<PAGE> 1
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
---------------------------------
FORM 10-K/A
AMENDMENT
----------------------------------
TO ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1999
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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COMMISSION FILE NUMBER: 0-26298
HARBINGER CORPORATION
(Exact Name of Registrant Specified in Its Charter)
GEORGIA 58-1817306
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1277 LENOX PARK BOULEVARD 30319
ATLANTA, GEORGIA (Zip Code)
(Address of Principal Executive Office)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (404) 467-3000
---------------------------------
Securities registered pursuant to Section 12(b) of the Act:
None
---------------------------------
Securities registered pursuant to Section 12(g) of the Act:
Title of Each Class Name of Exchange on Which Registered
------------------- ------------------------------------
Common Stock, par value $.0001 per share The Nasdaq National Market
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of
the Registrant, based upon the average of the closing bid and ask quotations for
the Common Stock on March 8, 2000 as reported by The Nasdaq Stock Market, was
approximately $977,432,495. The shares of Common Stock held by each officer and
director and by each person known to the Registrant who owns 5% or more of the
outstanding Common Stock have been excluded in that such persons may be deemed
to be affiliates. This determination of affiliate status is not necessarily a
conclusive determination for other purposes. As of March 8, 2000, Registrant had
outstanding approximately 39,594,515 shares of Common Stock.
DOCUMENTS INCORPORATED BY REFERENCE
The Registrant's definitive Proxy Statement for the Annual Meeting of
Shareholders to be held April 25, 2000 is incorporated by reference in Part III
of this Form 10-K to the extent stated herein.
<PAGE> 2
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
This Amendment to Form 10-K is submitted for the purpose of filing certain
exhibits noted below.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
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<S> <C>
10.1 Employment Agreement between the Company and Mr. James M. Travers
effective as of January 19, 2000.
10.9 Amended and Restated 1993 Stock Option Plan for Nonemployee
Directors.
10.10 Harbinger Corporation 1996 Stock Option Plan.
10.11 Amended and Restated Harbinger Corporation Employee Stock
Purchase Plan.
</TABLE>
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized on the 31st day of
March, 1999.
HARBINGER CORPORATION
By: /s/ James M. Travers
------------------------------
James M. Travers
President and Chief Executive
Officer
<PAGE> 4
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James M. Travers Chief Executive Officer; March 31, 2000
-------------------------- President; Director
James M. Travers
/s/ David T. Leach Vice Chairman; Director March 31, 2000
------------------------
David T. Leach
/s/ James K. McCormick Chief Financial Officer; March 31, 2000
------------------------ (Principal Financial Officer;
James K. McCormick Principal Accounting Officer)
/s/ William D. Savoy Director March 31, 2000
------------------------
William D. Savoy
Director March __, 2000
------------------------
William B. King
/s/ Stuart L. Bell Director March 31, 2000
------------------------
Stuart L. Bell
/s/ Benn R. Konsynski Director March 31, 2000
------------------------
Benn R. Konsynski
/s/ Ad Nederlof Director March 31, 2000
------------------------
Ad Nederlof
Director March __, 2000
------------------------
Klaus Neugebauer
/s/ David Hildes Director March 31, 2000
------------------------
David Hildes
/s/ John Lowenberg Director March 31, 2000
------------------------
John Lowenberg
</TABLE>
<PAGE> 1
EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is effective as of the 19th
day of January, 2000 ("Effective Date"), and is entered into this 1st day of
March, 2000, by and between HARBINGER CORPORATION ("Company"), a Georgia
corporation, and JAMES M. TRAVERS ("Employee"), an individual. For and in
consideration of the mutual covenants described below, the parties hereby agree
as follows:
1. EMPLOYMENT. Company agrees to employ or continue to employ Employee, and
Employee agrees to accept and continue such employment, upon the following
terms and conditions.
2. DUTIES.
a. Employee shall assume the responsibilities and perform the duties
specified in EXHIBIT A ("Duties"). Employee agrees to devote reasonable work
time and energy to the furtherance of the business of Company consistent with
the Duties and shall not during the term hereof work or perform services in any
advisory or other capacity (other than as a member of the Board of Directors or
Board of Advisors of an entity which is not competitive with the Company) for
any individual, firm, company, or corporation other than for Company without
Company's prior written consent.
b. Employee shall serve on the Company's Board of Directors (the "Board")
if elected by the Company's shareholders to serve in such capacity.
c. This Agreement may be supplemented from time to time by rules and
regulations of employment issued by Company, including, without limitation,
such rules and regulations described in the Company employee handbook, and
Employee agrees to adhere to these rules and regulations.
3. COMPENSATION.
A. ANNUAL SALARY. Employee's annual salary ("Annual Salary") commencing as
of March 1, 2000 shall be Two-Hundred, and Fifty Thousand, Dollars ($250,000),
payable in accordance with the Company's standard payment terms. The amount of
any Annual Salary increases in subsequent years shall be determined by the
Compensation Committee ("Committee") or the Board in its sole discretion.
B. ANNUAL BONUS. Employee's annual bonus ("Annual Bonus") for 2000 shall
be seventy-five percent (75%) of the 2000 Annual Salary, payable in accordance
with Employee's satisfactory fulfillment of the objectives as established and
determined by the Committee or the Board. Any future Annual Bonus(es) in
subsequent years shall be determined by the Committee or the Board.
C. BENEFITS. Employee shall be entitled to receive the same employee
benefits as made available by Company to its former Chief Executive Officers.
4. STOCK OPTION. The Company acknowledges that Employee has received an
option to purchase Two Hundred Thousand (200,000) shares of common stock of the
Company (the "Option") on the terms and subject to the conditions set forth in
the Stock Option Agreement, attached hereto as EXHIBIT C.
5. TERM. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall remain in full force and effect for three (3) years
thereafter, unless sooner terminated as provided in Section 9 below. Upon the
Effective Date, the previously executed Employment Agreement between Company
and Employee dated January 10, 1995 shall be deemed to have terminated
automatically and shall thereafter be of no further force or effect, and this
Agreement shall supersede all prior agreements, arrangements and understandings
with respect to the subject matter hereof, except as set forth in Section
13(b).
6. OWNERSHIP.
For purposes of this Agreement, "Work Product" shall mean the data, materials,
documentation, computer programs, inventions (whether or not patentable), and
all works of authorship, including all worldwide rights therein under patent,
copyright, trade secret, confidential information, or other property right,
created or developed in whole or in part by Employee, whether prior to or after
the Effective Date, while retained or employed by Company (whether developed
during work hours or not). All Work Product shall be considered work made for
hire by Employee and owned by Company. If any of the Work Product may not, by
operation of law or otherwise, be considered work made for hire by Employee for
Company, or if ownership of all right, title, and interest of the intellectual
property rights therein shall not otherwise vest exclusively in Company,
Employee hereby assigns to Company, and upon the future creation thereof
automatically assigns to Company, without further consideration, the ownership
of all Work Product. Company shall have the right to obtain and hold in its own
name copyrights, patents, registrations, and any other protection available in
the Work Product. Employee agrees to perform, during or after Employee's
employment, such further acts as may be necessary or desirable to transfer,
perfect, and defend Company's ownership of the Work Product that are reasonably
requested by Company.
7. LICENSE. To the extent any materials other than Work Product are contained
in the materials Employee delivers to Company or Company's customers ("Licensed
Materials"), Employee grants to Company an irrevocable, nonexclusive,
worldwide, royalty-free license to: (i) use and distribute (internally or
externally) copies of, and prepare derivative works based upon, the Licensed
Materials and derivative works thereof, and (ii) authorize others to do any of
the foregoing.
<PAGE> 2
8. NONDISCLOSURE OF PROPRIETARY INFORMATION.
a. As used herein, "Trade Secrets" means information constituting a trade
secret within the meaning of Section 10-1-761(4) of the Georgia Trade Secrets
Act of 1990, including all amendments hereafter adopted. As used herein,
"Confidential Information" means information, other than Trade Secrets, that is
of value to its owner and is treated as confidential. "Proprietary Information"
means, collectively, Confidential Information and Trade Secrets.
b. Company may disclose to Employee certain Proprietary Information.
Employee acknowledges and agrees that the Proprietary Information of Company is
the sole and exclusive property of Company (or a third party providing such
information to Company) and that Company owns all worldwide copyrights, trade
secret rights, confidential and proprietary information rights, and all other
property rights therein.
c. Employee acknowledges and agrees that the disclosure of the Proprietary
Information of Company to Employee does not confer upon Employee any license,
interest or rights of any kind in or to the Proprietary Information.
d. Employee agrees to use the Proprietary Information solely for the
benefit of Company. Except in the performance of services for Company, Employee
will hold in confidence and not use, reproduce, distribute, transmit, reverse
engineer, decompile, disassemble, or transfer, directly or indirectly, in any
form, by any means, or for any purpose, the Proprietary Information of Company
or any portion thereof communicated, discussed, delivered or made available by
Company to or received by Employee, whether orally or in written form, without
the prior written consent of Company. Employee shall notify Company immediately
upon discovery of any unauthorized use or disclosure of the Proprietary
Information.
e. Employee acknowledges that its obligations under this Agreement with
regard to the Trade Secrets of Company remain in effect for as long as such
information shall remain a trade secret under applicable law. Employee
acknowledges that its obligations with regard to the Confidential Information
of Company shall remain in effect while Employee is retained by Company to
perform the Duties and for three (3) years thereafter. The foregoing
obligations shall not apply if and to the extent that: (a) Employee establishes
that the information communicated was already known to Employee, without
obligation to keep it confidential, at the time of its receipt from Company;
(b) Employee establishes that the information communicated was received by
Employee in good faith from a third party lawfully in possession thereof and
having no obligation to keep such information confidential; or (c) Employee
establishes that the information communicated was publicly known at the time of
its receipt by Employee or has become publicly known other than by a breach of
this Agreement or other action by Employee.
f. The terms of this Agreement and the relationship between Company and
Employee shall be subject to the obligations of nondisclosure herein, except to
the extent that disclosure thereof is required by law or regulation.
9. TERMINATION. The parties agree that Employee's term of employment may
be terminated at any time, for any reason or for no reason, with cause or
without cause (as defined below), by Company or Employee.
A. TERMINATION WITH CAUSE. The parties agree that Employee's employment
may be terminated at any time with notice by Company for cause ("Termination
With Cause") under any one or more of the following events:
(i) Employee's knowing and willful misconduct with
respect to the business and affairs of the Company;
(ii) Any material violation by Employee of any policy of the
Company relating to ethical business conduct or practices or fiduciary
duties of a senior executive;
(iii) Knowing and willful material breach of any provision of
this Agreement which is not remedied within thirty (30) days after
Employee's receipt of notice thereof;
(iv) Employee's commission of a felony or an illegal act
involving moral turpitude or fraud or Employee's dishonesty which may
reasonably be expected to have a material adverse effect on the
Company; and/or
(v) Failure to comply with reasonable directives of the Board
which are consistent with the Duties, if not remedied within thirty
(30) days after Employee's receipt of notice thereof.
B. TERMINATION WITHOUT CAUSE. "Termination Without Cause" means any
termination of employment by the Company which is not "Termination With Cause"
as defined above. A resignation or voluntary departure from Company by Employee
or his death shall not be deemed Termination Without Cause under this
Agreement.
C. SEVERANCE. In the event that Employee's employment is Terminated
Without Cause by Company at any time (other than at the expiration of the
Term), Company shall pay to Employee the severance pay equal to Employee's
Annual Salary at the then current rate for a period equal to the remainder of
the then current Term ("Severance Period"). The severance pay shall be payable
to Employee in accordance with the Company's standard pay periods and shall be
subject to all applicable withholdings, or, in the Company's sole discretion,
in a lump sum equal to the Annual Salary for the period equal to the remainder
of the current Term, discounted to its present value as reasonably determined
by the Board.
D. POST TERMINATION OBLIGATIONS. Upon termination of employment for any
reason, Employee shall return immediately to Company all documents, property,
and other records of Company, and all copies thereof, and all Work Product
within Employee's possession, custody or control, including but not limited to
any materials containing any Trade Secrets or Confidential Information or any
portion thereof.
10. CUSTOMER NON-SOLICITATION. The relationships made or enhanced in the
course of Employee's employment with the Company belong to Company. During
Employee's
<PAGE> 3
employment with Company and for the period of one (1) year after termination of
Employee's employment with Company for any reason or the Severance Period,
whichever is longer (the "Limitation Period"), Employee shall not contact,
solicit or attempt to solicit, on Employee's own behalf or on behalf of any
other person or entity, any customer or prospective customer of Company with
whom Employee had contact in the two (2) years prior to the end of Employee's
employment with Company ("Restrictive Period") with a view to offering,
providing, selling or licensing during the Limitation Period any program,
product or service that is competitive with the Company's business as defined
in EXHIBIT B ("Company Business").
