-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Rb68ehVcP2mBgtS5rciUDqOxzTxcfz2cWbZI9t/8Wb/5+DyJe0sCAFY75JI2xpjB d/e20a6VtFW5oeXCDewfhg== 0000950144-97-000341.txt : 19970116 0000950144-97-000341.hdr.sgml : 19970116 ACCESSION NUMBER: 0000950144-97-000341 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970115 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19970115 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: HARBINGER CORP CENTRAL INDEX KEY: 0000947116 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 581817306 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 033-93804 FILM NUMBER: 97506234 BUSINESS ADDRESS: STREET 1: 1055 LENOX PARK BLVD CITY: ATLANTA STATE: GA ZIP: 30319 BUSINESS PHONE: 4048414334 8-K 1 HARBINGER CORP. 8-K 1 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ______________ FORM 8-K ______________ CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report January 15, 1997 (Date of earliest event reported): January 1, 1997 HARBINGER CORPORATION (Exact name of Company specified in its charter) GEORGIA 0-26298 58-1817306 (State or other jurisdiction of (Commission File Number) (IRS Employer Identification No.) incorporation or organization) 1055 LENOX PARK BOULEVARD, ATLANTA, GEORGIA 30319 (Address of principal executive offices) (Zip Code)
(404) 467-3000 (Company's telephone number, including area code) =============================================================================== Page 1 of 23 2 Item 2. Acquisition or Disposition of Assets. Pursuant to a Debenture Purchase Agreement dated January 1, 1997 (the "Purchase"), Harbinger Corporation (the "Company") completed its purchase from BellSouth Telecommunications, Inc. ("BST") of a $3,000,000 Subordinated Convertible Debenture (the "Debenture") of Harbinger Net Services, LLC ("HNS"). After completing the purchase and assuming Harbinger's conversion of the Debenture, the Company owned approximately 93% of HNS assuming the conversion of the Debenture. The Company acquired the Debenture for a purchase price consisting of (i) $1.5 million in cash, and (ii) 161,525 unregistered shares of the Company's common stock, par value of $0.0001 per share. The cash portion was funded from working capital. The Company has agreed to register the common stock issued to BST in certain circumstances. The purchase price was determined in arms-length negotiations between the parties. A member of the Board of Directors of Harbinger ("Harbinger Directors") and certain employees or affiliates of BST were members of the HNS Board of Managers. The Harbinger Director abstained from voting on the acquisition of the Debenture at the Company's Board meeting and from approving the Call at the HNS meeting of Managers. Other than as described above, neither the Company nor any of its affiliates had any material relationship with BST prior to the transactions described above. In connection with the Purchase, which was accounted for under the purchase method of accounting, management anticipates that the Company will take a $6.0 to $7.5 million charge in the first quarter of 1997 related to in-process R&D charges and associated integration costs. Concurrently, HNS exercised an option under its operating agreement to call the remaining 585,335 shares held by minority shareholders (which include affiliates of the Company) and exchanged the shares (the "Call") for cash of approximately $1,557,000 or $2.66 per share, an amount based on the amount paid to BellSouth. As a result of these transactions, the Company became the sole shareholder of HNS. As the sole shareholder of HNS, the Company has dissolved HNS, and is exchanging the options held by various individuals affiliated with HNS with approximately 295,000 options of the Company, ranging in price from $22.83 to $24.80 per option. A complete description of the transaction is contained in the Agreement filed as Exhibit 2(a) and hereby incorporated herein by reference. -2- 3 Item 7. Financial Statements and Exhibits. a) Financial Statements of Business Acquired: To be filed by amendment as soon as practicable but not later than March 17, 1997. b) Pro Forma Financial Information: To be filed by amendment as soon as practicable but not later than March 17, 1997. c) Exhibits: 2.1 Debenture Purchase Agreement Dated as of January 1, 1997 between the Company and BellSouth Telecommunications, Inc. 99.1 Text of Press Release of Harbinger Corporation, dated January 2, 1997. 99.2 Text of Press Release of Harbinger Corporation, dated October 28, 1996. -3- 4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. HARBINGER CORPORATION /s/ Joel G. Katz ----------------------------- JOEL G. KATZ Vice President, Finance (Principal Financial Officer; Principal Accounting Officer) Date: January 14, 1997 -4- 5 EXHIBIT INDEX
Exhibit Page No. ------- -------- 2.1 Debenture Purchase Agreement Dated as of January 1, 1997 6 99.1 Text of Press Release of Harbinger Corporation, Dated January 2, 19 1997 99.2 Text of Press Release of Harbinger Corporation, Dated October 28, 21 1996
-5- EX-2.1 2 DEBENTURE PURCHASE AGREEMENT 1 EXHBIT 2.1 ------------------------------------ DEBENTURE PURCHASE AGREEMENT DATED AS OF JANUARY 1, 1997 ------------------------------------ -6- 2 DEBENTURE PURCHASE AGREEMENT This Debenture Purchase Agreement (the "Agreement") is made as of January 1, 1997, by and between BELLSOUTH TELECOMMUNICATIONS, INC. ("BST") and HARBINGER CORPORATION ("HC"). R E C I T A L S: A. BST or its affiliate is the holder of that certain Subordinated Convertible Debenture, due June 20, 2000, of Harbinger Net Services, LLC (the "Company") in the original principal amount of $3,000,000 (the "Debenture"). B. BST desires to sell, and HC desires to purchase, the Debenture upon the terms and conditions contained herein. AGREEMENT: NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereby agree as follows: SECTION 1. PURCHASE AND SALE OF DEBENTURE (a) Subject to the terms and conditions hereof, on the Closing Date (as hereinafter defined) HC will purchase from BST, and BST shall sell to HC, the