or other loan documents now or hereafter executed in
connection with any other obligation of Borrower to Bank, and provided that the
borrowings hereunder do not exceed any borrowing base or other limitation on
borrowings by Borrower. Bank shall incur no liability for its refusal to
advance funds based upon its determination that any conditions of such further
advances have not been met. Bank records of the amounts borrowed from time to
time shall be conclusive proof thereof.
6. WAIVERS, CONSENTS AND COVENANTS. Borrower, any indorser or guarantor
hereof, or any other party hereto (individually an "Obligor" and collectively
"Obligors") and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice of
acceleration of maturity, notice of protest, notice of nonpayment, notice of
dishonor, and any other notice required to be given under the law to any
Obligor in connection with the delivery, acceptance, performance, default or
enforcement of this Note, any indorsement or guaranty of this Note, or any
other documents executed in connection with this Note or any other note or
other loan documents now or hereafter executed in connection with any
obligation of Borrower to Bank (the "Loan Documents"); (b) consent to all
delays, extensions, renewals or other modifications of this Note or the Loan
Documents, or waivers of any term hereof or of the Loan Documents, or release
or discharge by Bank of any of Obligors, or release, substitution or exchange
of any security for the payment hereof, or the failure to act on the part of
Bank, or any indulgence shown by Bank (without notice to or further assent from
any of Obligors), and agree that no such action, failure to act or failure to
exercise any right or remedy by Bank shall in any way affect or impair the
obligations of any Obligors or be construed as a waiver by Bank of, or
otherwise affect, any of Bank's rights under this Note, under any indorsement
or guaranty of this Note or under any of the Loan Documents; and (c) agree to
pay, on demand, all costs and expenses of collection or defense of this Note or
of any indorsement or guaranty hereof and/or the enforcement or defense of
Bank's rights with respect to, or the administration, supervision,
preservation, or protection of, or realization upon, any property securing
payment hereof, including, without limitation, reasonable attorney's fees,
including fees related to any suit, mediation or arbitration proceeding, out of
court payment agreement, trial, appeal, bankruptcy proceedings or other
proceeding, in such amount as may be determined reasonable by any arbitrator or
court, whichever is applicable.
7. "INTEREST" LIMITED. As used in this Note and for the purposes of Section
7-4-2 of the Official Code of Georgia Annotated, or any successor thereto, the
term "interest" does not include any fees (including, but not limited to, the
Loan Fee) or other charges imposed on Borrower in connection with the
indebtedness evidenced by this Note, other than the interest described above.
8. PREPAYMENTS. Prepayments may be made in whole or in part at any time on any
loan for which the Rate is based on the Prime Rate. All prepayments of
principal shall be applied in the inverse order of maturity, or in such other
order as Bank shall determine in its sole discretion. No prepayment of any
other loan shall be permitted without the prior written consent of Bank.
Notwithstanding such prohibition, if there is a prepayment of any such loan,
whether by consent of Bank, or because of acceleration or otherwise, Borrower
shall, within 15 days of any request by Bank, pay to Bank any loss or expense
which Bank may incur or sustain as a result of such prepayment. For the
purposes of calculating the amounts owed only, it shall be assumed that Bank
actually funded or committed to fund the loan through the purchase of an
underlying deposit in an amount and for a term comparable to the loan, and such
determination by Bank shall be conclusive, absent a manifest error in
computation.
9. DELINQUENCY CHARGE. To the extent permitted by law, a delinquency charge
may be imposed in an amount not to exceed four percent (4%) of any payment that
is more than fifteen days late.