11. EMPLOYEE NON-SOLICITATION. During the Limitation Period, Employee
agrees not to call upon, solicit, recruit, or assist others in calling upon,
recruiting or soliciting any person who is or was an employee of Company during
the Restrictive Period, for the purpose of having such person work in any other
corporation, association, entity, or business that is competitive with the
Company Business.
12. NONCOMPETITION. During the Limitation Period, Employee agrees that,
without the prior written consent of Company, Employee shall not perform the
duties specified on EXHIBIT A and performed by Employee during the Restrictive
Period for any person or entity competing with the Company Business in the
territory defined in EXHIBIT B ("Territory"), provided that Company is still
engaged in the Company Business. The parties agree and acknowledge that: (i)
the periods of restriction and Territory of restriction contained in this
Agreement are fair and reasonable in that they are reasonably required for the
protection of Company and that the Territory is the area in which Employee
shall perform (or currently performs) services for Company; and (ii) by having
access to information concerning employees and actual or prospective customers
of Company, Employee shall obtain a competitive advantage as to such parties.
If, however, for any reason any court determines that the restrictions in
Sections 10 through 12 are not reasonable or that consideration is inadequate,
then such restrictions shall be interpreted, modified or re-written to include
as much of the duration, scope and geographic area in this section as will
render such restrictions valid and enforceable.
13. INDEMNIFICATION.
A. BY EMPLOYEE. Employee shall indemnify and hold harmless Company, any
affiliated corporation, and their respective shareholders, directors, officers,
agents, and employees, from and against any and all liability, including
payment of attorneys' fees, arising directly or indirectly from a violation of
Section 13.
B. BY COMPANY. Company shall indemnify and hold harmless Employee in
accordance with the indemnification obligations as set forth in Article IX,
Section 2 of the Company's Amended and Restated Bylaws dated April 29, 1995,
and the previously executed Indemnification Agreement between Company and
Employee.
14. EQUITABLE RELIEF. The parties to this Agreement acknowledge that a
breach by Employee of any of the terms or conditions of this Agreement will
result in irrevocable harm to Company and that the remedies at law for such
breach may not adequately compensate Company for damages suffered. Accordingly,
Employee agrees that in the event of such breach, Company shall be entitled to
injunctive relief or such other equitable remedy as a court of competent
jurisdiction may provide. Nothing contained herein will be construed to limit
Company's right to any remedies at law, including the recovery of damages for
breach of this Agreement.
15. SEVERABILITY. If any provision or part of any provision of this
Agreement is held invalid or unenforceable by a court of competent
jurisdiction, such holding shall not affect the enforceability of any other
provisions or parts thereof, and all other provisions and parts thereof shall
continue in full force and effect.
16. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof (other than disputes with respect to
alleged violations of the covenants contained in Sections 10, 11, and 12, and
the Company's pursuit of the remedies described in Section 15 in connection
therewith) shall be settled by arbitration in Atlanta, Georgia. In such case,
both parties agree to the appointment of three (3) arbitrators, with one
arbitrator selected by each party, and the third selected by the American
Arbitration Association ("AAA"). The arbitration shall be conducted in Atlanta,
Georgia in accordance with the Commercial Arbitration Rules, regulations and
procedures of the AAA. The judgment upon the award rendered may be entered in
any court having jurisdiction thereof. The parties shall be free to pursue any
remedy before the arbitration tribunal that they shall be otherwise permitted
to pursue in a court of competent jurisdiction, and the decision of the
arbitration panel shall be final and binding on both parties.
17. MISCELLANEOUS. This Agreement shall not be amended or modified except
by a writing executed by both parties. This Agreement shall be binding upon and
inure to the benefit of Company and its successors and assigns. Due to the
personal nature of this Agreement, Employee shall not have the right to assign
Employee's rights or obligations under this Agreement without the prior written
consent of Company. This Agreement shall be governed by the laws of the State
of Georgia without regard to its rules governing conflicts of law. This
Agreement and the attached Exhibits represent the entire understanding of the
parties concerning the subject matter hereof and supersede and terminate all
prior communications, agreements and understandings, whether oral or written,
relating to the subject matter hereof. All communications required or otherwise
provided under this Agreement shall be in writing and shall be deemed given
when delivered to the address provided below such party's signature (as may be
amended by notice from time to time), by hand, by courier or express mail, or
by registered or certified United States mail, return receipt requested,
postage prepaid. The exhibits attached hereto are incorporated herein by this
reference.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their hands and seals effective as of the date first above written.
<TABLE>
COMPANY: HARBINGER CORPORATION EMPLOYEE: JAMES M. TRAVERS
<S> <C>
By: /s/ Loren B. Wimpfheimer
--------------------------------------------------- Signature: /s/ James M. Travers
-----------------------
Title: Vice President
------------------------------------------------- Date: March 13, 2000
Date: March 13, 2000
Address: 1014 Kettering Place
Alpharetta, Georgia 30022
Address: 1277 Lenox Park Boulevard
Atlanta, Georgia 30319
</TABLE>
<PAGE> 5
EXHIBIT A
DUTIES
- Develop Company's mission, strategic objectives and strategies year to
year to achieve the Company's business goals as established by the
Board of Directors.
- Serves as primary contact with company stockholders.
- Serves as primary contact with the investment community.
- Represents the Company in relations with major customers, suppliers,
financial institutions, government
agencies, etc.
- Manages the line operating units of the Company, either directly or
through named subordinates.
- Establishes appropriate company policies and controls.
- Ensures soundness of the Company's financial structure, monitors
operating results vs. approved plans and objectives.
- Establishes plans for the hiring, retention, and development of key
personnel in the Company.
- Serves as a member of the Board of Directors.
- Assumes other projects and responsibilities as assigned by the Board of
Directors.
<PAGE> 6
EXHIBIT B
TERRITORY
That territory in which the Employee performs services for the Company in North
America, Latin America, Europe, and Asia.
<PAGE> 7
EXHIBIT C
OPTIONS
200,000 shares @ $26.87 on 2/18/00.
<PAGE> 8
FIRST AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT ("Amendment") is entered
into this 1st day of March, 2000, by and between HARBINGER CORPORATION
("Company"), a Georgia corporation, and JAMES M. TRAVERS ("Employee"), an
individual, and amends that certain Executive Employment Agreement
("Agreement") entered into the 1st day of March, 2000, by and between the
Company and Employee. Capitalized terms used herein without definition shall
have the meanings ascribed to such terms in the Agreement. For and in
consideration of the mutual covenants described below, the parties hereby agree
as follows:
18. AMENDMENT. TThe Agreement is hereby amended by adding the following as
Section 18 of the Agreement:
18. ACCELERATION OF OPTIONS. Employee has been and in the future may be awarded
options to purchase shares of the Company's common stock ("Employee Stock
Options") pursuant to the terms of the Company's stock option plans previously,
now or hereafter in effect (collectively, the "Plans"). The following terms
shall be applicable to all Employee Stock Options. In the event of any conflict
between the following terms and an Employee Stock Option, the following terms
shall control. For purposes of this Section, "Continuous Service" means a
period of continuous performance of services by Employee for the Company, a
Parent or a Subsidiary, as determined by the Board or Committee.
A. ONGOING VESTING. Notwithstanding anything herein or in any Employee
Stock Option to the contrary, if Employee is terminated by the Company as a
result of a Termination Without Cause, then for purposes of subsection (a) of
this Section 18 and the Employee Stock Options, the Employee Stock Options
shall continue to vest over time as if Employee was in Continuous Service
during such time.
B. ACCELERATION. Notwithstanding this Section 18 or anything in an
Employee Stock Option to the contrary, the Employee Stock Options shall be
deemed accelerated, fully vested and fully exercisable in the event of a Change
in Control (defined below) as long as such acceleration and vesting does not
adversely impact the availability of pooling of interests accounting treatment,
as such determination is made by the Board in its reasonable discretion.
C. CHANGE IN CONTROL. A "Change in Control" shall be conclusively deemed
to have occurred if (and only if) any of the following shall have taken place:
(i) a change in control is reported by the Company in response to either Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended ("Exchange Act"), or Item 1 of Form 8-K
promulgated under the Exchange Act; (ii) any person (as such term is used in
Section 13(d) and 14(d)(2) of the Exchange Act) is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly,
of securities of the Company representing forty percent (40%) or more of the
combined voting power of the Company's then outstanding securities; or (iii)
following the election or removal of directors, a majority of the Board
consists of individuals who were not members of the Board two years before such
election or removal, unless the election of each director who was not a
director at the beginning of such two-year period has been approved in advance
by directors representing at least a majority of the directors then in office
who were directors at the beginning of the two-year period.
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have executed this Amendment and
affixed their hands and seals effective as of the date first above written.
COMPANY: HARBINGER CORPORATION EMPLOYEE: JAMES M. TRAVERS
By: /s/ Loren B. Wimpfheimer
--------------------------- Signature: /s/ James M. Travers
-----------------------
Title: Vice President
------------------------
Date: March 13, 2000
Date: March 13, 2000
Address: 1277 Lenox Park Boulevard Address: 1014 Kettering Place
Atlanta, Georgia 30319 Alpharetta, Georgia 30022
<PAGE> 1
EXHIBIT 10.9
COMPOSITE COPY INCLUDING THE
FIRST, SECOND, THIRD, FOURTH AND
FIFTH AMENDMENT, EFFECTIVE APRIL 30, 1999
HARBINGER CORPORATION
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
FOR NONEMPLOYEE DIRECTORS
SECTION 1. PURPOSE. The purpose of the Amended and Restated 1993 Stock
Option Plan for Nonemployee Directors (the "Plan") of Harbinger Corporation
(the "Company") is to promote the interests of the Company and its shareholders
by strengthening the Company's ability to attract and retain the services of
experienced and knowledgeable nonemployee directors by encouraging such
directors to acquire an increased proprietary interest in the Company.
SECTION 2. SHARES SUBJECT TO THE PLAN. Subject to adjustment as
provided in Section 6, the total number of shares of $.0001 par value common
stock (the "Common Stock") of the Company for which options may be granted
under the Plan (the "Shares") shall be 350,000 less the number of Shares of
Common Stock issuable pursuant to options granted under the Restated 1992 Stock
Option Plan for Nonemployee Directors. The Shares shall be shares currently
authorized but unissued or currently held or subsequently acquired by the
Company as treasury shares, including shares purchased in the open market or in
private transactions. If any option granted under the Plan expires or
terminates for any reason without having been exercised in full, the Shares
subject to, but not delivered under, such option may become available for the
grant of other options under the Plan.
SECTION 3. PARTICIPATION IN THE PLAN. Each member (a "Director") of
the Company's Board of Directors (the "Board") or the Board of Directors of any
subsidiary who is not otherwise an employee or officer of the Company or any
subsidiary of the Company shall be eligible to participate in the Plan (an
"Eligible Director"); provided, however, that as long as Westinghouse
Communications, Inc. or its permitted assigns is entitled to designate one or
more members of the Board of Directors, any director so designated shall not be
eligible to participate in the Plan. For purposes of this Plan, the term
"subsidiary" means any corporation, fifty percent (50%) or more of the voting
stock of which is owned by the Company or by a subsidiary (as so defined) of
the Company. An Eligible Director to whom an option is granted is sometimes
referred to as an Optionee.
SECTION 4. NONQUALIFIED STOCK OPTIONS. All options granted under the
Plan shall be nonqualified options not intended to qualify under Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
SECTION 5. OPTION TERMS. Each option granted to an Eligible
Director under the Plan and the issuance of Shares thereunder shall be subject
to the terms of this Section 5:
5.1 OPTION AGREEMENTS. Each option granted under the Plan shall be
evidenced by a Stock Option Agreement and Option Grant in the form attached
hereto as Exhibit "A" (an "Option Agreement") duly executed on behalf of the
Company and by the Eligible Director to whom such option is granted and dated
as of the applicable date of grant. Each Option Agreement shall be signed on
behalf of the Company by an officer or officers delegated such authority by the
Board using either manual or facsimile signature. Each Option Agreement shall
comply with and be subject to the terms and conditions of the Plan. Any Option
Agreement may contain such other terms, provisions and conditions not
inconsistent with the Plan as may be determined by the Board.
<PAGE> 2
5.2 OPTION GRANT SIZE AND GRANT DATES.
5.2.1 ANNUAL GRANTS. An option to purchase 15,000 Shares of
Common Stock (as adjusted pursuant to Section 6) shall automatically be granted
to each Eligible Director on the date of, and at a time which shall be
immediately following, the Annual Meeting at which this Plan is approved by the
stockholders of the Company (an "Annual Grant"). Subsequent Options, each for
15,000 Shares of Common Stock (as adjusted pursuant to Section 6), shall be
granted to each Eligible Director on the date of, and at a time which shall be
immediately following, every succeeding Annual Meeting of the stockholders
(also an "Annual Grant"). For purposes of this Plan, "Annual Meeting" means the
annual meeting of the Company's stockholders as described in the Company's
Bylaws and as determined by the Chief Executive Officer of the Company.