Debenture, free and clear of all liens, claims and encumbrances of any kind whatsoever, except for such liens, claims or encumbrances arising solely under (i) the Amended and Restated Operating Agreement of Harbinger Net Services, LLC, dated June 20, 1995 (the "Operating Agreement") and (ii) that certain Agreement, dated June 20, 1995, by and among the Company, HC and BellSouth Corporation (together with the Operating Agreement, the "Debenture Documents"). (b) In exchange for the Debenture, HC shall deliver to BST (i) a cash payment in the amount of $1,500,000 (the "Cash Payment"), and (ii) 161,525 shares of common stock, par value $.0001 per share, of HC (the "HC Shares") (the Cash Payment and the HC Shares are referred to collectively as the "Purchase Price"). SECTION 2. CLOSING DATES; DELIVERY 2.1 CLOSING DATE. The closing of the purchase and sale of the Debenture shall be held at the offices of Morris, Manning & Martin, L.L.P at 1600 Atlanta Financial Center, 3343 Peachtree Road, N.E., Atlanta, Georgia 30326 on January 1, 1997 (the "Closing"), or at such other time and place upon which BST and HC shall agree. The effective date of the Closing is hereinafter referred to as the "Closing Date". Page 7 of 23 3 2.2 DELIVERY. At the Closing or as otherwise provided below, each of the following deliveries shall be made: (a) BST shall deliver the following to HC: (i) the Debenture, duly endorsed for transfer; and (ii) the certificate contemplated by Section 5.3. (b) HC shall deliver the following to BST: (i) the Cash Payment to be delivered by wire transfer; (ii) a stock certificate representing the HC Shares, registered in the name of BST or an affiliate (defined for purposes of this Agreement as set forth in Rule 405 of the Securities Act) of BST designated by BST (provided the affiliate (i) makes representations to HC in substantially the form of Section 3.8 hereof and (ii) agrees in writing in a form reasonably acceptable to HC to abide by the provisions of Sections 7.2 and 8 of this Agreement), and which may be delivered by HC up to five (5) days following the Closing; and (iii) the certificate contemplated by Section 6.3. SECTION 3. REPRESENTATIONS AND WARRANTIES OF BST BST represents and warrants to HC as follows: 3.1. ORGANIZATION AND STANDING; ARTICLES OF INCORPORATION AND BYLAWS. BST is a corporation validly incorporated and existing under the laws of the State of Georgia and is in good standing under such laws. BST has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. 3.2. CORPORATE POWER. BST has the requisite legal power and authority to execute and deliver this Agreement and carry out and perform its obligations under the terms of this Agreement. 3.3. AUTHORIZATION. The execution and delivery of this Agreement by BST and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of BST, and no other corporate proceeding on the part of BST is necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement constitutes a valid and binding obligation of BST, enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. 3.4. OWNERSHIP OF DEBENTURE. BST has good title to the Debenture, free and clear of any mortgage, pledge, lien, lease, encumbrance or charge of any nature whatsoever, subject to any liens, claims or encumbrances arising solely under the Debenture Documents. Assuming compliance with all requirements for transfer of the Debenture under the Debenture Documents, the delivery by BST of the Debenture endorsed for 8 4 transfer pursuant to Section 2.2(a)(i) hereof shall be sufficient to vest in HC good title to the Debenture free and clear of all mortgages, pledges, liens, leases, encumbrances, taxes or charges of any nature whatsoever, subject to any liens, claims or encumbrances arising solely under the Debenture Documents. 3.5. NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery and performance of and compliance with the terms of this Agreement have not resulted and will not result in any violation of, or conflict with, or constitute a default under, BST's Articles of Incorporation, Bylaws or any of its agreements that limit BST's ability to consummate the transactions contemplated hereby. 3.6. GOVERNMENTAL OR REGULATORY CONSENTS. No consent, approval or authorization of or designation, declaration or filing with any governmental or regulatory authority on the part of BST is required in connection with the valid execution and delivery of this Agreement, or the consummation by BST of the transactions contemplated hereby. 3.7. LITIGATION. There is no action, proceeding or investigation pending or, to BST's knowledge, threatened against BST or any affiliate which holds the Debenture or receives the HC Shares that could reasonably be expected to affect the validity of this Agreement or BST's rights with respect to the Debenture or that would have a material adverse effect on the consummation of the transactions contemplated hereby. 3.8. INVESTMENT REPRESENTATIONS. BST is an "accredited investor" within the meaning of Regulation D under the Securities Act of 1933, as amended (the "Securities Act"), and is acquiring the HC Shares for its own account for investment and not with the view to the distribution thereof, except in accordance with applicable federal and state securities laws. BST acknowledges and agrees that the HC Shares are subject to the transfer restrictions contained in Section 7.2 hereof. 3.9. COMPLIANCE WITH OPERATING AGREEMENT. BST is not in violation in any material respect of any term or provision of the Operating Agreement. 3.10. BROKERS OR FINDERS. BST has not and will not prior to Closing engage, or otherwise incur any liability with respect to, any broker, finder or agent with respect to the Debenture. SECTION 4. REPRESENTATIONS AND WARRANTIES OF HC HC hereby represents and warrants to BST as follows: 4.1. ORGANIZATION AND STANDING; ARTICLES OF INCORPORATION AND BYLAWS. HC is a corporation duly incorporated and existing under the laws of the State of Georgia and is in good standing under such laws. HC has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. 