10. EVENTS OF DEFAULT. The following are events of default hereunder: (a)
the failure to pay or perform any obligation, liability or indebtedness of any
Obligor to Bank, or to any affiliate or subsidiary of NationsBank Corporation,
whether under this Note or any Loan Documents, as and when due (whether upon
demand, at maturity or by acceleration); (b) the failure to pay or perform any
other obligation, liability or indebtedness of any Obligor to any other party;
(c) the death of any Obligor (if an individual); (d) the resignation or
withdrawal of any partner or a material owner/guarantor of Borrower, as
determined by Bank in its sole discretion; (e) the commencement of a proceeding
against any Obligor for dissolution or liquidation, the voluntary or
involuntary termination or dissolution of any Obligor or the merger or
consolidation of any Obligor with or into another entity; (f) the insolvency
of, the business failure of, the appointment of a custodian, trustee,
liquidator or receiver for or for any of the property of, the assignment for
the benefit of creditors by, or the filing of a petition under bankruptcy,
insolvency or debtor's relief law or the filing of a petition for any
adjustment of indebtedness, composition or extension by or against any Obligor;
<PAGE> 3
(g) the determination by Bank that any representation or warranty made to Bank
by any Obligor in any Loan Documents or otherwise is or was, when it was made,
untrue or materially misleading; (h) the failure of any Obligor to timely
deliver such financial statements, including tax returns, other statements of
condition or other information, as Bank shall request from time to time; (i)
the entry of a judgment against any Obligor which Bank deems to be of a
material nature, in Bank's sole discretion; (j) the seizure or forfeiture of,
or the issuance of any writ of possession, garnishment or attachment, or any
turnover order for any property of any Obligor; (k) the determination by Bank
that it is insecure for any reason; (l) the determination by Bank that a
material adverse change has occurred in the financial condition of any Obligor;
or (m) the failure of Borrower's business to comply with any law or regulation
controlling its operation.
11. REMEDIES UPON DEFAULT. Whenever there is a default under this Note (a) the
entire balance outstanding hereunder and all other obligations of any Obligor
to Bank (however acquired or evidenced) shall, at the option of Bank, become
immediately due and payable and any obligation of Bank to permit further
borrowing under this Note shall immediately cease and terminate, and/or (b) to
the extent permitted by law, the Rate of interest on the unpaid principal shall
be increased at Bank's discretion up to the maximum rate allowed by law, or if
none, 25% per annum (the "Default Rate"). The provisions herein for a Default
Rate shall not be deemed to extend the time for any payment hereunder or to
constitute a "grace period" giving Obligors a right to cure any default. At
Bank's option, any accrued and unpaid interest, fees or charges may, for
purposes of computing and accruing interest on a daily basis after the due date
of this Note or any installment thereof, be deemed to be a part of the
principal balance, and interest shall accrue on a daily compounded basis after
such date at the Default Rate provided in this Note until the entire
outstanding balance of principal and interest is paid in full. Upon a default
under this Note, Bank is hereby authorized at any time, at its option and
without notice or demand, to set off and charge against any deposit accounts of
any Obligor (as well as any money, instruments, securities, documents, chattel
paper, credits, claims, demands, income and any other property, rights and
interests of any Obligor), which at any time shall come into the possession or
custody or under the control of Bank or any of its agents, affiliates or
correspondents, any and all obligations due hereunder. Additionally, Bank
shall have all rights and remedies available under each of the Loan Documents,
as well as all rights and remedies available at law or in equity.
12. NON-WAIVER. The failure at any time of Bank to exercise any of its options
or any other rights hereunder shall not constitute a waiver thereof, nor shall
it be a bar to the exercise of any of its options or rights at a later date.
All rights and remedies of Bank shall be cumulative and may be pursued singly,
successively or together, at the option of Bank. The acceptance by Bank of any
partial payment shall not constitute a waiver of any default or of any of
Bank's rights under this Note. No waiver of any of its rights hereunder, and
no modification or amendment of this Note, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; each such
waiver shall apply only with respect to the specific instance involved, and
shall in no way impair the rights of Bank or the obligations of Obligors to
Bank in any other respect at any other time.
13. APPLICABLE LAW, VENUE AND JURISDICTION. This Note and the rights and
obligations of Borrower and Bank shall be governed by and interpreted in
accordance with the law of the State of Georgia. In any litigation in
connection with or to enforce this Note or any indorsement or guaranty of this
Note or any Loan Documents, Obligors, and each of them, irrevocably consent to
and confer personal jurisdiction on the courts of the State of Georgia or the
United States located within the State of Georgia and expressly waive any
objections as to venue in any such courts. Nothing contained herein shall,
however, prevent Bank from bringing any action or exercising any rights within
any other state or jurisdiction or from obtaining personal jurisdiction by any
other means available under applicable law.
14. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability or validity of any other
provision herein and the invalidity or unenforceability of any provision of
this Note or of the Loan Documents to any person or circumstance shall not
affect the enforceability or validity of such provision as it may apply to
other persons or circumstances.
15. BINDING EFFECT. This Note shall be binding upon and inure to the benefit
of Borrower, Obligors and Bank and their respective successors, assigns, heirs
and personal representatives, provided, however, that no obligations of
Borrower or Obligors hereunder can be assigned without prior written consent of
Bank.