Subsequent options shall automatically be granted hereunder at each Annual
Meeting until the Shares available for grant hereunder shall no longer be
sufficient to grant each Eligible Director an option for the number of Shares
determined according to this Section 5.2.1, at which time the Shares remaining
available for grant shall be allocated proportionately among the Eligible
Directors entitled to the next following Annual Grant. Eligible Directors shall
not be entitled to any payment of cash hereunder in lieu of receiving options.
5.2.2 INTERIM GRANTS. Each Eligible Director who is first
appointed or elected to the Board and attends a regular quarterly meeting of
the Board which occurs at a time other than at an Annual Meeting shall be
granted an option ("Interim Grant") to purchase a number of Shares of Common
Stock equal to the product of (a) 15,000 (as adjusted pursuant to Section 6)
and (b) a fraction, the numerator of which shall be the number of regular
quarterly directors' meetings expected by the Chief Executive Officer of the
Company to occur between the date that such Eligible Director is appointed or
elected to the Board and the first Annual Meeting following such appointment or
election, and the denominator of which is four. Annual Meetings and regular
quarterly Directors' meetings shall be scheduled according to the Company's
Bylaws, applicable law, and Company policy and shall be designated by the Chief
Executive Officer of the Company.
5.3 OPTION EXERCISE PRICE. The option exercise price per share for an
Annual or Interim Grant shall be the Fair Market Value (as hereinafter defined)
on the date of grant. Such "Fair Market Value" shall be determined by the Board
on the basis of the reported closing sales price on such date or, in the
absence of a reported closing sales price on such date, on the basis of the
average of reported closing bid and asked prices on such date. In the absence
of either a reported closing sales price or reported bid and asked prices, the
Board shall determine such market value on the basis of the best available
evidence.
5.4 VESTING; EXERCISABILITY. Each option shall be fully vested and
exercisable on its grant date. Such vesting shall be uniform for all Eligible
Directors under the Plan and is more fully set out in Section 2 of the Option
Agreement.
5.5 TIME AND MANNER OF OPTION EXERCISE. Any vested and exercisable
option is exercisable in whole or in part (in whole Shares and in lots of not
less than one hundred (100) Shares) at any time or from time to time during the
period the option, by its terms, may be exercised by giving written notice,
signed by the person exercising the option, to the Company stating the number
of Shares with respect to which the option is being exercised, accompanied by
payment in full of the option exercise price for the number of Shares to be
purchased. The date both such notice and payment are received by the office of
the Secretary of the Company shall be the date of exercise of the stock option
as to such number of Shares. No option may at any time be exercised with
respect to a fractional share.
5.6 PAYMENT OF EXERCISE PRICE. Payment of the option exercise price
may be in cash or by bank-certified, cashier's, or personal check.
5.7 TERM OF OPTIONS. Each option granted under the Plan shall set
forth a termination date thereof, which date shall be not later than seven (7)
years from the date such option is granted. In any event, all options shall
terminate and expire upon the first to occur of the following events:
(a) the expiration of (I) thirty (30) days from the date of
an Optionee's termination of service as a Director of the Company or
any of its subsidiaries; or, (ii) if an Optionee is disabled (within
the meaning of Section 22(e)(3) of the Code), the expiration of one
(1) year from the date of such Optionee's termination of service as a
Director; or
<PAGE> 3
(b) the termination of the option pursuant to Section 6
hereof.
The termination of service as a Director by an Optionee by death or
otherwise shall not accelerate or otherwise affect the number of Shares with
respect to which an option may be exercised, and such option may only be
exercised with respect to that number of Shares which could have been purchased
under the option had the option been exercised by the Optionee the date of such
termination. Exercise of a deceased Optionee's options that have not terminated
shall be by the estate of such Optionee or by a person or persons whom the
Optionee has designated in writing filed with the Company or, if no such
designation has been made, by the person or persons to whom the Optionee's
rights have passed by will or by the laws of descent and distribution.
5.8 TRANSFERABILITY. The right of any Optionee to exercise an option
granted under the Plan shall, during the lifetime of such Optionee, be
exercisable only by such Optionee or by a person who obtained such option
pursuant to a qualified domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act, as amended, and the
rules thereunder (a "QDRO"), and shall not be assignable or transferable by
such Optionee other than by will or the laws of descent and distribution or a
QDRO unless otherwise determined by the Board.
5.9 LIMITATION OF RIGHTS.
5.9.1 LIMITATION AS TO SHARES. Neither the recipient of an
option under the Plan nor an Optionee's successor or successors in interest
shall have any rights as a shareholder of the Company with respect to any
Shares subject to an option granted to such person until the date of issuance
of a stock certificate for such Shares.
5.9.2 LIMITATION AS TO DIRECTORSHIP. Neither the Plan, nor
the granting of an option, nor any other action taken pursuant to the Plan
shall constitute or be evidence of any agreement or understanding, express or
implied, that an Eligible Director has a right to continue as a Director for
any period of time or at any particular rate of compensation.
5.10 REGULATORY APPROVAL AND COMPLIANCE. The Company shall not be
required to issue any certificate or certificates for Shares upon the exercise
of an option granted under the Plan or to record as a holder of record of
Shares the name of the individual exercising an option under the Plan, without
obtaining to the complete satisfaction of the Board the approval of all
regulatory bodies deemed necessary by the Board and without complying, to the
Board's complete satisfaction, with all rules and regulations under federal,
state, or local law deemed applicable by the Board.
SECTION 6. STOCK ADJUSTMENTS; MERGERS. If the Shares of Common Stock
outstanding are increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or of any
other corporation by reason of any merger, sale of stock, consolidation,
liquidation, recapitalization, reclassification, stock split, combination of
shares, or stock dividend, then the total number of Shares set forth in Section
2 shall be proportionately and appropriately adjusted by the Board, but only to
the extent necessary to reflect changes in outstanding options. If the Company
continues in existence, the number and kind of shares that are subject to any
option and the option price per share shall be proportionately and
appropriately adjusted without any change in the aggregate price to be paid
therefor upon exercise of the option. If the Company will not remain in
existence or substantially all of its Common Stock will be purchased by a
single purchaser or group of purchasers acting together, then the Board may (i)
declare that all options shall terminate thirty (30) days after the Board gives
written notice to all Optionees of their immediate right to exercise all
options then outstanding and vested pursuant to the vesting provisions of said
options and of Section 5.4 of the Plan, or (ii) notify all Optionees that all
options granted under the Plan shall apply with appropriate adjustments as
determined by the Board to the securities of the successor corporation to which
holders of the numbers of Shares subject to such options would have been
entitled, or (iii) some combination of aspects of (i) and (ii). The
determination by the Board as to the terms of any adjustments shall be
conclusive and binding. Any fractional shares resulting from any of the
foregoing adjustments under this Section shall be disregarded and eliminated.
<PAGE> 4
SECTION 7. EXPENSES OF THE PLAN. All costs and expenses of the
adoption and administration of the Plan shall be borne by the Company, and none
of such expenses shall be charged to any Optionee.
SECTION 8. EFFECTIVE DATE AND DURATION OF THE PLAN. The Plan shall be
effective as of April 30, 1993, subject to approval by the Company's Board of
Directors. The Plan shall continue in effect until April 29, 2003, unless
sooner terminated by action of the Board or the Company's shareholders, but
such termination shall not affect the terms of any then-outstanding options.
SECTION 9. TERMINATION AND AMENDMENT OF THE PLAN. The Board may amend,
terminate or suspend the Plan at any time, in its sole and absolute discretion;
provided, however, that if required to qualify the Plan under Rule 16b-3
promulgated under Section 16 of the Exchange Act, no amendment shall be made
more than once every six months that would change the amount, price or timing
of the Annual and Interim Grants, other than to comport with changes in the
Code, or the rules and regulations promulgated thereunder; and provided,
further, that if required to qualify the Plan under Rule 16b-3 promulgated
under Section 16 of the Exchange Act, no amendment that would (a) materially
increase the number of Shares that may be issued under the Plan, (b) materially
modify the requirements as to eligibility for participation in the Plan, or (c)
otherwise materially increase the benefits accruing to participants under the
Plan, shall be made without the approval of the Company's shareholders.
SECTION 10. INTERPRETATION. This Plan has been prepared with the
intent that participation in the Plan by Eligible Directors will enable such
persons to be classified as "disinterested persons" under Rule 16b-3
promulgated under Section 16 of the Securities and Exchange Act of 1934, as
amended and its provisions shall be construed to fulfill that purpose.
SECTION 11. WITHHOLDING. The exercise or surrender of any option
granted under this Plan shall constitute Optionee's full and complete consent
to whatever action the Board directs to satisfy the federal and state tax
withholding requirements, if any, which the Board in its discretion deems
applicable to such exercise or surrender. In addition to and at the time of
payment of the option price, Optionee shall pay to the Company in cash the full
amount of any federal, state and local income, employment or other taxes
required to be withheld from the income of such Optionee as a result of such
exercise. Notwithstanding the above, in the discretion of the Board, any Option
Agreement may provide that all or any portion of such tax obligations, together
with additional taxes not exceeding the actual additional taxes to be owed by
Optionee as a result of such exercise, may, upon the irrevocable election of
Optionee, be paid by tendering to the Company whole Shares of Common Stock duly
endorsed for transfer and owned by Optionee, or by authorizing the Company to
withhold Shares of Common Stock otherwise issuable upon exercise of the option.
Payment of the tax amount by tender or withholding shall be made by tender or
withholding of that number of Shares having a Fair Market Value on the date of
exercise equal to the amount of such taxes thereby being paid. In all cases,
payment of the tax amount by tender or withholding shall be subject to such
restrictions as the Board may from time to time determine, including any such
restrictions as may be necessary or appropriate to satisfy the conditions of
the exemption set forth in Rule 16b-3 under the Exchange Act.
<PAGE> 5
HARBINGER CORPORATION
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
FOR NONEMPLOYEE DIRECTORS
EXHIBIT "A"
STOCK OPTION AGREEMENT AND OPTION GRANT
[SEE ATTACHED]
<PAGE> 6
EXHIBIT A
STOCK OPTION AGREEMENT
AND
OPTION GRANT
HARBINGER CORPORATION
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
FOR NONEMPLOYEE DIRECTORS
THIS STOCK OPTION AGREEMENT (the "Option Agreement") is made and
entered into as of the date set forth below, by and between HARBINGER
CORPORATION (hereinafter called the "Company"), a corporation organized and
existing under the laws of the State of Georgia, and the undersigned, an
individual resident of the state designated below (hereinafter called
"Optionee").
The Company has adopted the "Harbinger Corporation Amended and
Restated 1993 Stock Option Plan for Nonemployee Directors" (the "Plan"). The
Plan was amended on April 30, 1999 to provide for immediate vesting of option.
This Option Agreement is being made pursuant to the Plan and capitalized terms
used herein shall have the same meanings as those terms have in the Plan unless
the context in which these terms are used herein requires otherwise or the
terms are otherwise defined herein. The date of the grant of the option under
this Option Agreement is as of the date specified below (the "Option Date").
1. GRANT OF OPTION. The Company hereby grants to Optionee an option to
purchase the number of shares of $.0001 par value Common Stock of the Company
(the "Shares") designated below ("Option Shares"). Any portion of the option
not exercised by Optionee as provided herein will expire on the seventh
anniversary of the Option Date unless sooner terminated as provided herein. The
stock issued on the exercise of this option, when paid for as herein provided,
will be fully paid and nonassessable.
2. EXERCISE OF OPTION. This option is fully vested and may be exercised
only during the period beginning on the Option Date and ending on the seventh
anniversary date hereof (the "Term") described below.
The terms contained in the Plan are incorporated into and made a part
of this Option Agreement, and this Option Agreement shall be governed by and
construed in accordance with the Plan. A "regular quarterly meeting" shall
refer to a regular meeting (including an Annual Meeting or a special meeting
held in lieu of a regular meeting) of the Board held on a quarterly basis, as
determined by the Chief Executive Officer of the Company.
Each exercise of the option shall be by written notice in the form of
an exercise agreement provided by the Board to the President or principal
financial officer of the Company at its principal place of business,
accompanied by payment in cash, by bank-certified, cashier's or personal check
in the amount of the purchase price for the number of the Shares purchased. The
date of each exercise of this option shall be the date upon which the notice is
received by the appropriate officer.
The Company shall not be obligated to sell or issue any Shares
pursuant to the option unless the issuance of such Shares is at that time
effectively registered or exempt from registration under the Securities Act of
1933, as amended, and any other applicable securities laws. In connection
therewith, the Company may require from Optionee at the time of exercise
reasonable representations and warranties with respect to the investment intent
of Optionee and Optionee's status as an investor in the Shares in order to
qualify for exemptions from registration under state or federal securities
laws.
Within a reasonable time after receipt of the notice of exercise, the
Company will take steps to ascertain compliance with this Option Agreement. The
Company shall then cause certificates representing the Shares for the option
exercised to be delivered as soon as reasonably possible, provided, however,
that if any law, regulation, or agreement requires the Company to take action
with respect to the Shares purchased prior to issuance, the date of issuance of
the Shares shall be extended for the period necessary to take such action and
comply with such law, regulation or agreement.