4.2. CORPORATE POWER. HC has the requisite legal power and authority to execute and deliver this Agreement and carry out and perform its obligations under the terms of this Agreement. 4.3. AUTHORIZATION. The execution and delivery of this Agreement by HC and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of HC, and no other corporate proceeding on the part of HC is necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement constitutes a valid and binding obligation of HC, enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, 9 5 insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. 4.4 NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery and performance of and compliance with the terms of this Agreement have not resulted and will not result in any violation of, or conflict with, or constitute a default under, HC's Articles of Incorporation, Bylaws or any of its agreements that limit HC's ability to consummate the transactions contemplated hereby. 4.5 GOVERNMENTAL OR REGULATORY CONSENTS. Except for the listing of the HC Shares on the Nasdaq National Market, no consent, approval or authorization of or designation, declaration or filing with any governmental or regulatory authority on the part of HC is required in connection with the valid execution and delivery of this Agreement, or the consummation by HC of the transactions contemplated hereby. 4.6 LITIGATION. There is no action, proceeding or investigation pending or, to HC's knowledge, threatened against HC that could reasonably be expected to affect the validity of this Agreement or that would have a material adverse effect on the consummation of the transactions contemplated hereby. 4.7 AUTHORIZATION OF HC SHARES. The HC Shares have been duly authorized, and when issued in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable. 4.8 COMPLIANCE WITH OPERATING AGREEMENT. HC is not in violation in any material respect of any term or provision of the Operating Agreement. 4.9 SALE OF THE COMPANY. Solely as of the date hereof, HC has no present intent to sell all or substantially all of its shares in the Company or to cause the Company to be merged or consolidated with any other person or entity or to transfer all or substantially all of its properties and assets to any other person or entity (other than the transfer by the Company of its assets and liabilities to its shareholders in connection with its dissolution or liquidation). 4.10 REGISTRATION RIGHTS. HC has not granted to any holders of its securities any rights to require the registration of any of HC's securities under the Securities Act except (i) piggyback registration rights granted to certain former shareholders of NTEX Holding B.V. in any underwritten public offering by HC, (ii) one demand registration and piggy-back registration rights granted to certain former shareholders of INOVIS Verwaltungs GmbH and its affiliates, (iii) piggyback registration rights granted to former shareholders of Harbinger NV in any underwritten public offering by HC and (iv) piggyback registration rights granted to the former shareholders of Comtech Management Systems, Inc. in any underwritten public offering by HC. 4.11 SEC FILINGS. HC has filed all required forms, reports, statements, schedules and other documents with the Securities and Exchange Commission since January 1, 1996. 4.12 BROKERS OR FINDERS. HC has not and will not prior to Closing engage, or otherwise incur any liability with respect to, any broker, finder or agent with respect to the Debenture. 4.13 INVESTMENT REPRESENTATIONS. HC is an "accredited investor" within the meaning of Regulation D under the Securities Act, and is acquiring the Debenture for its own account for investment and not with the view to the distribution thereof, except in accordance with applicable federal and state securities laws. 10 6 SECTION 5. CONDITIONS TO CLOSING OF HC The obligations of HC to consummate the transactions contemplated hereby are subject to the fulfillment or waiver by HC of the following conditions: 5.1 REPRESENTATIONS. The representations and warranties of BST made in Section 3 hereof shall be true and correct in all material respects when made, and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if they had been made on and as of the Closing Date. 5.2 PERFORMANCE OF AGREEMENTS. All agreements and conditions contained in this Agreement to be performed by BST on or prior to the Closing shall have been performed or complied with in all material respects. 5.3 CERTIFICATE. BST shall have delivered to HC a certificate, dated the Closing Date, certifying to the fulfillment of the conditions specified in Sections 5.1 and 5.2 of this Agreement and the incumbency of certain officers of BST. SECTION 6. CONDITIONS TO CLOSING OF BST The obligations of BST to consummate the transactions contemplated hereby are subject to the fulfillment or waiver by BST of the following conditions: 6.1 REPRESENTATIONS. The representations and warranties of HC made in Section 4 hereof shall be true and correct in all material respects when made, and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if they had been made on and as of the Closing Date. 6.2 PERFORMANCE OF AGREEMENTS. All agreements and conditions contained in this Agreement to be performed by HC on or prior to the Closing Date shall have been performed or complied with in all material respects. 6.3 CERTIFICATE. HC shall have delivered to BST a certificate, dated the Closing Date, certifying to the fulfillment of the conditions specified in Sections 6.1 and 6.2 of this Agreement and the incumbency of certain officers of HC. 6.4 TERMINATION OF OBLIGATIONS. BST's obligations under the Operating Agreement shall have been terminated at or prior to the Closing. SECTION 7. COVENANTS OF THE PARTIES 7.1 REASONABLE EFFORTS. Upon the terms and subject to the conditions of this Agreement, each of the parties hereto agrees to use all reasonable efforts to take, or cause to be taken, all action, and to do or cause to be done all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. 