16. CONTROLLING DOCUMENT. To the extent that this Note conflicts with or is in
any way incompatible with any other document related specifically to the loan
evidenced by this Note, this Note shall control over any other such document,
and if this Note does not address an issue, then each other such document shall
control to the extent that it deals most specifically with an issue.
<PAGE> 4
17. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW.
IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT
UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
ANY PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY
CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF
ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE
APPOINTMENT OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE
UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE,
DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO
THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP
REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF
THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
BORROWER REPRESENTS TO BANK THAT THE PROCEEDS OF THIS LOAN ARE TO BE USED
PRIMARILY FOR BUSINESS, COMMERCIAL OR AGRICULTURAL PURPOSES. BORROWER
ACKNOWLEDGES HAVING READ AND UNDERSTOOD, AND AGREES TO BE BOUND BY, ALL TERMS
AND CONDITIONS OF THIS NOTE AND HEREBY EXECUTES THIS NOTE UNDER SEAL AS OF THE
DATE HERE ABOVE WRITTEN.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Harbinger Corporation
By: /s/ Joel G. Katz (Seal)
________________________________________
Name: Joel G. Katz
______________________________________
Title: CFO
_____________________________________
Laura B. Hartigan
___________________________________________
Attest (If Applicable)
[Corporate Seal]
<PAGE> 1
EXHIBIT 10.3
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT dated as of April 16, 1997,
between Harbinger Corporation, a Georgia corporation, f/k/a Harbinger*EDI
Services, (the "Company") and NationsBank, N.A. (South), successor by name
change to NationsBank of Georgia, N.A. (the "Bank").
RECITALS
The Company and the Bank have entered into a Loan Agreement dated as of
August 15, 1994 (the "Agreement") pursuant to which the Bank made a loan to the
Company as amended by that certain First Amendment to Loan Agreement dated as
of May 2, 1995 (as amended, the "Loan").
The Company and the Bank wish to amend certain terms of the Agreement as
herein provided.
NOW THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
Section 1. Definitions. Unless otherwise defined herein, terms
defined in the Agreement shall have the same meanings when used herein.
Section 2. Amendments. Effective as provided in Section 3 hereof
and subject to the provisions of Section 3 hereof, the Agreement is hereby
amended as follows:
(a) Paragraph 2 shall be deleted in its entirety with the
following being substituted in lieu thereof.
"A. LOAN. Bank hereby agrees to make loans to the Company in the
aggregate principal amount of up to $10,000,000 to be evidenced by certain
promissory notes (the promissory notes and any and all renewals,
extensions or rearrangements thereof being hereinafter referred to
collectively as "the Notes") dated as of the dates and in the amounts set
forth on the Note and having maturity dates, repayments terms and interest
rates as set forth in the Notes.
The Loan provides for a revolving line of credit (the "Line") under which
the Company may from time to time borrow, repay and reborrow funds. The
Line is subject to the Borrowing Base Agreement attached hereto as Exhibit
"A" and by reference made a part hereof.
B. USAGE FEE. Borrower will pay hereafter on September 30, 1994
and on the last day of each month for the period from and including the
closing date to and including April 2, 1997, a usage fee at a rate per
annum of 25% of 1% of the average daily unused portion of the Line during
such period. Borrower will pay hereafter on May 2, 1997 and on the same
day of each successive month through and including May 2, 1998 a usage fee
at a rate per annum of 3/8ths of 1% of the average daily unused portion of
the Line during such period.
(b) Exhibit "A" shall be replaced in its entirety with the
attached Exhibit "A".
Section 3. Effective Date. The amendments to the Agreement set
forth in Section 2 hereof shall be effective and binding on all the parties on
and as of April 16, 1997 (or such later date as all the parties hereto may
agree) (the "Effective Date"), provided that all the following conditions
precedent have been satisfied on such date:
(a) The Bank shall have received one or more counterparts of this
Second Amendment executed by each of the parties hereto.
(b) All legal matters incident to this Second Amendment shall be
satisfactory to counsel for the Bank.
<PAGE> 2
(c) No Default shall have occurred and be continuing, and the
representations of the Company in Section 4 hereof shall be true on and as of
the Effective Date with the same force and effect as if made on and as of the
Effective Date; and no lawsuit or proceeding shall be pending (or, to the
knowledge of the Company, threatened) against the Company or any of its
Consolidated Subsidiaries which is likely to have a material adverse effect
upon the consolidated financial condition of the Company and its Consolidated
Subsidiaries or upon the ability of the Company to carry out the transactions
contemplated by this Second Amendment and the Agreement as amended hereby.