<PAGE> 7
3. ADMINISTRATION. This Agreement shall be administered, construed and
interpreted by the Board with reference to the terms, conditions, and
interpretive provisions of the Plan.
4. PURCHASE PRICE. The purchase price per Option Share shall be as
designated below ("Exercise Price"), which is equal to or greater than 100% of
the fair market value of a share of Common Stock as of the Option Date.
5. TERMINATION OF SERVICE OR DEATH. In the event Optionee, during his
or her life, ceases to be an Eligible Director for any reason, any unexercised
portion of the option shall terminate one (1) year after termination of
Optionee's status as an Eligible Director due to disability (within the meaning
of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) and
thirty (30) days after the termination of Optionee's status as an Eligible
Director for any other reason, but in no event after the expiration of the term
of the option.
In the event of the death of Optionee while Optionee is an Eligible
Director, but before the expiration of this option, the personal
representatives, heirs or legatees of Optionee may exercise the option held by
Optionee on the date of Optionee's death. The personal representatives, heirs
or legatees must exercise any such option within thirty (30) days after the
date of the death of Optionee and in any event prior to the date of expiration
of the option, and such exercise otherwise shall be subject to the terms and
conditions of this Option Agreement and the Plan.
6. NO RIGHTS IN OPTION SHARES. Optionee shall have no rights as a
shareholder in respect of Shares covered by this Option Agreement until the
date of issuance of the Shares to him or her and only after the Shares are
fully paid. Optionee shall have no rights with respect to such Shares not
expressly conferred by this Option Agreement.
7. NONASSIGNABILITY. This option shall not be encumbered or
transferred in whole or in part except by will or the laws of descent and
distribution, and is exercisable during the lifetime of Optionee only by him or
her, except as expressly permitted by the Board.
In consideration for the grant of this option, Optionee promises to
use his or her best efforts in furtherance of the Company's business and
prospects and in the exercise of his or her duties as a member of the Board of
Directors of the Company.
<PAGE> 8
IN WITNESS WHEREOF, the parties hereunto have set their hands and
seals as of the Option Date set forth below.
Option Date: HARBINGER CORPORATION
-----------------------
Option Shares:
----------------------- By:
Exercise Price: ------------------------------------
----------------------- Title:
Check One: Annual Grant ---------------------------------
----------
Interim Grant
----------
OPTIONEE
Address:
------------------------------
------------------------------
------------------------------
State of Residence:
-------------------
<PAGE> 9
HARBINGER CORPORATION
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
FOR NONEMPLOYEE DIRECTORS
EXHIBIT "B"
STOCK OPTION AGREEMENT AND OPTION GRANT
[SEE ATTACHED]
<PAGE> 10
EXHIBIT B
STOCK OPTION AGREEMENT
AND
OPTION GRANT
HARBINGER CORPORATION
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
FOR (DUTCH) NONEMPLOYEE DIRECTORS
THIS STOCK OPTION AGREEMENT (the "Option Agreement") is made and
entered into as of the date set forth below, by and between HARBINGER
CORPORATION (hereinafter called the "Company"), a corporation organized and
existing under the laws of the State of Georgia, and the undersigned, an
individual resident of the state designated below (hereinafter called
"Optionee").
The Company has adopted the Harbinger Corporation Amended and Restated
1993 Stock Option Plan for Nonemployee Directors (the "Plan"). The Plan was
amended on April 30, 1999 to provide for immediate vesting of options. This
Option Agreement is being made pursuant to the Plan and capitalized terms used
herein shall have the same meanings as those terms have in the Plan unless the
context in which these terms are used herein requires otherwise or the terms
are otherwise defined herein. The date of the grant of the option under this
Option Agreement is as of the date specified below (the "Option Date").
1. GRANT OF OPTION. The Company hereby grants to Optionee an option to
purchase the number of shares of $.0001 par value Common Stock of the Company
(the "Shares") designated below ("Option Shares"). Any portion of the option
not exercised by Optionee as provided herein will expire on the day prior to
the fifth anniversary of the Option Date unless sooner terminated as provided
herein. The stock issued on the exercise of this option, when paid for as
herein provided, will be fully paid and nonassessable.
2. EXERCISE OF OPTION. This option is fully vested and may be
exercised only during the period beginning on the Option Date and ending on the
day prior to the fifth anniversary date hereof (the "Term") described below.
The terms contained in the Plan are incorporated into and made a part
of this Option Agreement, and this Option Agreement shall be governed by and
construed in accordance with the Plan. A "regular quarterly meeting" shall
refer to a regular meeting (including an Annual Meeting or a special meeting
held in lieu of a regular meeting) of the Board held on a quarterly basis, as
determined by the Chief Executive Officer of the Company.
Each exercise of the option shall be by written notice in the form of
an exercise agreement provided by the Board to the President or principal
financial officer of the Company at its principal place of business,
accompanied by payment in cash, by bank-certified, cashier's or personal check
in the amount of the purchase price for the number of the Shares purchased. The
date of each exercise of this option shall be the date upon which the notice is
received by the appropriate officer.
The Company shall not be obligated to sell or issue any Shares
pursuant to the option unless the issuance of such Shares is at that time
effectively registered or exempt from registration under the Securities Act of
1933, as amended, and any other applicable securities laws. In connection
therewith, the Company may require from Optionee at the time of exercise
reasonable representations and warranties with respect to the investment intent
of Optionee and Optionee's status as an investor in the Shares in order to
qualify for exemptions from registration under state or federal securities
laws.
Within a reasonable time after receipt of the notice of exercise, the
Company will take steps to ascertain compliance with this Option Agreement. The
Company shall then cause certificates representing the Shares for the option
exercised to be delivered as soon as reasonably possible, provided, however,
that if any law, regulation, or agreement requires the Company to take action
with respect to the Shares purchased prior to issuance, the date of issuance of
the Shares shall be extended for the period necessary to take such action and
comply with such law, regulation or agreement.
<PAGE> 11
3. ADMINISTRATION. This Agreement shall be administered, construed and
interpreted by the Board with reference to the terms, conditions, and
interpretive provisions of the Plan.
4. PURCHASE PRICE. The purchase price per Option Share shall be as
designated below ("Exercise Price"), which is equal to or greater than 100% of
the fair market value of a share of Common Stock as of the Option Date.
5. TERMINATION OF SERVICE OR DEATH. In the event Optionee, during his
or her life, ceases to be an Eligible Director for any reason, any unexercised
portion of the option shall terminate one (1) year after termination of
Optionee's status as an Eligible Director due to disability (within the meaning
of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) and
thirty (30) days after the termination of Optionee's status as an Eligible
Director for any other reason, but in no event after the expiration of the term
of the option.
In the event of the death of Optionee while Optionee is an Eligible
Director, but before the expiration of this option, the personal
representatives, heirs or legatees of Optionee may exercise the option held by
Optionee. The personal representatives, heirs or legatees must exercise any
such option within thirty (30) days after the date of the death of Optionee and
in any event prior to the date of expiration of the option, and such exercise
otherwise shall be subject to the terms and conditions of this Option Agreement
and the Plan. 6. NO RIGHTS IN OPTION SHARES. Optionee shall have no rights as a
shareholder in respect of Shares covered by this Option Agreement until the
date of issuance of the Shares to him or her and only after the Shares are
fully paid. Optionee shall have no rights with respect to such Shares not
expressly conferred by this Option Agreement.
7. NONASSIGNABILITY. This option shall not be encumbered or
transferred in whole or in part except by will or the laws of descent and
distribution, and is exercisable during the lifetime of Optionee only by him or
her, except as expressly permitted by the Board.
In consideration for the grant of this option, Optionee promises to
use his or her best efforts in furtherance of the Company's business and
prospects and in the exercise of his or her duties as a member of the Board of
Directors of the Company.
<PAGE> 12
IN WITNESS WHEREOF, the parties hereunto have set their hands and
seals as of the Option Date set forth below.
Option Date: HARBINGER CORPORATION
---------------------------
Option Shares:
--------------------------- By:
Exercise Price: -------------------------------
--------------------------- Title:
Check One: Annual Grant ----------------------------
-----------
Interim Grant
-----------
OPTIONEE
----------------------------------
Address:
--------------------------
--------------------------
--------------------------
State of Residence:
---------------
<PAGE> 1
EXHIBIT 10.10
COMPOSITE COPY INCLUDING THE
FIRST, SECOND, THIRD AND
FOURTH AMENDMENTS, EFFECTIVE MAY 1, 1999
HARBINGER CORPORATION
1996 STOCK OPTION PLAN
SECTION 1.
PURPOSE
The purpose of this stock option plan is to (i) promote the interests
of the Company and its stockholders by attracting and retaining the services of
experienced and knowledgeable Directors, Key Employees and Consultants who have
rendered valuable services to the Company, (ii) provide additional incentives to
Key Employees to increase the value of the Company's Shares, and (iii) provide
the Key Employees, Consultants and Directors with a stake in the future of the
Company which corresponds to the stake of each of the Company's shareholders.
SECTION 2.
DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of this Plan and, for purposes of such
definitions, the singular shall include the plural and the plural shall include
the singular, and reference to one gender shall include the other gender.
2.1 BOARD means the Board of Directors of the Company.
2.2 CODE means the Internal Revenue Code of 1986, as amended.
2.3 COMMITTEE means the committee of the Board appointed pursuant
to Section 5.
2.4 COMMON STOCK means the common stock, $.0001 par value per
share, of the Company, and shall also mean any other stock or securities
(including any other share or securities of an entity other than the Company)
for or into which the outstanding shares of such stock are hereafter exchanged
or changed.
2.5 COMPANY means Harbinger Corporation, a Georgia corporation,
and any successor to such organization.
2.6 CONSULTANT means a consultant of the Company who has rendered
valuable service to the Company and who is not a Key Employee.
2.7 DIRECTOR means a Member of the Board, or a Member of the Board
of Directors of a Parent or Subsidiary, who is not a Key Employee.
2.8 EXERCISE PRICE means the price which, under the terms of an
Option Agreement, is required to be paid to purchase one (1) Share upon the
exercise of an Option granted under this Plan.
2.9 EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended.
2.10 FAIR MARKET VALUE of each Share on any date shall mean the
price determined below on the last business day immediately preceding the date
of valuation:
<PAGE> 2
(a) The closing sales price per Share, regular way, or in
the absence thereof, the mean of the last reported bid and asked quotations, on
such date on the exchange having the greatest volume of trading in the Shares
during the thirty-day period preceding such date (or, if such exchange was not
open for trading on such date, the next preceding date on which it was open); or
(b) If there is no price as specified in (a), the final
reported sales price per Share, or if not reported, the mean of the closing high
bid and low asked prices, in the over-the-counter market for the Shares as
reported by the National Association of Securities Dealers Automatic Quotation
System, or if not so reported, then as reported by the National Quotation Bureau
Incorporated, or if such organization is not in existence, by an organization
providing similar services, on such date (or, if such date is not a date for
which such system or organization generally provides reports, then on the next
preceding date for which it does so); or
(c) If there also is no price as specified in (b), the
price per Share determined by the Committee by reference to bid-and-asked
quotations for the Shares provided by members of an association of brokers and
dealers registered pursuant to Subsection 15(b) of the Exchange Act, which
members make a market in the Shares, for such recent dates as the Committee
shall determine to be appropriate for fairly determining current market value;
or
(d) If there also is no price as specified in (c), an
amount per Share determined in good faith by the Committee based on such
relevant facts, which may include opinions of independent experts, as may be
available to the Committee.
2.11 ISO means an option granted under this Plan to purchase Shares
which is intended by the Company to satisfy the requirements of Code Section 422
as an incentive stock option.
2.12 KEY EMPLOYEE means any person, including officers and
directors, in the regular employment of the Company, or a Subsidiary or a
Parent, who is designated a Key Employee by the Committee and is, or is expected
to be, primarily responsible for the management, growth, or supervision of some
part or all of the business of the Company, a Subsidiary or a Parent. The power
to determine who is a Key Employee is reserved solely for the Committee.
2.13 NQSO means an option granted under this Plan to purchase
Shares which is not intended by the Company to be an incentive stock option
satisfying the requirements of Code Section 422.
2.14 OPTION means an ISO or a NQSO.
2.15 OPTION AGREEMENT means the written agreement or instrument
which sets forth the terms of an Option granted to a Consultant, Director or Key
Employee under this Plan.
2.16 OPTIONEE means the grantee of an Option.
2.17 PARENT means any corporation (other than the Company),
partnership or other entity in an unbroken chain of corporations, partnerships
or other entities ending with the Company if, at the relevant time, each of the
corporations (other than the Company), partnerships or other entities owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations, partnership or other entities
in such chain.
2.18 PLAN means the Harbinger Corporation 1996 Stock Option Plan,
as amended from time to time.
2.19 PRIOR PLAN means the Harbinger Corporation Amended and
Restated 1989 Stock Option Plan.