11 7 7.2 TRANSFER RESTRICTIONS. (a) The HC Shares shall not be transferred or otherwise disposed of, in whole or in part, except pursuant to a registration statement under the Securities Act or pursuant to an exemption from registration thereunder. BST shall not transfer any HC Shares unless prior to the proposed transfer it shall have provided to HC an opinion of counsel (which counsel may be an employee of BST or its ultimate parent corporation) to the effect that no registration under the Securities Act is required in connection with the proposed transfer and that the proposed transfer is exempt from registration or qualification and is otherwise permissible under applicable state securities law. The foregoing notwithstanding, BST may transfer the HC Shares to an affiliate of BST designated by BST without delivery of the opinion of counsel required by the foregoing sentence (provided the affiliate (i) makes representations to HC in substantially the form of Section 3.8 hereof and (ii) agrees in writing in a form reasonably acceptable to HC to the provisions of this Agreement relating to the HC Shares). The registration rights described below in Section 8 shall be transferable in connection with a transfer of all, but not less than all, of the HC Shares to the extent permitted herein. (b) The certificates representing the HC Shares shall bear such legends as may be deemed reasonably necessary by HC, including without limitation the following: "The shares evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or under the securities laws of any state. Except as may be permitted by that certain Debenture Purchase Agreement, dated as of January 1, 1997, by and between BellSouth Telecommunications, Inc. and Harbinger Corporation, the shares may not be sold, transferred, pledged or hypothecated in the absence of an effective registration statement under the Securities Act of 1933, as amended, and such registration or qualification as may be necessary under the securities law of any state, or an opinion of counsel (who may be an employee of BST or its ultimate parent corporation) which opinion and counsel shall be satisfactory to the Company and its counsel, that such registration or qualification is not required." 7.3 ASSUMPTION OF INDEMNIFICATION OBLIGATIONS. HC hereby assumes effective upon the dissolution of the Company the obligation of the Company pursuant to Section 5.11 of the Operating Agreement to indemnify the managers of the Company. SECTION 8. REGISTRATION RIGHTS 8.1. DEMAND REGISTRATION RIGHTS. (a) Upon written notice delivered by the Holder (as defined in Section 8.7) to HC following the six (6) month anniversary of the Closing Date, HC agrees to effect on one occasion a registration on behalf of the Holder on a "shelf" registration statement all of the HC Shares for sale in the open market for a period not to exceed 45 days as provided in this Section 8.1. Such registration statement shall be on Form S-3 if HC is eligible to use such form. The fees and expenses of such registration and offering shall be borne by HC; provided, however, that the Holder will pay all of the underwriting discounts and 12 8 commissions, transfer taxes, transfer agent fees and the expenses, disbursements and charges of their own counsel with respect to the HC Shares. (b) Whenever required under this Section 8.1 to effect the registration of the HC Shares, HC shall use its reasonable efforts to: (i) Prepare and file with the Securities and Exchange Commission (the "Commission") a registration statement with respect to all of the HC Shares, cause such registration statement to become effective, and keep such registration statement effective for up to forty-five (45) days or until all such shares are sold, whichever is earlier; and (ii) Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement (including documents incorporated therein) as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all HC Shares covered by such registration statement. (c) The Holder may request that the offer of its shares be underwritten and shall include in its request made pursuant to this Section 8.1 the name of the managing underwriter or underwriters, if any, that the Holder would propose to employ in connection with the public offering proposed to be made pursuant to the registration requested. In the event the Holder's offer of HC Shares is underwritten at its request, notwithstanding any other provision of this Agreement, the Holder shall bear the incremental expense incurred by HC relating to the use of the underwriter or underwriters in connection with the Holder's offer of its HC Shares, including without limitation incremental legal and printing expenses associated with changes made in the content or number of prospectuses due to the involvement of such underwriter or underwriters. HC may object to any managing underwriter or underwriters proposed by the Holder, in which case the Holder shall propose another managing underwriter or underwriters that is or are reasonably acceptable to HC. HC and the Holder shall each use its reasonable efforts to enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting in the manner set forth above. HC will take such reasonable actions as are necessary to comply with the terms and obligations of such underwriting agreement and will furnish such underwriters and their respective representatives full access to all information reasonably requested in connection with their due diligence review of HC and its operations. (d) HC shall be entitled to defer for a reasonable period of time, but not exceeding ninety (90) days, the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 8.1 if HC's Board of Directors determines in good faith that such deferral is necessary to avoid a requirement to disclose prematurely information regarding a possible merger or acquisition transaction or they otherwise determine in good faith that such deferral is in the best interests of HC and its shareholders. If HC shall so postpone the filing of a registration statement, the Holder shall have the right to