(d) The Bank shall have received certified copies of all
corporate action taken by the Company to authorize the execution, delivery and
performance of this Second Amendment and the Agreement as amended hereby, and
the borrowings under the Agreement as amended hereby, and such other documents
as Bank's counsel shall reasonably require.
Section 4. Representations, Etc. The Company represents
covenants and warrants to the Bank that: (i) as of the date hereof no Default
has occurred and is continuing; and (ii) the representations and warranties
contained in Paragraph 3 of the Agreement as amended hereby, with each
reference in such Paragraph 3 to "this Agreement", "hereto", "hereof" and terms
of similar import taken as a reference to the Agreement as amended hereby.
Section 5. Agreement.
(a) Except as specifically amended hereby, the Agreement shall
remain unchanged and continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof. From and after the
Effective Date, (i) each reference in the Agreement (including all Exhibits and
Schedules thereto) to "this Agreement," "hereto," "hereof" and terms of similar
import taken as a reference to the Agreement and all references to the
Agreement in any documents, instruments, certificates, notes, bonds or other
agreements executed in connection therewith shall be deemed to refer to the
Agreement as amended hereby.
(b) The Company agrees that all collateral given as security for
the Agreement secures, and shall continue to secure, the Agreement, as amended
hereby.
(c) The Company waives and releases the Bank from any and all
claims and defenses with respect to the Agreement, and any and all documents,
instruments, certificates, notes, bonds or other agreements executed in
connection therewith.
(d) This Second Amendment (i) is limited precisely as specified
herein and does not constitute nor shall be deemed to constitute a
modification, acceptance or waiver of any other provision of the Agreement, or
any documents, instruments, certificate, notes, bonds or agreements delivered
in connection therewith and (ii) shall not prejudice or be deemed to prejudice
any right(s) the Bank may now have or may in the future have under or in
connection with the Agreement, or any documents, instruments, certificates,
notes, bonds or agreements executed in connection therewith.
Section 6. Applicable Law. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of Georgia.
Section 7. Expenses. The Company will pay: (i) all out-of-pocket
expenses of the Bank in connection with the preparation, execution and delivery
of this Second Amendment; (ii) the reasonable fees of counsel to the Bank,
including the allocated cost of in- house counsel; and (iii) all taxes, if any,
upon any documents or transactions pursuant to this Second Amendment.
Section 8. Counterparts. This Second Amendment may be executed
in any number of counterparts, all of which taken together will constitute one
agreement, and any of the parties hereto may execute this Second Amendment by
signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed as of the day and year first above written.
<PAGE> 3
Harbinger Corporation, f/k/a
Harbinger*EDI Services
By: /s/ Joel G. Katz
_____________________________
Title: CFO
__________________________
Attest: /s/ Laura B. Hartigan
_________________________
[CORPORATE SEAL]
NationsBank, N.A. (South)
By: /s/ Michael S. Paulson
_____________________________
Name/Title: Michael S. Paulson, AVP
_________________________
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Harbinger Corporation
We consent to the use of our reports dated May 13, 1997, relating to the
consolidated balance sheets of Harbinger Corporation as of December 31,
1996 and 1995, and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1996, and the related financial statement schedule,
which reports appear in Harbinger Corporation's Current Report on Form 8-K
filed on July 1, 1997 and are incorporated by reference in the Form S-3
registration statement of Harbinger Corporation and to the reference to our
firm under the heading "Experts" in the Prospectus.
Our reports dated May 13, 1997, included a reference to other auditors with
respect to 1995, as those reports, as they relate to the 1995 combined
financial statements for Supply Tech, Inc. and Supply Tech International, LLC
which are included in the consolidated financial statements of Harbinger
Corporation, are based solely on the report of the other auditors as it relates
to the amounts included for Supply Tech, Inc. and Supply Tech International,
LLC. Our reports dated May 13, 1997 also indicated that the financial
statements of Harbinger Corporation and Supply Tech, Inc. and Supply Tech
International, LLC for 1994 were audited by other auditors, although the
reports also indicated that we audited the combination of the accompanying
financial statements and financial statement schedule for 1994.