2.20 PRIOR PLAN SHARES means the number of Shares reserved under
the Prior Plan for issuance upon the exercise of options granted under the Prior
Plan, minus (a) the number of Shares actually issued
<PAGE> 3
upon exercise of such options, and (b) the number of Shares subject to
outstanding options granted under the Prior Plan. The number of Prior Plan
Shares shall be increased by the number of Shares subject to options granted
under the Prior Plan which terminate, expire or are canceled. Notwithstanding
the above, the number of Prior Plan Shares shall not exceed 995,206.
2.21 SHARE means one (1) share of Common Stock.
2.22 STOCK APPRECIATION RIGHT means a stock appreciation right as
described in Section 9.
2.23 SUBSIDIARY means any corporation (other than the Company),
partnership or other entity in an unbroken chain of corporations, partnerships
or other entities beginning with the Company if, at the relevant time, each of
the corporations, partnerships or other entities, other than the last
corporation in the unbroken chain, owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations, partnerships or other entities in such chain. The term
"Subsidiary" shall include Harbinger NET Services, LLC for all purposes under
this Plan.
2.24 SURRENDERED SHARES means the Shares described in Section 8
which (in lieu of being purchased) are surrendered for cash or Shares, or for a
combination of cash and Shares, in accordance with Section 8.
2.25 TEN PERCENT SHAREHOLDER means a person who owns (after taking
into account the attribution rules of Code Section 424(d)) more than ten percent
(10%) of the total combined voting power of all classes of shares of either the
Company, a Subsidiary or a Parent.
SECTION 3.
SHARES SUBJECT TO OPTIONS
3.1 SHARES RESERVED FOR ISSUANCE. Subject to any antidilution
adjustment pursuant to Section 3.2, the maximum number of Shares that may be
subject to Options granted hereunder shall not exceed 8,737,000, plus the number
of Prior Plan Shares; provided, however, the maximum number of shares with
respect to which Options may be granted to any individual grantee in any
calendar year shall be 1,000,000. Shares issued pursuant to the exercise of an
Option may be either authorized and unissued Shares or Shares issued and
subsequently acquired by the Company. The Shares covered by any unexercised
portion of an Option that has terminated for any reason (except as may be
adjusted under Section 3.2 below) may again be optioned or awarded under the
Plan, and such Shares shall not be considered as having been optioned or issued
in computing the number of Shares remaining available to be subject to Options
granted hereunder.
3.2 ANTIDILUTION.
(a) In the event that the outstanding Shares are changed
into or exchanged for a different number or kind or shares or other securities
of the Company by reason of merger, consolidation, reorganization,
recapitalization, reclassification, combination or exchange of shares, stock
split or stock dividend, or in the event that any spin-off, spin-out or other
distribution of assets materially affects the price of the Company's stock:
(i) The aggregate number and kind of Shares for
which Options may be granted hereunder shall be adjusted proportionately by the
Committee;
(ii) The number of Shares subject to each
outstanding Option, and the Exercise Price of each such outstanding Option,
shall be adjusted proportionately by the Committee; and
(iii) The number and kind of Stock Appreciation
Rights shall be adjusted as the Committee deems appropriate in the
circumstances.
<PAGE> 4
(b) If the Company shall be a party to any reorganization
in which it does not survive, involving a merger, consolidation, or acquisition
of the stock or substantially all of the assets of the Company, the Committee,
in its discretion, may:
(i) Notwithstanding other provisions hereof,
declare that all Options and Stock Appreciation Rights granted under the Plan
shall become exercisable immediately notwithstanding the provisions of the
respective Option Agreements or Stock Appreciation Rights agreements regarding
exercisability, and that all such Options shall terminate a specified period of
time after the Committee gives written notice of the immediate right to exercise
all such Options and of the decision to terminate all Options not exercised
within such period; and/or
(ii) Notify all Grantees that all Options and
Stock Appreciation Rights granted under the Plan shall be assumed by the
successor corporation or substituted on an equitable basis with options or
restricted stock issued by the successor corporation.
(c) If the Company is to be liquidated or dissolved in
connection with a reorganization described in Section 3.2(b), the provisions of
such Section shall apply. In all other instances, the adoption of a plan of
dissolution or liquidation of the Company shall, notwithstanding any other
provisions hereof, cause all then remaining unvested Shares subject to Options
and all remaining Stock Appreciation Rights under the Plan to vest, and shall
cause every outstanding Option and Stock Appreciation Right under the Plan to
terminate to the extent not exercised prior to the adoption of the plan of
dissolution or liquidation by the stockholders, provided that, notwithstanding
other provisions hereof, the Committee may declare all Options granted under the
Plan to be exercisable at any time on or before the fifth business day following
such adoption, notwithstanding the provisions of the respective Option
Agreements or Stock Appreciation Rights agreements regarding exercisability.
(d) The adjustments described in Subsections (a) through
(c) of this Section 3.2, and the manner of their application, shall be
determined solely by the Committee, and any such adjustment may provide for the
elimination or redemption of fractional share interests. The adjustments
required under this Section 3 shall apply to any successors of the Company and
shall be made regardless of the number or type of successive events requiring
such adjustments.
SECTION 4.
EFFECTIVE DATE AND DURATION OF PLAN
The effective date of this Plan shall be the date it is adopted by the
Board, provided the shareholders of the Company approve this Plan within twelve
(12) months after such effective date. If such effective date comes before such
shareholder approval, any Options granted under this Plan before the date of
such approval shall automatically be granted subject to such approval. The Plan
shall continue in effect until it is terminated by action of the Board or the
Company's shareholders, but such termination shall not affect the terms of any
outstanding Options.
SECTION 5.
COMMITTEE
This Plan shall be administered by the Committee, which shall consist
of three (3) or more directors appointed by the Board, each of whom is an
"outside director" within the meaning of Section 162(m) of the Code and is not
while a member of the Committee, or was not during the one (1) year prior to
serving as a member of the Committee, eligible to receive equity securities of
the Company, or any affiliate of the Company, pursuant to this Plan, the Prior
Plan, or any other plan of the Company or any affiliate of the Company, except
as may be permitted under Section 16(b)(3) of the Exchange Act. The Committee
acting in its absolute discretion shall exercise such powers and take such
action as expressly called for under this Plan and, further, the Committee shall
have the power to interpret this Plan and (subject to Section 11) to take such
other action in the administration and operation of this Plan as the Committee
deems equitable under the circumstances, which action shall be binding on the
Company, on each affected Consultant, Director or Key Employee and on each other
person directly or indirectly affected by such action. Notwithstanding anything
else to the contrary
<PAGE> 5
herein, the Board shall have the authority to assume the powers and
responsibilities outlined above with respect to the Committee, in whole or in
part.
SECTION 6.
ELIGIBILITY
Except as provided below, only Consultants, Directors and Key Employees
shall be eligible for the grant of Options under this Plan, but no Consultant,
Director or Key Employee shall have the right to be granted an Option under this
Plan merely as a result of his or her status as a Consultant, Director or Key
Employee. Key Employees shall be eligible for the grant of ISO's under this
Plan. Consultants and Directors shall not be eligible for the grant of ISO's
under this Plan.
SECTION 7.
TERMS AND CONDITIONS OF OPTIONS
7.1 GRANTS OF OPTIONS.
(a) AWARDS. In accord with the procedure established by
the Board, the Committee in its absolute discretion shall grant Options under
this Plan from time to time to purchase Shares and, further, shall have the
right to grant new Options in exchange for outstanding Options. Such Options
shall be granted to Consultants, Directors or Key Employees selected by the
Committee acting in its discretion as set forth above, and the Committee shall
not be under any obligation whatsoever to grant Options to all Consultants,
Directors or Key Employees or to grant all Options subject to the same terms and
conditions. Each grant of an Option shall be evidenced by an Option Agreement,
and each Option Agreement shall:
(i) specify whether the Option is an ISO or
NQSO; and
(ii) incorporate such other terms and conditions
as the Committee acting in its absolute discretion deems consistent with the
terms of this Plan, including (without limitation) a restriction on the number
of Shares subject to the Option which first become exercisable or subject to
surrender during any calendar year.
(b) SELECTION OF GRANTEES. In determining the
Consultants, Directors or Key Employees to whom Options shall be granted and the
number of Shares to be covered by such Options, the Committee may take into
account the recommendations of the President of the Company and its other
officers, the duties of the Consultants, Directors or Key Employees, the present
and potential contributions of the Consultants, Directors or Key Employees to
the success of the Company, the anticipated number of years of service remaining
before the attainment by the Key Employees of retirement age, and other factors
deemed relevant by the Committee, in its sole discretion, in connection with
accomplishing the purpose of this Plan. A Consultant, Director or Key Employee
who has been granted an Option to purchase Shares of the Company, whether under
this Plan or otherwise, may be granted one (1) or more additional Options.
(c) DUAL GRANTS. If the Committee grants an ISO and a
NQSO to a Key Employee on the same date, the right of the Key Employee to
exercise or surrender one such Option shall not be conditioned on his or her
failure to exercise or surrender the other such Option.
7.2 EXERCISE PRICE.
(a) ISO. If an Option is an ISO, the Exercise Price for
each Share subject to such Option shall be no less than the Fair Market Value of
a Share on the date such Option is granted or, if such Option is granted to a
Ten Percent Shareholder, the Exercise Price for each Share subject to such
Option shall be no less than one hundred ten percent (110%) of the Fair Market
Value of a Share on the date such Option is granted.
<PAGE> 6
(b) NQSO. If an Option is a NQSO, the Exercise Price for
each Share shall be no less than the minimum price required by applicable state
law or by the Company's governing instrument, or $0.01, whichever price is
greater.
7.3 VESTING OF OPTIONS. Each Option granted under the Plan shall
be exercisable at such time or times, or upon the occurrence of such event or
events, and in such amounts, as the Committee shall specify in the Option
Agreement; provided, however, that subsequent to the grant of an Option, the
Committee may, at any time before complete termination of such Option,
accelerate the time or times at which such Option may be exercised in whole or
in part.
7.4 TERM OF OPTION. Each Option granted under this Plan shall be
exercisable in whole or in part at such time or times as set forth in the
related Option Agreement, but no Option Agreement shall:
(a) make an Option exercisable before the date such
Option is granted or;
(b) make an Option exercisable after the earlier of the:
(i) the date such Option is exercised in full,
or
(ii) the date which is the tenth (10th)
anniversary of the date such Option is granted, if such Option is a NQSO or an
ISO granted to a non-Ten Percent Shareholder, or the date which is the fifth
(5th) anniversary of the date such Option is granted, if such Option is an ISO
granted to a Ten Percent Shareholder.
An Option Agreement may provide for the exercise of an Option after the
employment of a Key Employee has terminated for any reason whatsoever, including
death or disability.
7.5 TIME AND MANNER OF OPTION EXERCISE. Any vested and exercisable
Option is exercisable in whole or in part (in whole Shares and in lots of not
less than one hundred (100) Shares) at any time or from time to time prior to
the expiration of an Option by giving written notice, signed by the person
exercising the Option, to the Company stating the number of Shares with respect
to which the Option is being exercised, accompanied by payment in full of the
Exercise Price for the number of Shares to be purchased. The date upon which the
Company's Secretary or Treasurer shall have received both such notice and
payment shall be the date of exercise of the Option as to the number of Shares
described by the Optionee. No Option may be exercised at any time with respect
to a fractional share. Any Option of a deceased Optionee may be exercised, to
the extent vested on such Optionee's death, by the estate of such Optionee or by
a person or persons whom the Optionee has designated in writing filed with the
Company, or, if no such designation has been made, by the person or persons to
whom the Optionee's rights have passed by will or the laws of descent and
distribution.
7.6 PAYMENT OF OPTION PRICE. Payment for all Shares purchased
pursuant to the exercise of an Option shall be made in cash or, if the Option
Agreement provides, by delivery to the Company of a number of Shares which have
been owned by the Optionee for at least six (6) months prior to the date of
exercise having an aggregate Fair Market Value on the date of delivery of not
less than the product of the Option Price multiplied by the number of Shares the
Optionee intends to purchase upon exercise of the Option. In addition, the
Option Agreement may provide for cashless exercise through a brokerage
transaction following registration of the Company's equity securities under
Section 12 of the Securities Exchange Act of 1934. Further, in the sole
discretion of the Board, an Option may be exercised as to a portion or all (as
determined by the Board) of the number of Shares specified in the Option
Agreement by delivery to the Company of a promissory note. Such promissory note
shall be executed by the Optionee and shall include, with such other terms and
conditions as the Board shall approve, provisions in a form approved by the
Board under which: (a) the balance of the aggregate purchase price shall be
payable in equal installments over such period as the Board shall approve, and
shall bear interest at a per annum rate equal to the prime rate as announced
from time to time by the Company's principal bank or, if the Company has no
principal bank, that rate announced by the Wall Street Journal as the prevailing
"prime rate" of interest per annum, and (b) the Optionee shall be personally
liable for payment of the unpaid principal balance and all accrued but unpaid
interest. Except as
<PAGE> 7
otherwise provided herein, payment shall be made at the time that the Option or
any part thereof is exercised, and no Shares shall be issued or delivered upon
exercise of an Option until full payment has been made by the Optionee. No
Optionee, as such, shall have any of the rights of a shareholder.