withdraw such request for registration by giving written notice to HC within fifteen (15) days after receipt of notice from HC of such postponement. In the event of such withdrawal, such request shall not be counted for purposes of Section 8.1 hereof. (e) HC shall be entitled to include in any registration statement referred to in this Section 8.1, for sale in accordance with the method of disposition specified by the Holder, shares of HC's common stock to be sold by HC for its own account, or other shareholders for their own account (except as and to the extent that, in the opinion of the managing underwriter if such method of disposition shall be effected in HC's sole discretion as an Underwritten Public Offering, such inclusion would result in any of the HC Shares being excluded from the offering or would materially adversely affect the marketing of the HC Shares). For purposes of this Section 8, "Underwritten Public Offering" means a public offering of HC's common stock for cash which is offered and sold in a registered transaction on a firm commitment underwritten basis through one or more underwriters, all pursuant to an underwriting agreement between HC and any selling shareholders on the one hand and such underwriters on the other hand. 13 9 (f) Anything in this Section 8.1 to the contrary notwithstanding, HC shall not be required to file a registration statement requested pursuant to this Section 8.1 which would be declared effective after the last day of a fiscal year of HC and prior to the earlier of the date on which HC's audited financial statements for such fiscal year are first available or 75 days after the end of the fiscal year, or in a manner which would require the inclusion of financial statements other than such audited financial statements. (g) No request for registration under this Section 8.1 may be made within six (6) months after the effective date of any other registration statement filed by HC or within three (3) months after the completion of the sale of the securities included in any other registration statement filed by HC. If a registration statement requested pursuant to this Section 8.1 shall not have become effective within twelve (12) months after the initial filing thereof with the Commission as a result of any reason other than (i) a material adverse development in the business or condition (financial or other) of HC or (ii) any act or matter within the control of HC, or if such registration statement shall be abandoned or withdrawn at the request of the Holder, then HC shall be deemed to have satisfied its obligation to register the HC Shares pursuant to this Section 8. 8.2. "PIGGYBACK" REGISTRATION RIGHTS. If HC at any time after the date hereof and prior to the date on which the Holder delivers the notice contemplated by Section 8.1(a) proposes to register under the Securities Act any class of HC's equity or debt securities for sale to the public on a general form registration statement on Form S-1, S-2, S-3 or any successor form, then and in each such case HC shall give fifteen (15) days prior written notice of such proposed registration to the Holder and shall cause such number of HC Shares as shall be requested by the Holder within ten (10) days thereafter to be included, upon the same terms (including the method of distribution), in any such offering; provided that the number of HC Shares requested to be included by the Holder must be at least (i) one-half of the HC Shares originally issued hereunder or (ii) the number of HC Shares then owned by the Holder, whichever is less. HC may, without the consent of the Holder, withdraw any such registration and abandon any proposed offering if in the reasonable good faith belief of the Board of Directors of HC such withdrawal and abandonment appears to be in HC's best interests. The failure of the Holder to exercise its rights hereunder with respect to any registration shall not constitute a waiver of its rights to participate in any other registration or to demand registration of HC Shares under Section 8.1 hereof. The foregoing obligations shall be subject to the following conditions and limitations: (i) HC shall not be required to give such notice or include any HC Shares in any form of registration statement unless such HC Shares of the Holder are eligible for inclusion in the applicable form of registration statement as described above; (ii) In an Underwritten Public Offering of the HC Shares, the Holder shall agree (a) to have the HC Shares sold to or by such underwriter or managing agent on terms substantially equivalent to the terms upon which HC is selling the securities so registered by it, and (b) to delay the sale of any securities of HC not sold by it in such registration statement for the period requested by such underwriter or managing agent up to 180 days following the effective date of such registration statement; (iii) If any underwriter in such Underwritten Public Offering shall advise HC that it declines to include a portion of the HC Shares requested by the Holder to be included in the registration statement, then in case of an exclusion as to a 14 10 portion of such HC Shares, such portion shall be allocated in proportion to the respective number of shares of common stock requested to be registered by all such holders of HC's securities; and (iv) The fees and expenses of the offering shall be borne by HC; provided, however, that the Holder will pay all of the underwriting discounts and commissions, transfer taxes, transfer agent fees and the expenses, disbursements and charges of their own counsel with respect to the HC Shares. 