KPMG Peat Marwick LLP
Atlanta, Georgia
June 26, 1997
<PAGE> 2
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Harbinger Corporation:
We consent to the use of our report dated February 7, 1997 relating to the
balance sheets of Harbinger Net Services, LLC as of December 31, 1996 and 1995,
and the related statements of operations, shareholders' equity, and cash flows
for the periods ended December 31, 1996 and 1995 included in Harbinger
Corporation's Current Report on Form 8-K/A Amendement No.1 filed on March 14,
1997 and incorporated by reference in the Form S-3 registration statement of
Harbinger Corporation and to the reference to our firm under the heading
"Experts" in the Prospectus.
KPMG Peat Marwick LLP
Atlanta, Georgia
June 26, 1997
<PAGE> 3
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Harbinger Corporation:
We consent to the use of our report dated February 19, 1997 relating to the
combined balance sheet of Supply Tech, Inc. and Supply Tech International, LLC
as of December 31, 1996 and the related combined statements of operations,
shareholders' equity (deficit), and cash flows for the year then ended included
in Harbinger Corporation's Current Report on Form 8-K/A Amendment No. 1 filed
on March 18, 1997 and incorporated by reference in the Form S-3 registration
statement of Harbinger Corporation and to the reference to our firm under the
heading "Experts" in the Prospectus.
KPMG Peat Marwick LLP
Atlanta, Georgia
June 26, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement of our report dated March 14,
1995 included in Harbinger Corporation's Current Report on Form 8-K and to all
references to our firm included in this registration statement.
Arthur Andersen LLP
Atlanta, Georgia
June 26, 1997
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Harbinger Corporation:
We consent to the use of our report dated February 19, 1997 relating to the
combined balance sheet of Supply Tech, Inc. and Supply Tech International, LLC
as of December 31, 1995 and the related combined statements of operations,
shareholders' equity (deficit), and cash flows for each of the years in the
two-year period ended December 31, 1995 included in Harbinger Corporation's
Current Report on Form 8-K/A Amendment No. 1 filed on March 18, 1997 and
Harbinger Corporation's Current Report on Form 8-K filed on or about June 30,
1997 and incorporated by reference in the Form S-3 registration statement of
Harbinger Corporation.
Ciulla, Smith & Dale, LLP
Southfield, Michigan
June 26, 1997
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Harbinger Corporation:
We consent to the use of our report dated June 14, 1996 relating to the
consolidated balance sheets of NTEX Holding B.V. as of December 31, 1995, and
the related consolidated statements of operations, shareholders' equity, and
cash flows for the year then ended included in Harbinger Corporation's Current
Report on Form 8-K/A Amendment No. 1 filed on June 17, 1996 and incorporated by
reference in the Form S-3 registration statement of Harbinger Corporation.
Moret Ernst & Young Accountants
The Hague
June 26, 1997
<PAGE> 1
EXHIBIT 23.5
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Harbinger Corporation:
We consent to the use of our report dated June 11, 1996 relating to the balance
sheet of INOVIS GmbH & Co. computergestuzte Informationssysteme as of December
31, 1995 and the related statements of operations and accumulated deficit,
partners' equity, and cash flows for the year then ended included in Harbinger
Corporation's Form 8-K/A Amendment No. 1 filed on July 1, 1996 and incorporated
by reference in the Form S-3 registration statement of Harbinger Corporation
and to the reference to our firm under the heading "Experts" in the Prospectus.
KPMG Deutsche Treuhand-Gesellschaft AG
Germany
June 26, 1997
<PAGE> 1
EXHIBIT 23.6
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Harbinger Corporation:
We consent to the use of our report dated June 5, 1996 relating to the
consolidated balance sheets of Harbinger N.V. and subsidiaries as of December
31, 1995, 1994 and 1993 and the related consolidated statements of operations,
shareholders' equity, and cash flows for the two years ended December 31, 1995
and 1994 and the one month ended December 31, 1993 included in Harbinger
Corporation's Current Report on Form 8-K/A Amendment No. 1 filed on July 2,
1996 and incorporated by reference in the Form S-3 registration statement of
Harbinger Corporation and to the reference to our firm under the heading
"Experts" in the Prospectus.
KPMG Accountants N.V.
The Hague
June 26, 1997
<PAGE> 1
EXHIBIT 23.7
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
registration statement (Form S-3) and related Prospectus of Harbinger
Corporation for the registration of 300,000 shares of its common stock and to
the incorporation therein of our report dated April 28, 1995, with respect to
the statement of operations of EDI (formerly a business of Texas Instruments,
Incorporated) for the year ended December 31, 1994 included in Harbinger
Corporation's registration statement (Form S-1, No. 33-93804) filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Atlanta, Georgia
June 26, 1997