7.7 TRANSFERABILITY. The right of any Optionee to exercise an
Option granted under the Plan shall, during the lifetime of such Optionee, be
exercisable only by such Optionee or by a person who obtained such Option
pursuant to a qualified domestic relations order as defined by the Code, or
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or the rules thereunder (a "QDRO") and shall not be assignable or
transferable by such Optionee other than by will or by the laws of descent and
distribution or by a QDRO unless otherwise determined by the Committee.
7.8 LIMITATION OF RIGHTS.
(a) LIMITATION AS TO SHARES. Neither the recipient of an
Option under the Plan nor an Optionee's successor or successors in interest
shall have any rights as a stockholder of the Company with respect to any Shares
subject to an Option granted to such person until the date of issuance of a
stock certificate for such Shares.
(b) LIMITATION AS TO EMPLOYMENT. Neither the Plan, nor
the granting of an Option, nor any other action taken pursuant to the Plan shall
constitute or be evidence of any agreement or understanding, express or implied,
that a Consultant, Director or Key Employee has a right to continue as an
employee of the Company or in the relationship of a consultant or director with
the Company, respectively, for any period of time or at any particular rate of
compensation.
(c) REGULATORY APPROVAL AND COMPLIANCE. The Company shall
not be required to issue any certificate or certificates for Shares upon the
exercise of an Option granted under the Plan or to record as a holder of record
of Shares the name of the individual exercising an Option under the Plan,
without obtaining to the complete satisfaction of the Board the approval of all
regulatory bodies deemed necessary by the Board and without complying, to the
Board's complete satisfaction, with all rules and regulations under federal,
state, or local law deemed applicable by the Board. In addition, with respect to
persons subject to Section 16 of the Exchange Act, transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of the Plan or
action by the Committee fail to comply, it shall deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
SECTION 8.
SURRENDER OF OPTIONS
8.1 GENERAL RULE. The Committee acting in its absolute discretion
may incorporate a provision in an Option Agreement to allow an Optionee to
surrender his or her Option in whole or in part in lieu of the exercise in whole
or in part of that Option on any date that:
(a) the Fair Market Value of the Shares subject to such
Option exceeds the Exercise Price for such Shares, and
(b) the Option to purchase such Shares is otherwise
exercisable.
8.2 PROCEDURE. The surrender of an Option in whole or in part
shall be effected by the delivery of the Option Agreement to the Committee (or
to its delegate) together with a statement signed by the Optionee which
specifies the number of Shares ("Surrendered Shares") as to which the Optionee
surrenders his or her Option and how he or she desires payment be made for such
Surrendered Shares.
8.3 PAYMENT. An Optionee in exchange for his or her Surrendered
Shares shall receive a payment in cash or in Shares, or in a combination of cash
and Shares, equal in amount on the date such surrender is effected to the excess
of the Fair Market Value of the Surrendered Shares on such date over the
Exercise Price for the Surrendered Shares. The Committee acting in its absolute
discretion can approve or
<PAGE> 8
disapprove an Optionee's request for payment in whole or in part in cash and can
make that payment in cash or in such combination of cash and Shares as the
Committee deems appropriate. A request for payment only in Shares shall be
approved and made in Shares to the extent payment can be made in whole shares of
Shares and (at the Committee's discretion) in cash in lieu of any fractional
Shares.
8.4 RESTRICTIONS. Any Option Agreement which incorporates a
provision to allow an Optionee to surrender his or her Option in whole or in
part also shall incorporate such additional restrictions on the exercise or
surrender of such Option as the Committee deems necessary to satisfy the
conditions to the exemption under Rule 16b-3 (or any successor exemption) to
Section 16(b) of the Exchange Act.
SECTION 9.
STOCK APPRECIATION RIGHTS
9.1 TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS. Stock
Appreciation Rights may be, but are not required to be, granted by the Committee
in connection with grant of an Option. All Stock Appreciation Rights shall be in
such form as the Committee may from time to time determine and shall be subject
to the following terms and conditions:
(a) TERM AND EXERCISE. A Stock Appreciation Right shall
be exercisable only: (i) with the approval of the Committee, (ii) during the
Term of the Option to which it relates, (iii) at such times as the Option to
which it relates is exercisable, and (iv) if the Fair Market Value of the Shares
subject to the Option surrendered (on the date surrendered) minus the aggregate
Option Price of the Shares subject to the Option surrendered is a positive
amount.
(b) PAYMENT. In the event the Committee agrees to permit
exercise of the Stock Appreciation Rights, the Optionee shall surrender to the
Company the right to exercise the Option with respect to a specified number of
Shares as to which the Option is then exercisable. In return, the Optionee shall
receive from the Company no more than an amount payable in cash and/or in Shares
(as determined by the Committee after considering the request of the Optionee)
equal to the difference between the aggregate Fair Market Value of the Shares as
to which the Optionee has surrendered the Option and the Option Price with
respect thereto. In the event the Committee determines to tender Shares in full
or partial payment of the Stock Appreciation Right, the number of Shares to be
issued to the Optionee shall be based on the Fair Market Value of the Shares as
of the date of exercise of the Stock Appreciation Right. No fractional Shares
shall be issued to Optionees upon exercise of a Stock Appreciation Right.
Instead, the Company shall pay the Optionee the value of such fractional Share
based upon the Fair Market Value of a Share on the date the Stock Appreciation
Right is exercised.
(c) NONTRANSFERABILITY. A Stock Appreciation Right
granted under the Plan shall be transferable only when the Option to which it
relates is transferable.
9.2 OTHER TERMS AND CONDITIONS. Option Agreements reflecting Stock
Appreciation Rights which are granted under the Plan may contain such other
terms and as are conditions not inconsistent with the provisions of the Plan as
the Committee may deem appropriate from time to time.
9.3 NOTIFICATION OF REQUEST TO EXERCISE.
(a) The Optionee shall request the Committee's approval
to exercise a Stock Appreciation Right by written notice to the Secretary of the
Company at the principal executive offices of the Company. Such written notice
shall state the number of Shares subject to the Option for which approval of the
exercise of the Stock Appreciation Right is requested and the Optionee's
preferred form of payment of the Stock Appreciation Right, as hereinafter
provided. The Optionee may indicate his or her preference to receive payment of
the Stock Appreciation Right in cash or in a combination thereof.
Notwithstanding anything to the contrary contained herein, the Committee shall
have absolute discretion in determining whether the request for approval of the
exercise of the Stock Appreciation Right shall be approved and, if such approval
is given, whether payment shall be made in cash or in a combination thereof.
<PAGE> 9
(b) Within thirty (30) days after the delivery to the
Secretary of the Optionee's request to exercise the Stock Appreciation Right as
provided above, the Committee shall inform the Optionee in writing of its
determination to the Optionee. The Optionee must act on any approved exercise of
a Stock Appreciation Right within thirty (30) days after the date of such
determination by the Committee (or such longer period as may be permitted by the
Committee) and in accordance with the terms approved by the Committee. Exercise
shall be by written notice actually delivered, or mailed by certified or
registered mail, return receipt requested, to the Secretary of the Company at
the principal executive office of the Company.
9.4 EFFECT OF EXERCISE. Upon exercise of a Stock Appreciation
Right, the Option to which it relates shall lapse with respect to the Shares as
to which the Stock Appreciation Right is exercised and such Shares shall not be
available for further grant of Options.
SECTION 10.
SECURITIES REGISTRATION
Each Option Agreement may provide that, upon the receipt of Shares as a
result of the surrender or exercise of an Option, the Consultant, Director or
Key Employee shall, if so requested by the Company, hold such Shares for
investment and not with a view of resale or distribution to the public and, if
so requested by the Company, shall deliver to the Company a written statement
satisfactory to the Company to that effect. Each Option Agreement also may
provide that, if so requested by the Company, the Consultant, Director or Key
Employee shall make a written representation to the Company that he or she will
not sell or offer to sell any of such Shares unless a registration statement
shall be in effect with respect to such Shares under the Securities Act of 1933,
as amended ("1933 Act") and any applicable state securities law or unless he or
she shall have furnished to the Company an opinion, in form and substance
satisfactory to the Company, of legal counsel acceptable to the Company, that
such registration is not required. Certificates representing the Shares
transferred upon the exercise or surrender of an Option granted under this Plan
may at the discretion of the Company bear a legend to the effect that such
Shares have not been registered under the 1933 Act or any applicable state
securities law and that such Shares may not be sold or offered for sale in the
absence of an effective registration statement as to such Shares under the 1933
Act and any applicable state securities law or an opinion, in form and substance
satisfactory to the Company, of legal counsel acceptable to the Company, that
such registration is not required.
SECTION 11.
SALE OR MERGER OF THE COMPANY
If the Company agrees to sell substantially all of its assets for cash
or property or for a combination of cash and property or agrees to any merger,
consolidation, reorganization, division or other transaction in which Shares are
converted into another security or into the right to receive securities or
property and such agreement does not provide for the assumption or substitution
of the Options granted under this Plan, each Option at the direction and
discretion of the Board, or as is otherwise provided in the Option Agreements,
may be cancelled unilaterally by the Company in exchange for the whole Shares
(or, subject to satisfying the conditions to the exemption under Rule 16b-3 or
any successor exemption to Section 16(b) of the Exchange Act, for the whole
Shares and the cash in lieu of a fractional Share) which each Optionee otherwise
would receive if he or she had the right to surrender his or her outstanding
Option in full under Section 11 of this Plan and he or she exercised that right
exclusively for Shares on a date fixed by the Board which comes before such sale
or other corporate transaction.
SECTION 12.
TERMINATION AND AMENDMENT OF PLAN
The Board may amend, terminate or suspend the Plan at any time, in its
sole and absolute discretion; provided, however, that if required to qualify the
Plan under Rule 16b-3 promulgated under Section 16 of the Exchange Act, no
amendment shall be made more than once every six months that would change the
amount, price or timing of the Annual Grants and Interim Grants, other than to
comport with changes in the Code, or the rules and regulations promulgated
thereunder; and provided, further, that if required to qualify the Plan under
Rule 16b-3, no amendment shall be made without the approval of the Company's
stockholders that would (a)
<PAGE> 10
materially increase the number of Shares that may be issued under the Plan; (b)
materially modify the requirements as to eligibility for participation in the
Plan; or (c) otherwise materially increase the benefits accruing to participants
under the Plan.
SECTION 13.
AMENDMENT OR TERMINATION OF PLAN
This Plan may be amended by the Board from time to time to the extent
that the Board deems necessary or appropriate; provided, however, no such
amendment shall be made absent the approval of the shareholders of the Company
(1) to increase the number of Shares reserved under Section 3 except as set
forth in Section 3.2, (2) to extend the maximum life of the Plan or the maximum
exercise period under Section 7.4, (3) to decrease the minimum Exercise Price
under Section 7.2, or (4) to change the designation of Consultants, Directors or
Key Employees eligible for Options under Section 7.1. The Board also may suspend
the granting of Options under this Plan at any time and may terminate this Plan
at any time; provided, however, the Company shall not have the right to modify,
amend or cancel any Option granted before such suspension or termination unless
(1) the Optionee consents in writing to such modification, amendment or
cancellation or (2) there is a dissolution or liquidation of the Company or a
transaction described in Section 3.2 or Section 11 of this Plan.
SECTION 14.
MISCELLANEOUS
14.1 SHAREHOLDER RIGHTS. No Consultant, Director or Key Employee
shall have any rights as a shareholder of the Company as a result of the grant
of an Option to him or to her under this Plan or his or her exercise or
surrender of such Option pending the actual delivery of Shares subject to such
Option to such Consultant, Director or Key Employee.
14.2 NO CONTRACT OF EMPLOYMENT. The grant of an Option to a Key
Employee under this Plan shall not constitute a contract of employment and shall
not confer on a Key Employee any rights upon his or her termination of
employment in addition to those rights, if any, expressly set forth in the
Option Agreement which evidences his or her Option.
14.3 WITHHOLDING. The exercise or surrender of any Option granted
under this Plan shall constitute the Optionee's full and complete consent to
whatever action the Committee directs to satisfy the federal and state tax
withholding requirements, if any, which the Committee in its discretion deems
applicable to such exercise or surrender. In addition to and at the time of
payment of the Exercise Price, the Optionee shall pay to the Company in cash the
full amount of any federal, state and local income, employment or other taxes
required to be withheld from the income of such Optionee as a result of such
exercise; provided, however, that in the discretion of the Committee any Option
Agreement may provide that all or any portion of such tax obligations, together
with additional taxes not exceeding the actual additional taxes to be owed by
the Optionee as a result of such exercise, may, upon the irrevocable election of
the Optionee, be paid by tendering to the Company whole Shares of Common Stock
duly endorsed for transfer and owned by the Optionee, or by authorizing the
Company to withhold Shares of Common Stock otherwise issuable upon exercise of
the Option, in either case in that number of Shares having a Fair Market Value
on the date of exercise equal to the amount of such taxes thereby being paid, in
all cases subject to such restrictions as the Committee may from time to time
determine, including any such restrictions as may be necessary or appropriate to
satisfy the conditions of the exemption set forth in Rule 16b-3 under the
Exchange Act.