8.3. UNDERTAKINGS OF HOLDER. As a condition of the registration provided for in this Section 8, the Holder shall (a) furnish such information concerning itself and the terms of its proposed offering to HC as requested in connection with such registration; (b) agree to indemnify HC (and each of its officers and directors who have signed the registration statement relating to the registration) and each person, if any, who controls HC within the meaning of the Securities Act, the underwriters and each person, if any, who controls such underwriter within the meaning of the Securities Act, to the extent reasonably deemed necessary by HC with respect to the accuracy of any information so furnished by the Holder; and (c) reasonably cooperate with HC and its representatives to cause such registration to become effective at the earliest practicable time. 8.4. ADDITIONAL UNDERTAKINGS OF HC. Without limiting the generality of the provisions of Section 8, if and whenever HC is under an obligation to effect the registration of any HC Shares, HC shall at its sole cost and expense: (i) furnish to the Holder such numbers of each prospectus (including each preliminary prospectus and prospectus supplement) in conformity with the requirements of the Securities Act, and such other documents as are reasonably requested by the Holder to facilitate the public offering of its HC Shares; and (ii) use its reasonable efforts to register or qualify the HC Shares covered by such registration under the securities or blue sky laws of such jurisdictions (and shall do any and all other acts or things) as is reasonable to enable the Holder to consummate the public sale or the disposition of its HC Shares; provided, however, that HC shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. 8.5. INDEMNIFICATION BY HC. In connection with the offering contemplated by this Section 8, HC will indemnify the Holder (and each of its officers, directors and controlling persons, if any, within the meaning of the Securities Act), and each underwriter for HC, the Holder and each person, if any, who controls such underwriter within the meaning of the Securities Act, against any and all loss, liability, claim, damage and expense whatsoever arising out of any (a) untrue statement of a material fact contained in the registration statement, or the omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance upon and in conformity with information furnished or confirmed to HC by the Holder, or any other person who might be entitled to indemnification hereunder, for use in such registration statement, prospectus or supplement, or (b) violation by HC of any law or rule or regulation relating to action or inaction required by HC in connection with such registration statement or the offering contemplated thereby. 15 11 8.6 RULE 144 REQUIREMENTS. With a view to making available to the Holder the benefits of Rule 144 (or any successor rule thereto) promulgated under the Securities Act, HC agrees to file with the Commission in a timely manner all reports and other documents required of HC under the Securities Act and the Securities Exchange Act of 1934, as amended. The Holder's right to require HC to register the HC Shares pursuant to Sections 8.1 and 8.2 shall not be exercisable at any time during which any HC Shares are eligible for sale in the open market pursuant to Rule 144 (or any successor rule thereto) under the Securities Act. 8.7 TRANSFER OF REGISTRATION RIGHTS. For purposes of this Section 8, the term "Holder" shall refer to BST and any assignee who is an affiliate of BST (a "Permitted Assignee"). The registration rights described in this Section 8 shall be transferable only in connection with a transfer of all, but not less than all, of the HC Shares and only upon the Permitted Assignee agreeing in writing to the provisions of this Section 8. SECTION 9. MISCELLANEOUS 9.1. GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the State of Georgia. 9.2. SURVIVAL. The representations, warranties, covenants and agreements made herein shall survive the closing of the transactions contemplated hereby. 9.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the provisions hereof shall insure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. 9.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents delivered pursuant hereto at the Closing constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof, and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein. Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought. 9.5 NOTICES. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed to each party, at such address set forth on the signature page, or at such other address as such person shall have furnished to the other parties in writing. Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given when delivered if delivered personally, or, if sent by mail, at the earlier of its receipt or 48 hours after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid. 9.6. EXPENSES. Each party shall pay its own expenses and legal fees incurred with respect to this Agreement and the transactions contemplated hereby. 9.7 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. 16 12 9.8. SEVERABILITY. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect, and the invalid unenforceable provision shall be modified to the extent necessary to make it valid and enforceable. 9.9. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 9.10. GOOD FAITH ACTIONS. The parties to this Agreement agree to act in good faith in exercising, fulfilling and performing their respective rights, obligations and agreements hereunder. The foregoing agreement shall not be deemed to be in derogation of any obligation to act in good faith otherwise applicable to any party at law or in equity. 