14.4 TRANSFER. The transfer of a Key Employee between or among the
Company, a Subsidiary or a Parent shall not be treated as a termination of his
or her employment under this Plan.
14.5 CONSTRUCTION. This Plan shall be construed under the laws of
the State of Georgia.
<PAGE> 1
EXHIBIT 10.11
COMPOSITE COPY INCLUDING
FIRST, SECOND AND THIRD AMENDMENTS,
EFFECTIVE SEPTEMBER 30, 1998
AMENDED AND RESTATED
HARBINGER CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The Amended and Restated Harbinger Corporation Employee Stock Purchase
Plan (the "Plan") is intended to encourage employee stock ownership by offering
employees of Harbinger Corporation and its subsidiaries Purchase Rights (as such
term is defined in Section 2) to purchase shares of Common Stock. The Plan is
intended to operate as a bifurcated plan, providing benefits as an "employee
stock purchase plan" as defined in Section 423 of the Internal Revenue Code of
1986, as amended ("Code"), to those employees eligible to participate in and
receive benefits under such a plan, and providing similar benefits through an
employee stock purchase plan not intended to satisfy Code Section 423 to
eligible employees who may not benefit under a plan satisfying Code Section 423.
The provisions of the Plan shall, accordingly, be construed so as to comply with
the requirements of Section 423 of the Code, whenever possible.
2. DEFINITIONS.
"BASE PAY" means regular straight-time and overtime earnings received
from the Company, excluding payments for incentive compensation, bonuses and
other special payments.
"BOARD" mean the Board of Directors of the Harbinger Corporation.
"COMMITTEE" means the Compensation Committee of the Board.
"COMMON STOCK" or "STOCK" means the Common Stock, par value $.0001 per
share, of Harbinger Corporation, and any other stock or securities (including
any other share or securities of an entity other than Harbinger Corporation) for
or into which the outstanding shares of such stock are hereinafter exchanged or
changed.
"COMPANY" means Harbinger Corporation.
"CUSTODIAN" means Smith Barney, Inc., whose address is 388 Greenwich
Street, 28th Floor, New York, New York 10013, or such other person as the
Committee shall designate from time to time.
"EFFECTIVE DATE" means the date set by the Board for the Plan to become
effective, which date shall be the first day of a Purchase Period, and which
shall be at least one hundred and eighty (180) days after the effective date of
the initial public offering for Harbinger Corporation, or such earlier date as
is approved by the underwriter of such initial offering. The Effective Date
shall be subject to shareholder approval pursuant to Section 17.
"EXERCISE DATE" means the last day of a Purchase Period (as such term
is defined below), on which date all Participants' outstanding Purchase Rights
will automatically be exercised.
"FAIR MARKET VALUE" means the closing "asked" price of the shares of
Stock in the over-the-counter market on the day on which such value is to be
determined or, if such "asked" price is not available, the last sales price on
such day or, if no shares were traded on such day, on the next preceding day on
which the shares were traded, as reported by the National Association of
Securities Dealers Automatic Quotation System
<PAGE> 2
(NASDAQ) or other national quotation service. If the shares are listed on a
National Securities Exchange, "fair market value" means the closing price of the
shares on such National Securities Exchange on the day of which such value is to
be determined or, if no shares were traded on such day, on the next preceding
day on which shares were traded, as reported by National Quotation Bureau, Inc.
or other national quotation service. If at any time shares of Common Stock are
not traded on an exchange or in the over-the-counter market, Fair Market Value
shall be the value determined by the Board of Directors or Committee
administering the Plan, taking into consideration those factors affecting or
reflecting value which they deem appropriate.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"PARTICIPANT" means an employee of the Company or of a parent or
subsidiary of the Company who has enrolled in the Plan by completing a
Participation Form (as such term is defined in Section 5 hereof) with the Plan
Administrator. For purposes of the Plan, a parent means a company which owns a
majority interest in the Company and effectively controls the Company, and a
subsidiary means a company in which the Company owns a majority interest and
which the Company effectively controls. For purposes of employees participating
in the portion of the Plan satisfying Code Section 423, the terms parent and
subsidiary have the meanings set forth in Code Sections 424(e) and (f),
respectively.
"PLAN ADMINISTRATOR" means the Director of Human Resources of the
Company, or any such other person so designated by the Committee.
"PURCHASE PERIOD" means the period beginning 48 hours after the release
of operating results for the immediately prior quarter and ending 48 hours after
the release of operating results for the then current quarter.
"PURCHASE RIGHT" means a Participant's option to purchase shares of
Common Stock that is deemed to be granted to a Participant during a Purchase
Period pursuant to Section 7.
"SECTION 16(b) INSIDER" means those persons subject to the requirements
of Section 16(b) of the Securities Exchange Act of 1934, as amended.
"TRADING DAY" refers to a day during which the NASDAQ National Market
System is available for trading shares of Common Stock.
3. ELIGIBILITY.
(a) Participation in the Plan is voluntary. All full-time
employees of the Company, including officers and directors who are full-time
employees but who are not members of the Committee, who have completed at least
six (6) months of continuous service with the Company are eligible to
participate in the Plan. The employee's entry date in the Plan shall be the
first day of the Contribution Period immediately following the date the employee
has satisfied the eligibility provisions. Full-time employees mean those
employees who work at least twenty (20) hours per week and for more than five
(5) months in any calendar year.
(b) Notwithstanding any provision of the Plan to the contrary, no
employee may participate in that part of the Plan which is intended to satisfy
Code Section 423 if prior to the grant of Purchase Rights or if following a
grant of Purchase Rights under the Plan, the employee would own, directly or by
attribution, stock, Purchase Rights or other stock options to purchase stock
representing five percent (5%) or more of the total combined voting power or
value of all classes of the Company's stock as defined in Code Section
423(b)(3).
(c) Subject to committee approval, any employees of a company or
other entity which is acquired directly or indirectly by the Company (whether by
merger, consolidation, stock purchase or otherwise) and becomes a subsidiary of
the Company (as such term is defined in Code Section 424(f)) may, for purposes
of determining eligibility to participate in the Plan, be granted past service
credit for employment with such company or entity.
4. SECURITIES SUBJECT TO THE PLAN AND PURCHASE PERIODS.
<PAGE> 3
(a) The maximum number of shares which may be granted and
purchased under the Plan may not exceed Three Hundred and Twenty Five Thousand
(325,000) shares of Common Stock (subject to adjustment as provided in Section
15), which may be authorized but unissued shares, re-acquired shares or shares
bought on the open market. If any Purchase Right granted shall expire or
terminate for any reason without having been exercised in full, the unpurchased
shares of Common Stock shall again become available for purposes of the Plan,
unless the Plan has been terminated.
(b) "CONTRIBUTION PERIOD" means each three month calendar quarter
period, beginning on January 1, April 1, July 1, and October 1, with the first
such Contribution Period beginning concurrently with the Effective Date of the
Plan.
5. PARTICIPATION.
Eligible employees become Participants in the Plan by authorizing
payroll deductions for the purpose through a "Participation Form" filed with the
Plan Administrator no later than fifteen (15) days prior to the start date of a
Contribution Period. Notwithstanding the above, and subject to committee
approval, the Plan Administrator may provide for a special election period for
participation in the Plan following the acquisition of a company or other entity
directly or indirectly by the Company (whether by merger, consolidation, stock
purchase or otherwise) which results in such company or entity becoming a
subsidiary of the Company (as such term is defined in Code Section 424(f)).
Subject to committee approval, all employees of the Company and its subsidiaries
shall be eligible to participate in such special election period.
6. PAYROLL DEDUCTIONS.
(a) In order to purchase Common Stock each Participant must elect
and indicate on the Participation Form the amount he/she wishes to authorize the
Company to deduct at regular payroll intervals during the Contribution Period,
expressed either as (1) an integral percentage amount ranging from one percent
(1%) to fifteen percent (15%) of such Participant's Base Pay for the applicable
payroll period, with a minimum deduction of $10.00 per payday during the
Contribution Period, or (2) a dollar amount to be deducted pro rata at regular
payroll intervals during the Purchase Period, with a minimum deduction of $10
per payday and a maximum dollar amount per payday to be set by the Committee.
The Committee shall determine from time to time whether method (1) or (2), or
both, shall be utilized. The Participation Form will include authorization for
the Company to make payroll deductions from the Participant's Base Pay.
(b) A Participant may not be granted Purchase Rights under the
Plan with respect to more than Fifteen Thousand Dollars ($15,000.00) worth of
Common Stock for any calendar year such Purchase Rights to purchase Common Stock
are outstanding pursuant to the terms of the Plan. The Fifteen Thousand Dollar
($15,000.00) limit is determined according to the Fair Market Value of the
Common Stock on the first day (the grant date) of the Purchase Period.
Participants will be notified if these limitations become applicable to them.
(c) The amounts deducted from the Participant's Base Pay shall be
credited to a bookkeeping account established in the Participant's name under
the Plan, but no actual separate account will be established by the Company to
hold such amounts. There shall be no interest paid on the balance credited to a
Participant's account. Amounts deducted from the participant's Base Pay may be
commingled with the general assets of the Company and may be used for its
general corporate purposes prior to the purchase of Common Stock for a Purchase
Period.
(d) Payroll deductions shall begin on the first payday of each
Purchase Period, and shall end on the last payday of each Purchase Period.
Eligible employees may participate in the Plan and purchase shares only through
payroll deductions. Notwithstanding the above, a Participant on an approved
leave of absence may continue participating in the Plan by making cash payments
to the Company within a normal pay period equal to the amount of the normal
payroll deduction had a leave of absence not occurred. The right of a
Participant on an approved leave of absence to continue participating in the
Plan shall terminate upon the expiration of twelve (12) weeks of leave, unless
the Participant's right to re-employment by the Company after a longer leave is
guaranteed by statute or contract, in which case termination of the right to
participate will occur upon the expiration of such extended period.
<PAGE> 4
(e) So long as a Participant remains an employee of the Company,
payroll deductions will continue in effect from Purchase Period to Purchase
Period, unless at least fifteen (15) calendar days prior to the first day of the
next succeeding Purchase Period or Contribution Period, as determined by the
Plan Administrator, the Participant:
(i) elects a different rate by filing a new Participation Form
with the Plan Administrator; or
(ii) withdraws from the Plan in accordance with Section 9
hereof.
(f) Unless a Participant files with the Plan Administrator a new
Participation Form electing to withdraw prior to fifteen (15) calendar days
before the beginning of the next Purchase Period as permitted under the Plan,
such Participant's payroll deductions will continue throughout the next Purchase
Period and his or her Purchase Right to purchase Common Stock will be deemed to
be fully and automatically exercised on the last day of such Purchase Period
with respect to payroll deductions made during that Purchase Period.
7. GRANT OF PURCHASE RIGHT.
(a) Subject to the effective date provisions of Section 17, at
5:01 p.m. Eastern Standard Time, on the last day of each Purchase Period (the
Exercise Date), each Participant who has not withdrawn from the Plan pursuant to
Section 9 shall be deemed to have been granted a Purchase Right as of the first
day of the Purchase Period to purchase as many full shares of Common Stock as
can be purchased with the balance credited to such Participant's account as of
the Exercise Date.
(b) The price at which each Purchase Right to purchase Common
Stock shall be exercised is the lower of:
(i) 85% of the Fair Market Value of the Common Stock on the
NASDAQ National Market System on the first Trading Day of a Purchase Period; or
(ii) 85% of the Fair Market Value of the Common Stock on the
NASDAQ National Market System on the last Trading Day of such Purchase Period.
(c) The number of shares purchasable by each Participant per
Purchase Period will be the number of whole and fractional shares obtained by
dividing the amount credited to the Participant's Account as of the Exercise
Date in the Purchase Period by the purchase price in effect for the Purchase
Period.
(d) A Participant may not purchase shares of Stock with a Fair
Market Value exceeding Three Thousand, Seven Hundred and Fifty Dollars ($3,750)
for any particular Purchase Period. The Committee has the power, exercisable at
any time prior to the start of a Purchase Period, to increase or decrease the
dollar value maximum for that Purchase Period, subject to the limitations in
Section 6(b). The maximum, as thus adjusted, will continue in effect from
Purchase Period to Purchase Period until the Committee once exercises its power
to adjust the maximum.
8. EXERCISE OF PURCHASE RIGHT.
(a) Subject to the effective date provisions of Section 17, each
outstanding Purchase Right shall be deemed automatically exercised as of 5:01
p.m. of the Exercise Date (the last day of the Purchase Period). The exercise of
the Purchase Right is accomplished by applying the balance credited to each
Participant's account as of the Exercise Date to the purchase on the Exercise
Date of whole and fractional shares of Common Stock at the purchase price in
effect for the Purchase Period.
(b) If a Participant purchases the maximum share amount set forth
in Section 7(d), any amount not applied to the purchase of Common Stock for that
Purchase Period will be held for the purchase of Stock in the next Purchase
Period.
<PAGE> 5
(c) If the number of Shares for which Purchase Rights are
exercised exceeds the number of Shares available in any Purchase Period under
the Plan, the Shares available for exercise will be allocated by the Plan
Administrator pro rata among the Participants in such Purchase Period in
proportion to the relative amounts credited to their accounts. Any amounts not
thereby applied to the purchase of Common Stock under the Plan will be refunded
to the Participants after the end of the Purchase Period.
9. WITHDRAWAL AND TERMINATION OF PURCHASE RIGHTS.
(a) A Participant may withdraw from the Plan during a Purchase
Period by providing written notice to the Plan Administrator on or before 5:00
p.m. of the last business day of such Purchase Period. Such withdrawal will
become effective upon receipt by the Plan Administrator of such notice, and
payroll deductions will cease as soon as is administratively feasible from the
date of such notice, and no additional payroll deductions will be made on behalf
of such Participant during the Purchase Period. Such notice shall be on a form
(the "Withdrawal Form") provided by the Plan Administrator for that purpose. The
Withdrawal Form will permit such a Participant to elect to receive all
accumulated payroll deductions as a refund without penalty or to exercise such
Participant's outstanding Purchase Rights to purchase Stock on the following
Exercise Date in the amount of all payroll deductions withheld during the
Purchase Period prior to the Participant's withdrawal.
(b) Any Participant who withdraws from the Plan pursuant to
Section 9(a) will not be eligible to rejoin the Plan until the second (2nd)
Purchase Period following the Purchase Period of withdrawal. A Participant
wishing to resume participation may re-enroll in the Plan by completing and
filing a new Participation Form for a subsequent Purchase Period by following
the applicable enrollment procedures.
(c) To the extent, if any, required by Section 16(b) of the
Securities Exchange Act of 1934, as amended, and the rules, regulations,
decisions and no action positions thereunder, in the event a Participant who is
a Section 16(b) Insider ceases participation in the Plan, whether as a result of
withdrawal during a Purchase Period or of such Participant's decision to
discontinue his or her enrollment for subsequent Purchase Periods, such insider
may not re-enroll in the Plan until the Purchase Period beginning coincident
with or immediately following the expiration of a six (6) month period beginning
upon the effective date of such Section 16(b) Insider's withdrawal from the
Plan.
(d) If a Participant ceases to be an employee of the Company for
any reason during a Purchase Period, his or her outstanding Purchase Right will
immediately terminate, and all sums previously collected from such Participant
during such Purchase Period under the terminated Purchase Right will be refunded
to the Participant.
10. RIGHTS AS SHAREHOLDER.
(a) A Participant is not a shareholder in shares to be purchased
during a Purchase Period until the Purchase Right is exercised on the Exercise
Date. Thus, a Participant will not have a right to any dividend or distribution
made prior to the Exercise Date on shares of Common Stock purchased during the
Purchase Period.
(b) Upon a written request made to the Custodian, the Participant
will be entitled to receive, as soon as practicable after the Exercise Date, a
stock certificate for the number of purchased shares. The Custodian may impose
upon, or pass through to, the Participant a reasonable fee for the transfer of
shares of Common Stock in the form of stock certificates from the Custodian to
the Participant. It is the responsibility of each Participant to keep his or her
address current with the Company through the Plan Administrator and with the
Custodian.
11. SALE OF COMMON STOCK ACQUIRED UNDER THE PLAN.
(a) Participants may sell the shares of Common Stock they acquire
under the Plan only in compliance with the restrictions set forth below.
<PAGE> 6
(i) Section 16(b) Insiders may be subject to certain
restrictions in connection with their transactions under the Plan and with
respect to the sale of shares of Stock obtained under the Plan, including, but
not limited to, the Company's Insider Trading Policy.
(ii) Sales of Stock obtained under the Plan by a
Participant must comply with the Company's Insider Trading Policy, as the same
may exist from time to time.
(iii) No Participant purchasing shares of Common Stock
under the Plan shall be entitled to sell such shares of Stock until the first
day of the second (2nd) Purchase Period immediately following the Purchase
Period in which the shares of Stock were obtained. For purposes of this
restriction, the Company may, at its option, include the following legend on any
certificates representing the Stock so purchased:
"The shares represented by this Certificate are subject to certain
restrictions on sale and disposition contained in the Amended and
Restated Harbinger Corporation Employee Stock Purchase Plan, a copy of
which is on file with the Corporation."
(b) The Participant understands and agrees that, in order to
insure compliance with the restrictions referred to herein, the Company may
issue appropriate "stop transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) A Participant shall immediately inform the Plan Administrator
in writing if the Participant transfers any shares purchased through the Plan
within two (2) years from the date of grant of the related Purchase Right. Such
transfer shall include disposition by sale, gift or other manner. The
Participant may be requested to disclose the manner of the transfer, the date of
the transfer, the number of shares involved and the transfer price. By executing
the Participation Form, each Participant obligates himself or herself to provide
such information to the Plan Administrator.
(d) The Company is authorized to withhold from any payment to be
made to a Participant, including any payroll and other payments not related to
the Plan, amounts of withholding and other taxes due in connection with any
transaction under the Plan, and a Participant's enrollment in the Plan will be
deemed to constitute his or her consent to such withholding.
12. PLAN ADMINISTRATION.
(a) The Plan shall be administered by the Committee. No member of
the Board will be eligible to participate in the Plan during his or her period
of Committee service.
(b) The Committee shall have the plenary power, subject to and
within the limited of the express provisions of the Plan:
(i) to determine the commencement and termination date of
the offering of Common Stock under the Plan; and
(ii) to interpret the terms of the Plan, established and
revoke rules for the administration of the Plan and correct or reconcile any
defect or inconsistency in the Plan.
(c) The Committee may delegate all or part of its authority to
administer the Plan to the Plan Administrator, who may in turn delegate the
day-to-day operations of the Plan to the Custodian. The Custodian will establish
and maintain, as agent for the Participants, accounts for the purpose of holding
shares of Common Stock and/or cash contributions as may be necessary or
desirable for the administration of the Plan.
(d) The Board may waive or modify any requirement that a notice or
election be made or filed under the Plan a specified period in advance in an
individual case or by adoption of a rule or regulation under the Plan, without
the necessity of an amendment to the Plan.
13. TRANSFERABILITY.
<PAGE> 7
(a) Any account maintained by the Custodian for the benefit of a
Participant with respect to shares acquired pursuant to the Plan may only be in
the name of the Participant; provided, however, that the Participant may elect
to maintain such account with right of joint ownership with such Participant's
spouse. Such election may only be made on a form (the "Joint Account Form")
provided by the Company.
(b) Neither payroll deductions credited to a Participant's account
nor any Purchase Rights or other rights to acquire Common Stock under the Plan
may be assigned, transferred, pledged or otherwise disposed of by Participants
other than by will or the laws of descent and distribution and, during the
lifetime of a Participant, Purchase Rights may be exercised only by the
Participant.
14. MERGER OR LIQUIDATION OF THE COMPANY.
In the event the Company merges with another corporation and the
Company is not the surviving entity, or in the event all or substantially all of
the stock or assets of the Company is acquired by another company, or in the
event of certain other similar transactions, the Committee may, in its sole
discretion and in connection with such transaction, cancel each outstanding
Purchase Right and refund all sums previously collected from Participants under
the canceled outstanding Purchase Rights, or, in its discretion, cause each
Participant with outstanding Purchase Rights to have his or her outstanding
Purchase Right exercised immediately prior to such transaction and thereby have
the balance of his or her account applied to the purchase of whole and
fractional shares of Common Stock (subject to the maximum dollar limitation of
Section 7(d)) at the purchase price in effect for the Purchase Period, which
would be treated as ending with the effective date of such transaction. The
balance of the account not so applied with be refunded to the Participant. In
the event of a merger in which the Company is the surviving entity, each
Participant is entitled to receive, for each share as to which such
Participant's Outstanding Purchase Rights are exercised as nearly as reasonably
may be determined by the Committee, in its sole discretion, the securities or
property that a holder of one share of Common Stock was entitled to receive upon
the merger.
15. ADJUSTMENT FOR CHANGES IN CAPITALIZATION.
To prevent dilution or enlargement of the rights of Participants under
the Plan, appropriate adjustments may be made in the event any change is made to
the Company's outstanding Common Stock by reason of any stock dividend, stock
split, combination of shares, exchange of shares or other change in the Common
Stock effected without the Company's receipt of consideration. Adjustments may
be made to the maximum number and class of securities issuable under the Plan,
the maximum number and class of securities purchasable per outstanding Purchase
Right and the number and class of securities and price per share in effect under
each outstanding Purchase Right. Any such adjustments may be made retroactively
effective to the beginning of the Purchase Period in which the change in
capitalization occurs, and any such adjustment will be made by the Committee in
its sole discretion.
16. AMENDMENT AND TERMINATION.
The Committee may terminate or amend the Plan at any time; provided,
however, that no termination or amendment of the Plan shall change or affect
Purchase Rights previously granted under the Plan without the consent of the
affected Participant. If not sooner terminated by the Committee, the Plan shall
terminate at the time Purchase Rights have been exercised with respect to all
shares of Common Stock reserved for grant under the Plan.
17. SHAREHOLDER APPROVAL AND EFFECTIVE DATE.
The Plan is subject to the approval of shareholders of the Company
holding a majority of the shares of the Common Stock.
The Plan (as amended and restated) shall be deemed to have been adopted
as of the Effective Date (January 1, 1996) upon the date of its approval by the
shareholders of the Company. Until the Plan is approved by the shareholders, no
Purchase Rights shall be deemed granted or exercised under Sections 7 and 8.
Upon approval of the Plan by the Company's shareholders, Purchase Rights shall
be deemed granted and exercised as of the appropriate dates in the Plan as of
the Effective Date, and shares of Stock purchased shall be deemed purchased as
of the applicable Exercise Date. In the event the Plan is not approved by the
<PAGE> 8
shareholders on or before June 30, 1996, the Plan shall be deemed not to have
been adopted, and all payroll deduction amounts withheld on behalf of
Participants pursuant to Section 6 shall be refunded to such Participants.
18. NO EMPLOYMENT RIGHTS.
Participation in the Plan will not impose any obligations upon the
Company to continue the employment of the Participant for any specific period
and will not affect the right of the Company to terminate such person's
employment at any time, with or without cause.
19. COSTS.
Except as set forth in Section 10(b), costs and expenses incurred in
the administration of the Plan and the maintenance of accounts with the
Custodian may be shared by the Participant and the Company, to the extent
provided in this Section 19. Any brokerage fees and commissions for the purchase
of Common Stock under the Plan (including shares of Common Stock purchased upon
reinvestment of dividends and distributions) will be shared equally by the
Participant and the Company, but any brokerage fees and commission for the sale
of shares of Common Stock under the Plan by a Participant will be borne by such
Participant.
20. REPORTS.
After the close of each Purchase Period, each Participant in the Plan
will receive a report from the Custodian indicating the amount of the
Participant's contributions to the Plan during the Purchase Period, the amount
of the contributions applied to the purchase of Common Stock for the Purchase
Period, the purchase price per share in effect for the Purchase Period and the
amount of the contributions (if any) carried over to the next Purchase Period.
21. GOVERNING LAW.
The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan will be determined in accordance with laws of
the State of Georgia, without giving effect to principles of conflicts of laws,
and applicable Federal law.
22. COMPLIANCE WITH LEGAL AND OTHER REQUIREMENTS.
The Plan, the granting and exercising of Purchase Rights hereunder, and
the other obligations of the Company, the Plan Administrator and the Custodian
under the Plan will be subject to all applicable federal and state laws, rules,
and regulations, and to such approvals by any regulatory or governmental agency
as may be required. The Company may, in its discretion, postpone the issuance or
delivery of shares of Common Stock upon exercise of Purchase Rights until
completion of such registration or qualification of such shares of Common Stock
or other required action under any federal or state law, rule, or regulation,
listing or other require action with respect to any automated quotation system
or stock exchange upon which the shares of Common Stock or other Company
securities are designated or listed, or compliance with any other contractual
obligation of the Company, as the Company may consider appropriate, and may
require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
deliver of shares of Common Stock in compliance with applicable laws, rules, and
regulations, designation or listing requirements, or other contractual
obligations.
23. EFFECT OF PLAN.
The provisions of the Plan shall, in accordance with its terms, be
binding upon and inure to the benefit of, all successors of each employee
participating in the Plan, including, without limitation, such employee's estate
and the executors, administrators or trustees thereof, heirs and legatees, and
any receiver, trustee in bankruptcy or representative of creditors of such
employee.