17 13 The foregoing agreement is hereby executed as of the date first above written. BELLSOUTH TELECOMMUNICATIONS, INC. By: /s/ Robert L. Capell III ----------------------------- HARBINGER CORPORATION By: /s/ C. Tycho Howle ----------------------------- Address: 1055 Lenox Park Boulevard Atlanta, Georgia 30319 18 EX-99.1 3 PRESS RELEASE DATED 1/2/97 1 EXHIBIT 99.1 Contacts: Rebecca Metzger Marketing Communications Harbinger Corporation Phone: 404-467-3211 E-Mail: rmetzger@harbinger.com Internet: www.harbinger.com For Immediate Release.... HARBINGER CORPORATION COMPLETES ACQUISITION AND INTEGRATION OF HARBINGER NET SERVICES ATLANTA - (January 2, 1997) - Harbinger Corporation (NASDAQ:HRBC), today announced the completion of the purchase of 100% of the equity in its Harbinger NET Services (HNS) subsidiary. Harbinger announced last October that it would acquire the 30% equity interest in Harbinger NET Services currently owned by BellSouth Telecommunications, Inc. and other minority shareholders for approximately $7.2M in consideration. Those plans have been executed on schedule. "Harbinger is better positioned to compete in the marketplace as a result of this acquisition in two significant ways," began Tycho Howle, Harbinger Corporation Chairman and Chief Executive Officer. "First, we have eliminated the potential organizational confusions between Harbinger and Harbinger NET Services. Second, the marketplace has indicated to us that we need to deliver solutions which broaden the level of participation among their trading partners. We believe that the Internet represents a key missing link in the equation. With the acquisition now complete, Harbinger Corporation's entire product line will utilize the rich Internet-based offerings developed by HNS in order to meet this Internet connectivity requirement. In short, Harbinger begins 1997 positioned to deliver the strongest set of electronic commerce products and services in the industry." Howle added, "We would like to take this opportunity to express our gratitude to our joint venture partner, BellSouth, for their participation in the HNS venture and for their cooperation in putting HNS and Harbinger Corporation back together. Their involvement and support played a key role in enabling us to create this new venture on the scale we undertook," Howle added. BellSouth remains an important customer of Harbinger Corporation, and with this transaction, becomes a significant shareholder. The HNS products have now been integrated into Harbinger Corporation's total product offering. This allows Harbinger Corporation to address the entire electronic commerce market with specific products and services targeted at defined niches. These market segments range from the largest users of electronic commerce to those smaller businesses whose transaction volumes warrant a simple, low-cost solution. The new Web-based EDI service from HNS, Harbinger Express, which was designed for companies that exchange smaller quantities of business documents, becomes Harbinger's entry-level EDI offering. Meanwhile, Harbinger's flagship desktop product, TrustedLink Commerce, is now complemented by the HNS product TrustedLink Guardian, enabling companies to securely send EDI documents via the Internet. 19 2 Harbinger's enterprise-level EDI solutions, TrustedLink Enterprise, are similarly Internet-enabled with the HNS TrustedLink Guardian offering. Regarding the company's network solutions, the Harbinger Value-Added Network (VAN) is now fully integrated with the Internet Value-Added Server (IVAS) architecture developed by HNS, allowing customers to seamlessly and securely route messages between the Internet and Value-Added Networks. In addition, Harbinger continues to have success with HNS's TrustedLink INP, the industry's easiest Web site creation and management offering which empowers small to mid- sized businesses to establish their own instant net presence. From the human resource perspective, Howle noted, "As we anticipated, we have retained all fifty-five HNS employees. HNS had a highly qualified, motivated and talented team and we are pleased that they have all remained with the company. Integration has occurred at all levels. Among the new assignments: HNS president James Davis has assumed the role of President of Harbinger's Network and Mass Deployment division, which develops and markets the company's desktop EDI products as well as its Value-Added Network. Bob Geiger, formerly HNS Vice President of Development and Operations, has become General Manager of the Network Solutions Division. Ron Rosenthal, HNS's Director of Strategic Relations, has been appointed Director of Product Management in the Harbinger Enterprise Solutions division, where he is responsible for developing marketing programs for enterprise wide IVAS (Internet Value-Added Server) solutions. Dennis Freeman, who headed HNS's Product Management and Marketing group, takes the role of Senior Director for Product Management and Marketing, with responsibility for the combined company's desktop EDI products. Harbinger Corporation is one of the largest electronic commerce providers in the world, with more than 23,000 billable subscribers and more than 39,500 active mailboxes on its global value-added network. In addition to millions of electronic data interchange transactions, over 1.5 billion dollars in Automated Clearing House (ACH ) transfers flow through the Harbinger network each month. Since 1988, Harbinger has been dedicated to providing the electronic commerce industry with comprehensive EC/EDI software solutions for MVS(R), AS/400(R), Windows NT(R), UNIX, Windows(R) 95, Windows(R) 3.x and DOS. Harbinger offers worldwide service and support. Harbinger's corporate headquarters are located in Atlanta, Harbinger's Enterprise Solutions Division is headquartered in Dallas, and the company's European operations are in several countries including The Netherlands and Germany. For additional information on Harbinger, please visit our site on the World Wide Web at http://www.harbinger.com. ### Harbinger and TrustedLink are trademarks or registered trademarks of Harbinger Corporation. All other company and product names referenced herein are trademarks or registered trademarks of their respective owners. 20 EX-99.2 4 PRESS RELEASE DATED 10/28/96 1 EXHIBIT 99.2 Contacts: James C. Davis Joel G. Katz President, Harbinger Group Operations Vice President, Finance Harbinger Corporation Harbinger Corporation Phone: 404-841-4334 ext. 3143 Phone: 404-841-4334 ext. 3011 E-mail: jdavis@harbinger.com E-Mail: jkatz@harbinger.com Internet: www.harbinger.com Internet: www.harbinger.com
For Immediate Release... HARBINGER CORPORATION TO ACQUIRE 100% OF HARBINGER NET SERVICES, LLC ATLANTA -- (October 28, 1996) -- Harbinger Corporation (NASDAQ: HRBC) today announced its intent to purchase the remaining 30% equity interest in Harbinger NET Services, LLC (HNS), currently a 70% owned subsidiary, from BellSouth Telecommunications, Inc. (BellSouth) and other minority shareholders for approximately $7.2M in consideration. Harbinger will pay BellSouth $1.5 million in cash and approximately $4.2 million in Harbinger Corporation common stock for its approximately 24% interest in HNS and approximately $1.5 million in cash to the other minority shareholders. Management anticipates a first quarter 1997 charge of between $6 million and $7.5 million as a result of the combination related to in-process R&D charges and associated integration costs. Harbinger is retaining all of HNS's 60 employees. Formed in 1994 to develop Internet EC products and services for the business market, HNS was funded with approximately $12 million in June 1995 ($9 million from Harbinger and $3 million from BellSouth). HNS introduced its first product this year, TrustedLink INP, a web site development tool for the non-technical user. HNS has also developed, and is currently in Beta with several other Internet electronic commerce products, including TrustedLink Guardian, a security and encryption document management tool: Harbinger Web Xpress, a Web EDI product and services offering; and IVAS (Internet Value Added Server) platform technology. "The consolidation of HNS with Harbinger Corporation creates both operational and market efficiencies," said C. Tycho Howle, Chairman and CEO of Harbinger Corporation. "HNS has made substantial progress in building its first family of products for the Internet. These are excellent products which are getting very favorable reviews from early customers. We have found that the most promising opportunities we see for our Internet products require integration of HNS and Harbinger technologies. Further, these opportunities appear to be more vertical market oriented around specific trading communities, which is Harbinger Corporation's approach to marketing its products. One of the 21 2 considerations in forming HNS was to provide a vehicle for horizontal marketing across multiple industries at the same time. We continue to believe that there are horizontal market opportunities but we believe that they should be pursued through alliance partners such as our recently announced alliance with Peachtree Software. Putting the HC and HNS organizations together allows our sales force and partners in the U.S. and around the globe to more easily license a complete portfolio of EC products. With this consolidation, HNS can leverage off of Harbinger's existing infrastructure and sales channels, thus lowering its administrative and marketing costs going forward. Lastly, we have found that Internet technologies are integral to all of Harbinger Corporation's products and services, and we intend to continue investing heavily in this area going forward. Given those plans, it would have become increasingly difficult to separate staff members and products and for the HC and HNS organizations to remain separate legal entities." "BellSouth and Harbinger will continue to work together in this area in the future", noted Rob Capell, Vice President of Strategic Management of BellSouth. "Harbinger and BellSouth share a common interest in the mass deployment of electronic commerce and in providing Internet-based products and services. We are pleased that we will be able to continue our involvement with Harbinger through our equity ownership interest," said Mr. Capell. Mr. Howle continued: "As to the financial impact of this combination, we are currently working on our 1997 financial plan, and we cannot be specific on the expected impact. However, based on our current view of our business, we can say that we do not believe that the transaction will have a negative impact on our earnings prospects going forward (excluding the one time first quarter charge described in the first paragraph), and in fact believe the combination may be accretive to the earnings of the company's base business in 1997." This press release includes forward-looking statements relating to Harbinger that involve risks and uncertainties including, but not limited to, quarterly fluctuations in results, the management of growth, market acceptance of certain products and other risks. For further information about these and other factors that could effect Harbinger future results, please see the company's reports filed with the Securities and Exchange Commission, including the company's Form 10-K for the year ended December 31, 1995. Actual results may differ materially from management expectations. Headquartered in Atlanta, Georgia, BellSouth Telecommunications, Inc. provides communications services for nearly 22 million access lines in a nine-state region that includes Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina and Tennessee. 22 3 Harbinger Corporation is one of the largest Electronic Commerce providers in the world, with an installed base of its end-user software of 24,000 and more than 30,000 active mailboxes on its value-added network. In addition to millions of EDI transactions, over $1.5 billion in Automated Clearing House (ACH) transfers flow through the Harbinger Network each month. Since 1988, Harbinger has been dedicated to providing the Electronic Commerce industry with comprehensive EC/EDI software solutions for all major platforms, including MVS mainframes, AS/400(R) and UNIX(R), NT(R), midrange systems, and Windows(R) and DOS personal computers. Harbinger's corporate headquarters are located in Atlanta, Harbinger's Enterprise Solutions Division is headquartered in Dallas, and the company's European operations are in several countries including The Netherlands and Germany. For more information, please visit Harbinger's site on the World Wide Web at http://www.harbinger.com. ### Harbinger is a trademark of Harbinger Corporation. All other company and product names referenced herein are registered trademarks or trademarks of their respective owners. 23 -----END PRIVACY-ENHANCED MESSAGE-----